INTRODUCTION AND BRIEF DESCRIPTION
Section 490.02912(1) allows a person subject to an obligation under the International Transfer of Offenders Act to apply for a termination order unless they are subject to certain other obligations or orders.
SECTION WORDING
490.02912(1) A person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act may apply to a court of criminal jurisdiction for a termination order unless they are also subject to an obligation under section 490.019 or 490.02901 or under section 227.06 of the National Defence Act — or to an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.
EXPLANATION
Section 490.02912(1) of the Criminal Code of Canada deals with the obligation of a person who has been transferred to Canada from another country under the International Transfer of Offenders Act. The section states that such a person can apply to a court of criminal jurisdiction for a termination order for their obligation under section 36.1 of the Act, if they are not subject to any other obligations under relevant sections of the Criminal Code or the National Defence Act. If a person has been transferred to Canada under the International Transfer of Offenders Act, they are likely to have certain obligations that they must fulfill. For instance, they may be required to meet regularly with a probation officer, complete a treatment program, or adhere to certain conditions such as not associating with specific individuals. These obligations are designed to help the person successfully reintegrate into Canadian society and to reduce the likelihood of reoffending. However, section 490.02912(1) recognizes that there may be circumstances where a person feels that they no longer need to be subject to these obligations and wishes to apply for a termination order. This may happen, for example, if the person has successfully completed their treatment program or if the conditions of their transfer have become too onerous or are interfering with their ability to work or live a normal life. Importantly, the section specifies that a person cannot apply for a termination order if they are subject to other relevant obligations under the Criminal Code or the National Defence Act, or if they have received certain orders under those Acts. This is to ensure that there is no overlap or confusion between the various obligations imposed on the person and that they are not able to circumvent the system by applying for a termination order when they are still subject to other orders that must be fulfilled.
COMMENTARY
Section 490.02912(1) of the Criminal Code of Canada sets out the circumstances under which a person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act (ITOA) may apply to a court of criminal jurisdiction for a termination order. The ITOA is a federal law that allows Canadian offenders who are imprisoned abroad to serve their sentence in Canada, or allows foreign offenders who are imprisoned in Canada to serve their sentence in their home country. In some cases, however, an offender may be subject to an obligation under the ITOA that they would like to have terminated. The purpose of this section of the Criminal Code is to clarify the circumstances in which a termination order can be sought. It explains that a person can apply for a termination order unless they are subject to certain other obligations or orders under the Criminal Code or the National Defence Act. For example, if the offender is also subject to an obligation under section 490.019 or 490.02901, which deal with probation and conditional sentences, they cannot apply for a termination order under this section. Additionally, if they are subject to an order under section 490.012 or section 227.01 of the National Defence Act, they are also ineligible for a termination order. The purpose of these restrictions is likely to prevent individuals who are already subject to significant orders or conditions from attempting to use this section of the Criminal Code to escape their responsibilities. For example, if an individual is subject to a probation order that requires them to stay in Canada, they should not be permitted to use section 490.02912(1) to try to get out of that obligation. Similarly, if an individual is subject to a court martial order that requires them to serve their sentence in a particular location, they would not be able to use this section to challenge that order. Overall, section 490.02912(1) appears to be a carefully crafted provision that balances the need to allow individuals to seek termination of their ITOA obligations with the need to prevent abuse of the system. By setting out clear eligibility criteria for a termination order, the Criminal Code ensures that individuals who are eligible can access this remedy while ensuring that those who are not eligible are not able to abuse the process. This provision is an important part of the Criminal Code's overall framework for handling international transfers of offenders, and it reflects Canada's commitment to upholding the rights of Canadians who are imprisoned abroad.
STRATEGY
Section 490.02912(1) of the Criminal Code of Canada provides a mechanism for individuals subject to an obligation under section 36.1 of the International Transfer of Offenders Act to apply for a termination order. Dealing with this section of the Criminal Code of Canada requires strategic consideration by lawyers handling these cases. One strategy is to assess the client's eligibility for applying for a termination order. The eligibility criteria under this section include the absence of an obligation under section 490.019 or 490.02901 or under section 227.06 of the National Defence Act or an order under section 490.012 or under section 227.01 of the National Defence Act that began later. Lawyers need to do a comprehensive review of the client's legal history to determine their eligibility. Another important strategy when dealing with this section is to identify the relevant court of criminal jurisdiction to which the application should be made in the particular province or territory the offender is residing in. This requires an understanding of the rules of court and jurisdictional issues that may arise. Lawyers must also be aware of the procedural requirements that must be met when filing the application. Under this section, the application must include the reasons for the request, details of the obligations imposed under section 36.1 of the International Transfer of Offenders Act, and any other relevant information. Lawyers must ensure that the application is complete and accurate to avoid any delays or complications in the termination process. Strategic considerations must also include the potential consequences of the termination order. While a termination order may provide relief to the client, it may also have a negative impact on their ability to stay in Canada. For individuals with immigration status issues, a termination order may result in the revocation of their immigration status. In such cases, lawyers will need to advise clients on the potential risks and consequences associated with the application for a termination order while providing alternative strategic options to resolve the matter. One such option may be to apply for a transfer back to their home country, which may be more favorable for them. In conclusion, when dealing with section 490.02912(1), lawyers must approach the matter with strategic consideration, assessing eligibility, identifying the relevant jurisdiction, meeting procedural requirements, and providing alternative options to clients. It is important to have a thorough understanding of the law and the nuances involved in this process to ensure that the application is successful.