Criminal Code of Canada - section 490.5(4) - Order declaring interest not affected by forfeiture

section 490.5(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that a judge may declare that an applicants interest in forfeited property is not affected if they are not involved in any indictable offenses related to the property and exercised reasonable care in ensuring it was not used for illegal activities.

SECTION WORDING

490.5(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant (a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and (b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.

EXPLANATION

Section 490.5(4) of the Criminal Code of Canada provides for the circumstances under which an innocent party can recover property that has been forfeited due to its suspected connection with an indictable offense. Under this provision, an innocent party who can prove that they had no involvement or complicity in any offense that led to the forfeiture of the property may be able to recover the property or its value. Additionally, such a party must have exercised all reasonable care to ensure that the property was not being used in connection with an unlawful act. For example, if an innocent person purchased a car from someone who was later found to have used the car in commission of a crime, and the car is subsequently seized by law enforcement, the innocent owner may be able to recover the car or its value under Section 490.5(4) of the Criminal Code of Canada. This provision serves as a safeguard against the wrongful deprivation of property from innocent parties caught up in investigations or prosecutions related to criminal activity. By allowing for the recovery of property by innocent parties, this provision helps to ensure that individuals are not unfairly punished for offenses they did not commit or had no knowledge of.

COMMENTARY

Section 490.5(4) of the Criminal Code of Canada is an important provision that deals with applications related to property forfeited in connection with an indictable offence. It outlines the conditions that must be met for a judge to make an order declaring that the interest of an innocent third party in the forfeited property is not affected by the forfeiture. The provision recognizes that in some cases, property that is subject to forfeiture may have been acquired by an innocent third party who had no knowledge or involvement in the underlying criminal activity. This innocent party may have a legitimate interest in the property, such as a mortgage or lien, which could be jeopardized by the forfeiture. To protect the interests of innocent third parties, section 490.5(4) sets out a two-part test that must be satisfied before a judge can make an order declaring that their interest in the property is not affected by the forfeiture. First, the judge must be satisfied that the applicant is not a person referred to in paragraph (1)(a), (b) or (c) of the provision. These paragraphs refer to the person who committed the indictable offence, a person who was an accessory to the offence, or a person who is liable to the forfeiture of the property because of their involvement in the offence. Second, the judge must be satisfied that the applicant exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession. This requirement recognizes that innocent third parties have a duty to take reasonable steps to ensure that they are not facilitating or benefiting from criminal activity. Importantly, the provision also extends to mortgagees or lienholders who may have a legitimate interest in the forfeited property by virtue of their security interest. In such cases, the judge must be satisfied that the mortgagor or lien-giver did not use the property in connection with the commission of an unlawful act. Overall, section 490.5(4) strikes an important balance between the interests of innocent third parties and the need to deter and punish criminal activity. By providing a mechanism for innocent third parties to protect their interests in forfeited property, the provision helps to ensure that the justice system does not unfairly punish those who have done nothing wrong. However, the provision also imposes a duty on innocent parties to take reasonable care to ensure that they are not facilitating or benefiting from criminal activity - thus placing a responsibility on all parties involved to ensure that criminal activity is not facilitated or perpetuated.

STRATEGY

Section 490.5(4) of the Criminal Code of Canada provides an avenue for individuals who have an interest in property that has been forfeited by the state to seek relief from the forfeiture. However, the process of seeking relief can be complex and fraught with challenges. In this article, we will explore some strategic considerations and strategies that could be employed when dealing with this section of the Criminal Code. One of the first strategic considerations when dealing with section 490.5(4) is to ensure that you satisfy the criteria outlined in the section. To be successful in seeking relief, you must demonstrate to the judge that you are not a person referred to in paragraph (1)(a), (b) or (c) and appear innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence. Additionally, you must show that you exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by you to obtain possession of the property or from whom you obtained possession. If you fail to satisfy any of these criteria, you may not be able to seek relief under this section. Another strategic consideration is the timing of the application. Section 490.5(4) provides that the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest. However, this relief is only available if the judge is satisfied on the hearing of an application made under subsection (1). Therefore, it is important to file your application as soon as possible, as delays may result in the forfeiture of the property becoming final. A third strategic consideration is the evidence that you will need to present to the court. To satisfy the criteria outlined in section 490.5(4), you will need to provide evidence to demonstrate your innocence or lack of collusion, and your exercise of reasonable care. This evidence may include documents, witness testimony, expert opinions, and any other relevant evidence that can assist in demonstrating your case. In terms of strategies that could be employed when dealing with this section, there are several that may prove useful. One strategy is to seek the advice of a lawyer experienced in dealing with forfeiture cases. Such a lawyer can provide guidance and assistance in preparing your case, and can help you navigate the complex legal requirements and procedures. Another strategy is to gather as much evidence as possible to support your case. This may involve conducting an investigation to gather evidence that can demonstrate your innocence or lack of collusion, and your exercise of reasonable care. For example, you may need to conduct research to identify any legal requirements or regulations governing the possession or use of the property, and provide evidence that you complied with these requirements. A third strategy is to be proactive in seeking relief. This may involve filing your application as soon as possible, and taking steps to ensure that all relevant documents and evidence are submitted to the court in a timely manner. Additionally, you may need to engage with the prosecutor or government agency responsible for the forfeiture to seek their cooperation or assistance in resolving the matter. In conclusion, section 490.5(4) of the Criminal Code of Canada provides a mechanism for individuals to seek relief from the forfeiture of their property. However, this process can be complex and challenging, and requires careful consideration of the legal requirements and strategic considerations involved. By seeking the advice of a lawyer experienced in forfeiture cases, gathering sufficient evidence to support your case, and being proactive in seeking relief, you may be able to successfully navigate this process and secure relief from the forfeiture.