section 490(8)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to allow an application for the release of seized property before the expiration of the statutory period if hardship will result otherwise.

SECTION WORDING

490(8) A judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or a justice, in any other case, may allow an application to be made under subsection (7) prior to the expiration of the periods referred to therein where he is satisfied that hardship will result unless the application is so allowed.

EXPLANATION

Section 490(8) of the Criminal Code of Canada permits an application to be made under subsection (7) prior to the expiration of the specified periods in certain circumstances. This provision was specifically introduced to address situations where an individual may face hardship if the application is not allowed before the expiration of the periods referred to in the previous subsection. Subsection (7) states that a person who has suffered a loss as a result of a seizure can apply to the court for a return of the seized property. However, to be eligible to make such an application, the person must do so within 60 days from the date of the seizure or such further time as a judge may order. Subsection (8) allows a judge to permit an application to be made under subsection (7) even if the time frame stated in that subsection has not yet expired. To do so, the judge must be satisfied that hardship will result unless the application is allowed. For example, if the seized property is necessary for the person's livelihood or for the preservation of their health and safety, the judge may permit the application to be made earlier. This provision is an important safeguard for individuals who have had their property seized by law enforcement, as it recognizes that strict adherence to timelines may not always be appropriate or fair in circumstances where significant hardship may be suffered. It allows for flexibility in these situations, while still maintaining the essential principles of justice and fairness within the criminal justice system.

COMMENTARY

Section 490(8) of the Criminal Code of Canada is an essential mechanism that allows the court to grant relief to individuals who are subject to the forfeiture of their property, so long as hardship can be demonstrated. The section provides a means of relief to those who may suffer extreme financial hardship as a result of their property being seized under the provisions of the Criminal Code. The forfeiture of property is a significant deprivation of rights, and it is for this reason that the process for forfeiture is carefully governed by the Criminal Code of Canada. The Code outlines the various grounds on which property can be seized in the course of a criminal investigation and the process by which such seizures can be challenged. One such process is through section 490(8), which allows individuals to apply to the court for relief from the forfeiture of their property. This section provides a safety valve for individuals who may be at risk of being unjustly deprived of their property. It recognizes that property seizures can have serious consequences for individuals and their families, and that there are times when the harm to the individual outweighs the public interest in the forfeiture of the property. A judge, either of the superior court of criminal jurisdiction or a judge as defined in section 552, has the discretion to allow applications under subsection (7) before the expiration of the periods referred to therein, if satisfied that hardship will result unless the application is allowed. This means that individuals who can demonstrate the hardship they will face as a result of the property seizure can make an application for relief before the statutory time limits for doing so have expired. The use of the word may" in the section is significant because it allows the court to exercise its discretion to grant relief, depending on the circumstances of the case. The court must balance the public interest in the forfeiture of the property against the individual's right to property and the harm that will result from its seizure. A court will consider various factors when determining whether to grant an application under section 490(8). The court will look at the nature and value of the property, the individual's financial circumstances, the reasons for the seizure, and the public interest in the forfeiture of the property. The court must also consider any other relevant factors that are brought to its attention by the applicant or the Crown. In conclusion, section 490(8) is an essential tool that ensures the fairness and balance of the forfeiture process. It allows the court to grant relief to individuals who are at risk of being unfairly deprived of their property, while balancing the public interest in the forfeiture of the property. The section recognizes that property seizures can have serious consequences for individuals and their families and provides a means for relief for those who demonstrate hardship. As such, section 490(8) is an important safeguard for the right to property and the rule of law in Canada.

STRATEGY

Section 490(8) of the Criminal Code of Canada provides a mechanism for individuals to apply for the early return of property seized under subsection (3) of the same section. It allows a judge to allow an application prior to the expiration of the periods referred to in subsection (7) in cases where the individual can demonstrate that hardship will result if the application is not permitted. This provision can be a useful tool for individuals who have had their property seized and wish to have it returned before the expiration of the periods of time set out in subsection (7). One strategic consideration when dealing with this section is to understand the timing of the application. The subsection allows for the application to be made prior to the expiration of the periods referred to in subsection (7) but does not define when that is. A strategic approach would be to file the application as soon as possible after the property has been seized to ensure that the judge has sufficient time to consider it before the expiration of the periods referred to in subsection (7). The application should be filed with the court as it is the court that has the power to allow an application under this subsection. Another strategic consideration is to demonstrate that hardship will result unless the application is allowed. Hardship can take many forms, and it is important to provide the judge with as much information as possible to support the claim. One might be that the seized property is necessary for the applicant's livelihood, and that without it, they will be unable to work and provide for themselves or their family. Alternatively, one may argue that if the seized property is not returned, it will deteriorate, resulting in additional costs and hardship. The more evidence and information that can be provided, the greater the likelihood of the judge allowing the application. A third strategic consideration is to be prepared to address any objections raised by the Crown or other interested parties. In some cases, the Crown or another interested party may object to the return of the seized property. This may be on the grounds that the property is evidence in an ongoing criminal investigation, or that it was obtained through illegal means. It is essential to have a compelling argument and to provide the court with the necessary evidence to overcome any objections. This could involve retaining a lawyer or seeking other professional advice. In summary, Section 490(8) of the Criminal Code of Canada provides a mechanism for individuals to apply for the early return of property seized under Section 490(3). When considering a strategy for an application under this provision, individuals should carefully consider the timing of the application, provide detailed evidence of the hardship that will result in the absence of the property, and be prepared to address any objections that may be raised. They should also seek professional advice where appropriate.