section 490.8(4)

INTRODUCTION AND BRIEF DESCRIPTION

A judge can include reasonable conditions in a restraint order.

SECTION WORDING

490.8(4) A restraint order made by a judge under this section may be subject to any reasonable conditions that the judge thinks fit.

EXPLANATION

Section 490.8(4) of the Criminal Code of Canada pertains to the power of a judge to impose reasonable conditions on a restraint order made under this section. A restraint order is a court order that restricts a person's ability to dispose of their property in order to satisfy a potential fine or other financial penalty that may be imposed in a criminal case. The purpose of a restraint order is to prevent a defendant from dissipating their assets, which may include money, personal property, or real estate, before such assets can be used to satisfy a judgment in favor of the prosecution. The restraint order typically takes effect after charges are laid and can be issued before a trial or conviction. Section 490.8(4) allows a judge to impose reasonable conditions on a restraint order as they see fit, in order to ensure that the order is effective. These conditions may include provisions such as prohibiting the person subject to the order from transferring or disposing of their property without permission from the court, requiring them to provide regular updates on their financial situation, or requiring them to surrender their passport. The purpose of these conditions is to prevent the accused from defeating the purpose of the restraint order by hiding or disposing of assets or fleeing the country. The judge may weigh factors such as the gravity of the offense, the likelihood of conviction, the amount of property at risk, and the likelihood of the accused fleeing or disposing of assets when determining what conditions are reasonable. Ultimately, Section 490.8(4) serves as a tool for judges to ensure that the court's orders are effective and preventing accused individuals from evading the penalties imposed by the court.

COMMENTARY

Section 490.8(4) of the Criminal Code of Canada grants a judge the power to impose reasonable conditions on a restraint order. A restraint order is an order that restricts an individual's ability to dispose of property or assets, in order to preserve their availability for the purpose of compensating victims of crimes or to secure a future financial award to the accused person if found not guilty. The conditions that may be imposed can vary, depending on the specific circumstances of the case and the judge's discretion. The primary purpose of a restraint order is to ensure that the accused does not dispose of any assets or property that may be used to compensate victims or pay restitution. For example, if an accused is facing charges of fraud, a restraint order may be imposed to prevent them from disposing of assets that were obtained through fraudulent means. In this way, a restraint order serves as a tool to protect the rights of victims and ensure that they receive proper compensation. However, the imposition of a restraint order can also have significant consequences for the accused. It can restrict their ability to do business or earn a living, particularly if the assets subject to the order are essential to their livelihood. Therefore, it is crucial that judges exercise their discretion when imposing conditions on a restraint order. Any conditions must be reasonable and proportionate to the purpose of the order while also taking into account the potential impact on the accused's ability to earn a livelihood. The conditions that may be imposed under Section 490.8(4) can vary widely. For example, a judge may require the accused to report regularly to a bail supervisor or provide regular updates on the status of their assets. They may also be required to provide a security or bond to compensate victims or demonstrate that they have sufficient assets to cover any potential losses. Alternatively, a judge may allow for the sale of certain assets or provide exceptions for essential expenses, such as mortgage payments or childcare expenses. It is important to note, however, that any conditions imposed must be reasonable and strike a balance between protecting the rights of victims and preserving the accused's rights and livelihood. Conditions that are too onerous or unreasonable can have far-reaching consequences and may affect a person's ability to earn a living or support their family, which could ultimately lead to negative social outcomes. In conclusion, Section 490.8(4) of the Criminal Code of Canada provides important safeguards against the dissipation of assets that could be used to compensate victims or secure an accused's financial future. However, it is critical that any conditions imposed under this section are reasonable, strike a balance between the rights of victims and the accused, and take into account the impact on the accused's ability to earn a livelihood. Judges must exercise their discretion when imposing conditions on a restraint order to ensure that justice is served and the rights of all parties are respected.

STRATEGY

Section 490.8(4) of the Criminal Code of Canada relates to the imposition of restraint orders, which are used to freeze assets that may be related to an alleged criminal offence. This provision allows a judge to place reasonable conditions on the restraint order, and there are several strategic considerations that lawyers and their clients should keep in mind when dealing with this section of the criminal code. The first strategic consideration is the importance of presenting a compelling case for why a restraint order should be granted in the first place. The judge needs to be convinced that there is a reasonable belief that the assets in question are connected to a criminal offence. This means that lawyers need to present evidence that is both compelling and convincing. This can be challenging, as the standard of proof for a restraint order is lower than the standard for a criminal conviction. The second strategic consideration is the need to negotiate conditions that are reasonable and manageable. The judge has the power to impose any conditions that they see fit, and lawyers need to be prepared to argue in favour of conditions that are appropriate to the case at hand. For example, if the person subject to the restraint order needs access to funds for basic living expenses, this should be taken into consideration when negotiating the terms of the order. The third strategic consideration is the importance of monitoring the terms of the restraint order closely. It is the responsibility of the person subject to the order to comply with its conditions, and failure to do so can result in additional charges. Lawyers need to ensure that their clients fully understand the terms of the order and are able to comply with them. This may require additional negotiations with the prosecution or the judge. Some strategies that could be employed in dealing with section 490.8(4) include: - Presenting a clear and concise case for why the assets in question are connected to a criminal offence. - Negotiating conditions that are reasonable and manageable, such as allowing the person subject to the order access to a portion of their funds for basic living expenses. - Ensuring that the person subject to the order fully understands the terms of the order and is able to comply with them. - Monitoring the terms of the order closely to ensure compliance and prevent additional charges. - Seeking the advice of a professional who is experienced in dealing with restraint orders and can provide guidance on the best strategies to employ.