INTRODUCTION AND BRIEF DESCRIPTION
A restraint order remains in effect until a forfeiture order is made or another order is made in relation to the property.
SECTION WORDING
490.8(8) A restraint order made under this section remains in effect until (a) an order is made under subsection 490(9) or (11), 490.4(3) or 490.41(3) in relation to the property; or (b) an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2).
EXPLANATION
Section 490.8(8) of the Criminal Code of Canada outlines the conditions under which a restraint order made under this section can be lifted. A restraint order is issued by a court to prevent a person from disposing of property that could be subject to forfeiture if they are ultimately convicted of an offense. This section states that a restraint order remains in effect until one of two scenarios occurs. Firstly, if an order is made under subsection 490(9) or (11), 490.4(3) or 490.41(3) in relation to the property. These subsections outline different orders that could be made by the court regarding the property, such as releasing it back to the owner or transferring it to another person. Secondly, if an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2). Forfeiture is the legal process by which the property is taken away from the owner because it was obtained through criminal activity. In essence, this section ensures that the property in question remains under the control of the court until the legal proceedings have been completed. It also ensures that any potential proceeds of criminal activity are taken away and cannot be used to fund further criminal activities. The restraint order acts as a protective measure, preserving the property for possible forfeiture and thereby preventing suspects from disposing of their assets until they are cleared of any criminal charges. By doing so, a restraint order helps to preserve evidence and ensure that the court has the full range of options at disposal to control and dispose of assets in the event of a criminal conviction.
COMMENTARY
Section 490.8(8) of the Criminal Code of Canada is a section that deals with the duration of restraint orders that are intended to prevent the transfer or disposal of property that may be subject to forfeiture. This section is an important part of Canadian criminal law as it helps to preserve the ability of law enforcement agencies to hold individuals accountable for their criminal actions and to ensure that the victims of these actions receive appropriate compensation. The first part of this section states that a restraint order made under this section remains in effect until "an order is made under subsection 490(9) or (11), 490.4(3) or 490.41(3) in relation to the property." This refers to the fact that, under certain circumstances, the property subject to the restraint order may be released or property rights to it may be transferred to another party. For example, if the property was not in fact involved in the criminal activity for which it was restrained, or if someone other than the defendant has a legitimate claim to the property, then the restraint order could be lifted. In short, the restraint order can be modified or terminated if circumstances change. The second part of section 490.8(8) states that the restraint order remains in effect until "an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2)." This means that the restraint order will only be lifted if the property is forfeited as a result of a conviction or plea agreement. Property is forfeited to the Crown upon conviction of certain offences, and the Crown can then use this property to compensate victims of the crime or to fund government programs or initiatives. In essence, the property is seized by the government as an indirect way of punishing the offender. This section is an important mechanism for law enforcement agencies to prevent the disposal of property that could be subject to forfeiture. Such a restraint order is necessary since the property could be moved from the jurisdiction of the court or made to disappear, thereby preventing any chance of forfeiture. This is why restraint orders are often put in place at the very beginning of an investigation or arrest, so that the assets in question cannot be disposed of before they can be seized. By freezing the assets, the order ensures that they remain in place and can be seized by the Crown in the event of a conviction. In conclusion, section 490.8(8) is an important provision of the Criminal Code of Canada that allows law enforcement agencies to preserve evidence and prevent the disposal of property involved in criminal activity. The section also helps to ensure that convicted criminals are held accountable for their actions and that victims are compensated for their losses. Though it may be frustrating for defendants who are subject to a restraint order, it is an important tool for the Crown and the court in securing justice and providing restitution to victims of crime.
STRATEGY
Section 490.8(8) of the Criminal Code of Canada is a critical section for individuals and organizations that may find themselves the subject of a restraint order. A restraint order is a court order that can be issued by a judge or a justice of the peace. The order is used to freeze assets or property that is connected to a criminal investigation or prosecution. The purpose of the order is to prevent the disposal or movement of property that may be used as evidence or have a value that could be applied to any fines or restitution orders that may be imposed. There are several strategic considerations when dealing with section 490.8(8) of the Criminal Code of Canada. The most critical of these considerations is the need to have a comprehensive understanding of the law, the risks, and the possible outcomes of any legal proceeding. A lawyer or legal team with experience handling criminal forfeiture proceedings can provide valuable insight and guidance. One of the primary strategies that could be employed when dealing with this section is to challenge the restraint order itself. This could involve demonstrating that there is no reasonable basis for the order to have been issued or that it is overly broad and does not specifically identify the property that is the subject of the order. In some cases, it may be possible to negotiate a partial release of the restraint order. For example, an individual or organization may be able to argue that some of the property that is the subject of the order is not connected to the crime and should be released. Another strategy is to work with the prosecution to negotiate a plea bargain or settlement agreement. This could involve agreeing to forfeit specific property in exchange for a reduction in charges or a more favorable resolution of the case. In situations where property has been seized or frozen under a restraint order, it may be possible to seek a release of the property by providing alternative security such as a bond or lien. Additionally, a party subject to such an order may seek to dispose of seized property if it can be proved that the public good is served by doing so. Compliance with the terms of the restraint order itself is also critical. Violation of the order can result in additional criminal charges and, in some cases, imprisonment. Ultimately, dealing with section 490.8(8) of the Criminal Code of Canada requires a careful assessment of the facts and the law. A thorough understanding of the court proceedings and available strategies is essential. Working with an experienced legal team can help ensure that the outcomes of any judicial proceeding are satisfactory and compliant with the law.