Section 491.1 of the Code provides that if during the course of a trial the judge determines that the property was obtained by crime and that the property will not be needed for any other proceedings, the property may be returned to the lawful owner.
- Order for restitution or forfeiture of property obtained by crime
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 [order of discharge] 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 [detention, access and disposal of things seized] does not apply in respect of the property and the court shall make an order under subsection (2) [order for restitution or forfeiture of property obtained by crime – order] in respect of the property.
(2) In the circumstances referred to in subsection (1) [order for restitution or forfeiture of property obtained by crime – grounds], the court shall order, in respect of any property,
- (a) if the lawful owner or person lawfully entitled to possession of the property is known, that it be returned to that person; and
- (b) if the lawful owner or person lawfully entitled to possession of the property is not known, that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
- When certain orders not to be made
(3) An order shall not be made under subsection (2) [order for restitution or forfeiture of property obtained by crime – order]
- (a) in the case of proceedings against a trustee, banker, merchant, attorney, factor, broker or other agent entrusted with the possession of goods or documents of title to goods, for an offence under section 330 [theft by person required to account], 331 [theft by person holding power of attorney], 332 [misappropriation of money held under direction] or 336 [breach of trust]; or
- (b) in respect of
- (i) property to which a person acting in good faith and without notice has acquired lawful title for valuable consideration,
- (ii) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it,
- (iii) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed, or
- (iv) property in respect of which there is a dispute as to ownership or right of possession by claimants other than the accused or defendant.
- By whom order executed
(4) An order made under this section shall, on the direction of the court, be executed by the peace officers by whom the process of the court is ordinarily executed.
R.S., 1985, c. 27 (1st Supp.), s. 74, c. 1 (4th Supp.), s. 18(F);
1995, c. 22, s. 18.
Section 491.1 is only engaged where the accused has been found guilty. If there is an acquittal the provision does not apply.
Where property is before the court on an acquittal, the Court can only use its power of inherent jurisdiction under s. 24(1) of the Charter to dispose of the property.