INTRODUCTION AND BRIEF DESCRIPTION
An affidavit of the person who served the notice is evidence of service if it includes details such as personal service and a true copy of the notice.
SECTION WORDING
490.02903(2) 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 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 490.02903(2) of the Criminal Code of Canada pertains to the service and notice requirements for an order to produce or access electronic evidence. This section outlines the necessary steps for serving notice of such an order, which must be done in accordance with due process and to protect the rights and privacy of individuals. An affidavit by the person who served the notice is considered evidence of the service and notice if it meets specific criteria, including affirming that the notice was personally served on the individual, and that the affiant has knowledge of the circumstances. A true copy of the notice must also be attached to the affidavit as an exhibit. This section ensures that fair and due process is followed when seeking access to electronic evidence in a criminal investigation. It requires that proper notice is served on individuals to whom the order applies, with clear identification of the documents and evidence sought, and that the notice is served personally on the named individual. By requiring an affidavit to substantiate the service of notice, the Criminal Code of Canada mandates that this process must be taken seriously and with proper documentation. This section underscores the importance of protecting the civil liberties and privacy rights of individuals, even in the context of criminal investigations, and ensuring that they are afforded proper notice and access to procedural protections.
COMMENTARY
Section 490.02903(2) of the Criminal Code of Canada deals with the evidence required to prove that a notice was properly served on an individual. The section provides a procedure that must be followed for a notice to be considered legally served, and it outlines the evidentiary requirements for proving that it was served in the correct manner. Under subsection (2), an affidavit of the individual who served the notice may be used as evidence of service and the notice if it meets certain criteria. These include that the person serving the notice has charge of the appropriate records and has knowledge of the facts in the particular case, that the notice was personally served on the recipient on a named day, and that a true copy of the notice is attached to the affidavit. The purpose of this section is to ensure that notices are properly served on individuals in order to provide them with notice of important legal proceedings or instructions. Without proper service, an individual may not be aware of their legal rights or responsibilities, which could result in negative consequences. The requirement for personal service is important because it ensures that the individual has physically received the notice and is aware of its contents. This helps to prevent situations where an individual could claim they did not receive notice simply by denying it or refusing to accept it. Personal service also provides an opportunity for the individual being served to ask any questions they may have about the notice and seek legal advice if necessary. The use of an affidavit as evidence of service is also significant because it provides a written record that can be used in court to prove that the notice was served and received by the intended recipient. The affidavit is sworn before a commissioner or other person authorized to take affidavits, ensuring that the statement made in the affidavit is true and accurate. Overall, Section 490.02903(2) plays a critical role in ensuring that notices are properly served on individuals and that they have received and understood instructions or legal proceedings where they are a party. By providing strict criteria for evidence of service, the section helps to prevent misunderstandings or disputes about whether or not notice was properly given. This facilitates a smoother and more just legal process, ensuring that individuals are properly informed of their rights and responsibilities.
STRATEGY
Section 490.02903(2) of the Criminal Code of Canada is an important provision for individuals and organizations that are mandated to serve notices to individuals in the context of criminal proceedings. Serving a notice is a critical step in ensuring that the intended recipient is aware of the proposed action and has an opportunity to respond accordingly. However, serving a notice can be a complex and challenging process, particularly in cases where the intended recipient is difficult to locate or avoids service. In this context, it is essential to consider a range of strategic considerations to ensure that the requirements of Section 490.02903(2) are met and that the notice is properly served. Some of the strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada include: 1. Understanding the legal requirements: It is important to have a clear understanding of the requirements set out in Section 490.02903(2) of the Criminal Code of Canada. This includes understanding the key elements that must be included in the affidavit, such as the identification of the person who served the notice, the date of service, and the inclusion of a true copy of the notice. By understanding these legal requirements, it is possible to ensure that the notice is properly serviced, which can help to avoid any legal challenges down the line. 2. Documenting the service process: It is essential to document the service process, including the date, time, and location of service. This documentation can be used as evidence in the event that the notice is challenged, and can help to establish that the notice was properly served. 3. Ensuring the notice is served in a timely manner: It is important to serve the notice in a timely manner to ensure that the recipient has sufficient time to respond. This can be particularly important in cases where the notice is time-sensitive, and delays in service could result in adverse consequences. 4. Employing different service methods: It may be necessary to employ different service methods, depending on the situation. For example, if the recipient is difficult to locate or avoids traditional service methods, alternative methods such as email or social media may be employed. However, it is important to ensure that any alternative service methods meet the legal requirements of Section 490.02903(2). 5. Engaging a professional process server: Finally, engaging a professional process server can be an effective strategy for ensuring that the notice is properly served. A process server has the experience and knowledge necessary to navigate the complexities of serving notices, and can help to ensure that the notice is properly served in accordance with Section 490.02903(2) of the Criminal Code of Canada. In conclusion, Section 490.02903(2) of the Criminal Code of Canada is an important provision that sets out the requirements for serving notices in criminal proceedings. To ensure that the notice is properly served, it is essential to consider a range of strategic considerations, such as understanding the legal requirements, documenting the service process, ensuring timely service, employing different service methods, and engaging a professional process server. By taking these considerations into account, it is possible to ensure that notices are properly served, which can help to ensure a fair and just criminal justice system.