INTRODUCTION AND BRIEF DESCRIPTION

An ex parte application for a restraint order in respect of offence-related property must be made in writing to a judge, accompanied by an affidavit.

SECTION WORDING

490.8(2) An application made under subsection (1) for a restraint order in respect of any offence-related property may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to the following matters: (a) the indictable offence to which the offence-related property relates; (b) the person who is believed to be in possession of the offence-related property; and (c) a description of the offence-related property.

EXPLANATION

Section 490.8(2) of the Criminal Code of Canada outlines the process of obtaining a restraint order in relation to any property that has a connection to a criminal offense. This section allows for an ex parte application to be made in writing to a judge accompanied by an affidavit sworn by the Attorney General or any other person with relevant information. The affidavit should provide information on the indictable offense related to the property, the person believed to be in possession of the property, and a detailed description of the offense-related property. The purpose of a restraint order is to prevent the disposition of property that has a connection to criminal activity. Such property may include money, vehicles, and other assets that have been obtained through illegal means. The order effectively freezes the assets until a decision is made on whether or not they should be forfeited to the crown. Section 490.8(2) ensures that the process of obtaining a restraint order is transparent and fair, ensuring that relevant parties are notified before the order is granted. The requirement for an affidavit supports the judicial process by ensuring that there is sufficient evidence to justify the order. The section also allows for an ex parte application, which streamlines the process and allows for a timely decision to be made in the interest of justice. In conclusion, Section 490.8(2) is an important provision in the Criminal Code of Canada that seeks to curb the proceeds of criminal activity by providing an expedient and fair judicial process to restrain assets suspected to be connected to criminal activity.

COMMENTARY

Section 490.8(2) of the Criminal Code of Canada outlines the procedure for obtaining a restraint order in respect of offence-related property. This section allows for an ex parte application, which means that the application can be made without the presence of the party against whom the order is sought. The application must be made in writing to a judge and accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to certain matters, namely the indictable offence to which the offence-related property relates, the person believed to be in possession of the property, and a description of the property itself. The purpose of a restraint order is to freeze the assets of an individual who is suspected of criminal activity and prevent them from dissipating those assets while an investigation is underway. The idea behind this measure is to prevent the person from profiting from their criminal activity, and to ensure that any potential fines or restitution amounts can be paid out. Restraint orders can be made in respect of any property that is believed to be offence-related, including real estate, bank accounts, and vehicles. The ability to obtain these orders ex parte is an important aspect of the procedure. It allows the order to be obtained quickly and discreetly, without the knowledge of the individual against whom the order is sought. This prevents the person from being alerted to the fact that they are under investigation, which could potentially lead to the destruction or transfer of assets. However, the ability to obtain a restraint order without the presence of the opposing party also raises concerns about due process. In order to protect the rights of individuals, it is important that any measures taken to restrict their property rights are subject to appropriate safeguards. As such, it is necessary that judges exercise a high degree of caution when considering ex parte applications for restraint orders. They must carefully review the evidence presented in the affidavit and ensure that there are sufficient grounds to believe that the property in question is indeed offence-related. They must also ensure that the application is not made in bad faith or for an improper purpose. Section 490.8(2) plays an important role in the fight against financial crime. Restraint orders can be an effective tool in preventing the proceeds of criminal activity from being laundered or hidden. However, it is important that the procedure for obtaining these orders is subject to appropriate safeguards to ensure that the rights of individuals are protected. Judges must take great care when considering ex parte applications for restraint orders and ensure that they are based on solid evidence and appropriate legal grounds.

STRATEGY

When dealing with section 490.8(2) of the Criminal Code of Canada, there are several strategic considerations that need to be taken into account in order to maximize the chances of success in obtaining a restraint order. Some of these strategic considerations include: 1. Gathering Sufficient Evidence: To obtain a restraint order, the Attorney General or any other person making the application must provide a sworn affidavit that includes evidence of the indictable offence, the person believed to be in possession of the offence-related property, and a description of the property. It is critical to gather as many relevant facts and evidence as possible to support the application, in order to convince the judge that there are reasonable grounds to believe that the property in question is offence-related. 2. Timing: Timing is an important strategic consideration to factor in when making an application under section 490.8(2). An ex parte application, where only one side presents their case, can be made without prior notice to the person believed to be in possession of the property that is subject of the application. The timing of the application should be carefully considered to ensure that it is filed at a time when the potential respondent is not aware of the action being taken. 3. Venue: Strategic consideration needs to be given to the venue where the application will be filed, since the judge to whom the application is made must have jurisdiction over the case. This may involve identifying the location where the suspected offence occurred or where the property is believed to be located. 4. Communication: The Attorney General may need to be proactive in communicating with various agencies (such as law enforcement, financial institutions, or other relevant bodies) to gather evidence to support the application. This information must be presented in the affidavit, in order for a judge to be persuaded to grant the application. 5. Respondent Challenges: One strategic consideration that needs to be taken into account is the potential challenges that may be raised by the respondent to the restraining order. Respondents may challenge that the property in question is not offence-related or that possession of the property was gained lawfully. The Attorney General should be ready to prepare a solid legal argument to respond to these challenges. Strategies that could be employed to maximize the chances of success in obtaining a restraint order under section 490.8(2) include: 1. Early Assessment and Investigation: It is critical to assess the strength of the evidence and investigate the offence-related property as soon as possible. The earlier the investigation begins the more likely it is that evidence will be preserved that could prove valuable in securing a successful application for a restraint order. 2. Ex parte Application: The ex parte nature of the application under section 490.8(2) means that the Attorney General can request a hearing in the absence of the respondent, without providing any notice of the application. As such, preparing a strong case that persuades the judge that there are reasonable grounds for such an order is essential. 3. Preparation of Affidavit: Preparation of a detailed and persuasive affidavit will be essential in demonstrating reasonable grounds necessary to obtain the order. The Attorney General should draft a comprehensive affidavit, accompanied by relevant documents that support the assertions made in the affidavit. 4. Legal Representation: Legal representation can be crucial in bringing successful applications under section 490.8(2). An experienced lawyer can provide the necessary support and guidance to increase the chances of securing a successful order. 5. Ongoing Monitoring: Once a restraint order has been obtained, it is important to monitor the situation to ensure compliance with the order and to prevent any further attempts to dissipate the property in question. Effective communication with relevant parties, including the court, law enforcement, and financial institutions will be essential to ensure the order is enforced. In conclusion, section 490.8(2) of the Criminal Code of Canada is a powerful tool that can be employed to restrain property believed to be offence-related. Through early assessment, gathering evidence, and effective legal representation, the Attorney General can maximize the chance of securing a successful application for a restraint order and ensuring the integrity of the justice system in Canada.