INTRODUCTION AND BRIEF DESCRIPTION
This section allows the court to make an order regarding property obtained through an offence if it is before the court and not needed as evidence.
SECTION WORDING
491.1(1) Where an accused or defendant is tried for an offence and the court determines that an offence has been committed, whether or not the accused has been convicted or discharged under section 730 of the offence, and at the time of the trial any property obtained by the commission of the offence (a) is before the court or has been detained so that it can be immediately dealt with, and (b) will not be required as evidence in any other proceedings, section 490 does not apply in respect of the property and the court shall make an order under subsection (2) in respect of the property.
EXPLANATION
Section 491.1(1) of the Criminal Code of Canada deals with property obtained through the commission of an offence. If an accused person is tried for an offence and the court determines that the offence has been committed, the court may make an order under subsection (2) in respect of the property. This order is made even if the accused has not been convicted of the offence or has been discharged under section 730. In order for this section to apply, the property must be before the court or have been detained so that it can be immediately dealt with. Additionally, the property must not be required as evidence in any other proceedings. Section 490 of the Criminal Code of Canada deals with the forfeiture of property obtained through the commission of an offence. However, section 491.1(1) overrides this section in certain circumstances. This means that the court can make an order with respect to the property, regardless of whether or not the property would otherwise be subject to forfeiture. The purpose of this section is to provide the court with the ability to dispose of property obtained through criminal activity. By making an order with respect to the property, the court can ensure that the proceeds of crime are dealt with in an appropriate manner. This helps to deter criminal activity and also provides a means to compensate victims of the crime. Overall, section 491.1(1) is an important provision in the Criminal Code of Canada that serves to promote justice and accountability in the criminal justice system.
COMMENTARY
Section 491.1(1) of the Criminal Code of Canada deals with the forfeiture of property obtained by an offender through the commission of an offense. Specifically, the section allows for the court to order the forfeiture of any property that is before the court or has been detained so that it can be immediately dealt with if it is deemed that an offense has been committed, regardless of whether the accused has been convicted or not. This section is an important tool in the criminal justice system as it allows for the state to deprive criminals of any benefits that they may have gained from their criminal activities. It is a form of punishment that is designed to deter future criminal activities by removing the incentive for criminals to engage in such activities. The section is particularly useful in cases where the proceeds of crime may be difficult to trace or impossible to recover due to various factors such as the offender hiding or spending the money. In such cases, the forfeiture of property obtained through criminal activities can act as a deterrent for future criminal activities and send a strong message that crime does not pay. The provisions of Section 491.1(1) are applied in cases where an accused has not been convicted or has been discharged under section 730 of the Criminal Code of Canada. A discharge under section 730 of the Criminal Code is a judicial finding that an accused person has committed an offense, but the court does not enter a conviction against the offender. Instead of being convicted, the offender is given a conditional discharge, which includes a period of probation or community services. The section also requires that the property obtained through the commission of an offense must be immediately dealt with and will not be required as evidence in any other proceedings. This requirement ensures that the forfeiture does not violate any of the accused's rights or impede any ongoing criminal investigation or prosecution. The application of Section 491.1(1) has been the subject of significant controversy in recent years, with some commentators arguing that it may be abused by the state and used to unjustly deprive individuals of their property rights. However, the courts have been careful to ensure that any forfeiture orders are proportionate and do not violate the accused's rights. Overall, Section 491.1(1) of the Criminal Code of Canada is an important provision in the criminal justice system. It serves as a powerful deterrent against criminal activities, and its application has been carefully controlled by the courts to ensure that it does not violate the rights of the accused.
STRATEGY
Section 491.1(1) of the Criminal Code of Canada is an important consideration when dealing with criminal cases involving property that was obtained through criminal activity. This provision allows for the court to make an order in respect of the property, even if the accused has not been convicted of the offence. This can be a useful tool for law enforcement agencies, as it enables them to seize and dispose of ill-gotten gains before the accused can use or benefit from them. One key strategy that could be employed when dealing with section 491.1(1) is to ensure that any property obtained by the accused through criminal activity is seized and detained as soon as possible. This will allow the courts to make an order in respect of the property, even if the accused is not convicted of the offence. It is therefore important for law enforcement agencies to be proactive in investigating and identifying any property that may have been obtained through criminal activity. Another key strategy is to ensure that the property is not required as evidence in any other proceedings. This may involve coordinating with other law enforcement agencies to ensure that the property is not needed in any other investigations or trials. It may also involve consulting with the prosecutor to determine whether the property is likely to be needed as evidence in the future. One potential challenge when dealing with section 491.1(1) is ensuring that the accused is not able to benefit from the property, even if they are not convicted of the offence. For example, if the property is sold or disposed of before the accused is convicted, they may still be able to derive some benefit from it. To address this challenge, it may be necessary to make arrangements to hold the property in trust until the outcome of the trial is known. Overall, section 491.1(1) of the Criminal Code of Canada provides an important tool for law enforcement agencies when dealing with criminal cases involving property obtained through criminal activity. By being proactive and strategic in their approach, law enforcement agencies can ensure that ill-gotten gains are seized and disposed of in a way that prevents the accused from benefiting from them, even if they are not convicted of the offence.