INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the conditions under which a judge or justice may order the return or payment for seized property.
SECTION WORDING
490(11) Subject to this or any other Act of Parliament, on an application under subsection (10), where a judge or justice is satisfied that (a) the applicant is the lawful owner or lawfully entitled to possession of the thing seized, and (b) the periods of detention provided for or ordered under subsections (1) to (3) in respect of the thing seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), the judge or justice shall order that (c) the thing seized be returned to the applicant, or (d) except as otherwise provided by law, where, pursuant to subsection (9), the thing seized was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant be paid the proceeds of sale or the value of the thing seized.
EXPLANATION
Section 490(11) of the Criminal Code of Canada outlines the process by which a lawful owner or person who is lawfully entitled to possess a seized item may apply to have that item returned to them. The application may be made once the periods of detention provided for or ordered under subsections (1) to (3) have expired and no proceedings have been instituted in which the seized item may be required. If the judge or justice is satisfied that the applicant is the lawful owner or entitled to possession of the seized item, and that the continued detention of the item will not be required for any purpose mentioned in subsections (1) or (4), they shall order that the seized item be returned to the applicant. If the seized item was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant shall be paid the proceeds of sale or the value of the seized item, subject to any other law or regulation that may apply. The aim of this section is to protect the rights of lawful owners or those lawfully entitled to possession of seized items, and to ensure that any seized items are retained only for the purposes authorized under the law.
COMMENTARY
Section 490(11) of the Criminal Code of Canada is an important legal provision that sets out the circumstances under which a person can apply to have property seized by law enforcement returned to them. The section details the criteria that must be met, and the process that must be followed, for this to happen. In order for an individual to apply for the return of seized property, they must be the lawful owner or lawfully entitled to possess the property in question. This requirement ensures that only those with a legitimate claim to the property are able to seek its return, and helps to prevent the return of property to individuals who may have acquired it through illegal means. The section also sets out the time periods that apply to the detention of seized property. If these periods have expired and no legal proceedings have been initiated in relation to the seized property, a judge or justice may order that the property be returned to the applicant. Alternatively, if the property has previously been forfeited, sold, or otherwise dealt with, the applicant may be entitled to receive the proceeds of the sale or the value of the property. This provision is an important protection for individuals whose property has been seized by law enforcement. It ensures that property is not unnecessarily detained and provides a clear process for individuals to seek the return of their property. This is particularly important in cases where property has been seized in error, or where there is no longer any reason for the property to be held by law enforcement. However, it is important to note that Section 490(11) is subject to other Acts of Parliament. This means that in certain circumstances, such as in cases related to national security or organized crime, other legislation may take precedence and restrict the ability of individuals to seek the return of their seized property. Overall, Section 490(11) of the Criminal Code of Canada strikes a balance between protecting the interests of law enforcement in certain circumstances and ensuring that individuals are able to reclaim their property in others. It provides clear criteria and a transparent process for individuals seeking the return of their seized property, and is an important safeguard against arbitrary or unjustified seizures.
STRATEGY
Section 490(11) of the Criminal Code of Canada provides a legal avenue for the owner of a seized property to recover it from the authorities. However, there are several strategic considerations that should be taken into account while dealing with this section of the Criminal Code of Canada. Firstly, it is crucial to understand the legal provisions mentioned in the section. The applicant must be the lawful owner or entitled to the possession of the seized property. Additionally, if the periods of detention have expired and no proceedings have been initiated, or if the continued detention is not required for any other purpose, the judge or justice shall order that the thing seized be returned to the applicant. It is essential to have a clear understanding of these provisions and present a strong case in support of them. Secondly, the timing of the application can be a strategic consideration. It is advisable to make the application as soon as possible after the seizure to minimize the period of detention. At the same time, it is essential to have a solid understanding of the legal position and evidence that supports the argument for the return of the seized property. Thirdly, it is critical to choose the right legal representation. The lawyer representing the applicant must have extensive knowledge and experience in dealing with section 490(11) of the Criminal Code of Canada. They need to be well-versed in the legal provisions and the procedural requirements to succeed in the application. Fourthly, it is essential to present a comprehensive and strong case. This includes a detailed analysis of the legality of the seizure and detention, as well as the lawfulness of their continued detention of the seized property. Additionally, a thorough argument must be presented which shows that the applicant is the lawful owner of the seized property, and it should be returned to them. Finally, it is essential to consider the potential consequences of the outcome of the application. If the application is successful, the seized property will be returned, or the applicant will be compensated for it. However, if the application is unsuccessful, it could lead to further legal action, potentially increasing the costs and time associated with the process. In conclusion, dealing with section 490(11) of the Criminal Code of Canada requires a thorough understanding of the legal provisions and the procedural requirements. A strong case must be presented, and it is important to consider the timing and potential consequences of the outcome. By considering these strategic considerations, the chances of a successful outcome can be maximized.