section 490.021(5)

INTRODUCTION AND BRIEF DESCRIPTION

An affidavit of the person who served the notice is evidence of service and notice if it includes specific information.

SECTION WORDING

490.021(5) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that (a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case; (b) the notice was personally served on, or mailed to, the person to whom it was directed on a named day; and (c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.

EXPLANATION

Section 490.021(5) of the Criminal Code of Canada establishes the legal standard for proving that a notice has been served on an individual or party in a particular case. This section provides that an affidavit from the person who served the notice will be considered evidence of the service and the notice, as long as it meets three specific requirements. Firstly, the person who served the notice must have charge of the appropriate records and have knowledge of the facts in the particular case. This ensures that the individual has the necessary information and authority to serve the notice. Secondly, the notice must have been personally served on, or mailed to, the person to whom it was directed on a named day. This requirement ensures that the notice was delivered directly to the intended recipient or properly mailed to them, thereby establishing that they were informed of the contents of the notice. Finally, the person who served the notice must identify a true copy of the notice as an exhibit attached to the affidavit. This requirement ensures that the contents of the notice are authentic and that the recipient received a complete and accurate version of the notice. Together, these requirements establish a clear and reliable standard for proving that a notice has been served in a particular case, thereby helping to ensure that individuals and parties receive the legal information they need to proceed with their case.

COMMENTARY

Section 490.021(5) of the Criminal Code of Canada is a critical provision concerning the admissibility of an affidavit as evidence of service and notice in a criminal proceeding. The provision sets out the requirements that an affidavit must meet for it to be considered valid evidence in court. Firstly, the affidavit must be sworn before a commissioner or other person authorized to take affidavits. This requirement ensures that the affidavit is made under oath, meaning the person making the statement is attesting to the truthfulness of the statement they are making. This holds the person accountable for any false statements they make, as per the provisions of the Criminal Code. Secondly, the affidavit must be made by the person who served the notice. The individual making the affidavit must have charge of the appropriate records and knowledge of the facts in the particular case. This requirement ensures that the person making the affidavit has a clear understanding of the case they are testifying about and that they are well-placed to testify to the notice's service. Thirdly, the affidavit must confirm that the notice was personally served on, or mailed to, the person it was directed to on a named day. This requirement ensures that notice was properly served upon the recipient, and the recipient had adequate notice of the proceedings as required by law. Lastly, the person making the affidavit must identify a true copy of the notice as an exhibit attached to the affidavit. This requirement ensures that the notice is attached to the affidavit as proof that the recipient was indeed served with the notice, and the person making the affidavit is attesting to its authenticity. The provision offers assurance to the court that the evidence of service and notice presented is credible and reliable. This is crucial as it allows the court to rely on such evidence while making its determination, thus upholding the principles of justice and fairness. The section makes it difficult for an individual to dispute the admissibility and service of notice, especially where there is a proper affidavit. However, it does not limit an individual's right to contest the notice's lawfulness, fair notice, or lack of proper service. In conclusion, Section 490.021(5) serves to streamline the service of notice process and provides an efficient means of introducing evidence of service and notice in criminal proceedings. It is a critical provision that upholds the integrity of the justice system and the fundamental principle of fair hearing.

STRATEGY

Section 490.021(5) of the Criminal Code of Canada is an essential component of the process of informing persons of the forfeiture of property. Specifically, it outlines the required steps of notifying a person of the intention to seize and forfeit their property, and the evidentiary requirements to demonstrate that such notification has taken place. A key strategic consideration when dealing with this section is to ensure that the affidavit of the person who served the notice is complete and accurate. The affidavit serves as evidence of service and the notice, and any deficiencies or errors in the affidavit could lead to challenges and complications in court. Therefore, care should be taken to ensure that the affidavit complies with all the requirements of the section, including the identification of a true copy of the notice as an exhibit attached to the affidavit. Another strategic consideration is the timing of the service of the notice. The section requires that the notice be personally served on or mailed to the person to whom it was directed on a named day. Therefore, it is important to ensure that the notice is served in a timely manner and that the named day is clearly identified. Any delays or missed deadlines could result in challenges to the validity of the notice and ultimately the forfeiture of the property. In addition, it may be strategic to consider the manner in which the notice is served. While personal service is preferred, in some cases, it may be more practical to serve the notice by mail or other means. In such cases, it is important to ensure that the notice is sent to the correct address and that the person to whom it is addressed is easily identifiable. Finally, it may be strategic to consider the nature of the property being seized and the potential impact of the forfeiture on the individual. For example, in cases where the property is essential to the person's livelihood or well-being, it may be appropriate to offer alternative arrangements or compensation as part of the forfeiture process. By demonstrating compassion and empathy, law enforcement officials can build goodwill and cooperation with the individuals affected by the forfeiture. In conclusion, dealing with section 490.021(5) of the Criminal Code of Canada requires careful attention to detail, timing, and strategy. By ensuring that the affidavit is complete and accurate, serving the notice in a timely and appropriate manner, and considering the potential impact of the forfeiture on the individual, law enforcement officials can effectively navigate the forfeiture process and minimize potential challenges and complications.