section 462.32(2)

INTRODUCTION AND BRIEF DESCRIPTION

An ex parte, written application for a warrant to search property may be made under subsection (1) with a statement of any previous applications for the same property.

SECTION WORDING

462.32(2) An application for a warrant under subsection (1) may be made ex parte, shall be made in writing and shall include a statement as to whether any previous applications have been made under subsection (1) with respect to the property that is the subject of the application.

EXPLANATION

Section 462.32(2) of the Criminal Code of Canada deals with applications for a warrant of seizure or forfeiture of property that is believed to be connected to criminal activity. Specifically, this subsection outlines the requirements for an application to be made ex parte, meaning without notice to the property owner or other interested parties. The subsection stipulates that an application must be made in writing and include a statement regarding any previous applications made with respect to the same property. This information is important because it helps the court assess whether the seizure or forfeiture of the property is necessary and proportional to the alleged criminal activity. Ex parte applications for a warrant of seizure or forfeiture are typically made in cases where there is a risk that notice to the property owner would result in the destruction, removal, or concealment of the property. This may be the case where the property is easily movable, such as cash, or where the property owner is likely to tamper with the evidence, such as a drug lab. The Criminal Code of Canada allows for the seizure and forfeiture of property that is believed to have been obtained through criminal activity or used in the commission of an offence. The purpose of such seizure or forfeiture is to remove the proceeds or tools of criminal activity and prevent their further use in illegal operations. Overall, section 462.32(2) reflects the importance of due process in the seizure and forfeiture of property in criminal cases, while recognizing that in some circumstances, ex parte applications may be necessary to protect the integrity of the investigation and prevent the further commission of crimes.

COMMENTARY

Section 462.32(2) of the Criminal Code of Canada pertains to the application for a warrant under subsection (1) for the forfeiture of property. This section of the Code sets out the requirements for making an application for a warrant, including the fact that an application may be made ex parte. An ex parte application is one that is made without notifying the other parties involved in the matter. This means that the Crown can make an application for the forfeiture of property without notifying the owner of the property. The section also stipulates that the application must be made in writing and must include a statement as to whether any previous applications have been made under subsection (1) with respect to the property that is the subject of the application. This requirement is important because it helps to ensure that the court has all the relevant information regarding the property in question, including any previous attempts to seize it. This information is critical because it enables the court to make a more informed decision regarding the forfeiture application. The purpose of section 462.32(2) is to provide a mechanism for the Crown to apply for the forfeiture of property in cases where it suspects that the property has been used in the commission of a criminal offence. The forfeiture of property is a legal process by which property that is connected to criminal activity is seized and permanently taken away from the owner. The idea behind the forfeiture of property is that it serves as a means of deterrence by removing the profits that might be generated from criminal activity. While the forfeiture of property can be an effective tool in fighting crime, it is not without controversy. One of the main criticisms of forfeiture is that it can be used to unjustly seize property without due process of law. Critics argue that the ex parte nature of the application process can be abused, and that it can result in innocent parties having their property unfairly seized. Another concern is that forfeiture can disproportionately affect marginalized communities. For example, civil forfeiture laws in the United States have been criticized for being used to target low-income communities of color, who are often more likely to have their property seized. In conclusion, Section 462.32(2) of the Criminal Code of Canada provides the framework for making an application for the forfeiture of property. While the goal of forfeiture is to fight crime by removing the profits of criminal activity, it is important to ensure that the process is fair and respects the rights of all parties involved. The ex parte nature of the application process can be controversial, but it is an important tool in the fight against organized crime and other forms of criminal activity.

STRATEGY

Section 462.32(2) of the Criminal Code of Canada provides for an ex parte application for a warrant in relation to the seizure of property in certain circumstances. This provision is often invoked in cases where there are reasonable grounds to believe that property is proceeds of crime or is being used to facilitate criminal activity. In such cases, ex parte application for a warrant can be a powerful tool to secure the seizure of the property before the accused can dispose of it. One of the key strategic considerations when dealing with section 462.32(2) is to ensure that the application is properly drafted and supported by evidence that meets the threshold of reasonable grounds to believe that the property is proceeds of crime or is being used to facilitate a criminal activity. This evidence must be presented in a clear and concise manner that is persuasive to the judge or justice of the peace who is considering the application. Any errors or omissions in the application or evidentiary support could result in the dismissal of the application, or in the invalidation of any subsequent seizure of the property. Another strategic consideration is to carefully consider whether an ex parte application is the appropriate approach in a given case. Ex parte applications are made without notice to the property owner, and can be seen as infringing on their rights. Accordingly, this approach should only be taken where there is a compelling need to seize the property urgently, or where there is a risk that the evidence will be destroyed if notice is given. If an ex parte application is not the appropriate approach, other avenues such as obtaining consent or obtaining a search warrant with notice may be more appropriate. In terms of specific strategies that could be employed in making an application under section 462.32(2), some best practices include: - Conducting a thorough investigation and gathering as much evidence as possible that supports the belief that the property is proceeds of crime or is being used to facilitate criminal activity; - Presenting the evidence in a clear, concise, and convincing manner in the application; - Ensuring that all legal requirements for the application are met, including providing information about any previous applications for a warrant in relation to the property; - Considering whether there are any alternative approaches to seizing the property that may be less intrusive, such as obtaining consent; - Being prepared to provide follow-up evidence and explanation to the court if requested. Overall, section 462.32(2) of the Criminal Code of Canada provides for a powerful tool for law enforcement agencies seeking to seize property that is believed to be connected to criminal activity. However, making an ex parte application for a warrant requires careful consideration and strategic planning to ensure that the application is successful and does not infringe on the rights of the property owner.