Criminal Code of Canada - section 490.5(6)

section 490.5(6)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for an individual to apply to the Attorney General for the return of their property or compensation after a judge has made an order related to the property under subsection (4).

SECTION WORDING

490.5(6) The Attorney General shall, on application made to the Attorney General by any person in respect of whom a judge has made an order under subsection (4), and where the periods with respect to the taking of appeals from that order have expired and any appeal from that order taken under subsection (5) has been determined, direct that (a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or (b) an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

EXPLANATION

Section 490.5(6) of the Criminal Code of Canada pertains to the return of property seized under a search warrant and subsequently forfeited by a court order. In such cases, an application can be made to the Attorney General by the person whose property has been forfeited, and the Attorney General shall direct that either the property or an amount equal to its value be returned to the applicant. This can only be done after the periods for appeal have expired and any appeals taken have been resolved. This provision is important as it safeguards the property rights of individuals who may have been caught up in criminal investigations where their property has been seized. If it is determined that the property should not be forfeited, the applicant is entitled to its return or compensation equal to its value. This is in keeping with the principle of due process and ensures that individuals are not unduly penalized or deprived of their property rights in the course of a criminal investigation. Overall, Section 490.5(6) serves as a necessary safeguard to protect the property rights of individuals caught up in criminal investigations, while also ensuring that the state's power to seize property is exercised within the bounds of due process and fairness.

COMMENTARY

Section 490.5(6) of the Criminal Code of Canada deals with the return of property that has been seized as a result of criminal proceedings. This provision is intended to provide a legal mechanism for the return of property that was seized without sufficient grounds or that is not related to the commission of the offence. The section sets out the process for returning property to the owner. It requires the Attorney General to direct that the property or the part of it to which the interest of the applicant relates be returned or an amount equal to the value of the interest of the applicant be paid to the applicant. This direction can only be given after the appeal period has expired, and any appeal taken under subsection (5) has been determined. This provision is essential in protecting the rights of individuals who have had their property unlawfully seized by the government. The Criminal Code recognizes the importance of ensuring that individuals who are subject to criminal proceedings are treated fairly and that their rights are upheld. The return of property that has been seized without sufficient grounds is an important aspect of this protection. However, it is equally important that this provision is not abused. The return of property should be limited to cases where there is no criminal activity and should not be used as a means to circumvent the criminal justice system. In this regard, the provision is clear that the direction to return property can only be given after the appeal period has expired, and any appeal taken under subsection (5) has been determined. This provides an opportunity for the Crown to challenge the return of property if it believes that there are grounds to do so. The provision is also limited to the interest of the applicant, and only that part of the property to which the applicant is entitled can be returned. This helps to prevent the return of property to those who are not the rightful owners. Overall, section 490.5(6) is an essential provision in protecting the rights of individuals who have had their property seized as a result of criminal proceedings. It ensures that property is returned to its rightful owner when there are no criminal grounds for seizure and prevents the use of the provision to circumvent the criminal justice system. However, it is important that this provision is not abused, and the Crown has an opportunity to challenge the return of property if it believes that it is unjustified.

STRATEGY

Section 490.5(6) of the Criminal Code of Canada deals with the return of property to an applicant who has been the subject of a forfeiture order. Forfeiture proceedings are often initiated by the government to seize property that is suspected to be connected with criminal activity. However, in some cases, innocent individuals may have their property seized, and they may need to use this section to retrieve their property. In this scenario, individuals may need to consider various strategic considerations and employ several strategies to ensure the successful return of their property. One important strategic consideration is to act quickly. Under subsection (4), a judge can make a forfeiture order against an individual's property in relation to an offence. If an individual's property has been seized, they have a limited amount of time to apply to the Attorney General to have it returned. Once the periods for appeals have expired, and any appeals have been determined under subsection (5), the Attorney General can direct that the property be returned or an amount equal to the value of the interest paid to the applicant. Therefore, it is important to act quickly to have the property returned, or a payment made, as soon as possible. Another essential strategic consideration is the proper preparation of the application. It is crucial to provide complete and accurate information in the application and to ensure that all documents, including the forfeiture order and any relevant court decisions, are included. The application should also outline a compelling case to indicate the applicant's interest in the property and the reasons why it should be returned. Providing a clear and compelling justification for the return of the property will greatly increase the chances of success. Employing a strategic approach to communication is also essential for success in this area. Communication with the Attorney General or any other relevant government officials should be done professionally, politely, and persistently. Applicants should be prepared to answer any questions that may be asked by the authorities and should be able to provide any additional information required promptly. Taking a proactive approach to communication can establish trust and build a positive relationship with officials, increasing the chances of a favorable outcome. Finally, hiring an experienced lawyer who is well-versed in this area of law can be a helpful strategy to ensure success. A qualified lawyer can provide specialized legal advice, handle legal paperwork, and represent the applicant in court if necessary. A lawyer who has experience dealing with such matters may increase the chances of success, as they have the necessary knowledge, skills, and experience required to navigate complex legal procedures. In conclusion, Section 490.5(6) of the Criminal Code of Canada provides a legal avenue for individuals to retrieve property that has been seized under a forfeiture order. However, individuals need to consider many strategic considerations when dealing with this section of the law to ensure that they are successful in their efforts. Quick action, proper preparation of the application, effective communication, and hiring an experienced lawyer are some strategies that can help achieve this goal.