section 490.02908(1)

INTRODUCTION AND BRIEF DESCRIPTION

A person subject to an obligation under section 490.02901 may apply for a termination order, unless they are subject to another obligation that started later.

SECTION WORDING

490.02908(1) A person who is subject to an obligation under section 490.02901 may apply to a court of criminal jurisdiction for a termination order unless they are also subject to another obligation under that section or to an obligation under section 490.019, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or an order under section 490.012 or under section 227.01 of the National Defence Act that began later.

EXPLANATION

Section 490.02908(1) of the Criminal Code of Canada pertains to individuals who are subject to an obligation under section 490.02901, which involves the requirement to provide a DNA sample for the National DNA Data Bank. This section allows such individuals to apply to a court of criminal jurisdiction for a termination order, which would effectively end their obligation to provide a DNA sample. However, this termination order cannot be granted if the individual is also subject to other obligations under the same section, or under section 490.019, section 227.06 of the National Defence Act, or section 36.1 of the International Transfer of Offenders Act, or has an order under section 490.012 or section 227.01 of the National Defence Act that began after their obligation to provide a DNA sample. The purpose of this section is to provide individuals who are subject to a DNA order with the ability to have that obligation terminated, assuming they meet all the requirements outlined in the legislation. This termination order can be sought if the individual no longer poses a risk to society or if they have already undergone rehabilitative measures and no longer require monitoring through DNA collection. However, it is important to note that this section also outlines various circumstances where such a termination order cannot be granted, aimed at ensuring public safety and security. Overall, section 490.02908(1) is an important provision within the Criminal Code of Canada that outlines the process for applying for a DNA order termination and the limitations on the ability to do so. It balances the rights of individuals with the safety of society, while providing a mechanism for those who no longer require DNA monitoring to seek a termination of their obligation.

COMMENTARY

Section 490.02908(1) of the Criminal Code of Canada provides individuals who are subject to an obligation under section 490.02901 the opportunity to apply to a court of criminal jurisdiction for a termination order. This section of the Criminal Code is particularly relevant in the context of conditional sentencing orders (CSOs) and probation orders, as these are the most common obligations imposed under section 490.02901. In essence, this provision allows individuals to seek early termination of their CSOs or probation orders, provided that they meet certain conditions. The conditions that must be met for an individual to apply for a termination order under section 490.02908(1) are twofold. First, the individual must be subject to an obligation under section 490.02901. Second, the individual must not be subject to any other obligations under that section or under other parts of the Criminal Code or National Defence Act (NDA) that began later. Essentially, this means that an individual who is subject to multiple obligations cannot seek early termination of one obligation without also terminating the others. The rationale behind this provision is to ensure that individuals do not try to circumvent their obligations under the Criminal Code or NDA. For example, an individual who is subject to both a CSO and a probation order may seek early termination of the CSO but continue to remain subject to the probation order. In this case, the individual would be trying to avoid the conditions of the CSO without facing the consequences of the probation order. This would be unfair to the individuals who are complying with both obligations and would undermine the purpose of the Criminal Code and NDA. In practice, section 490.02908(1) has been used by many individuals to seek early termination of their CSOs and probation orders. This is because these obligations can be onerous and restrictive, particularly for individuals who have already served a significant portion of their sentence. By allowing individuals to apply for early termination of their obligations, the Criminal Code acknowledges that people can change and that they should not be punished forever for their past actions. Moreover, enabling individuals to seek early termination of their obligations can be beneficial for the criminal justice system as a whole. It can help to reduce prison overcrowding, decrease the workload of probation officers, and enable individuals to reintegrate into society more quickly. Overall, section 490.02908(1) of the Criminal Code of Canada serves an important function in allowing individuals to seek early termination of their obligations under the Criminal Code and NDA. By doing so, it recognizes that people can change and seek to improve their lives, while also ensuring that individuals do not try to circumvent their obligations. As such, it strikes a balance between providing individuals with opportunities to turn their lives around and protecting the interests of society as a whole.

STRATEGY

When dealing with section 490.02908(1) of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. This section pertains to the termination of an obligation under section 490.02901, which is often referred to as a probation order. The probation order is a court order that places certain conditions on an offender after they have been convicted of a criminal offence. Some of the strategic considerations that must be taken into account when dealing with this section of the Criminal Code include the following: 1. Timing: One of the key strategic considerations when dealing with section 490.02908(1) is timing. According to the section, a person who is subject to an obligation under section 490.02901 can apply for a termination order unless they are subject to another obligation that began later. This means that the timing of the application is crucial. If the person applies too early, they may not be successful. Therefore, it is important to wait until all other obligations have been met before applying for a termination order. 2. Grounds for termination: Another important strategic consideration is the grounds for termination. The court will only grant a termination order if there are sufficient grounds for doing so. Some of the grounds that may be considered include the completion of the probation order, a change in circumstances, or a breach of the probation order by the offender. It is important to understand the specific grounds that will be considered by the court before making an application for a termination order. 3. Supporting evidence: When making an application for a termination order, it is important to provide supporting evidence to the court. This may include documentation showing that all of the conditions of the probation order have been met, or evidence demonstrating a change in circumstances that would warrant the termination of the order. The more compelling the evidence, the more likely it is that the court will grant the termination order. 4. Legal representation: Finally, it is important to consider whether to hire legal representation when making an application for a termination order. While it is not necessary to have a lawyer, having legal representation can be beneficial in navigating the complex legal system and ensuring that all necessary steps are taken to maximize the chances of success. In terms of strategies that could be employed when dealing with this section of the Criminal Code, some potential options include the following: 1. Utilizing legal resources: There are many legal resources available to individuals who are seeking to terminate a probation order. These may include legal aid clinics, community legal clinics, or private lawyers who specialize in criminal law. Utilizing these resources can provide valuable guidance and support in navigating the legal system. 2. Focusing on evidence: When making an application for a termination order, it is important to focus on providing compelling evidence to the court. This may involve gathering documentation, statements from witnesses, or other types of evidence that support the argument for termination. 3. Being patient: Because timing is such an important consideration when seeking a termination order, it is important to be patient and wait until all other obligations have been met before making an application. This may involve following the conditions of the probation order closely and ensuring that no additional legal issues arise during the period of the order. 4. Seeking legal advice: Finally, seeking legal advice from a lawyer who specializes in criminal law can be an effective strategy for navigating the legal system and ensuring that all necessary steps are taken to maximize the chances of success. A lawyer can provide guidance on the specific grounds for termination, the types of evidence that will be most persuasive, and the procedural steps involved in making an application.