INTRODUCTION AND BRIEF DESCRIPTION
Restraint orders made under this section must be written.
EXPLANATION
Section 490.8(5) of the Criminal Code of Canada pertains to the issuance of a restraint order as part of a criminal proceeding. Such an order is made to prevent the accused from dissipating his assets before an order for forfeiture can be granted. Essentially, this means that the court can prevent the defendant from selling, transferring or disposing of assets that may be subject to forfeiture in the course of the legal process. This section requires that a restraint order be made in writing, which means that it must be a formal court order that is committed to writing, signed, and served on the defendant. The purpose of requiring a restraint order to be made in writing is to ensure that there is a clear and unambiguous record of the order. A restraint order made under section 490.8 is a powerful tool as it can have a significant impact on the defendant's ability to defend himself, and it can also affect his family and business associates who may rely on his assets. The order can also have a devastating impact on the accused's financial health, as it can freeze accounts and prevent the defendant from earning income. Accordingly, while restraint orders can be a useful tool for the government in pursuing criminal cases, there is also the risk of abuse or over-reach in their use. Section 490.8(5) serves to ensure that the order is clear and explicit, and that the defendant has a full understanding of the restrictions placed on him. Overall, section 490.8(5) is an important procedural safeguard that ensures that a restraint order is enforceable, clear, and in compliance with the rule of law. Without this requirement, there is a risk that the restraint order could be unenforceable, and some individuals may be unfairly restricted in their ability to defend themselves.
COMMENTARY
Section 490.8(5) of the Criminal Code of Canada outlines the requirements for a restraint order made under this section. The provision specifies that such an order must be made in writing. This provision is significant because it ensures that there is a clear record of the restraint order, its contents, and its provisions, which is essential for any criminal investigation or prosecution. A restraint order is an order made by a court that freezes or seizes a defendant's assets or property. The purpose of a restraint order is to prevent a person accused of a crime from disposing of or transferring their assets or property, which could hinder efforts to recover those assets or property as part of a criminal investigation or prosecution. The requirement that a restraint order must be made in writing is a crucial safeguard that ensures that there is accurate and complete documentation of the order. This documentation is essential for several reasons. First, it provides a clear record of the order's contents, allowing both the defendant and the prosecution to know precisely what the order entails. This can prevent misunderstandings and ensure that each party complies with the order's provisions. Second, having a written record of the restraint order helps to protect against incorrect or malicious interpretations of the order. In complex criminal cases, where large sums of money or property are involved, there is a risk that misunderstandings or misinterpretations could cause significant harm to the defendant or the state. A well-drafted written order helps to reduce this risk. Third, a written restraint order is also essential for appellate review. Appellate courts must be able to review the restraint order precisely, understanding its scope and the reasons for its issuance. Without a written record, it would be impossible to provide a clear and comprehensive appellate review of the order. Finally, having a written record of the restraint order is crucial for enforcement purposes. Restraint orders are often complex, requiring specific compliance with many different provisions. The written record ensures that enforcement agencies have access to clear and complete information about the order and can enforce it accurately and effectively. In conclusion, section 490.8(5) of the Criminal Code of Canada is a vital provision that ensures that restraint orders made under this section are made in writing. This provision is essential for a well-functioning criminal justice system, providing a clear record of the order's contents, reducing misunderstanding and misinterpretation, enhancing appellate review, and improving enforcement efforts. As such, it is an essential safeguard that helps to ensure that criminal investigations and prosecutions run smoothly and that justice is served effectively and efficiently.
STRATEGY
Section 490.8(5) of the Criminal Code of Canada is an essential provision that provides for the manner in which restraint orders can be made. A restraint order is a legal mechanism through which property can be frozen or seized during a criminal investigation or trial. This section mandatorily requires that any restraint order made must be in writing. This provision is critical in providing clarity and specificity as to the terms of the order and serves to protect the property rights of the accused person. One strategic consideration when dealing with this section of the Criminal Code of Canada is whether the restraint order should be sought under this provision at all. In situations where property is suspected to have been used in a criminal offence, the prosecutor may seek forfeiture of that property by way of an application under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. This Act provides for a range of civil remedies that can be used to seize, restrain, and forfeit proceeds of crime and property associated with it. Lawyers must carefully examine the circumstances of the case to determine which avenue is the most appropriate. Another strategy that could be employed when dealing with Section 490.8(5) is to ensure that the restraint order sought meets the requirements specified in the section. For instance, the order must have certain elements, such as a description of the property to be restrained, the reasons for the restraint, and any terms and conditions, among others. Lawyers should carefully draft the order and ensure that the language is clear and unambiguous to avoid any confusion or misinterpretation. Moreover, lawyers should ensure that the restraint order is served personally on the person against whom it has been made. This is because the person may not have actual notice of the order if served in any other manner. This could result in a breach of their property rights and a violation of the legal process. It is also crucial to note that Section 490.8(5) applies to both civil and criminal proceedings. In civil proceedings, the strategy could involve obtaining a restraint order to protect the rights of the plaintiff in situations where there is a risk that the defendant may dissipate assets. In criminal proceedings, the strategy could focus on ensuring that the accused's property rights are protected during the investigation and trial. In conclusion, Section 490.8(5) of the Criminal Code of Canada provides for the necessary requirements and safeguards when seeking a restraint order. The strategic considerations when dealing with this section involve examining the suitability of seeking a restraint order, ensuring that the order meets the requirements outlined, and serving the order personally on the person against whom it was made. Careful consideration of these aspects will ensure that the property rights of the accused are protected and that the legal process is followed.