INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the prosecutors ability to replace an undertaking with an order under subsection 515(2) in certain circumstances.
SECTION WORDING
499(4) Where a person has entered into an undertaking under subsection (2), the prosecutor may (a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or (b) at the appearance, apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.
EXPLANATION
Section 499(4) of the Criminal Code of Canada is a provision that allows a prosecutor to make an application to a justice for an order to replace an undertaking of a person who has been arrested. An undertaking is a legal agreement a person enters into with the police, whereby they promise to comply with certain conditions, such as attending court, refraining from contacting certain people, or staying away from certain places. It is a condition that is usually given to a person who is not considered a serious flight risk or danger to the public. In circumstances where the prosecutor feels that the undertaking is not enough to ensure the safety of the public or the appearance of the accused in court, the prosecutor may apply to a justice for an order under subsection 515(2) to replace the undertaking. The justice may then modify the conditions of the undertaking or impose additional conditions to ensure the accused's appearance in court and to protect the public from any harm the accused may cause. The section also provides specific timelines and notice requirements for the prosecutor in making the application. The prosecutor must give the accused at least three days' notice of their intention to apply for an order to replace the undertaking before the accused's appearance in court. Overall, this provision of the Criminal Code of Canada aims to balance the rights of the accused with the need for public safety and the smooth functioning of the justice system. It provides a mechanism for prosecutors to seek additional conditions or modifications to an undertaking, which helps ensure that the accused attends their court appearances and that the public is protected.
COMMENTARY
Section 499(4) of the Criminal Code of Canada provides a framework for the replacement of an undertaking given by a person with an order under subsection 515(2) by a justice. This replacement can be applied before the person's appearance pursuant to a promise to appear or recognizance, upon three days notice to the individual, or during the appearance itself. In either case, section 515 applies with necessary modifications. This section is particularly significant as it allows for an effective means of dealing with a person who has breached the promise or recognizance given under subsection (2) of section 499 of the Criminal Code of Canada. The previous section outlines the conditions under which a person may be required to enter into such an undertaking, including situations where a person is charged with an offence and is released from custody or detention. The undertaking may impose conditions such as residence, abstaining from alcohol or drugs, or attending court as required. However, it is not uncommon for individuals to violate their undertakings, and this can pose a risk to public safety or hinder the administration of justice. In such cases, section 499(4) provides prosecutors with a means to apply for an order under subsection 515(2) that effectively replaces the original undertaking. This order can impose conditions such as detention, supervision, or a recognizance with a surety. The conditions under which this replacement order can be applied are also important to note. This process can be initiated before the individual's appearance under the promise to appear or recognizance, which shows the urgency with which the authorities may act to protect public safety. At the same time, the three-day notice requirement ensures that individuals are given an opportunity to prepare and defend themselves against the application. Section 499(4) also emphasizes the applicability of section 515 of the Criminal Code of Canada to this process, albeit with some modifications to reflect the circumstances under which the replacement is being sought. This ensures that the order issued is in compliance with the principles of natural justice and is not only necessary but also proportionate to the situation. Overall, section 499(4) of the Criminal Code of Canada provides an effective means of addressing breaches of undertakings given under section 499(2). By allowing for the replacement of the original undertaking with an order that imposes more stringent conditions, section 499(4) helps to ensure public safety and uphold the administration of justice. The provisions governing notice and the applicability of section 515 ensure that the process is fair and just.
STRATEGY
Section 499(4) of the Criminal Code of Canada allows prosecutors to replace an undertaking made by a person with an order under subsection 515(2) after giving three days’ notice. This provision can be useful for prosecutors in cases where they believe the person who made the undertaking may not appear before the court as required, or in situations where the circumstances of the case have changed, and a more robust release condition is necessary. One important strategic consideration when dealing with this section is timing. Prosecutors must give three days’ notice before making an application under this provision. Therefore, they must decide carefully when to make the application to avoid unnecessary delays, especially where the person has already appeared before the court and has been released on an undertaking. Prosecutors must balance the need for robust release conditions against the potential cost of delaying the court proceedings. Another strategic consideration is the type of release condition to be sought. Section 515 of the Criminal Code sets out various release conditions that can be imposed, such as requiring the person to keep the peace and be of good behaviour, reporting to a specified person or place, and surrendering the passport. Prosecutors must assess the risks posed by the person, the nature of the offence, and the likelihood of reoffending to determine what type of release condition to request. A third strategic consideration is the modification of section 515 as applied to a person who has made an undertaking under subsection 499(2). This provision allows for modifications to be made to section 515 to accommodate the unique circumstances of each case. Prosecutors must carefully assess the situation and make necessary modifications to ensure that the release condition is appropriate and sufficient to address the risks posed by the person. In terms of strategies that prosecutors could employ, one approach is to engage with defence counsel and the person who made the undertaking if possible. Prosecutors could explain their reasons for seeking a modification to the undertaking and attempt to reach an agreement on the appropriate release conditions. This can help to expedite the process and avoid unnecessary delays. Another strategy is to provide evidence to support the request for a modification to the undertaking. Prosecutors must present convincing evidence to persuade the court that the modification is necessary. Evidence could include police reports, witness statements, and any relevant medical reports. In conclusion, section 499(4) of the Criminal Code of Canada grants prosecutors the power to replace an undertaking made by a person with an order under subsection 515(2). This provision is a powerful tool for prosecutors, but careful strategic considerations must be taken into account when using it. Strategies such as timing, selecting appropriate release conditions, and modifying section 515 are essential to ensure that the release condition is appropriate and sufficient to address the risks posed by the person.