INTRODUCTION AND BRIEF DESCRIPTION
Before ordering forfeiture of offence-related property, a court can reverse any property transfers that occurred after seizure or restraint, unless transfer was for valuable consideration to a person in good faith.
SECTION WORDING
490.3 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) or 490.2(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
EXPLANATION
Section 490.3 of the Criminal Code of Canada provides courts with the power to set aside any conveyance or transfer of property that occurred after the seizure of such property or the making of a restraint order with respect to the property. This power is exercised before finalizing an order for forfeiture of property. Essentially, the section allows for the court to prevent individuals from attempting to avoid the consequences of a forfeiture order by attempting to dispose of the property in question. However, the provision includes an exception for situations where the conveyance or transfer was made for valuable consideration to a person acting in good faith. This exception recognizes that there are legitimate transactions that could take place after seizure or restraint of property. For example, a person who purchased the property in an arms-length transaction with the offender, may have acted in good faith and for valuable consideration. In such cases, it would be unfair to declare the property forfeited given that the purchaser had no connection to any criminal activity. The provision serves as a safeguard against individuals attempting to dispose of criminal proceeds before the state can sieze them. It allows for the courts to prevent those who act in bad faith from benefiting from their wrongdoing, while also recognizing the rights of those who come by the property legitimately. By setting aside transfers or conveyances made in bad faith, it upholds the principles of justice and fairness in the Canadian criminal justice system.
COMMENTARY
Section 490.3 of the Criminal Code of Canada provides clear provisions for the forfeiting of offence-related property. However, it also allows for the possibility of setting aside any transfer or conveyance of property that occurred after the seizure of the property or the making of a restraint order. The main objective of this section is to prevent individuals from transferring or disposing of property that was obtained through illegal means or used to facilitate criminal activities. The section ensures that the property remains available for forfeiture in case of a conviction for the related offences. The section acknowledges that there could be scenarios where a transfer of property may have occurred in good faith, and for valuable consideration, hence the exemption. This exemption is an acknowledgment of the value of property rights and the importance of ensuring that innocent parties are not affected when criminal activities lead to property forfeiture. In essence, if the property was transferred to a person acting in good faith and for valuable consideration, then the transfer would not be set aside. However, if the transfer was made to someone who had knowledge of the illegal activities or was otherwise complicit in the crime, the transfer would not be exempted. The setting aside of the transfer also depends on the timing of the transfer, as it must occur after the seizure of the property or the making of a restraint order. This provision ensures that individuals cannot transfer property before any legal action takes place, making it harder to recover the property in case of forfeiture. The section also highlights the court's powers to determine whether a transfer of property should be set aside or not. The possession of this power underscores the importance of the courts in ensuring that justice is done and the rights of innocent parties are not trampled upon. In conclusion, section 490.3 of the Criminal Code of Canada provides a necessary provision for ensuring that property related to criminal activities can be forfeited. While providing for exemptions where transfers occurred in good faith and for valuable consideration, the section ultimately recognizes the significance of the rule of law and the need to ensure that offenders do not benefit from their criminal activities.
STRATEGY
Section 490.3 of the Criminal Code of Canada is an essential provision that enables a court to set aside any transfer or conveyance of property that occurred after the seizure of the property or restraint order was made. Its purpose is to ensure that criminals do not benefit from their illegal activities by disposing of their assets. Its key objective is to prevent influence from tainted property while providing compensation for any harm done. When dealing with Section 490.3 of the Criminal Code of Canada, there are several strategic considerations that a lawyer or defendant needs to take into account. The following are some of the strategies that could be employed. Firstly, any conveyance or transfer of an asset after the seizure or restraint will be scrutinized by the court. Therefore, it is vital to ensure that any transfer or sale of assets after the seizure or restraint was made should be well-documented. This documentation should prove that the transfer or sale is valid, for valuable consideration to a person acting in good faith. It is important to ensure clear records, as the courts must be satisfied that it was not intended to avoid enforcement proceedings. Secondly, it is important to note that the onus is on the defendant to prove that the conveyance or transfer of property for valuable consideration was done in good faith. A lawyer or a defendant should, therefore, prepare evidence to prove that the conveyance or transfer was made in good faith. Evidence such as receipts, invoices, contracts, and bank statements can be helpful in satisfying the court that the transfer or sale was made for valuable consideration. Thirdly, a defendant can also employ the strategy of appealing the seizure or restraint order. When appealing, an accused could argue that the property seized or restrained was not related to the criminal offense and that there is no connection between the property and the crime. This strategy will seek to protect assets that are not related to the offense. By doing so, the accused can protect other assets not connected to the offence and minimize the effect of the order on their life. Fourthly, a defendant who has been convicted of an offence could employ the strategy of plea bargaining. This strategy involves negotiating with the prosecutor to minimize the effects of the offence on the defendant's life. It could involve the forfeiture of some assets while keeping others. This strategy is best suited for defendants who have a weak case, are facing serious charges, or have no assets to forfeit. Finally, a defendant could also seek help from a professional asset recovery service provider that will provide guidance and support in developing strategies to deal with asset forfeiture. The service provider can also provide assistance in terms of valuation and disposing of assets if the court directs the forfeiture of assets. In conclusion, dealing with Section 490.3 of the Criminal Code of Canada requires an effective strategy to ensure that criminals do not benefit from their illegal activities by disposing of assets. By employing strategic considerations such as proper documentation, evidential preparation, appeal, plea bargaining, and asset recovery services, a lawyer or defendant can protect assets and minimize the impact of the forfeiture order on their lives.