INTRODUCTION AND BRIEF DESCRIPTION
This section allows the Attorney General to apply for a restraint order for any offence-related property.
SECTION WORDING
490.8(1) The Attorney General may make an application in accordance with this section for a restraint order under this section in respect of any offence-related property.
EXPLANATION
Section 490.8(1) of the Criminal Code of Canada permits the Attorney General to apply for a restraint order in respect of any property related to an offence. This section empowers the Attorney General to obtain an order to freeze or seize any property that is believed to be related to criminal activity, such as proceeds from drug trafficking, organized crime, or fraud. The purpose of a restraint order is to prevent the property from being transferred or disposed of before a criminal trial has concluded. Restraint orders can be obtained from a judge or a justice of the peace and can be granted ex parte, meaning that the respondent may not have an opportunity to defend themselves before the order is granted. However, a respondent can challenge the order at a later time. The court can also set aside or vary the order based on new evidence provided by the respondent. A restraint order can remain in effect for up to one year, but it can be extended for additional periods if the court is convinced that the property is still related to criminal activity. The order can have significant consequences for a respondent, such as having their bank accounts frozen or having their assets seized. Therefore, it is important for the respondent to seek legal advice to defend against the order. Ultimately, section 490.8(1) serves as an important tool for law enforcement to prevent criminals from profiting from their illegal activities and to ensure that any seized property is held in trust until a final disposition is reached at trial.
COMMENTARY
Section 490.8(1) of the Criminal Code of Canada is a provision that allows the Attorney General to make an application for a restraint order in respect of any offence-related property. The provision is introduced in Part XII.2 of the Criminal Code, which deals with proceeds of crime and includes measures for confiscation, forfeiture, and restitution of crime-related property. The aim of a restraint order is to prevent a person from disposing of or dealing with property that is suspected to be related to criminal conduct. Section 490.8(1) provides broader powers to the Attorney General to apply for a restraint order related to offences beyond the ones listed in other provisions of the Criminal Code. This is important because it recognizes that criminal activity can take various forms and that the law should be flexible enough to address new and emerging forms of crime. By allowing the Attorney General to apply for a restraint order in relation to any offence-related property, the provision serves as a preventative measure to stop the proceeds of crime from being dissipated before a conviction or other court decision is reached. It also helps to preserve the integrity of the judicial process by ensuring that the defendant does not use illicitly obtained funds to secure legal representation or flee jurisdiction. The application process for a restraint order under Section 490.8(1) requires the Crown to demonstrate reasonable grounds to suspect that the property in question is offence-related and that there is a real possibility the property will be dissipated, destroyed, or removed from the jurisdiction of the court. The test is a lower threshold than that required for a forfeiture order under Section 462.37 of the Criminal Code, which requires a conviction before property can be seized. While the use of restraint orders can be an effective tool in combating crime, this provision has also been the subject of criticism for being too broad and lacking in procedural safeguards. Some have argued that it violates the presumption of innocence and burden of proof requirements by allowing the state to seize property without a conviction. Additionally, there have been concerns about the impact on innocent third parties, such as family members or employees who may be affected by the seizure of assets. However, the provision includes important safeguards to address these concerns. For example, there are provisions for hearing and appeal processes to challenge the order and for compensation for any losses resulting from an improperly granted restraint order. There are also provisions to protect the interests of innocent third parties and to prevent undue hardship. Overall, Section 490.8(1) serves as an important tool for law enforcement to prevent the dissipation of crime-related property and to maintain the integrity of the judicial process. While there are concerns about its possible abuse, the provision includes important safeguards to balance the interests of the state with the rights of the accused and of innocent third parties.
STRATEGY
Section 490.8(1) of the Criminal Code of Canada gives the Attorney General the power to make an application for a restraint order in relation to any property that is connected to a criminal offense. This section is an important tool in fighting organized crime and other serious crimes, but it also presents strategic considerations for those dealing with it. Below are some strategies that could be employed when working with this section of the Criminal Code of Canada. One of the first considerations is timing. In order to apply for a restraint order, the Attorney General must have reasonable grounds to believe that the property in question was obtained by or used in connection with a criminal offense. If these grounds are established, the Attorney General may apply for a restraint order at any time before a charge is laid, during the course of the trial, or even after a conviction. However, the timing of the application may have strategic implications for both the prosecution and the defense. For example, an early application may prevent the accused from liquidating their assets, while a later application may not have the same impact. Another strategic consideration is the breadth of the order. A restraint order can be granted in relation to any property that is believed to be connected to a criminal offense. This may include real estate, bank accounts, vehicles, and other assets. However, it is important to consider whether the order is too broad and whether it may impact innocent third parties. If the order is too broad, it may be challenged on the grounds that it violates the rights of the accused or innocent third parties. Another strategic consideration is the impact of the order on the accused and their ability to defend themselves. A restraint order may prevent the accused from accessing their own assets, which could impact their ability to hire legal counsel or pay for a defense. This could lead to delays in the trial or other complications. As such, it is important to carefully balance the need for a restraint order to prevent the accused from dissipating their assets with the right of the accused to a fair trial. Finally, strategic considerations should always include the possibility of appeal. If a restraint order is granted, it may be challenged on appeal. As such, it is important to ensure that the order is legally sound and reasonable. If it is overturned on appeal, the prosecution may lose valuable evidence or forfeit the ability to seize assets. In conclusion, section 490.8(1) of the Criminal Code of Canada is a powerful tool in the fight against organized crime and other serious offenses. However, it presents strategic considerations that must be carefully weighed in order to ensure that it is used effectively and fairly. Some considerations that should be taken into account include timing, breadth of the order, impact on the accused, and the possibility of appeal. By carefully considering these factors, those working within this section of the Criminal Code can help to ensure that justice is served in a fair and balanced way.