INTRODUCTION AND BRIEF DESCRIPTION
This section allows a person to agree to waive the three days notice period for certain applications under the Criminal Code.
SECTION WORDING
490(18) Any person to whom three days notice must be given under paragraph (2)(a) or (3)(a) or subsection (7), (10) or (15) may agree that the application for which the notice is given be made before the expiration of the three days.
EXPLANATION
Section 490(18) of the Criminal Code of Canada is a provision that allows a person who is entitled to receive a three-day notice under paragraph (2)(a) or (3)(a) or subsection (7), (10) or (15) to waive their right to such notice. The notice is typically given in relation to an application that is being made by a prosecutor or a peace officer, and it is intended to provide the recipient with an opportunity to contest the application and to prepare a defense. If a person agrees to waive their right to notice, the prosecution or peace officer can proceed with the application immediately, without waiting for the expiration of the three-day period. This can be beneficial in situations where there is an urgent need for the application to be made, such as when there is a risk of harm to a victim or a witness if the application is delayed. It is important to note, however, that the decision to waive notice should not be taken lightly. A person who agrees to waive their right to notice may be giving up an important opportunity to prepare their defense and to challenge the application that is being made against them. As such, anyone who is asked to waive their right to notice should speak to a lawyer before making a decision. Overall, section 490(18) of the Criminal Code of Canada is a provision that balances the needs of law enforcement with the rights of individuals who are subject to applications made under the Criminal Code. It allows for flexibility in certain situations while also protecting the interests of those who may be affected by such applications.
COMMENTARY
Section 490(18) of the Criminal Code of Canada is an important provision that allows certain individuals to waive their right to receive a three-day notice before an application is made to the court. The provision applies in situations where advance notice is required under other provisions of the Criminal Code, such as paragraphs (2)(a) or (3)(a) or subsections (7), (10), or (15). The purpose of this provision is to provide flexibility in situations where the three-day notice requirement may be burdensome or impractical. For example, if a person is in police custody and wants to apply for bail, it may be in their interest to waive the notice period and make the application as soon as possible. Similarly, if a victim of a crime wishes to apply for a restraining order against an abuser, they may not want to wait three days before the order takes effect. However, it is important to note that the provision only allows for the waiver of the three-day notice period if both the applicant and the other party agree to it. This means that the other party (usually the Crown prosecutor or the accused) must also consent to the application being made before the expiration of the notice period. This requirement ensures that both parties have an opportunity to prepare for the application and present their case before the court. In some cases, the other party may be reluctant to waive the notice period, especially if they believe that they need more time to prepare their case. In such situations, the applicant must either wait for the notice period to expire or make an application for an expedited hearing. The decision to waive the notice period should not be taken lightly, as it may affect the outcome of the application. Section 490(18) is a valuable provision that balances the need for notice with the need for timely access to justice. It recognizes that there may be situations where the three-day notice period is impractical, and provides a mechanism for parties to waive the requirement. However, it also ensures that both parties have a say in the matter and are able to prepare for the application before the court. By providing this flexibility, the provision ensures that justice is served in a timely and efficient manner.
STRATEGY
Section 490(18) of the Criminal Code of Canada is an important provision that governs the notification requirements for certain proceedings, particularly search warrants, forfeiture orders, and applications for the return of seized property. Under this section, a person who is entitled to receive at least three days' notice of an application may agree to waive that notice and permit the application to proceed without delay. This provision can have significant strategic implications for both the party making the application and the party opposing it. In this article, we will discuss some of the strategic considerations and strategies that arise when dealing with Section 490(18) of the Criminal Code. Strategic Considerations: 1. Timing: Before deciding whether to waive notice under Section 490(18), both parties should consider the timing of the application and whether declining the waiver would result in prejudice to either party. Depending on the nature of the application, a three-day delay may provide the opposing party with an opportunity to destroy or dispose of evidence or take other steps that could undermine the application. On the other hand, the party receiving the notice may need time to prepare a response and submit evidence in opposition to the application. If the application is time-sensitive or evidence might be lost, a waiver of the notice period might be the more strategic option. 2. The Strength of the Case: The strength of the case is also crucial in determining whether to waive the notice. A party may agree to waive the notice period if it feels confident in its case and believes that proceeding with the application would be in its best interests. Conversely, if a party has limited evidence or its case may be weak, it may refuse the waiver and take the full three days to prepare its defense. 3. The Impact of Time: Depending on the circumstances, the passage of time might have a positive or negative impact on the case. Where the prosecution seeks a return of seized property that could deteriorate or change over time, waiver of notice might be beneficial. However, where the police or prosecution is seeking to search a property or seize assets, time may be more important to the defense to minimize the negative impact of the search or seizure. 4. Public Relations: Strategic public relations considerations may also be relevant when deciding whether to waive notice under Section 490(18) of the Criminal Code. For instance, where the prosecution seeks a high-profile asset forfeiture or search warrant, public opinion may influence the decision to waive the notice period. The public perception may also influence the decision to waive the notice in cases involving the seizure of assets in a criminal trial's context. Strategies: 1. Negotiation: When an application is made that triggers the notice provisions, the parties may engage in negotiations to agree on the terms of the application and whether to waive the notice period. Negotiations can allow the parties to reach a mutually agreeable solution that benefits both sides. 2. Litigation: Litigation is often the most expensive and time-consuming strategy; however, it may be necessary if negotiations fail or if the stakes are high. In such cases, the parties may argue their positions before a judge. 3. Strategic Waivers: The parties may also decide to strategically waive the notice requirements depending on the case's facts. For example, the prosecution might decide to waive the notice period and proceed with an application where they feel confident in the evidence and speed is critical. Alternatively, the defense may decide to decline the waiver and take the full three days to prepare a response to the application. 4. Public Relations Management: In high-profile cases where public opinion is a factor, the parties may engage in public relations management strategies such as press releases, media interviews, and social media posts. These strategies aim to shape public perceptions of the case. In conclusion, Section 490(18) of the Criminal Code of Canada has significant strategic implications for parties involved in criminal proceedings. A party's decision on whether to waive the notice period or not will depend on the nature of the case, timing, strength of evidence, public perceptions and, most importantly, the parties' strategic goals and objectives. The parties may employ a range of strategies, such as negotiation, litigation, strategic waivers of notice, and public relations management, to successfully navigate the strategic considerations presented by this provision.