Criminal Code of Canada - section 491.1(2)

section 491.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section requires the court to order the return of seized property to its lawful owner, or if the owner is unknown, to forfeit it to the government for disposal or other lawful actions.

SECTION WORDING

491.1(2) In the circumstances referred to in subsection (1), the court shall order, in respect of any property, (a) if the lawful owner or person lawfully entitled to possession of the property is known, that it be returned to that person; and (b) if the lawful owner or person lawfully entitled to possession of the property is not known, that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

EXPLANATION

Section 491.1(2) of the Criminal Code of Canada outlines what should happen to any property that has been seized by the authorities. This section applies to situations where law enforcement agencies have seized property that they believe was involved in a criminal offence, or that is being used to commit a crime. According to the section, if the lawful owner or person entitled to the property is known, the court must order that the property be returned to that person. In other words, if the police have seized someone's property because they believe it was involved in a crime, and the owner of that property is identified, the authorities must return the property to its rightful owner. However, if the lawful owner or person lawfully entitled to possession of the property is not known, then the property is forfeited to Her Majesty, which means the government takes possession of it. The Attorney General then directs how the property is to be disposed of, or it may be dealt with in accordance with the law. This could involve selling the property, using it for public purposes, or destroying it if it is not able to be put to any other use. The purpose of this section is to provide a clear approach to dealing with property that the authorities believe is connected to a crime. This approach is designed to balance the rights of the owner of the property with the importance of ensuring that any property that may have been used to commit a crime is taken off the streets and cannot be used again.

COMMENTARY

Section 491.1(2) of the Criminal Code of Canada outlines the circumstances under which a court may order the return or forfeiture of property in criminal proceedings. The section specifies that if the lawful owner or person lawfully entitled to possession of the property is known, it must be returned to them. If they are not known, the property may be forfeited to the government. This section of the Criminal Code is significant as it provides clarity on the rights of property owners in criminal proceedings. It reinforces the principle that individuals have a right to their property and that it should not be seized without good reason. This is particularly important in cases where property may be mistakenly or unjustly seized, such as in cases of wrongful arrest or when property is used as evidence in a trial. Furthermore, the section establishes that the government must respect property rights and can only seize property if there is a legitimate reason to do so. This helps to prevent abuse of power by law enforcement officials who may be inclined to seize property without good reason. It also ensures that the government cannot simply appropriate property for its own use without compensating the owner. However, there are some limitations to this section of the Criminal Code. In cases where property is suspected of being the proceeds or instruments of crime, the police may seize it without a warrant. This is known as civil forfeiture and allows law enforcement officials to seize property that is believed to be linked to criminal activity. While this is designed to target organized crime and prevent the use of illegal proceeds, it has been criticized for its lack of transparency and accountability. In some cases, innocent individuals have had their property seized without justification. In addition, the section does not provide clear guidance on how the government should dispose of forfeited property. While it specifies that the Attorney General may direct how the property is to be disposed of, it does not offer any specific guidelines or procedures. This could potentially lead to uneven or unfair treatment of property owners whose assets are forfeited. Overall, section 491.1(2) of the Criminal Code of Canada strikes a balance between protecting property rights and allowing for the seizure of property in certain circumstances. While it provides clarity on when property must be returned to its rightful owner and when it may be forfeited, there are still concerns about the use of civil forfeiture and the lack of clear guidelines for disposing of forfeited property. As such, it will be important for lawmakers to continue to monitor and refine this section of the Criminal Code to ensure that it is being used fairly and effectively.

STRATEGY

Section 491.1(2) of the Criminal Code of Canada provides for the return or forfeiture of property seized by law enforcement agencies during the course of an investigation or arrest. This provision is relevant in cases where property has been seized as evidence or as the proceeds of crime. Strategic considerations in dealing with this section of the Criminal Code of Canada will depend on the nature of the case, the value and type of property seized, and the motivations of the parties involved. Below are some strategies that could be employed: 1. Determining Ownership and Entitlement: The first step in dealing with seized property is to determine who the lawful owner or lawful entitled person is. This could involve tracing the origin of the property, reviewing documents like registration cards, or consulting with other parties that may have a claim to the property. If the lawful owner or entitled person is known, they have a right to the return of their property under the code, which should be factored into any considerations or arguments made around the disposition of the property. 2. Negotiating a Settlement: In some cases, a negotiated settlement could be reached between the parties involved. This could involve a compromise or exchange of property or other considerations. However, careful consideration should be taken as settlements are only possible when it is a civil matter and not a criminal one; in criminal cases, such agreements are not permissible under the law. 3. Seeking Advice from Lawyers: Seized property could be subject to specific legal processes and timelines and could have different implications, depending on the specific situation. It could be beneficial to seek advice from a lawyer for assistance in navigating and understanding the process. A lawyer will provide guidance on how to proceed, what documents are needed, and what options are available, balancing the rights of their clients and the interests of the state. 4. Challenging the Seizure: Handing over property to the state without a fight is technically only possible for lawful owners because they have the right to the return of the property. However, parties, who are not the lawful owners, may challenge the legality of the seizure. Where a seizure is found to be unlawful, the court may order the return of the property irrespective of whether there is a lawful owner. This means that a party could argue that the seizure of the property was not authorized, or that the police held the property for too long without bringing charges, or that the property did not constitute proceeds of crime, thereby seeking the return of the property. 5. Arguing for Disposition: If a lawful owner is unknown or if the property cannot be returned, the Attorney General has the right to forfeit the property to the state. Where a party could argue that the property should not be forfeited or that it should be disposed of in a particular way. For example, a party may argue that the property should be sold, with the proceeds being donated to a registered charity versus it being destroyed. Another option is arguing that it should be disposed of in a way that would not result in significant hardship for innocent owners if there exist innocent third parties who would suffer hardship should the property be totally forfeited. 6. Negotiating the Return of Property: In some cases, negotiations may be initiated by the prosecution, leading to a mutually agreed return of the property to the accused if the prosecution considers that the retention of the property has limited evidentiary value or that forfeiture is not desirable. Here, the accused may agree to dispose of the property, with the proceeds being donated to a registered charity or any other disposition agreed upon. In conclusion, parties involved in cases involving the forfeiture or return of property seized by law enforcement agencies should carefully consider their circumstances, seek legal advice, determine ownership or entitlement, and explore possible options before settling on a course of action. Different strategies may be employed to achieve desired outcomes, and the most effective approach will depend on the specific situation as well as the interests involved.