INTRODUCTION AND BRIEF DESCRIPTION
This section allows the Attorney General to apply for the forfeiture of property used in the commission of certain offenses and owned by the convicted person or someone involved in the offense.
SECTION WORDING
164.2(1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing (a) was used in the commission of the offence; and (b) is the property of (i) the convicted person or another person who was a party to the offence, or (ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
EXPLANATION
Section 164.2(1) in the Criminal Code of Canada grants the Attorney General the power to apply for the forfeiture of anything, other than real property, that was used in the commission of an offense under sections 163.1, 172.1, or 172.2. This section allows the court to order the forfeiture of property that is proven to be owned by the convicted person, a party to the offense, or anyone who acquired the property from such persons with the reasonable inference that it was transferred to avoid forfeiture. The purpose of this section is to provide a means for the government to deter and punish criminal activity by depriving offenders of the proceeds or instruments of their illegal activity. The forfeiture of property serves as a significant deterrent to those who engage in criminal activity, as it takes away a valuable asset that could be used to further their criminal pursuits or quality of life. The forfeiture of assets may include, but is not limited to, cash, vehicles, or equipment used in the commission of the offense. The Attorney General has the power to dispose of the assets as they see fit. The proceeds may be directed towards victim restitution or deposited into the general revenue fund. While the forfeiture of property may seem like a harsh punishment, it is necessary to combat organized crime and other forms of criminal activity. By targeting the assets of criminals, this section helps to dismantle their operations and remove the financial incentives for their illegal activities.
COMMENTARY
The practice of asset forfeiture has long been a controversial issue in Canadian law. Section 164.2(1) of the Criminal Code of Canada is a provision that grants courts the power to order the forfeiture of anything that was used in the commission of certain offences under the Code. This provision is part of the government's effort to combat the financing of criminal activity by depriving offenders of their instrumentalities. The types of offences targeted by section 164.2(1) are serious, involving, for instance, the distribution of child pornography or the exploitation of minors for sexual purposes. Consequently, the application of the provision is restricted to situations where the court has convicted the offender of the offence charged under section 163.1, 172.1 or 172.2 of the Code. Only in such cases may the Attorney General apply to the court for an order of forfeiture in addition to any other punishment imposed. Section 164.2(1) is designed to prevent offenders from profiting from their illegal activities by seizing their assets, thereby removing the financial incentive for criminal conduct. The provision is also meant to deter others from engaging in such conduct by demonstrating the consequences of being convicted of a serious offence. Additionally, the funds obtained from the forfeiture of assets may be used to compensate victims or fund programs that benefit society. To obtain a forfeiture order, the Attorney General must demonstrate, on a balance of probabilities, that the asset in question was used to commit the offence and that it is the property of either the offender or someone who was a party to the offence. Furthermore, the Attorney General must provide evidence that gives rise to a reasonable inference that the asset was transferred for the purpose of avoiding forfeiture. This requirement is meant to prevent offenders from trying to circumvent the provision by transferring their property to third parties. While the goal of section 164.2(1) is laudable - to combat serious crime and prevent offenders from profiting from their illegal activities - it has also been subject to criticism. For one, critics argue that the provision undermines the traditional principle of innocence until proven guilty by allowing for the forfeiture of assets prior to a conviction. In practice, this means that assets may be seized on the basis of mere suspicion, resulting in innocent people being deprived of their property. Moreover, section 164.2(1) is highly discretionary, giving the court broad powers to order the forfeiture of assets. As a result, the provision may be prone to abuse by prosecutors or lead to inconsistent results across cases. Furthermore, the provision has been criticized for being overly broad, potentially capturing legitimate property that was not directly used in the commission of the offence. In conclusion, section 164.2(1) of the Criminal Code of Canada is a controversial provision that grants courts the power to order the forfeiture of anything used in the commission of certain offences. While intended to combat serious crime and deter others from engaging in such conduct, the provision has also been subject to criticism. Nonetheless, the continued use of such provisions in criminal law remains an ongoing debate among legal scholars and practitioners, highlighting the need for a balance between safeguarding the rights of the accused and upholding the rule of law.
STRATEGY
Section 164.2(1) of the Criminal Code of Canada allows for the forfeiture of property used in the commission of certain offenses, including child pornography, the luring of children over the internet, and the trafficking of persons. While it is an important tool in fighting these serious crimes, there are also strategic considerations that must be taken into account when dealing with this section. One important consideration is the value of the property in question. If the property is of significant value, such as a luxury car or a large sum of cash, it may be worthwhile to contest the forfeiture. This can be done by arguing that the property was not actually used in the commission of the offense or that the forfeiture would be disproportionate to the offense committed. This strategy may require the assistance of a skilled criminal lawyer who has experience with forfeiture cases. Another consideration is the impact of the forfeiture on innocent parties. In some cases, a third party may have acquired the property from the offender under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture. In such cases, it may be possible to argue that the innocent third party should not be penalized for the offender's actions. This may require the involvement of civil lawyers to establish the third party's legal rights to the property. It is also important to consider the potential impact of a forfeiture order on future legal proceedings. For example, if the offender is facing other criminal charges related to the same offense, a forfeiture order may be used as evidence against them. Alternatively, if the offender is seeking a reduced sentence or early parole, a forfeiture order may be used as evidence of their remorse and willingness to make amends. Overall, there are a variety of strategic considerations that must be taken into account when dealing with Section 164.2(1) of the Criminal Code of Canada. These may include the value of the property in question, the impact on innocent parties, and the potential impact on future legal proceedings. A skilled criminal lawyer can help identify these considerations and develop effective strategies to protect their client's rights.