Criminal Code of Canada - section 490.41(3) - Non-forfeiture of property

section 490.41(3)

INTRODUCTION AND BRIEF DESCRIPTION

A court can decide not to order forfeiture of property if it would be disproportionate to the offence, circumstances, and criminal record of the person.

SECTION WORDING

490.41(3) Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

EXPLANATION

Section 490.41(3) of the Criminal Code of Canada is an important provision that allows a court to exercise its discretion when determining whether an order of forfeiture made under subsection 490.1(1) or 490.2(2) would result in disproportionate consequences to the offender. In other words, if the court is satisfied that the impact of an order of forfeiture would be too severe for the nature and gravity of the offence, the circumstances surrounding the commission of the offence, and the criminal record of the offender, it may decide not to order the forfeiture of the property or part of the property. This provision recognizes that an order of forfeiture can have serious consequences for an offender, particularly if the property in question is essential for their livelihood, such as a family home or a business. Forfeiting such property could lead to financial ruin and hardship for the individual and their family members. Therefore, this provision allows for a more nuanced consideration of the situation, taking into account the specific circumstances of the case and the potential impact of the forfeiture on the offender. This demonstrates the Canadian legal system's commitment to fairness and justice, even in the context of criminal law proceedings. Overall, Section 490.41(3) provides a measure of flexibility to the court in deciding on forfeiture orders, recognizing that not all cases are the same and that a one-size-fits-all approach cannot be used to impose sentences. The provision also reinforces the importance of ensuring that criminal penalties are proportional and just, considering both the offence and the offender's circumstances.

COMMENTARY

Section 490.41(3) of the Criminal Code of Canada grants courts the discretion to decide against ordering the forfeiture of property or part of property where the impact of such an order would be disproportionate to the nature and gravity of the offence, the circumstances surrounding its commission, and the criminal record of the accused. Forfeiture is a legal process whereby a person is deprived of their property or assets as a punishment for committing an offence. The purpose of forfeiture is to deter criminal activity by making it unprofitable, to deprive offenders of the proceeds of crime, and to compensate victims. The Criminal Code of Canada provides for two types of forfeiture orders: criminal forfeiture and civil forfeiture. Criminal forfeiture applies to property that is deemed to be an instrument of an offence or that is obtained by the commission of an offence. Civil forfeiture applies to property that is considered to be proceeds of crime or that is used in unlawful activities. While forfeiture is an important tool in the fight against crime, there are concerns that it can be abused, particularly in cases where the impact of an order would be disproportionate to the offence committed. Section 490.41(3) seeks to address this issue by granting courts the discretion to assess the proportionality of forfeiture orders. The provision requires courts to consider three factors when deciding whether to order forfeiture: the nature and gravity of the offence, the circumstances surrounding its commission, and the criminal record of the accused. The nature and gravity of the offence refers to the seriousness of the crime committed and the harm caused to society. The circumstances surrounding the commission of the offence may include factors such as whether the offence was premeditated, the degree of planning involved, and the level of cooperation with authorities. The criminal record of the accused describes their prior convictions and any relevant sentencing considerations. The proportionality test under section 490.41(3) recognizes that forfeiture orders can have a significant impact on the accused and their family. Forfeiture can result in the loss of property that is not related to the offence, such as a family home or a vehicle used for legitimate purposes. In some cases, it may also lead to financial ruin for the accused and their dependents. By allowing courts to weigh the impact of forfeiture against the seriousness of the offence, the provision helps to ensure that the punishment fits the crime and does not cause undue harm. However, the provision also raises questions about the scope of judicial discretion. Critics argue that it may lead to inconsistent outcomes, as different judges may have different views on what constitutes proportionality in a given case. Furthermore, there is a risk that the provision may be used to perpetuate systemic biases, as judges may have implicit biases that affect their assessment of the factors. In conclusion, section 490.41(3) recognizes the need to balance the goals of forfeiture with the need to avoid disproportionate outcomes. By providing a framework for assessing proportionality, the provision helps to ensure that forfeiture is used judiciously and fairly. However, the provision also requires careful implementation to avoid unintended consequences and ensure consistency in its application.

STRATEGY

Section 490.41(3) of the Criminal Code of Canada grants a court the discretion to not order the forfeiture of property in cases where it would be disproportionate to the nature and gravity of the offence, the circumstances surrounding its commission, and the criminal record of the offender. This provision raises several strategic considerations for lawyers dealing with seizure and forfeiture proceedings. Firstly, lawyers must be aware of the highly fact-specific nature of this provision. To successfully argue against the forfeiture of property, lawyers must persuasively present evidence that shows how the forfeiture would be disproportionate given the unique circumstances of the case. This evidence can include factors such as the value of the property relative to the seriousness of the offence, the impact of forfeiture on third parties, and the presence of alternative penalties such as fines or community service. Lawyers may also seek to introduce mitigating evidence regarding the offender's character, mental state, and personal circumstances. Secondly, lawyers must be prepared to counter arguments put forward by prosecutors in favor of forfeiture. One common argument is that forfeiture is necessary to ensure that crime does not pay, and that allowing offenders to retain the proceeds of their crimes sends the wrong message to society. Lawyers may counter this by arguing that forfeiture only serves a punitive function and does not address the underlying causes of criminal behavior, such as poverty, addiction, and mental illness. They may also argue that forfeiture can lead to unintended consequences, such as driving offenders deeper into criminality or creating unfair hardships for innocent third parties. Finally, lawyers may employ a range of other strategies to support their case for non-forfeiture. These may include procedural tactics such as motion practice, discovery requests, and evidentiary objections. Lawyers may also seek to engage stakeholders such as community organizations, victim advocates, and policy experts to build support for their argument. In some cases, lawyers may even challenge the constitutionality of forfeiture laws, arguing that they violate principles of due process, property rights, or the presumption of innocence. In conclusion, Section 490.41(3) of the Criminal Code of Canada provides a valuable opportunity for lawyers to challenge the automatic forfeiture of property in certain cases. To do so effectively, lawyers must be prepared to present compelling evidence, counter arguments from prosecutors, and employ a range of tactical and strategic techniques. By doing so, they can ensure that their clients receive fair and proportionate treatment under the law.