Criminal Code of Canada - section 490.5(2) - Fixing day for hearing

section 490.5(2)

INTRODUCTION AND BRIEF DESCRIPTION

The judge must schedule a hearing for an application made under subsection (1) at least 30 days after the application is filed.

SECTION WORDING

490.5(2) The judge to whom an application is made under subsection (1) shall fix a day not less than thirty days after the date of the filing of the application for the hearing of the application.

EXPLANATION

Section 490.5(2) of the Criminal Code of Canada involves the process of applying for a record suspension, which is a legal order that sets aside or seals a criminal record. This section outlines the procedure for setting a hearing date for the application of an individual seeking a record suspension. According to this section, the applicant must file an application for a hearing with the appropriate judge at least thirty days in advance of the requested hearing date. The judge will then set a date for the hearing that is no earlier than thirty days after the application was filed. The purpose of this timeframe is to allow sufficient time for the judge to review the application and for the applicant to prepare for the hearing itself. The reason for setting a hearing is to determine whether or not the applicant is eligible for a record suspension. This involves evaluating various factors, including the nature of the offense, the length of time since the conviction, and the individual's conduct since then. If the judge is satisfied that the applicant meets the required criteria, they may issue a record suspension which will effectively protect the individual's criminal record from being publicly disclosed. This section of the Criminal Code of Canada is an important element of the process of seeking a record suspension. By providing a clear timeline for the scheduling of a hearing date, it ensures that applicants have a fair and reasonable opportunity to present their case. Overall, this section serves to protect the rights of individuals seeking to put their past behind them and move forward with their lives.

COMMENTARY

Section 490.5(2) of the Canadian Criminal Code lays out an important procedure for the hearing of applications for the return of property seized by the state. This section stipulates that the judge presiding over such an application must set a hearing date that is at least 30 days after the date of the application. This provision helps ensure that the parties involved have sufficient time to prepare for the hearing and also prevents the state from unreasonably delaying the return of property to its rightful owner. There are a few important reasons why this section of the Criminal Code is necessary. One of the primary reasons is that it allows for due process to occur in a fair and transparent manner. Under section 490.5(1), an individual or organization that has had property seized by the state can apply to have it returned. This could occur, for example, if the property is not related to the underlying criminal investigation or if there is no longer any need to hold the property as evidence. By setting a hearing date that is at least 30 days away, the person or organization making the application has adequate time to gather and present evidence to support their claim. Additionally, the prosecutor representing the state has time to do the same, so that the judge can make a reasoned decision based on all the evidence at hand. Another important reason why this section of the Criminal Code is necessary is that it helps prevent the state from unduly delaying the return of property to its rightful owner. In some cases, the state may have seized property and subsequently decided not to pursue criminal charges against the owner. However, it could take some time for the owner to apply for the return of their property and for a hearing to be scheduled. By setting a specific timeframe for the hearing, this section ensures that the state cannot drag out the process unnecessarily, potentially causing hardship for the owner of the seized property. This provision of the Criminal Code also helps ensure that judicial resources are used in the most efficient manner possible. By setting a date for the hearing well in advance, judges can better allocate their time and resources to ensure that hearings are scheduled in a timely and efficient manner. This is important, as it helps reduce the backlog of cases that can build up in some court systems, leading to delays and inefficiencies. It is also worth noting that this section of the Criminal Code applies to both criminal and civil forfeiture proceedings. In cases where the state is seeking the forfeiture of property due to its alleged connection to criminal activity, the timeframes for a hearing are even more crucial. The state may be seeking to keep hold of property that is necessary for the owner to conduct their business or simply to live their life. By setting a reasonable timeframe for a hearing, section 490.5(2) helps ensure that the state cannot unfairly deprive someone of their property without due process. Overall, section 490.5(2) of the Criminal Code of Canada is an important provision that helps ensure the fair and efficient handling of applications for the return of seized property. By setting a specific timeframe for hearings, this section ensures that due process is followed and that property is returned to its rightful owner as soon as possible.

STRATEGY

Section 490.5(2) of the Criminal Code of Canada is a procedural requirement that dictates the time frame within which a hearing on an application for the return of property must take place. This section requires that a day be fixed not less than thirty days after the date of filing of the application for the hearing of the application. Given this provision, there are some strategic considerations that persons making applications under this section need to take into account. One strategic consideration that a person making an application needs to take into account is the timing of the application filing. Since the hearing is required to be held not less than thirty days after the date of filing of the application, a person making the application will need to ensure that they file their application in good time. This means that they need to plan the timing of the application to ensure that they get their hearing within the desired timeframe. Another strategic consideration when dealing with this section is the need to consider the requirements of other procedural rules governing the filing of an application. For instance, the applicant may need to comply with other requirements such as providing an affidavit to support the application. In such cases, the timing of the filing of the application and the provision of supporting documents will need to be carefully planned to ensure that the application is complete and ready for the hearing within the required timeframe. Additionally, it is important to consider the implications of filing multiple applications under this section. If several applications are made, they will each need to be heard individually and could prolong the process of returning the property to its rightful owner. It is, therefore, advisable to file only one application whenever possible. In terms of strategies that could be employed when dealing with this section, one strategy is to ensure that the application is as comprehensive as possible. This means including all the necessary procedural requirements, including affidavits, supporting documents, and other evidence to support the application. Another strategy is to seek the advice of a lawyer experienced in criminal law. Since this section involves legal procedures, it is advisable to seek legal advice to guide you through the process, ensure that the application meets all the necessary requirements, and represent you at the hearing. In conclusion, Section 490.5(2) of the Criminal Code of Canada requires that applications for the return of property be filed and heard within a specific time frame. To navigate this section effectively, persons making applications need to consider the timing of the filing of the application and the need to comply with other procedural requirements. Additionally, they should consider seeking legal advice to ensure that their application is comprehensive and potentially avoid delays.