INTRODUCTION AND BRIEF DESCRIPTION
Failing to comply with an order or obligation under specified sections of the Criminal Code or National Defence Act can result in a fine or imprisonment.
SECTION WORDING
490.031(1) Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 or under section 227.01 of the National Defence Act or with an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act is guilty of an offence and liable (a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
EXPLANATION
Section 490.031(1) of the Criminal Code of Canada lays out the consequences for failing to comply with orders or obligations made under various sections of the code and other related acts. These orders may include things like restraining orders, probation orders, or orders related to the transfer of prisoners or military personnel. It is important to note that this section only applies to cases where the failure to comply was not due to a reasonable excuse. This means that if the person had a legitimate reason for being unable to comply with the order or obligation, they would not be guilty of an offence under this section. The potential consequences for failing to comply with an order or obligation under this section are significant. If the offence is prosecuted by indictment, the offender could face a fine of up to $10,000 or a maximum prison sentence of two years, or both. If the offence is prosecuted by summary conviction, the offender could face a fine of up to $10,000 or a maximum prison sentence of six months, or both. This means that even a relatively minor failure to comply with an order or obligation could result in a criminal record and potentially serious consequences. Overall, section 490.031(1) is an important part of the Criminal Code of Canada, as it helps ensure that orders and obligations made under various sections of the code and related acts are taken seriously and enforced. By providing clear consequences for failing to comply with these orders and obligations, this section helps to promote law and order and ensure that victims' rights are protected.
COMMENTARY
Section 490.031(1) of the Criminal Code of Canada makes it a criminal offence to fail to comply with an order made under several sections of the Criminal Code and other Acts, including the International Transfer of Offenders Act and the National Defence Act. The purpose of this provision is to ensure that individuals who are subject to certain legal obligations, such as reporting requirements or conditions of release, are held accountable if they fail to comply with those obligations without a reasonable excuse. The offence created by section 490.031(1) is a hybrid offence, which means that the Crown has the option to proceed by way of summary conviction or indictment. The maximum penalties for the offence are a fine of $10,000 and/or imprisonment for a term of two years on indictment, or a fine of $10,000 and/or imprisonment for a term of six months on summary conviction. The inclusion of the phrase without reasonable excuse" in section 490.031(1) is significant, as it creates a defence for individuals who may have a valid reason for failing to comply with an order or obligation. An example of a reasonable excuse might be a medical emergency that prevented an individual from reporting to their probation officer as required. The inclusion of the National Defence Act and the International Transfer of Offenders Act in section 490.031(1) reflects the fact that individuals subject to these Acts may have specific obligations or requirements that they must abide by, such as reporting to a probation officer or complying with conditions of extradition or transfer between countries. One potential benefit of section 490.031(1) is that it may help to ensure that individuals who are released from custody or transferred between countries are closely monitored and supervised. By making it a criminal offence to violate the conditions of release or transfer, the provision may serve as a deterrent and encourage compliance with legal obligations. This, in turn, may help to prevent further criminal activity and promote public safety. However, there are also potential drawbacks to section 490.031(1), particularly in cases where an individual may have a valid reason for failing to comply with an order or obligation. For example, an individual who is unable to comply with a reporting requirement due to a language barrier or lack of transportation may be charged with an offence under section 490.031(1), even if their failure to comply was not intentional. Overall, section 490.031(1) of the Criminal Code of Canada serves an important purpose in holding individuals accountable for failing to comply with legal obligations. However, it is important that prosecutors exercise discretion and consider the individual circumstances of each case before proceeding with charges under this provision.
STRATEGY
Section 490.031(1) of the Criminal Code of Canada comes into play when a person fails to comply with an order made under section 490.012 or under section 227.01 of the National Defence Act, or with an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act, or under section 36.1 of the International Transfer of Offenders Act. As a result, many individuals and organizations must consider several strategic factors before dealing with this section. One strategic consideration involves ensuring that the order or obligation in question is clear, specific, and lawful. If there is any ambiguity in the wording or intent of the order or obligation, it may be difficult for the accused to comply fully and avoid prosecution under Section 490.031(1). Therefore, it is essential to have legal counsel review the order or obligation before proceeding with any action. Another strategic consideration when dealing with Section 490.031(1) is to assess the severity of the penalty for non-compliance, based on the degree of willfulness or negligence involved. If the accused intentionally or recklessly failed to comply with the order or obligation, they may face more severe penalties upon conviction. Additionally, if the accused's non-compliance resulted in harm to other parties or to public safety, the Crown may seek a harsher sentence. However, if the accused had a genuine excuse for non-compliance, such as an emergency or misunderstanding, they may have grounds for a defense that could minimize or eliminate any sanctions. One strategy that could be employed when dealing with Section 490.031(1) is to promptly seek legal advice upon receiving an order or obligation that may be difficult to comply with. A knowledgeable defense lawyer can provide valuable guidance on how to interpret the order or obligation and develop a plan of action to fulfill it. Alternatively, legal counsel can advise the accused on how to challenge the order or obligation on the basis of unlawfulness, unreasonableness, or procedural irregularity. Another strategy is to initiate early and ongoing communication with the relevant authorities when attempting to comply with an order or obligation. By demonstrating a good-faith effort to cooperate and provide regular updates on progress, the accused may be able to avoid prosecution or reduce the severity of the penalty. Additionally, if the accused has a valid excuse for non-compliance, they should provide it to the authorities at the earliest opportunity to avoid potential misunderstandings or allegations of bad faith. Finally, another strategy when dealing with Section 490.031(1) is to consider the potential consequences of a conviction or guilty plea. A criminal record could have significant implications for an individual's employment, travel, and future prospects. Therefore, legal counsel can advise the accused on the best course of action and whether a plea deal or trial would be appropriate. In conclusion, there are several strategic considerations when dealing with Section 490.031(1) of the Criminal Code of Canada. These include assessing the clarity and lawfulness of the order or obligation, evaluating the severity of the penalty for non-compliance, seeking legal advice, initiating communication with relevant authorities, and weighing the potential consequences of a conviction or guilty plea. By carefully considering these factors and developing a well-informed strategy, accused individuals and organizations can better protect their legal rights and minimize the risk of prosecution.