INTRODUCTION AND BRIEF DESCRIPTION
This section outlines that orders made to safeguard and preserve evidence must include terms necessary or desirable for its future use.
SECTION WORDING
490(16) An order that is made under subsection (15) shall be made on such terms as appear to the judge to be necessary or desirable to ensure that anything in respect of which the order is made is safeguarded and preserved for any purpose for which it may subsequently be required.
EXPLANATION
Section 490(16) of the Criminal Code of Canada provides for the necessary or desirable terms that a judge can impose while making an order under subsection (15) of the same section. This subsection states that the police officer or the prosecutor can seize anything that they believe is related to the criminal offence and can keep it for as long as it is required in connection with the proceedings. However, subsection (16) lays down the conditions under which this order can be fulfilled. The terms that a judge can impose under this subsection can vary based on the circumstances of each case. For instance, if the judge believes that the seized item is perishable, they may order that it be preserved in a particular manner until it is required in the court proceedings. Similarly, if the item is too sensitive, the judge can order its storage in a secure manner so that it remains safeguarded until it is needed again. Overall, the section aims to ensure that anything seized by the police or other law enforcement agencies in connection with a criminal offence cannot be disposed of or destroyed until it is no longer needed in the proceedings. The judge has the discretion to impose necessary or desirable terms to ensure that the item remains safeguarded and preserved until it is required again. The section plays a crucial role in the criminal justice system, as it allows the court to have access to important evidence that may help establish the guilt or innocence of an accused person.
COMMENTARY
Section 490(16) of the Criminal Code of Canada is a provision that grants judges the power to issue an order to safeguard and preserve any property or item that is relevant to a criminal investigation. This section allows judicial officers to take measures aimed at ensuring that evidence, whether physical or digital, is protected from any form of loss or damage. The primary purpose of this legislation is to prevent the destruction of evidence and safeguard the integrity of the judicial system. The safeguards required by subsection (16) will depend on the nature and context of the case. For instance, if the evidence in question is physical, like a firearm, the judge may order that it be stored in a secure location that is accessible only by authorized personnel. Alternatively, the court may order that the evidence be photographed, cataloged, and returned to the owner or custodian. If the evidence is digital, the court may order that it be seized and secured by a designated individual, who will be responsible for maintaining the chain of custody, which is a critical element of the criminal justice system. The court has broad discretionary powers under this section and can make any order that is necessary or desirable to protect the integrity of the evidence. Further, the order can be made ex-parte, which means that it can be made without notice to the other party if the court deems it necessary. This provision also empowers the court to make any order regarding costs associated with safeguarding and preserving the evidence. It is vital to note that the primary objective of this provision is not to obtain a conviction against the accused but to preserve the integrity of the judicial process. The court can issue orders to safeguard and preserve evidence even in circumstances where a conviction is not likely. Section 490(16) recognizes the importance of preserving evidence and acknowledging the importance of the evidence in the administration of justice. The protection and preservation of evidence are crucial as it assists in the determination of guilt or innocence of an accused person. Further, the protection of evidence also assists in ensuring that the judicial process is fair to all parties involved. In conclusion, Section 490(16) of the Criminal Code of Canada is an essential provision that provides the court with the power to issue orders aimed at safeguarding and preserving evidence. The protection and preservation of evidence play a crucial role in ensuring the integrity and fairness of the judicial process. The provision grants the court broad discretionary powers to make any order necessary or desirable to safeguard the evidence's integrity adequately. The provision is vital in ensuring that all parties involved in a criminal case have a fair and just trial, and it helps to foster public confidence in the judicial system's integrity.
STRATEGY
Section 490(16) of the Criminal Code of Canada provides judges with broad discretion to order the safeguarding and preservation of property that is subject to a search warrant or other order under subsection (15) of the same section. This section is critical in preventing the loss, theft, or destruction of evidence, which could render an investigation futile. When dealing with Section 490(16), there are several strategic considerations that counsel should keep in mind. Here are some of the key strategies that could be employed: 1. Understand the nature of the evidence: To determine the appropriate safeguards, counsel should understand the nature and value of the evidence in question. Depending on whether it is physical (e.g. documents, drugs, weapons) or digital (e.g. data on a hard drive), different strategies may be required to ensure its preservation. 2. Be proactive: It is important to act quickly when seeking an order under Section 490(16) to ensure that evidence is safeguarded as soon as possible. Delay in seeking an order may result in the loss, theft, or destruction of the evidence in question. 3. Negotiate with law enforcement: Counsel should engage in negotiations with law enforcement to determine the most appropriate safeguards for the evidence in question. This may involve agreeing on the terms and conditions of storage, access, and handling of the evidence. 4. Be prepared for court: Counsel should be well-prepared for court when seeking an order under this section. This includes gathering all necessary evidence to support the request, as well as being prepared to address any opposition from law enforcement. 5. Consider using a court-appointed independent expert: In certain cases, it may be appropriate to request the appointment of an independent expert to oversee the preservation of the evidence. This can help ensure that both parties have confidence in the integrity of the evidence. 6. Be mindful of costs: The costs associated with preserving evidence can be significant, and counsel should be mindful of the financial implications of seeking an order under Section 490(16). This may require negotiating the costs with law enforcement or seeking funding from other sources. In conclusion, Section 490(16) of the Criminal Code of Canada provides counsel with an important tool for safeguarding and preserving evidence in criminal investigations. By understanding the nature of the evidence, being proactive, negotiating with law enforcement, being prepared for court, considering the use of court-appointed experts, and being mindful of costs, counsel can successfully navigate this section to ensure the preservation of important evidence.