section 490.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the forfeiture of property deemed to be related to an indictable offence under certain circumstances, with the property being disposed of by the appropriate government authority.

SECTION WORDING

490.1(1) Subject to sections 490.3 to 490.41, if a person is convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall (a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and (b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queens Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

EXPLANATION

Section 490.1(1) of the Criminal Code of Canada provides for the forfeiture of property in cases where a person has been convicted of an indictable offence under the Act or the Corruption of Foreign Public Officials Act. If the court is satisfied, on a balance of probabilities, that the property in question is offence-related and that the offence was committed in relation to that property, the court must order the forfeiture of the property. The method of forfeiture depends on the circumstances of the prosecution: if the prosecution was conducted by the government of a province, the property will be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of the province in accordance with the law; if the prosecution was conducted by or on behalf of the government of Canada, the property will be forfeited to Her Majesty in right of Canada and disposed of by the appropriate member of the Queen's Privy Council for Canada. This section is significant in that it allows the government to target the proceeds of crime, including the profits gained from criminal activity, in order to ensure that criminals do not profit from their wrongdoing. The forfeiture of property serves as a deterrent to would-be criminals and can also be an important tool in disrupting criminal organizations. However, it is also important to ensure that the provisions of this section are not used arbitrarily or unfairly, as forfeiture can have significant consequences for innocent parties who may have an interest in the property in question.

COMMENTARY

Section 490.1(1) of the Criminal Code of Canada allows for property forfeiture in cases where a person is convicted of an indictable offence under the Act or the Corruption of Foreign Public Officials Act, and it can be proven that the property in question is offense-related and that the offence was committed in relation to that property. The section outlines two scenarios in which property forfeiture can occur: when the prosecution is conducted by or on behalf of a provincial government, in which case the property is forfeited to Her Majesty in right of that province, or in any other case, the property is forfeited to Her Majesty in right of Canada. The purpose of property forfeiture is to deter criminal activity by removing the profits gained from criminal activities or property used to facilitate such activities. It is a way to send a message that crime does not pay and that individuals engaging in criminal activities will not be able to enjoy the fruits of their illegal actions. The key to this section is that it allows for property forfeiture only in cases where it can be proven that the property in question is related to the offence for which a person was convicted. The process for property forfeiture is initiated by an application from the Attorney General, who must prove on a balance of probabilities that the property is offense-related and that the offence was committed in relation to that property. The court is responsible for deciding whether or not forfeiture is appropriate and to whom the property will be forfeited. In cases where the prosecution is conducted by or on behalf of a provincial government, the Court will order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law. In all other cases, the property will be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen's Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law. While the purpose of property forfeiture is laudable, it must be done with care and within the constraints of the law. Property forfeiture can be a significant penalty for individuals who may lose all of their assets as a result of a criminal conviction. Therefore, it is important that the application of this section is fair and consistent and that the process is transparent and accountable. In conclusion, Section 490.1(1) of the Criminal Code of Canada allows for property forfeiture in cases where there is clear evidence linking the property in question to the commission of a criminal offence. The goal of this section is to deter criminal activity and remove the profits gained from such activities. However, the application of this section must be done with care and within the constraints of the law to ensure that individuals are not unduly penalized and that the process is transparent and accountable.

STRATEGY

Section 490.1(1) of the Criminal Code of Canada is an important tool for prosecuting authorities seeking to recover the proceeds of crime. The section allows for the forfeiture of property that is determined to be connected to a criminal offence, with the property then being disposed of by the appropriate government authority. However, there are a number of strategic considerations that must be taken into account when dealing with this section of the Code. One of the primary considerations is the impact of any forfeiture action on the broader community. Forfeiture can have significant consequences for innocent third parties who may have an interest in the property in question. This could be friends or family members of the accused, or individuals who have a legitimate interest in the property, such as tenants or business partners. Therefore, any forfeiture action must be carried out carefully, with an eye towards minimizing harm to these third parties. Another consideration is the potential impact on the accused. Forfeiture of property can be a significant punishment, particularly in cases where the property in question is of high value. Therefore, prosecutors must carefully consider the impact of forfeiture on the accused's ability to pay restitution or fines, as well as their ability to support themselves and their dependants. In addition to these considerations, there are a number of strategic approaches that can be employed when dealing with Section 490.1(1). One approach is to work collaboratively with other government agencies and departments to ensure effective enforcement. This could involve sharing information and resources, coordinating court applications, and working together to ensure that forfeiture proceedings are successful. Another strategic approach is to engage with affected third parties to ensure that their interests are taken into account. This could involve negotiating with tenants or business partners to ensure that they are not unfairly impacted by any forfeiture action, or working with family members to provide support or assistance if they are affected by the loss of property. Finally, prosecutors can employ a variety of strategies to ensure that forfeiture proceedings are successful. This could involve conducting thorough investigations, gathering strong evidence to support the case for forfeiture, and working closely with experts to ensure that the forfeiture process is carried out fairly and effectively. In conclusion, Section 490.1(1) of the Criminal Code of Canada provides a powerful tool for prosecuting authorities seeking to recover the proceeds of crime. However, it is essential that prosecutors carefully consider the broader impact of any forfeiture action, as well as the potential impact on the accused and affected third parties. By employing a range of strategic approaches, prosecutors can ensure that forfeiture proceedings are successful and that justice is served.