Criminal Code of Canada - section 490.9(2)

section 490.9(2)

INTRODUCTION AND BRIEF DESCRIPTION

If an order is made to return property subject to a restraint order, the applicant may be required to enter into a recognizance and provide a deposit or surety.

SECTION WORDING

490.9(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) for the return of any offence-related property that is the subject of a restraint order under section 490.8, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in any amount and with any conditions that the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice any sum of money or other valuable security that the judge or justice directs.

EXPLANATION

Section 490.9(2) of the Criminal Code of Canada deals with the return of offence-related property that is the subject of a restraint order under section 490.8. This section grants judges and justices the authority to order the applicant for the return of such property to enter into a recognizance before them, along with sureties, as per the conditions and amounts directed by the judge or justice. The recognizance required under this section is essentially a binding promise to fulfill certain obligations or requirements as directed by the judge or justice. This may include conditions like regularly reporting to a probation officer or paying a certain amount of compensation. The sureties, on the other hand, are guarantors who assure that the applicant will fulfill their obligations and requirements; in the event of non-compliance, they must pay a certain sum to the court as compensation. Additionally, this section also grants the judge or justice the power to mandate that the applicant deposit a certain amount of money or a valuable security, such as stocks or bonds, as collateral. This collateral can be forfeited if the applicant fails to fulfill their obligations or requirements. Overall, section 490.9(2) is an important provision in the Criminal Code of Canada as it empowers judges and justices to ensure that offence-related property, which may have been seized as part of a criminal investigation or prosecution, is returned appropriately. It also serves as a mechanism to ensure that the applicant fulfills their obligations and requirements as stipulated by the court.

COMMENTARY

Section 490.9(2) of the Criminal Code of Canada addresses the return of any offence-related property that is the subject of a restraint order under section 490.8. The provision allows the judge or justice making the order to require the applicant for the order to enter into a recognizance, with or without sureties, in any amount and with any conditions that the judge or justice directs. Additionally, the provision allows the judge or justice to require the applicant to deposit with the judge or justice any sum of money or other valuable security that the judge or justice directs. The purpose of this provision is to ensure that the applicant for the return of offence-related property is held accountable for any future use of the property. It is designed to prevent the use of the property for further unlawful activities and also to guarantee the preservation of the property for the purposes of any future legal proceedings. The provision allows the judge or justice to require the applicant to enter into a recognizance with or without sureties. This means that the applicant may be required to pledge a sum of money, or other valuable security, as a guarantee that they will not use the property for further unlawful activities. The amount of the recognizance will be determined by the judge or justice based on the circumstances of the case. Furthermore, the judge or justice may impose any conditions they deem necessary on the recognizance, such as requiring the applicant to surrender their passport or prohibiting them from contacting certain individuals. These conditions are designed to prevent the applicant from engaging in any further unlawful activities. Finally, the provision allows the judge or justice to require the applicant to deposit any sum of money or other valuable security with the judge or justice. This deposit is intended to secure the value of the property and ensure that it is preserved for any future legal proceedings. The amount of the deposit will be determined by the judge or justice based on the value of the property and the circumstances of the case. In summary, Section 490.9(2) of the Criminal Code of Canada is a necessary provision that aims to prevent any further unlawful activities and ensure the preservation of offence-related property for any future legal proceedings. It affords the judge or justice considerable discretion to impose conditions on the applicant for the return of the property and to require the applicant to pledge a sum of money or other valuable security as a guarantee that they will not misuse the property. By ensuring that this provision is applied appropriately, the courts can safeguard the integrity of the justice system and protect the interests of the public.

STRATEGY

Section 490.9(2) of the Criminal Code of Canada allows for the return of offence-related property that is subject to a restraint order under section 490.8. However, the judge or justice making the order may require the applicant to enter into a recognizance, with or without sureties, and may also require the applicant to deposit money or valuable security. This provision presents strategic considerations for those dealing with the return of offence-related property. One strategic consideration when dealing with this provision is whether it is worth pursuing the return of the property. If the value of the property is not significant, it may not be worth the time and cost to enter into a recognizance and make a deposit. Furthermore, if the property is highly incriminating, it may be better to leave it in the custody of law enforcement to avoid potential legal complications. If the decision is made to pursue the return of the property, the next consideration is the amount of the recognizance and deposit. The judge or justice may set any amount and conditions they deem appropriate, which could include a large sum of money or strict conditions. It is important to carefully consider what amount and conditions are reasonable and realistic, as failure to comply with the recognizance or deposit may result in forfeiture of the property. Another strategy is to try to negotiate with the prosecutor or law enforcement to avoid the need for a recognizance or deposit. This could involve offering to provide additional information or cooperation in exchange for the return of the property without conditions or a deposit. It is also important to consider the potential consequences of entering into a recognizance and making a deposit. These may include the potential loss of the money or valuable security if the conditions set by the judge or justice are not met, as well as potential legal consequences if the offence-related property is later found to be instrumental in the commission of a crime. Overall, when dealing with section 490.9(2) of the Criminal Code of Canada, it is important to carefully consider whether pursuing the return of offence-related property is worth the potential costs and risks, and to strategize accordingly to ensure the best possible outcome.