section 490.4(3)

INTRODUCTION AND BRIEF DESCRIPTION

The court may return forfeited property to a lawful owner if they are innocent of any involvement in the crime and did not acquire the property to avoid forfeiture.

SECTION WORDING

490.4(3) A court may order that all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) be returned to a person other than a person who was charged with an indictable offence under this Act or the Corruption of Foreign Public Officials Act or a person who acquired title to or a right of possession of the property from such a person under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of all or part of that property, and that the person appears innocent of any complicity in, or collusion in relation to, the offence.

EXPLANATION

Section 490.4(3) of the Criminal Code of Canada outlines the circumstances under which property that would otherwise be forfeited under subsections 490.1(1) or 490.2(2) can be returned to a person. Under this section, a court may order that all or part of the forfeited property be returned to a person if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of the property, and that the person appears innocent of any complicity in or collusion related to the offence. However, there are important exceptions to this rule. The property cannot be returned to a person who has been charged with an indictable offence under the Criminal Code of Canada or the Corruption of Foreign Public Officials Act. Additionally, the property cannot be returned to anyone who acquired title to or a right of possession of the property from such a person under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding forfeiture. This section is important because it allows individuals who are innocent of any wrongdoing to recover property that has been wrongfully seized or forfeited. At the same time, it prevents those who have been involved in criminal activity from benefiting from the proceeds of that activity. By striking a balance between these competing interests, the Criminal Code of Canada ensures that justice is served while respecting the rights of innocent third parties.

COMMENTARY

Section 490.4(3) of the Criminal Code of Canada allows a court to order the return of property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) to a person who is not charged with an indictable offence under the Criminal Code or the Corruption of Foreign Public Officials Act and who acquired title to or a right of possession of the property from such a person under circumstances that do not give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property. In order for the court to make such an order, it must be satisfied that the person is the lawful owner or is lawfully entitled to possession of the property and that the person appears innocent of any complicity in or collusion in relation to the offence. This provision serves to protect innocent third parties who may have acquired property that was used in the commission of an offence or that was the proceeds of crime. Without this provision, such innocent third parties could be unfairly deprived of their property without any opportunity to prove that they acquired it legitimately. However, the provision also recognizes that not all third parties who acquire property used in the commission of an offence or that is the proceeds of crime are innocent. The provision therefore excludes from its protection those who acquired title to or a right of possession of the property from a person who was charged with an indictable offence under the Criminal Code or the Corruption of Foreign Public Officials Act, or who acquired it under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property. Overall, section 490.4(3) strikes a balance between the need to protect innocent third parties and the need to prevent those who benefit from criminal activity from profiting from their wrongdoing. Its careful wording ensures that the protection it provides is only available to those who are truly innocent and have acquired property legitimately, while allowing the courts to prevent those who have benefited from criminal activity from escaping the consequences of their actions.

STRATEGY

Section 490.4(3) of the Criminal Code of Canada provides for the possibility that some or all of the property subject to forfeiture under sections 490.1(1) or 490.2(2) may be returned to a person who can demonstrate that they are the lawful owner of that property. However, there are a number of strategic considerations that must be taken into account when dealing with this provision, both from the perspective of the Crown and from the perspective of the defence. One of the key considerations is the standard of proof that must be met in order to secure a return of the property under section 490.4(3). The court must be satisfied that the person seeking the return of the property is the lawful owner or entitled to possession of it, and that they are innocent of any involvement in the offence. This creates a high bar to meet, particularly if the property in question was seized in connection with a serious criminal offence. In order to succeed in such a claim, the person seeking the return of the property will likely need to present compelling evidence to establish their ownership or entitlement to possession, as well as their lack of involvement in the offence. This could include documentary evidence, testimony from witnesses, or other forms of evidence that support their claim. Another consideration is the timing of any application for the return of the property. Section 490.4(3) provides that the court may order the return of the property either before or after the property has been forfeited. If the property has not yet been forfeited, the person seeking its return may wish to make an application as soon as possible, in order to try to prevent forfeiture from occurring. On the other hand, if the property has already been forfeited, the person may need to seek relief through an application to the court. A further consideration is the potential for collateral consequences that may result from a forfeiture. For example, if the property in question is a business asset, its forfeiture could have significant negative impacts on the person's ability to continue operating their business. In such cases, it may be necessary to seek a return of the property as soon as possible in order to minimize the impact of the forfeiture. In terms of strategies that could be employed, there are several options that might be considered. For example, the person seeking the return of the property could retain counsel who is experienced in handling forfeiture matters, in order to ensure that their claim is presented in the strongest possible way. They may also wish to seek the assistance of expert witnesses who can provide testimony on matters such as ownership or entitlement to possession. In some cases, it may be possible to negotiate with the Crown or other parties in order to reach a settlement that would allow for the return of the property. Alternatively, it may be necessary to go to court and present evidence in order to convince the judge that the property should be returned. In conclusion, section 490.4(3) of the Criminal Code of Canada provides a potential avenue for the return of property subject to forfeiture. However, there are a number of strategic considerations that must be taken into account when pursuing such a claim, including the high standard of proof that must be met, the timing of any application, and the potential for collateral consequences. Nonetheless, by employing effective strategies and presenting compelling evidence, it may be possible to secure a return of the property to its rightful owner or lawful possessor.