Criminal Code of Canada - section 490.1(2) - Property related to other offences

section 490.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

If a person is convicted of an indictable offense, and the evidence doesnt support ordering forfeiture, but the court believes the property is related to the offense, an order of forfeiture may still be made.

SECTION WORDING

490.1(2) Subject to sections 490.3 to 490.41, if the evidence does not establish to the satisfaction of the court that the indictable offence under this Act or the Corruption of Foreign Public Officials Act of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

EXPLANATION

Section 490.1(2) of the Criminal Code of Canada explains the conditions under which an order of forfeiture can be made on property that is deemed related to an indictable offence. When a person is convicted of an offence under the Criminal Code or the Corruption of Foreign Public Officials Act, the court can order the forfeiture of any property that was either used in the commission of, or was acquired through, the offence. However, if the evidence does not clearly establish that the indictable offence was committed in relation to a particular property, but there is reason to believe that the property is still related to the offence, the court may still make an order of forfeiture. To do so, the court must be satisfied beyond a reasonable doubt that the property in question is, in fact, related to the offence. If the court is satisfied that the property is indeed "offence-related", it can order that the property be forfeited, regardless of whether it was directly used in the commission of the offence. This provision is meant to prevent criminals from benefiting from the proceeds of their crimes, even if they did not directly use or acquire the property through illegal means. Overall, Section 490.1(2) of the Criminal Code provides an important tool for law enforcement and the courts to combat criminal activity by ensuring that those who profit from illegal activities are forced to forfeit their ill-gotten gains.

COMMENTARY

Section 490.1(2) of the Criminal Code of Canada is a provision that allows courts to order forfeiture of offence-related property when a person has been convicted of an indictable offence under the Criminal Code or the Corruption of Foreign Public Officials Act. This provision is subject to Sections 490.3 to 490.41 which contain specific rules for forfeiture orders in the case of certain offences. The provision allows the court to order forfeiture even if the evidence does not establish that the indictable offence was committed in relation to the property in question if the court is satisfied beyond a reasonable doubt that the property is offence-related property. This provision is important because it aims to ensure that crime does not pay. When convicted individuals are found to have benefitted from their criminal activities, they should not be allowed to keep the property that was obtained as a result of their wrongdoing. Forfeiture, therefore, serves as a deterrent to others who may be considering engaging in criminal activities for financial gain. The provision is also important because it recognizes the need to strike a balance between the rights of individuals and the interests of society. The Criminal Code provides that an order of forfeiture can only be made if the property in question is offence-related property. This means that the property must have been used in the commission of an offence, or obtained as a result of an offence. The court must be satisfied beyond a reasonable doubt that the property is connected to the offence and that forfeiture is justified. However, this provision also raises some concerns regarding the potential abuse of power by the state, particularly in cases where the evidence is not clear or where the property in question belongs to a third party who was not involved in the commission of the offence. For example, if a person is convicted of a drug offence and it is alleged that their vehicle was used to transport the drugs, the court may order forfeiture of the vehicle. However, if the vehicle belongs to someone else who was not involved in the offence, they may suffer an unfair loss of property. The provision also creates issues regarding the scope of forfeiture orders. The term "property" is broad and includes not just physical items but also intangible assets such as bank accounts, securities, and intellectual property rights. This means that the courts have broad powers to order forfeiture of a wide range of assets. This could lead to situations where the forfeiture order is disproportionate to the offence committed. For example, forfeiting a whole business for the actions of a few employees who engaged in criminal activities could lead to the loss of jobs for innocent employees. In conclusion, Section 490.1(2) of the Criminal Code of Canada is an important provision that aims to ensure that crime does not pay. It allows the courts to order forfeiture of offence-related property, even if the evidence does not establish a direct link between the property and the offence. However, the provision also raises concerns regarding the potential abuse of power by the state and the scope of forfeiture orders. These concerns need to be addressed to ensure that the rights of individuals are protected and that forfeiture orders are proportionate to the offence committed.

STRATEGY

Section 490.1(2) of the Criminal Code of Canada allows for the forfeiture of offense-related property, even if the evidence does not establish that the indictable offense was committed in relation to that property. This is an important provision of the Criminal Code because it allows law enforcement to seize and forfeit assets that are derived from criminal activity, even if the specific offense that led to the asset's acquisition cannot be proven in court. There are several strategic considerations that both prosecution and defense lawyers need to take into account when dealing with this provision of the Criminal Code. For the prosecution, the first consideration is whether they have enough evidence to prove that the property is offense-related. This can be a difficult task, as it requires proving that the property was acquired through the proceeds of crime or was used to facilitate criminal activity. In many cases, the evidence needed to prove this is circumstantial, which can make it challenging to meet the burden of proof beyond a reasonable doubt. One strategy that prosecutors may employ in these cases is to use the civil forfeiture process. This enables prosecutors to seize and forfeit assets without having to prove an underlying criminal offense. Instead, they can show that the property is either the proceeds of crime or was used to facilitate criminal activity. This can be a useful tactic when there is not enough evidence to support a criminal conviction, but there is still strong evidence that the property is offense-related. For defense lawyers, the key consideration is how to challenge the prosecution's evidence. This can be done by attacking the reliability or credibility of the evidence, or by presenting evidence that shows the property was acquired lawfully. It may also be possible to argue that the use of forfeiture would result in a disproportionate and unfair impact, particularly if the property is not directly tied to the criminal activity in question. One strategy that defense lawyers may employ is to negotiate a plea deal with the prosecution. This can involve admitting guilt on some charges in exchange for a reduced sentence or forfeiture of assets. By doing this, the defendant can avoid the risk of a more severe penalty if they are found guilty at trial. However, this approach requires careful consideration of the potential consequences and must be approved by the defendant. Overall, section 490.1(2) of the Criminal Code of Canada presents both challenges and opportunities for prosecutors and defense lawyers. It is important to carefully consider the evidence and possible strategies in each case to ensure the best outcome for the client.