INTRODUCTION AND BRIEF DESCRIPTION
This section suspends the operation of property forfeiture or restoration orders until any related applications or appeals have been resolved.
SECTION WORDING
490.7 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 490.1(1), 490.2(2) or 490.5(4) is suspended pending (a) any application made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for restoration or forfeiture of the property, or (b) any appeal taken from an order of forfeiture or restoration in respect of the property, and the property shall not be disposed of or otherwise dealt with until thirty days have expired after an order is made under any of those provisions.
EXPLANATION
Section 490.7 of the Criminal Code of Canada serves as a protective measure for individuals whose property has been seized by authorities under subsections 490.1(1), 490.2(2) or 490.5(4). These subsections relate to the seizure of property that is believed to have been obtained through criminal activity or has been used in the commission of a crime. The section states that the operation of an order of forfeiture or restoration made in respect of the property is suspended pending certain circumstances. These circumstances include any application made in respect of the property under any provisions of the Criminal Code or other Acts of Parliament that provide for restoration or forfeiture of the property or any appeal taken from an order of forfeiture or restoration. This means that if an individual whose property has been seized wants to make an application for restoration of their property or to challenge an order of forfeiture, the operation of the order is suspended. During this period, the property cannot be disposed of or dealt with in any way until thirty days have expired after an order is made under any of these provisions. In essence, this section provides a level of protection for individuals whose property has been seized by authorities under suspicion of criminal activity. It ensures that their property cannot be disposed of or dealt with until they have had the opportunity to make an application for restoration or challenge an order of forfeiture. This allows for due process and fairness in the handling of property seized in relation to criminal activities.
COMMENTARY
Section 490.7 of the Criminal Code of Canada recognizes the importance of procedural fairness and due process when it comes to the forfeiture and restoration of property subject to a criminal investigation or proceeding. It acknowledges that an order made in respect of such property under subsection 490.1(1), 490.2(2) or 490.5(4) must be suspended pending any application made in respect of the property under those provisions or any other provision of this or any other Act of Parliament that provides for restoration or forfeiture of the property, or any appeal taken from an order of forfeiture or restoration in respect of the property. This provision serves as a safeguard against the potential abuse of forfeiture powers by law enforcement authorities and promotes the principle of proportionality in sentencing. It ensures that property is not forfeited without just cause, and that the rights of innocent third parties who may have an interest in the property are respected. It also provides an opportunity for individuals to challenge the legitimacy of a forfeiture order or seek to have their property restored. Furthermore, by suspending the operation of the order, Section 490.7 prevents the disposal or other dealing with of the property until it has been determined whether the property should be forfeited or restored. This helps to preserve the status quo and mitigate any potential harm to the individual or organization that has an interest in the property. However, there are some limitations to Section 490.7. For instance, it does not prevent the Crown from filing a notice of application for forfeiture or restoration after the thirty-day period has expired. It also does not provide any compensation or restitution for any losses incurred as a result of the seizure or forfeiture of the property. In addition, the suspension of the order may have practical implications for law enforcement agencies, who may need to store and maintain the seized property for an extended period of time. This could result in increased costs and logistical challenges for these agencies. Overall, Section 490.7 is an important provision that upholds the principles of fairness, proportionality, and due process in the context of property forfeiture and restoration in criminal proceedings. While it has its limitations and practical considerations, it serves as a crucial safeguard against the arbitrary exercise of forfeiture powers and ensures that the interests of all parties are taken into account.
STRATEGY
Section 490.7 of the Criminal Code of Canada presents several strategic considerations when dealing with the operation of an order made in respect of property under subsection 490.1(1), 490.2(2), or 490.5(4), particularly in cases of forfeiture or restoration of property. One important consideration is the timing of applications made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for restoration or forfeiture of the property. It is important to note that the operation of an order made in respect of property is suspended pending any of these applications and any appeal taken from an order of forfeiture or restoration. This means that any attempts to dispose of or otherwise deal with the property prior to the expiration of the thirty-day period after an order is made will be futile. Another strategic consideration is the application of legal strategy in the context of the case. For example, if the goal is to have the property restored, a legal strategy may seek to demonstrate that the property was not used in the commission of the offence or that it was acquired through lawful means. If the goal is to have the property forfeited, a legal strategy may seek to establish that the property was connected to criminal activity or was used in the commission of a crime. In both cases, it is important for the legal team to carefully review the facts of the case and identify legal strategies that will be most effective in achieving the desired outcome. It is also important to consider the relationship between the criminal proceedings and any parallel civil proceedings involving the same property. For example, if the property is the subject of a civil forfeiture action, it may be important to coordinate legal strategies between the civil and criminal proceeding in order to ensure consistency in the use of evidence and legal arguments. Similarly, if the property is subject to a lien or mortgage, this may impact the legal strategy surrounding the restoration or forfeiture of the property. A final strategic consideration is the potential impact of the delay in the operation of the order on the ability to collect evidence or conduct further investigations. If the property is subject to a preservation order, it may be important to obtain additional evidence or conduct further investigations while the order is in effect. However, care must be taken to ensure that any such investigations are conducted in compliance with applicable privacy laws and other legal requirements. In terms of strategies that could be employed when dealing with Section 490.7, legal teams can apply a variety of tactics to maximize the chances of achieving the desired outcome. One possible strategy is to seek an adjournment of any forfeiture or restoration applications, in order to allow sufficient time for all relevant evidence to be gathered and legal arguments to be developed. Additionally, legal teams may seek to negotiate with the prosecution or other relevant parties in order to reach a settlement that is agreeable to all parties. In some cases, it may also be appropriate to seek to have the order discharged or varied on the basis of new evidence or other factors that were not known or available at the time the order was made. Overall, the key to success when dealing with Section 490.7 is to carefully review the facts of the case and develop a robust legal strategy that takes into account all relevant considerations.