Criminal Code of Canada - section 490.2(2) - Order of forfeiture of property

section 490.2(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to order the forfeiture and disposal of offense-related property if the accused has died or absconded and proceedings of an indictable offense have been commenced.

SECTION WORDING

490.2(2) Subject to sections 490.3 to 490.41, the judge to whom an application is made under subsection (1) shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) if the judge is satisfied (a) beyond a reasonable doubt that the property is offence-related property; (b) that proceedings in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to the property were commenced; and (c) that the accused charged with the offence has died or absconded.

EXPLANATION

Section 490.2(2) of the Criminal Code of Canada outlines the circumstances in which a judge may order the forfeiture and disposal of property that is deemed to be "offence-related property." This can occur when an individual has been charged with an indictable offense under the Criminal Code or the Corruption of Foreign Public Officials Act and has either absconded or died before their trial. To order the forfeiture and disposal of property, the judge must be satisfied beyond a reasonable doubt that the property in question is related to the offense in question. This means that there must be a clear causal link between the property and the commission of the offense. Furthermore, proceedings in relation to the offense must have been commenced, indicating that there is a basis for establishing the linkage between the property and the crime. When the judge orders the forfeiture and disposal of property, they must do so in accordance with subsection (4) of the same section. This involves disposing of the property in a manner that serves the public interest, such as by selling it and using the proceeds to compensate victims of the crime or to fund programs that prevent similar offenses from occurring in the future. Overall, Section 490.2(2) is an important tool for law enforcement to prevent individuals from profiting from criminal activity and to ensure that justice is served when offenders are unable to stand trial. By ordering the forfeiture and disposal of offence-related property, judges can help to deter criminal activity and make communities safer for everyone.

COMMENTARY

Section 490.2(2) of the Criminal Code of Canada establishes the procedure for the forfeiture and disposal of property that is believed to be connected to criminal offenses. This section applies only to indictable offenses under the Criminal Code or the Corruption of Foreign Public Officials Act. The conditions for the application of this section are threefold. First, the judge must be satisfied beyond a reasonable doubt that the property in question is offense-related. This means that the property must have been used in the commission of a crime, or acquired as a result of illegal activity, or used to facilitate criminal activity. Such property may be anything from a car used in a burglary to cash obtained through drug sales. The definition of "offense-related property" is broad and includes anything that can be used or derived from any criminal activity. Secondly, proceedings in respect of an indictable offense under the specified Acts must have commenced in relation to the property. For example, the police may have seized a car believed to have been used in a bank robbery, but if no charges have been laid against the alleged perpetrators, the property cannot be forfeited under this section. In this way, the section is designed to ensure that only property that has a direct connection to criminal activity is forfeited. Thirdly, the accused charged with the offense subject to the forfeiture must have died or absconded. This provision recognizes that in some cases, a defendant may be beyond the reach of the criminal justice system, either by evading arrest or by dying before a trial is completed. In such cases, it may be justifiable to forfeit property that is likely to have been obtained through a crime that cannot be prosecuted. It should be noted that this section is subject to several other provisions of the Criminal Code. For example, under section 490.3, certain parties may have an interest in the forfeited property, and the judge may order compensation to those parties if it is deemed appropriate. Similarly, under section 490.4, the property may be subject to a restitution order in favor of any victim of the offense. Overall, section 490.2(2) is an important tool for law enforcement agencies in fighting organized crime and other serious offenses. By allowing the forfeiture of property that is directly tied to criminal activity, the section seeks to disrupt criminal enterprises and remove the proceeds of crime from circulation. At the same time, the section is subject to important safeguards to ensure that forfeitures are carried out fairly and with respect for the rights of all parties involved.

STRATEGY

Section 490.2(2) of the Criminal Code of Canada deals with the forfeiture and disposal of offence-related property in cases where the accused has died or absconded. Forfeiture of property is a serious matter that requires careful consideration and strategy by the parties involved. Here are some strategic considerations and strategies that may be employed when dealing with this section: 1. Gathering Evidence: In order to satisfy the judge that the property in question is indeed offence-related, the Crown will need to present sufficient evidence to support its claim. This may involve gathering evidence from various sources such as witnesses, police reports, expert testimony, etc. The defence may also gather evidence to challenge the Crown's claim and prove that the property is not related to the offence. 2. Negotiations: In some cases, negotiations between the parties involved may result in a settlement. For instance, the accused may offer to forfeit certain property in exchange for a reduced sentence or for dropping certain charges. Alternatively, the Crown may agree to drop the forfeiture application in exchange for cooperation from the accused in other cases or investigations. 3. Preparing the Application: If the Crown decides to proceed with the forfeiture application, it will need to prepare a strong and well-supported application. The application should clearly outline the alleged offence, the connection between the property and the offence, and the reasons why the property should be forfeited. The defence will need to prepare a strong response to challenge the Crown's application. 4. Timing: Timing can be a crucial strategic consideration when dealing with this section. For example, if the accused has absconded, the Crown may delay the application until the accused is arrested or located. Alternatively, the defence may try to delay the application in order to gather more evidence or prepare a stronger case. 5. Possibility of Appeal: It is important to consider the possibility of an appeal when dealing with this section. Both the Crown and defence should prepare a strong case and be prepared to appeal if necessary. This may include seeking a stay of the forfeiture order while the appeal is pending. 6. Public Relations: Forfeiture of property can be a controversial issue and may attract negative publicity. Both the Crown and defence should be mindful of the potential public relations impact of their actions and statements. In conclusion, section 490.2(2) of the Criminal Code of Canada requires careful consideration and strategic planning by the parties involved. Gathering evidence, negotiations, preparing a strong application, timing, possibility of appeal, and public relations are some important strategic considerations and strategies that may be employed to achieve the desired outcome.