Section 490(9) of the Criminal Code stipulates that where a judge is satisfied that an offender was not lawfully in possession of any property seized by law enforcement, the judge may order that the property be forfeited to the Crown to be disposed of.
What is a Forfeiture Order?
There are three different categories of forfeiture orders:
This article will focus on forfeiture orders for seized goods.
A forfeiture order related to seized goods typically involves property seized by police as evidence. When arresting someone for a criminal offence, an officer has the authority to seize any property they find on the accused or in the area of the accused’s arrest that may reasonably be evidence of the crime for which the accused is being arrested, or any weapon or other instrument that may be used to attempt to escape police custody. Once property has been seized, the police may keep it at least until the end of the trial or until the proceedings have completed.
If the Crown believes the property seized is unlawful, they must make an application to the court under section 490(9) of the Criminal Code for the property to be forfeited to the Crown. It is not necessary that the accused be convicted of an offence. The Court must only be satisfied beyond a reasonable doubt that the property does not legally belong to the offender.
What Types of Property can be named in a Forfeiture Order?
Virtually any type of property can be named in a forfeiture order. Anything from a house or building, to cash, to clothing, jewellery, or art.
Can the Accused Apply to get Seized Property Back?
Section 490(7) of the Code allows an accused to make an application to the court to have their property returned to them once the detention periods named by the judge when the property was originally seized has elapsed. The accused must satisfy the court that they were lawfully in possession of the property before it will be returned.
What is a Detention Order?
When property is seized by law enforcement the property will be brought before a justice and the justice must make an order pursuant to section 490(1) regarding what to do with the property.
Section 490(1)(a) stipulates that where there is a lawful owner of the property, the property should be returned to the owner, unless the Crown can satisfy the court on a balance of probabilities that the property is necessary for the purposes of any investigation, preliminary inquiry, trial, or other proceeding.
What if the Property Belongs to a Third Party?
Section 490(9)(d) of the Code indicates that where the property was seized from an offender but lawfully belongs to an innocent third party, the court will direct the property be returned to the lawful owner. If the property is required for any investigation, preliminary inquiry, trial or other proceeding it will not be returned until it is no longer needed for that purpose.
What happens to Property that is Forfeited?
When property is originally seized and the detention period has elapsed, the court will determine how to dispose of the property. If the property lawfully belongs to an innocent third party, and that third party is already known, the property will be returned to them under section 490(9)(d).
Section 490(10) allows an innocent third party to make an application to the court claiming lawful ownership of any property seized by police. Such an individual may make an application at any time after the detention period has elapsed to have the property returned to them.
Where there is no lawful owner of the property, or the property is inherently unlawful, the property will become property of the Crown and will be disposed of by the Attorney General in accordance with section 490(9) of the Code.