section 490.0291(2)

INTRODUCTION AND BRIEF DESCRIPTION

The appeal court must notify the RCMP Commissioner and relevant authorities of an order made under section 490.02909(1).

SECTION WORDING

490.0291(2) If the appeal court makes an order that may be made under subsection 490.02909(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.

EXPLANATION

Section 490.0291(2) of the Criminal Code of Canada outlines the responsibilities of the appeal court in relation to the notification of certain officials regarding an appeal decision. This section applies in cases where an individual has made an application for an order under subsection 490.02909(1) of the Criminal Code. Subsection 490.02909(1) allows an individual who has been convicted of a designated offence to apply for an order to have their DNA profile removed from the national DNA databank. The designated offences include a wide range of criminal offences, such as murder, sexual assault, and robbery. If an individual makes an application for such an order and the appeal court makes a decision in their favour, then section 490.0291(2) requires that the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province or the minister of justice of the territory where the application was made to be notified of this decision. This is to ensure that these officials are aware of the decision and can take any necessary steps to implement it. The notification of these officials is important as removing an individual's DNA profile from the national DNA databank can have significant implications for law enforcement agencies. DNA profiles are a critical tool for solving crimes and identifying suspects, and the removal of a profile can potentially hinder ongoing investigations. By requiring the notification of these officials, section 490.0291(2) helps to ensure that the appropriate authorities are informed of any changes to the databank and can take any necessary steps to address any potential impacts on public safety.

COMMENTARY

Section 490.0291(2) of the Criminal Code of Canada is a crucial piece of legislation that outlines the process for notifying key government officials in the event of an appeal court decision regarding an order made under subsection 490.02909(1). In simple terms, this section of the Criminal Code requires the appeal court to notify the Commissioner of the Royal Canadian Mounted Police and the Attorney General or Minister of Justice of the relevant province or territory when an order made under subsection 490.02909(1) is modified, revoked, or varied. To understand the significance of this provision, it is important to examine the broader legal landscape in which it operates. Subsection 490.02909(1) of the Criminal Code provides for a range of orders that a court may make in relation to property seized as part of a criminal investigation. These orders include: - a detention order, which permits the police to continue holding the property for up to 90 days; - a preservation order, which requires the property to be preserved during the investigation; - a forfeiture order, which allows the property to be permanently forfeited to the Crown if it is determined to have been acquired through criminal activity; and - a restoration order, which permits the return of the property to its rightful owner. Throughout this process, the police and the Attorney General or Minister of Justice play key roles in safeguarding the interests of the state. For example, the police are responsible for investigating crimes and bringing offenders to justice, while the Attorney General or Minister of Justice represents the legal interests of the state as a whole. However, there is also a risk that these actors may overreach or act in a manner that undermines the rights of individuals or their property. In recognition of this, the Criminal Code provides for a range of checks and balances to ensure that the interests of all parties are adequately protected. Among these safeguards is the requirement in section 490.0291(2) that notification be provided to the Commissioner of the Royal Canadian Mounted Police and the relevant Attorney General or Minister of Justice in the event of an appeal relating to an order made under subsection 490.02909(1). This notification requirement serves several important purposes. Firstly, it ensures that key actors within the criminal justice system are aware of a significant development in the case. This is particularly important if the original order was made some time ago, or if the relevant government officials have changed since the order was made. By providing notification, the appeal court ensures that the relevant parties are informed and can take appropriate steps to implement or challenge the revised order. Secondly, the notification requirement promotes transparency and accountability within the criminal justice system. By mandating that the Commissioner of the Royal Canadian Mounted Police and the Attorney General or Minister of Justice be notified of any appeal decision in relation to section 490.02909(1), the Criminal Code reinforces the principle that all government actors are accountable to the broader public. This is crucial for maintaining public trust in the criminal justice system and ensuring that it operates fairly and effectively. Finally, the notification requirement helps to ensure that the interests of all parties are properly balanced. While the police and the Attorney General or Minister of Justice play important roles in investigating and prosecuting crime, it is also important to safeguard the rights of individuals and their property. By providing notification in the event of an appeal decision, the Criminal Code promotes open and transparent communication between all parties involved in the case. This ensures that the views and interests of each party are taken into account throughout the legal process, promoting a fair and just outcome. In conclusion, section 490.0291(2) of the Criminal Code of Canada is an important provision that promotes transparency, accountability, and balance within the criminal justice system. By requiring notification to be provided to the Commissioner of the Royal Canadian Mounted Police and the relevant Attorney General or Minister of Justice in the event of an appeal decision relating to an order made under subsection 490.02909(1), the Criminal Code ensures that key actors are informed and involved in the case. This helps to promote public trust in the criminal justice system, safeguard individual and property rights, and ensure a fair and just outcome for all parties.

STRATEGY

Section 490.0291(2) of the Criminal Code of Canada is an important provision in the law governing the rights of individuals to appeal convictions or sentences. This provision provides that if an appeal court makes an order that may be made under subsection 490.02909(1), it must notify the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province or minister of justice of the territory, where the application for the order was made. This section has important strategic considerations for lawyers and criminal defendants who may be considering an appeal of a conviction or sentence. Defendants who are considering an appeal should consider the potential implications of an order under subsection 490.02909(1), and how this may impact their case. One potential strategy for defendants is to carefully consider the likelihood of success on appeal before seeking an order under this provision. Appeals can be costly and time-consuming, and a successful appeal may not always be guaranteed. Defendants may want to weigh the potential benefits of a successful appeal against the risks and costs of proceeding with the appeal, and seek legal advice before making a decision about whether to appeal. Another strategic consideration for defendants may be to consider whether there are any other remedies or avenues of appeal available to them before relying on subsection 490.02909(1). Depending on the circumstances of their case, it may be possible to seek review or relief under other provisions of the Criminal Code or through other legal avenues. Lawyers representing defendants who are considering an appeal may also have strategic considerations to keep in mind. For example, they may need to advise their clients about the potential impact of notifying the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province or minister of justice of the territory about the appeal. Depending on the circumstances of the case, this notification could lead to additional scrutiny or investigation by law enforcement, which could have negative implications for the defendant's case. One strategy that lawyers may use in these cases is to carefully negotiate the terms of any orders or agreements with the prosecution, to minimize the impact of notifying law enforcement about the appeal. Lawyers may also seek to work with the prosecution to find alternative solutions to the issues that prompted the appeal, such as settlement or alternative dispute resolution (ADR) mechanisms. Overall, section 490.0291(2) of the Criminal Code of Canada has important strategic considerations for lawyers and defendants who are considering an appeal of a conviction or sentence. Defendants should carefully consider the potential benefits and risks of seeking an order under subsection 490.02909(1), and may want to explore alternative legal avenues or remedies before proceeding with an appeal. Lawyers, in turn, should advise their clients about the potential impact of notifying law enforcement about the appeal, and may seek to negotiate favorable terms or alternative solutions with the prosecution. Ultimately, the best strategy will depend on the specific circumstances of the case and the goals of the defendant or their legal representative.