INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the circumstances in which a notice cannot be served on a person who has been acquitted, pardoned, or had an application made for an order related to an offense.
SECTION WORDING
490.02(2) A notice shall not be served on a person (a) if they have been finally acquitted of, or have received a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 for, every offence in connection with which a notice may be served on them under section 490.021 of this Act or section 227.08 of the National Defence Act; (b) if an application has been made for an order under subsection 490.012(3) of this Act or subsection 227.01(3) of the National Defence Act in relation to any offence in connection with which a notice may be served on them under section 490.021 of this Act or section 227.08 of the National Defence Act; or (c) who is referred to in paragraph (1)(b) if they have provided proof of a pardon in accordance with subsection 9(1) of the Ontario Act.
EXPLANATION
Section 490.02(2) of the Criminal Code of Canada outlines the circumstances in which an individual cannot be served with a notice related to the forfeiture of property. Specifically, this section provides that an individual cannot be served with a notice if they have been finally acquitted of all offences related to the property in question, or if they have received a free pardon from the Queen or under section 748 of the Criminal Code for all offences related to the property. In addition, an individual cannot be served with a notice if an application has been made for an order related to the forfeiture of property under subsection 490.012(3) of the Criminal Code or subsection 227.01(3) of the National Defence Act. This provision is designed to prevent double jeopardy or the imposition of multiple penalties for the same offence. Finally, an individual cannot be served with a notice if they have provided proof of a pardon in accordance with subsection 9(1) of the Ontario Act. This provision is intended to ensure that individuals who have already been granted pardons for their offences are not subject to additional penalties or restrictions related to the forfeiture of property. Overall, Section 490.02(2) of the Criminal Code of Canada is intended to ensure that individuals are not punished unfairly or excessively for their offences, particularly in cases where they have already been acquitted or pardoned. By outlining the circumstances in which notices related to the forfeiture of property cannot be served, this section helps to promote justice, fairness, and the protection of individual rights in the Canadian legal system.
COMMENTARY
Section 490.02(2) of the Criminal Code of Canada outlines the circumstances in which a notice cannot be served on an individual. These circumstances acknowledge that certain legal proceedings or actions have taken place that provide sufficient grounds for a person to not be served with a notice under certain circumstances. Paragraph (a) of the section refers to situations where an individual has been acquitted of all offences in connection with which a notice may be served under section 490.021 of the Act or section 227.08 of the National Defence Act. Additionally, if a person has received a free pardon granted under Her Majesty's royal prerogative of mercy or under section 748, they cannot be served with a notice. These provisions ensure that individuals who have been given a clean slate by the law are not subjected to further scrutiny or punishment. Paragraph (b) of the section pertains to situations where an application has been made for an order under subsection 490.012(3) of the Criminal Code or subsection 227.01(3) of the National Defence Act in relation to any offence in connection with which a notice may be served. This provision ensures that if an application for an order is already in progress, a notice cannot be served. The law gives priority to the existing process and serves as a safeguard to prevent any confusion or unnecessary delay. Paragraph (c) of the section relates to individuals referred to in paragraph (1)(b) who have provided proof of a pardon in accordance with subsection 9(1) of the Ontario Act. Paragraph 1(b) defines that notice cannot be issued to an individual who has been discharged under either the Mental Health Act or the Ontario Review Board, or has been granted an absolute discharge. Subsection 9(1) of the Ontario Act allows individuals who have received a pardon to obtain proof of the same, which can then be used to avoid being served with a notice pertaining to the charges for which they received a pardon. Overall, Section 490.02(2) serves to prevent unnecessary legal action against individuals who have already been either granted a pardon, acquitted of charges, or have legal proceedings underway. This provision ensures that legal processes are not redundant or repetitive, and that there is no further punishment or scrutiny of individuals who have already been cleared of any wrongdoing by the law. The section provides legal safeguards and encourages fairness in the administration of justice.
STRATEGY
Section 490.02(2) of the Criminal Code of Canada presents several strategic considerations when dealing with notices served on individuals for offences under section 490.021 of the Act or section 227.08 of the National Defence Act. Some of the strategies that could be employed when navigating this section include: 1. Providing evidence of pardon: Individuals who have received pardons under the royal prerogative of mercy or under section 748 of the Act can provide proof of the same in accordance with subsection 9(1) of the Ontario Act, which exempts them from being served with notices. As such, one strategy could be to gather and provide all relevant documentation to prove that a pardon has been granted, to avoid unnecessary court proceedings. 2. Challenging the validity of notices: Notices may be served only if an individual has not been acquitted of the offence specified in the notice or has not received a pardon. Therefore, one strategy could be to challenge the validity of the notice by demonstrating that the individual has been acquitted or pardoned in connection with the offence cited in the notice. This can be done by presenting relevant court or pardon documentation to the authorities. 3. Making an application for an order under subsection 490.012(3) or subsection 227.01(3) of the National Defence Act: These provisions allow an individual to apply for an order that prevents any notice from being served in connection with an offence. If an individual feels that they are likely to be served with a notice, they may proactively seek to make an application for such an order to guard against the notice. 4. Seeking legal advice: Given the complexity of the legal provisions in the Criminal Code, seeking legal advice could help individuals understand their rights and options when dealing with notices served on them. This could involve consulting criminal lawyers or legal aid clinics that specialize in criminal law. 5. Preparing a defence: If an individual is served with a notice and intends to challenge it, they may need to prepare a defence that demonstrates why they are entitled to an exemption under section 490.02(2). This could involve gathering evidence that proves that they have been acquitted or pardoned, or demonstrating that an application has been made for an order under the relevant subsections of the Act. In conclusion, section 490.02(2) of the Criminal Code of Canada presents several strategic considerations when dealing with notices served on individuals. However, by employing some of the strategies mentioned above, individuals can navigate this section in a way that protects their rights and interests.