INTRODUCTION AND BRIEF DESCRIPTION
An individual can apply to a court for an exemption from the obligation to provide a DNA sample within one year of being served a notice in Form 54.
SECTION WORDING
490.02905(1) A person who is served with a notice in Form 54 under section 490.02903 may apply to a court of criminal jurisdiction for an order exempting them from the obligation within one year after they are served.
EXPLANATION
Section 490.02905(1) of the Criminal Code of Canada provides a mechanism for individuals who have been served with a notice in Form 54 under section 490.02903 to apply to a court for an order exempting them from the obligation within one year of being served. This section is part of the broader regime for the forfeiture of property in the context of criminal proceedings. Section 490.02903 allows the Crown to serve a notice on a person whose property has been seized by the police in connection with a criminal offence. The notice requires the person to provide information about the property, including its ownership, value, and source of funds used to acquire it. The purpose of the notice is to facilitate the Crown's application for a forfeiture order in respect of the property. However, in some cases, the person served with the notice may have a legitimate claim to the seized property and may not want to provide the requested information. In such cases, section 490.02905(1) provides an avenue for the person to seek an exemption from the obligation to provide the information. To qualify for an exemption, the person must apply to a court of criminal jurisdiction within one year of being served with the notice. The court will consider the circumstances of the case, including the person's reasons for seeking the exemption and the impact on the administration of justice if the exemption is granted. If the court grants the exemption, the person will not be required to provide the information requested in the notice. Overall, section 490.02905(1) is an important safeguard for individuals whose property has been seized in connection with a criminal offence. It ensures that individuals have the opportunity to seek an exemption from the obligation to provide information that could potentially be used against them in a forfeiture proceeding.
COMMENTARY
Section 490.02905(1) of the Criminal Code of Canada provides a provision that gives individuals an opportunity to apply for an exemption from the obligation of providing a DNA sample. This section of the Criminal Code of Canada has been integrated in the legal system of the country to promote the equity and fairness needed in conducting criminal investigations while also ensuring that individuals' rights and freedoms are protected under the law. The collection of DNA samples has become a significant aspect of modern criminal investigations around the world. This is because DNA analysis can help identify perpetrators, convict the guilty, and free the innocent. However, there have also been instances where the collection of DNA samples has been considered invasive, restrictive, and unnecessary because of the potential negative impact it can have on individuals' rights. Therefore, section 490.02905(1) was established to ensure that individuals who are served with a notice to provide a DNA sample have a legal platform for exemption. This section asserts that an offender may apply to a court of criminal jurisdiction to exempt them from the obligation of providing DNA samples by submitting an application within one year of the notice. The application process for the exemption is carefully laid out to ensure that the interest of justice is upheld. Any person applying for an exemption must provide a detailed explanation of why they believe they should be exempted from the inventory. This application must be supported with evidence, arguments, and advocacy by lawyers or legal representatives. Furthermore, the exemptions may only be granted by a court of criminal jurisdiction or a judge, where it can be established that the interests of justice would be better served by exempting the offender from providing a DNA sample. This includes cases where there is no probable cause to suspect the offender of committing a violent or sexual-related crime, or where the DNA sample would not serve any further investigative or evidential purpose in the case. One of the benefits of section 490.02905(1) is that it promotes transparency and accountability in the Criminal Justice System. It gives people an avenue to challenge the government's use of DNA evidence and have their grievances heard by the court. This provision ensures that the government is held responsible for the actions they take while maintaining the rule of law. In summary, section 490.02905(1) of the Criminal Code of Canada is a vital part of the legal system in the country as it serves as an essential safety net for individuals who may be affected negatively by DNA inventory regulations. This legal provision guarantees that individuals' rights are protected and ensures that the Criminal Justice System is operated within the confines of the law. It is a necessary component of the Criminal Code of Canada that enhances the efficiency and objectivity of the Canadian Justice System.
STRATEGY
Section 490.02905(1) of the Criminal Code of Canada presents a unique opportunity for individuals who have been served with a notice in Form 54 to apply to a court of criminal jurisdiction for an order exempting them from the obligation within one year after they are served. This provision allows individuals to have their name removed from law enforcement databases, including the Canadian Police Information Centre (CPIC), which contain records of criminal charges and other police-related information. There are several strategic considerations that individuals should take into account when dealing with this section of the Criminal Code of Canada. Firstly, it is important to understand the legal requirements for making an application under this section. In order to be eligible, an individual must have been served with a notice in Form 54 under section 490.02903, which outlines the consequences of being charged with an offence and the process for obtaining a record suspension. Furthermore, the application must be made within one year of being served with the notice. Secondly, individuals must consider the potential benefits and drawbacks of seeking an exemption under this section. On one hand, having a criminal record can have serious consequences for an individual's life, including difficulty finding employment, housing, and even travelling. Seeking an exemption under this section can therefore offer significant relief from the negative effects of a criminal record. On the other hand, seeking an exemption can also be a complex and time-consuming process, requiring legal representation and extensive documentation. Moreover, there is a risk that the application can be denied, which may further damage an individual's reputation and hinder their ability to reintegrate into society. In order to mitigate the risks and maximize the potential benefits of seeking an exemption under this section of the Criminal Code, there are several strategic considerations that individuals can employ. One strategy is to gather all relevant information and documentation before making an application. This can include records of the criminal charges, any relevant court documents, and letters of recommendation or character references. It is also advisable to obtain legal representation to ensure that the application is properly prepared and presented to the court. Another strategy is to be upfront and honest about the circumstances surrounding the criminal charges. Individuals should be prepared to explain why they were charged and what they have done to change their behaviour since then. This can include rehabilitation programs, therapy, or community service. By being transparent and demonstrating a willingness to take responsibility for their actions, individuals can improve their chances of being granted an exemption under this section. In addition, it is important to consider the potential long-term consequences of seeking an exemption. While the immediate benefits of having a criminal record removed from law enforcement databases may be substantial, there may be unintended consequences in the future. For example, it may be difficult to obtain employment in certain industries that require criminal background checks, or a potential employer may view the act of seeking an exemption as a sign of dishonesty or lack of accountability. Therefore, individuals should carefully weigh the potential benefits and drawbacks before making an application. In conclusion, section 490.02905(1) of the Criminal Code of Canada provides a valuable opportunity for individuals to seek an exemption from the obligations imposed by a criminal record. However, there are significant strategic considerations that individuals must take into account before making an application. By gathering all relevant information, obtaining legal representation, being transparent and honest about their circumstances, and weighing the potential benefits and drawbacks, individuals can maximize their chances of success and improve their ability to reintegrate into society.