INTRODUCTION AND BRIEF DESCRIPTION
Orders made under subsection (3) remain in effect until revoked, varied, or overruled by an order of forfeiture or restoration of property.
SECTION WORDING
462.33(10) An order made under subsection (3) remains in effect until (a) it is revoked or varied under subsection 462.34(4) or revoked under paragraph 462.43(a); (b) it ceases to be in force under section 462.35; or (c) an order of forfeiture or restoration of the property is made under subsection 462.37(1) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament.
EXPLANATION
Section 462.33(10) of the Criminal Code of Canada deals with the duration of orders made under subsection (3), which pertains to the forfeiture of property obtained through criminal activity. The provision specifies that such orders remain in effect until they are revoked or varied under subsection 462.34(4) or revoked under paragraph 462.43(a). This means that the court may modify or cancel an existing forfeiture order if there is a valid reason for doing so, such as new evidence that shows the property was not actually acquired through criminal activity. Additionally, an order made under subsection (3) may cease to be in force under section 462.35, which outlines the circumstances under which a court may release property that has been seized for the purpose of forfeiture. For example, if the property is needed for the conduct of a lawful business and its forfeiture would cause undue hardship, the court may release it to the owner. Finally, an order of forfeiture or restoration of the property may be made under subsection 462.37(1) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament. This means that there are various specific situations in which an order of forfeiture or restoration may be made, such as if the property was used in the commission of a drug offense or if it was obtained through insider trading. In such cases, the court may order that the property be forfeited or returned to its rightful owner, depending on the circumstances. Overall, the provisions outlined in 462.33(10) work to ensure that the forfeiture of property obtained through criminal activity is conducted fairly and in accordance with the law.
COMMENTARY
Section 462.33(10) of the Criminal Code of Canada is an important provision that deals with the duration of orders made under subsection (3) of section 462.33. This section is part of the provisions relating to the civil forfeiture of proceeds of crime, which allows the government to seize property that is believed to be derived from criminal activity. Subsection (3) of section 462.33 allows a court to make an interim preservation order, a restraint order, or a forfeiture order on application by the Attorney General or a peace officer. These orders are intended to preserve property that is suspected to be proceeds of crime, prevent it from being transferred or hidden, and ultimately forfeit it to the government if the court is convinced that it is, in fact, tainted property. However, the question of how long these orders should remain in effect is not always clear. Subsection (10) of section 462.33 provides some guidance on this matter. It sets out three circumstances in which an order made under subsection (3) would cease to be in effect. First, an order can be revoked or varied under subsection 462.34(4) or revoked under paragraph 462.43(a). This means that the court that made the order can reconsider it and either cancel it entirely or change its terms. This could happen, for example, if new evidence comes to light that shows that the property in question is not, in fact, proceeds of crime. Second, an order can cease to be in force under section 462.35. This provision sets out a number of situations in which a court must lift an interim preservation order, such as if there is no longer any reason to believe that the property is connected to a criminal offence or if the order is causing undue hardship to the owner. Finally, an order can cease to be in effect if an order of forfeiture or restoration of the property is made under subsection 462.37(1) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament. This means that once a final order of forfeiture is made, the interim or restraint order that preceded it would become redundant. The importance of this provision lies in the fact that it provides clarity and certainty for all parties involved in a civil forfeiture case. It ensures that there is a clear termination point for interim orders, which balances the state's interest in preserving property that may be proceeds of crime with the property owner's right to enjoy their assets free from unwarranted restrictions. Furthermore, this provision also underscores the importance of due process in civil forfeiture cases. By providing for the revocation or variation of orders, it ensures that the court remains mindful of the possibility of errors or changes in circumstances that may affect the propriety of the order. By requiring a final order of forfeiture to be made before a restraint or preservation order ceases to have effect, it ensures that property owners are given an opportunity to challenge the government's case and present evidence of their own, before their assets are seized. In conclusion, section 462.33(10) of the Criminal Code of Canada plays a crucial role in ensuring that civil forfeiture orders are subject to clear and fair rules, which align with fundamental principles of justice and fairness. It provides a framework for the duration of interim or restraint orders, and ensures that these orders are reviewed and scrutinized by the courts, to ensure that they are justified and necessary, and that they do not cause undue hardship or suffering to property owners. Overall, it is an important safeguard that protects the rights and dignity of Canadians, while also serving the public interest in tackling crime and preserving the integrity of the justice system.
STRATEGY
Section 462.33(10) of the Criminal Code of Canada grants the state the power to seize and forfeit assets that are deemed to be proceeds or instruments of crime. This provision provides the government with a powerful tool to combat organized crime, but it also raises several strategic considerations. One of the key strategic considerations when dealing with this provision is to minimize the risk of collateral damage. The seizure and forfeiture of assets can have serious negative consequences for innocent parties who may have no connection to the alleged criminal activity. For example, if a family member shares a bank account or a home with a suspected criminal, their assets could be seized, even if they had no knowledge of the alleged criminal activity. To minimize the risk of collateral damage, it is critical to carefully assess the evidence and to ensure that the assets seized are directly linked to the suspected criminal activity. Another strategic consideration is to be mindful of the potential consequences of the seizure and forfeiture of assets. In some cases, the seizure of assets can have unintended consequences that can actually benefit criminal organizations. For example, if the seizure of assets results in significant financial losses for legitimate businesses, the criminal organization may be able to gain a foothold in the affected markets and expand their criminal enterprises. To counter this, it is important to carefully consider the potential impacts and to take steps to minimize any unintended consequences. A third strategic consideration is to carefully assess the costs and benefits of asset seizure and forfeiture. While this provision can be an effective tool in the fight against organized crime, it also requires significant resources and can have a significant impact on individuals and communities. It is therefore critical to carefully weigh the benefits of asset seizure and forfeiture against the costs, and to ensure that such measures are used only when they are justified and necessary. In terms of strategies that could be employed, one approach would be to enhance the transparency and accountability of the asset seizure and forfeiture process. By ensuring that the process is fair and transparent, and that individuals and communities affected by the process have a voice and a say in the outcome, it may be possible to reduce the negative impacts and minimize the risk of collateral damage. Additionally, it may be possible to leverage technology and data analytics to improve the effectiveness and efficiency of the process, and to ensure that only assets that are directly linked to the alleged criminal activity are seized. Another strategy that could be employed would be to focus on prevention and disruption, rather than simply relying on asset seizure and forfeiture. By using a range of other measures, such as intelligence-gathering, surveillance, and targeted enforcement activities, it may be possible to disrupt criminal organizations and prevent them from operating in the first place. This could ultimately be a more cost-effective and sustainable approach than simply relying on seizure and forfeiture as a punitive measure. In conclusion, Section 462.33(10) of the Criminal Code of Canada provides the government with a powerful tool to combat organized crime, but it also raises several strategic considerations. To ensure that the process is fair, effective, and efficient, it is important to carefully assess the evidence, minimize the risk of collateral damage, consider the potential consequences, and weigh the costs and benefits of asset seizure and forfeiture. By employing a range of strategies, and by prioritizing prevention and disruption, it may be possible to effectively combat organized crime and protect the interests of individuals and communities.