INTRODUCTION AND BRIEF DESCRIPTION
This section of the Criminal Code of Canada defines undertaking as a specific legal document.
SECTION WORDING
493 In this Part, "undertaking" means an undertaking in Form 11.1 or 12.
EXPLANATION
Section 493 of the Criminal Code of Canada provides a definition for the term "undertaking" as used within Part XXVII of the Code. Part XXVII deals with various types of orders that may be issued by the court in relation to criminal proceedings, including bail orders, peace bonds, and probation orders. Specifically, an undertaking is defined as a type of order that is set out in Form 11.1 or Form 12. Forms 11.1 and 12 are templates provided by the government that outline the specific conditions of an undertaking, including any financial penalties or restrictions on the individual's activities. Undertakings are typically used in situations where a person is released from custody pending their trial or sentencing. The undertaking may require the person to report to a specific person or agency, adhere to certain conditions (such as a curfew or drug testing), or refrain from certain activities (such as contacting a victim). Violating an undertaking can result in additional criminal charges and penalties. This section is important because it establishes a clear definition for the term "undertaking" within the context of Part XXVII of the Criminal Code. By providing a standardized format for undertakings, the government ensures that individuals who are subject to these types of orders are clear on the specific conditions that they must comply with, and that courts and law enforcement agencies are able to enforce these conditions effectively.
COMMENTARY
Section 493 of the Criminal Code of Canada defines the term "undertaking" in the context of criminal proceedings. An undertaking refers to a legal document that an accused person signs, promising to fulfill certain conditions in exchange for their release from custody or detention. The purpose of an undertaking is to ensure that the accused person will appear in court on their scheduled court dates and will not commit further crimes while awaiting trial. Undertakings may also include conditions such as not contacting certain individuals, staying away from specific locations, or surrendering one’s passport. Form 11.1 and Form 12 are the standard forms used by the courts to provide undertakings to an accused person. Form 11.1 is used when an accused person is being released from police custody, while Form 12 is used when an accused person is being released from court. Section 493 is an important provision in the Criminal Code because it establishes the legal framework for undertakings, which are a crucial tool for ensuring public safety and maintaining the integrity of the criminal justice system. Without undertakings, accused persons would be free to disappear or commit further crimes while awaiting trial, thereby undermining the fundamental principles of justice and fairness. In addition to defining undertakings, Section 493 also provides guidelines for their enforcement and revocation. For example, if an accused person fails to comply with the conditions of their undertaking, the court may issue a warrant for their arrest and they may be returned to custody. Similarly, the court may revoke an undertaking if it is found to be no longer necessary or appropriate. Overall, Section 493 is an important provision that ensures the proper functioning of the Canadian criminal justice system. It provides a clear definition of undertakings and establishes the legal framework for their creation and enforcement. By doing so, it helps to maintain public safety and ensure that accused persons are held accountable for their actions while awaiting trial.
STRATEGY
Section 493 of the Criminal Code of Canada outlines the definition of "undertaking" which is a key concept in bail and release proceedings. When dealing with this section, there are several strategic considerations that should be taken into account to ensure effective advocacy for an accused person. One important consideration is the type of undertaking required by the court. Form 11.1 outlines an undertaking with conditions that can be imposed by the court, such as restrictions on travel, communication, or association. Form 12 outlines an undertaking without conditions, which is generally used in less serious cases. It is important for counsel to carefully review the details of the undertaking and to advocate for the least restrictive conditions possible that still ensure public safety. Another key consideration is the impact of the undertaking on the accused person's life and liberty. For example, if the accused person is required to stay away from certain people or places, this could have practical implications such as finding a place to live or getting to work. Counsel should carefully consider the consequences of the undertaking and advocate for conditions that are reasonable and practical. In addition, it is important to ensure that the accused person understands all of the conditions of the undertaking and the consequences of breaching them. Counsel should explain the terms of the undertaking clearly and advise the accused person of the potential consequences of breaching any of the conditions. One strategy that could be employed is to negotiate with the Crown to agree to less restrictive conditions, such as a curfew instead of a complete ban on travel. This can help to mitigate the impact of the undertaking on the accused person's life while still ensuring public safety. Counsel could also make submissions to the court regarding the accused person's character, the nature of the offence, and the impact of the undertaking on the accused person's life and liberty. Another strategy is to seek a review of the undertaking if circumstances change. For example, if the accused person's employment or living situation changes, the conditions of the undertaking may no longer be reasonable or practical. Counsel can seek a variation of the undertaking to ensure that it remains appropriate and effective. Overall, strategic considerations when dealing with section 493 of the Criminal Code of Canada involve balancing the need for public safety with the impact of the undertaking on the accused person's life and liberty. Effective advocacy involves careful review of the details of the undertaking, clear communication with the accused person, and persuasive submissions to the court. Strategies such as negotiation and seeking review of the undertaking can be employed to ensure the best possible outcome for the accused person.