section 164(2)

INTRODUCTION AND BRIEF DESCRIPTION

A judge must issue a summons for the occupier of a premises to show cause why seized property should not be forfeited to the government within seven days of a warrant being issued.

SECTION WORDING

164(2) Within seven days of the issue of a warrant under subsection (1), the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty.

EXPLANATION

Section 164(2) of the Criminal Code of Canada is a provision that outlines the procedure to be followed in forfeiture proceedings brought against a person whose property has been seized under subsection (1). This section mandates that within seven days of the issuance of a warrant under subsection (1), the judge must issue a summons to the occupier of the premise, with an order that they appear in court and show cause. This summons gives the occupier an opportunity to contest the seizure and forfeiture of their property. Forfeiture proceedings are legal actions that allow the government to take possession of the property used in the commission of a crime or which has been acquired through illegal means. For example, if the police found a large quantity of illegal drugs in a warehouse, they could seize the drugs and seek a forfeiture order from the court to take possession of the property permanently. Section 164 of the Criminal Code of Canada sets out the rules for forfeiture proceedings. It outlines when property can be confiscated, who can apply for a forfeiture order, and the procedure to be followed in forfeiture proceedings. Specifically, subsection (2) requires a judge to issue a summons to the occupier of the premises seized with an order to appear before the court and justify why the matter seized should not be forfeited to the Crown. Overall, Section 164(2) aims to ensure that individuals affected by forfeiture proceedings are provided with adequate notice and an opportunity to contest the forfeiture of their property before it is taken permanently. This section emphasizes the importance of procedural fairness and the rule of law in the operation of the Canadian criminal justice system.

COMMENTARY

Section 164(2) of the Criminal Code of Canada outlines the process for the forfeiture of matter seized during the execution of a search warrant. The section requires that within seven days of the issue of a warrant, a judge must issue a summons to the occupier of the premises where the search was conducted. The summons requires the occupier to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty. This provision was introduced by Parliament in 2009 as part of a larger effort to strengthen Canada's laws against organized crime and enhance law enforcement's ability to disrupt and dismantle criminal organizations. The provision seeks to deprive criminals of the benefits of their illegal activities by allowing law enforcement to seize and forfeit their assets. Forfeiture is an effective tool for law enforcement as it not only removes the proceeds of crime from criminals, but it also prevents them from using those assets to continue their criminal activities. Forfeiture provisions are widely accepted as a means of combating organized crime, and many countries have implemented similar measures in their own legislation. The provision in Section 164(2) is built on the principle of due process. It allows the occupier of the premises to have a say in whether the matter seized should be forfeited or not. The occupier can raise any defenses they may have, such as showing that the matter seized belongs to someone else or that it was not connected to any illegal activities. However, there have been criticisms of the provision, particularly in the way it is enforced. For instance, some argue that the seven-day deadline for issuing the summons is too tight, especially in cases where the occupier may be absent from the premises. Others argue that the provision can be used to abuse the rights of innocent individuals who may have had nothing to do with the alleged criminal activity. Another concern is that the provision can disproportionately affect marginalized communities. For example, forfeiture of assets can have a significant impact on individuals who rely on those assets to make a living, such as small business owners and gig workers. To address these concerns, some have called for stricter oversight of forfeiture proceedings to ensure that they are not used to unjustly deprive individuals of their property. This could include measures such as providing more time for the occupier to respond to the summons, establishing a clear burden of proof for forfeiture, and ensuring that forfeiture proceedings are conducted in a transparent and accountable manner. In conclusion, Section 164(2) of the Criminal Code of Canada provides a means for law enforcement to deprive criminals of the benefits of their illegal activities through the forfeiture of their assets. While the provision is an important tool for combating organized crime, there are concerns about its implementation and potential for abuse. It is essential that forfeiture proceedings are conducted within the bounds of due process and with a careful consideration of the impact on individuals and communities.

STRATEGY

Section 164(2) of the Criminal Code of Canada deals with the seizure and forfeiture of property that is related to offences under the Criminal Code. It requires judges, within seven days of issuing a search warrant, to summon the occupier of the premises, where the property was seized, to court and give them an opportunity to explain why the property should not be forfeited to the Crown. Forfeiture of property under section 164(2) can be a powerful tool for law enforcement agencies, as it can remove the proceeds of criminal activity from the hands of criminals and prevent them from using it for further criminal purposes. However, the use of forfeiture can also raise concerns about due process, protection of property rights, and fairness. To effectively deal with section 164(2) of the Criminal Code of Canada, legal practitioners and law enforcement agencies need to consider various strategic factors. These factors include: 1. Timing: Legal practitioners and law enforcement agencies should consider the timing of the application for forfeiture. In some cases, it may be advisable to apply for forfeiture at the same time as the issuance of the search warrant. In other cases, it may be better to wait until the investigation has progressed further before applying for forfeiture. 2. Nature of the Property: The type of property seized can have a significant impact on the success of a forfeiture application. For example, if the property is cash, it may be difficult to identify the rightful owner or prove that it was obtained through criminal activity. On the other hand, if the property is a tangible asset, such as a vehicle or real estate, it may be easier to prove that it was used in criminal activity. 3. Evidence: The strength and reliability of the evidence gathered during the investigation is crucial in any forfeiture application. Legal practitioners and law enforcement agencies need to ensure that the evidence obtained is admissible in court and that it meets the required legal standards. 4. Notice to the Occupier: The requirement to issue a summons to the occupier of the premises gives them an opportunity to explain why the property should not be forfeited. Legal practitioners and law enforcement agencies need to ensure that the occupier is properly notified and has a fair chance to present their case. 5. Burden of Proof: The burden of proof in forfeiture proceedings is on the Crown. Legal practitioners and law enforcement agencies need to ensure that they have sufficient evidence to meet this burden and prove that the property was obtained through criminal activity. Some of the strategies that legal practitioners and law enforcement agencies could employ when dealing with section 164(2) of the Criminal Code of Canada include: 1. Structuring the Investigation: By structuring the investigation carefully, law enforcement agencies can gather more robust evidence that can be used in the forfeiture application. This includes ensuring that the evidence is legally obtained and that it meets the required standard of proof. 2. Negotiation: Legal practitioners can negotiate with the occupier of the premises to reach a settlement outside of court. This could involve the occupier agreeing to forfeit the property in exchange for a reduced sentence or other benefits. 3. Challenging the Evidence: Legal practitioners can challenge the Crown's evidence if it is weak or unreliable. This could involve arguing that the evidence was obtained illegally or that it does not meet the required legal standard. 4. Protecting Property Rights: Legal practitioners can argue that the forfeiture of the property would infringe on the occupier's property rights or violate their right to due process. This could involve arguing that the property was not related to criminal activity or that the occupier was not involved in the criminal activity. In conclusion, section 164(2) of the Criminal Code of Canada provides an important mechanism for law enforcement agencies to remove the proceeds of criminal activity from the hands of criminals. However, it also raises concerns about due process, protection of property rights, and fairness. Legal practitioners and law enforcement agencies need to consider these strategic factors carefully when dealing with forfeiture applications and employ appropriate strategies to ensure that the forfeiture process is fair and just.