INTRODUCTION AND BRIEF DESCRIPTION
Property seized under this section cannot be disposed of or forfeited until any related applications or appeals are resolved or until 30 days after an order is made.
SECTION WORDING
490(12) Notwithstanding anything in this section, nothing shall be returned, forfeited or disposed of under this section pending any application made, or appeal taken, thereunder in respect of the thing or proceeding in which the right of seizure thereof is questioned or within thirty days after an order in respect of the thing is made under this section.
EXPLANATION
Section 490(12) of the Criminal Code of Canada provides important protections for individuals who are subject to seizures of their property by law enforcement officers. According to this section, if property is seized under the authority of the Criminal Code, it cannot be disposed of or forfeited until any legal challenges to the seizure have been resolved. This means that individuals who believe that their property was seized improperly or without due process have a chance to challenge the seizure before it is permanently taken from them. Under section 490 of the Criminal Code, a wide variety of property can be seized by law enforcement officers, including firearms, drugs, proceeds of crime, and other items that may be connected to criminal activity. The purpose of these seizures is to prevent further criminal activity and to ensure that individuals who are involved in criminal activity do not benefit from the proceeds of their crimes. However, section 490(12) recognizes that seizures can be contested, and that individuals who are subject to seizures have a right to challenge them. This section ensures that those challenges can take place before any final decisions are made about the disposition of the seized property. If the challenges are successful, the property will be returned to its owner. If the challenges are not successful, the property may be forfeited or otherwise disposed of. Overall, section 490(12) provides important protections for individuals who are subject to seizures of their property under the Criminal Code of Canada, and ensures that due process is followed in these cases.
COMMENTARY
Section 490(12) of the Criminal Code of Canada is a provision that governs the seizure, forfeiture, and disposition of property that may have been obtained through illegal means. It provides important safeguards for individuals who may have had their property seized mistakenly or without just cause. This section ensures that the individual's right to contest the seizure is protected and that property will not be disposed of before all legal avenues have been exhausted. The section states that nothing will be returned, forfeited, or disposed of under this section during any application made, or appeal taken, in respect of the item or proceeding in which the right of seizure is contested. This means that if a person believes that their property has been seized without just cause, they have the right to apply to have the item or proceeding returned to them. This application must be made within thirty days after an order has been made under this section. The purpose of this provision is to ensure that individuals have an opportunity to contest the seizure of their property. It recognizes that the seizure of property can have significant consequences for individuals and ensures that they have the right to defend their interests before any final decision is made. This provision also serves to protect the integrity of the criminal justice system. If property is seized without just cause, it may ultimately undermine public trust in the fairness and legitimacy of the system. By providing individuals with a legal avenue to challenge the seizure, this provision helps to maintain the credibility of law enforcement and the criminal justice system more broadly. However, the provision can also lead to practical problems in situations where the property seized may be perishable or have a limited shelf-life. For instance, if the property seized is perishable, its value may decrease rapidly, making it difficult to return it to the owner even if it is ultimately determined that the seizure was unjustified. In conclusion, section 490(12) of the Criminal Code of Canada provides important safeguards for individuals whose property has been seized due to illegal means. While it is intended to serve as a protection for individuals, it also has the potential to create practical difficulties in situations where the property seized may be of limited shelf-life. Nevertheless, the provision is a necessary component of the criminal justice system, as it helps to ensure that law enforcement agencies act in a fair and just manner and that individuals are protected from unjust seizures of their property.
STRATEGY
Section 490(12) of the Criminal Code of Canada allows for the possibility of challenging the right of seizure of an item or proceedings that have been seized. This section ensures that such items or proceedings are not disposed of or forfeited prior to the completion of any legal proceedings. What follows are some strategic considerations when dealing with this section of the Criminal Code of Canada. Firstly, it is crucial for lawyers and legal practitioners to explain this section and its implications to their clients. Clients need to know that they have a right to make an application or take an appeal in cases where the seizure of their property or proceedings is questionable. Clients also need to be made aware that they have a 30-day window after an order in respect of the seized item is made under this section to make their challenge. Secondly, legal practitioners need to evidence what objections they have to the process and demonstrate how the law has been violated in the particular case. This may help in getting the client's right of seizure upheld, especially in cases where seizure was not necessary, improper or as a result of wrongful conviction. Lawyers should also consider filing for a motion in order to stay execution of the order of forfeiture pending the determination of the appeal. Thirdly, legal practitioners need to ensure that the evidence is strong to sustain an objection. Lawyers need to examine all the facts and figure out whether there is a reasonable prospect of success in any legal challenge. Legal practitioners should pay attention to the potential for collateral damage should a challenge fail. For example, what will happen if a lawyer's client challenges the seizure of an item, and the challenge fails, could this then lead to criminal charges or prosecution? Fourthly, it is important to find a balance between challenging the seizure and being practical. A lawyer needs to appreciate the pros and cons of challenging the seizure of an item and weigh this against the chances of success. It may be advantageous to design a settlement agreement with the agency responsible for the seizure. It could be possible to negotiate for the release of the property in exchange for a fine or other terms and conditions. This approach could be more practical than arguing to have the seized item returned through a legal challenge. Finally, it is essential for legal practitioners to be conscious of how the process works and the timeline for making an appeal. Lawyers need to be aware of all the legal procedures for lodging an appeal and adhere to them. It is also essential to file an application as soon as possible to avoid forfeiture of the property or proceedings in question. To conclude, section 490(12) of the Criminal Code of Canada provides a means for ensuring the protection of an individual's seized property. However, legal practitioners need to be strategic in how they approach appeals under this section. It is vital to weigh the pros and cons of mounting an appeal and striking a balance between practicality and the chances of success. Legal practitioners should also advise their clients on the process of challenging seizures and the timeline involved.