Criminal Code of Canada - section 490.5(1)

section 490.5(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions under which a person may claim an interest in property that has been forfeited to Her Majesty due to criminal activity.

SECTION WORDING

490.5(1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 490.1(1) or 490.2(2), any person who claims an interest in the property, other than (a) in the case of property forfeited pursuant to an order made under subsection 490.1(1), a person who was convicted of the indictable offence in relation to which the property was forfeited, (b) in the case of property forfeited pursuant to an order made under subsection 490.2(2), a person who was charged with the indictable offence in relation to which the property was forfeited, or (c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property, may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

EXPLANATION

Section 490.5(1) of the Criminal Code of Canada addresses the forfeiture of offence-related property to the Canadian government. When property is forfeited due to an order made under subsection 490.1(1) or 490.2(2) of the Code, any person who claims ownership or interest in the property, except for certain individuals, may apply for an order under subsection (4) within thirty days after the forfeiture. The individuals exempt from making such claims include those who were convicted of the indictable offence related to the forfeited property (in the case of an order made under subsection 490.1(1)), those who were charged with the offence (in the case of an order made under subsection 490.2(2)), or those who acquired the property or right of possession from someone in the aforementioned categories with the purpose of avoiding the forfeiture of the property. Subsection (4) allows the judge to consider the application made by the person who claims an interest in the forfeited property. The judge may then make an order to cancel or vary the forfeiture order, return the property to the applicant, or make other necessary orders. Overall, section 490.5(1) of the Criminal Code aims to ensure that anyone who has a legitimate interest in the forfeited property is given the opportunity to challenge the forfeiture and potentially regain their property. It also serves as a deterrent to those who may attempt to transfer ownership of their property to avoid its forfeiture.

COMMENTARY

Section 490.5(1) of the Criminal Code of Canada outlines the procedure for claiming an interest in offence-related property that has been forfeited to Her Majesty. The section provides that any person who claims an interest in the property, other than certain specified individuals, may apply for an order under subsection (4) within thirty days of the forfeiture. Offence-related property refers to property that was either used in the commission of an offence or obtained as a result of the offence. For example, if a person is convicted of drug trafficking and the police seize money earned from the sale of drugs, that money would be considered offence-related property. When offence-related property is forfeited to Her Majesty, it becomes the property of the government. However, Section 490.5(1) provides an opportunity for third parties who have a legitimate interest in the property to make a claim. Paragraph (a) of Section 490.5(1) states that a person who was convicted of the indictable offence in relation to which the property was forfeited cannot claim an interest in the property. This is because the purpose of forfeiture is to deprive the offender of any benefit gained from the commission of the offence. Allowing the offender to claim an interest in the property would defeat the purpose of the forfeiture. Paragraph (b) of Section 490.5(1) states that a person who was charged with the indictable offence in relation to which the property was forfeited cannot claim an interest in the property. This is because the person has not been found guilty of the offence and therefore has not been deprived of any property. Paragraph (c) of Section 490.5(1) is a catch-all provision that prevents a person from acquiring title to or a right of possession of the property from a person referred to in paragraph (a) or (b) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property. This provision prevents individuals from using third parties to hide offence-related property in an attempt to avoid forfeiture. The purpose of Section 490.5(1) is to balance the interests of victims, the government, and third parties who have a legitimate interest in the property. Victims of crime may be entitled to restitution or compensation, while the government may use the proceeds of forfeiture to fund law enforcement initiatives or support victims of crime. Third parties, such as innocent owners or lienholders, may have a legitimate interest in the property and should have an opportunity to make a claim before the property is forfeited to the government. In summary, Section 490.5(1) of the Criminal Code of Canada is an important provision that sets out the procedure for claiming an interest in offence-related property that has been forfeited to Her Majesty. The provision balances the interests of victims, the government, and third parties who have a legitimate interest in the property while also furthering the goal of depriving offenders of any benefit gained from the commission of an offence.

STRATEGY

One strategic consideration when dealing with Section 490.5(1) of the Criminal Code of Canada is to carefully assess the nature of the property that has been forfeited and the potential interests that may exist in it. For example, if the forfeited property includes real estate or other valuable assets, there may be multiple competing claims from individuals or entities that have some sort of legitimate interest in the property. Another strategic consideration to keep in mind is the deadline for making an application under subsection (4). The thirty-day time frame is relatively short, so it is important to act quickly if there is a desire to make a claim to the forfeited property. This requirement underscores the importance of being proactive and staying informed about legal developments that may impact one's property interests. One possible strategy that could be employed in response to Section 490.5(1) is to take a proactive approach to asset protection and forfeiture prevention. This might involve taking steps to ensure that property ownership is clearly and unambiguously documented, and that there are no irregularities or inconsistencies that could give rise to the inference that a transfer was made for the purpose of avoiding forfeiture. It may also involve working with legal professionals to create ownership structures that can help insulate property from legal challenges, such as trusts or holding companies. Another possible strategy is to work collaboratively with other individuals or entities that have an interest in the forfeited property. By coordinating efforts and sharing resources, it may be possible to mount a more effective challenge to the forfeiture. For example, if a group of investors collectively owns a piece of real estate that is subject to forfeiture, they may be able to pool their resources and expertise to mount a legal defense and argue that the forfeiture would unjustly deprive them of their rightful interests in the property. Ultimately, the best strategy for dealing with Section 490.5(1) of the Criminal Code of Canada will depend on the specific circumstances of the case. It is important to work with legal professionals who can help assess the situation and develop a tailored strategy that is designed to maximize the chances of success. By carefully evaluating the situation and remaining proactive, individuals and entities may be able to protect their interests and recover property that has been forfeited under this section of the Criminal Code.