Criminal Code of Canada - section 462.33(2)

section 462.33(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for submitting an ex parte application for a restraint order in respect of property that may be subject to forfeiture under specific circumstances.

SECTION WORDING

462.33(2) An application made under subsection (1) for a restraint order under subsection (3) in respect of any property may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to the following matters, namely, (a) the offence or matter under investigation; (b) the person who is believed to be in possession of the property; (c) the grounds for the belief that an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2) in respect of the property; (d) a description of the property; and (e) whether any previous applications have been made under this section with respect to the property.

EXPLANATION

Section 462.33(2) of the Criminal Code of Canada outlines the procedural requirements for obtaining a restraint order in relation to property that may be subject to forfeiture under Section 462.37(1) or (2.01) or 462.38(2) of the Code. This provision allows the Attorney General or any other person to make an application for a restraint order ex parte, meaning without the knowledge or involvement of the individual who may be in possession of the property. To make an application for a restraint order under subsection (1), the applicant must submit a written affidavit to a judge, outlining certain information such as the offence under investigation, the person believed to be in possession of the property, the grounds for the belief that the property may be subject to forfeiture, a description of the property, and any previous applications made in relation to the property. This information must be sworn on the information and belief of the applicant or affiant. A restraint order under this provision allows the authorities to seize and secure the property in question until a determination is made as to whether it is subject to forfeiture. This provision is part of the broader scheme of criminal asset forfeiture, which seeks to remove the proceeds and instrumentalities of crime from circulation and deter criminal activity. It is designed to prevent individuals from disposing of or transferring property before it can be seized and forfeited, thereby preserving the integrity of the asset forfeiture process.

COMMENTARY

Section 462.33(2) of the Criminal Code of Canada provides for the process of obtaining a restraint order in relation to any property that is believed to be subject to forfeiture under the provisions of Sections 462.37(1) or (2.01) or 462.38(2). The application for the restraint order can be made ex parte, i.e., without notice to the party believed to be in possession of the property, and must be made in writing to a judge, accompanied by an affidavit that provides the relevant information. The purpose of a restraint order is to preserve the property that is believed to be subject to forfeiture pending the determination of an application for forfeiture. This provision is part of the criminal law asset forfeiture regime, which is a powerful tool used by the state to fight organized crime and other forms of serious criminal activity. The process of obtaining a restraint order ex parte is aimed at preventing the possible dissipation or removal of the property before the order is obtained. The affidavit accompanying the application must provide the following information: first, the offence or matter under investigation that is related to the property in question; second, the person who is believed to be in possession of the property; third, the grounds for the belief that an order of forfeiture may be made in respect of the property; fourth, a description of the property; and fifth, whether any previous applications have been made under this section with respect to the property. The requirement of an affidavit sworn on the information and belief of the Attorney General or any other person is significant. It means that the application cannot be made solely on the basis of suspicion or mere conjecture; there must be some credible evidence to support it. The affidavit must contain facts and information that give reasonable grounds for suspecting that the property is the proceeds of crime or was used in the commission of a criminal offence. The provision also requires that the grounds for believing that an order of forfeiture may be made in respect of the property be set out in the affidavit. This is an important requirement because it ensures that the judge can make an informed decision about whether to grant the restraint order. The grounds must be based on solid legal and factual foundations, and not merely on the basis of suspicion. The requirement of providing a description of the property is also significant. It means that the application must identify the property with sufficient particularity to enable the judge to understand what is being sought to be restrained. This is important because it prevents the possibility of overbroad restraint orders that might harm innocent third parties who have an interest in the property. Finally, the provision requires that the application disclose whether any previous applications have been made under this section with respect to the property. This is necessary to prevent abuse of the process and to ensure that the judge has all the relevant information before making a decision. In conclusion, Section 462.33(2) of the Criminal Code of Canada is an important provision that provides for the process of obtaining a restraint order in relation to property believed to be subject to forfeiture. The provision strikes a balance between the rights of the parties and the need to preserve the property pending the determination of an application for forfeiture. The requirement of an affidavit and the specified information that must be provided ensure that the process is based on solid legal and factual foundations and that the interests of innocent third parties are protected.

STRATEGY

Section 462.33(2) of the Criminal Code of Canada outlines the procedures for making an ex parte application for a restraint order in respect of any property. This provision is an important tool for law enforcement agencies seeking to prevent criminal organizations from fleeing with their assets or hiding them from the authorities. However, given the serious nature of such orders and their potential impact on innocent parties, strategic considerations must be taken into account when dealing with this section of the Criminal Code. One of the most important strategic considerations when dealing with section 462.33(2) is to ensure that the application is made on solid grounds. The threshold for obtaining a restraint order is relatively low - the application only needs to establish reasonable grounds to believe that an order of forfeiture may be made in respect of the property. However, the courts have made it clear that even though the threshold is low, it still requires a reasonable level of detail and evidentiary support. This means that the affidavit supporting the application should be carefully drafted and thoroughly researched. Another strategic consideration is to carefully identify and describe the property that is to be restrained. The property must be described with as much detail as possible so that there is no ambiguity about what is being restrained. This is particularly important in cases where multiple parties may be claiming an interest in the property, as it may be necessary to resolve any disputes as to ownership before the property can be forfeited. Additionally, the courts have indicated that the property must be identified with reasonable certainty, so it should be described in a way that distinguishes it from other similar property. A further strategic consideration is to consider the potential impact of the order on innocent parties. Restraint orders can have a significant impact on third parties who may have an interest in the property, such as innocent purchasers or lenders. It is important to assess the potential impact on these parties and consider any measures that may be necessary to protect their interests. This may include providing notice to affected parties, or in extreme cases, seeking to have the order modified or set aside. In terms of strategies that could be employed, one approach is to work collaboratively with other agencies and departments. For example, law enforcement agencies could work with asset recovery specialists or financial crime analysts to gather the necessary evidence to support the application. This can be particularly useful in complex cases where tracing assets or establishing ownership is difficult. Another strategy is to be proactive in seeking restraint orders. Rather than waiting until assets have been transferred or hidden, law enforcement agencies could seek to obtain restraint orders at an early stage in an investigation. This can help to prevent suspects from disposing of assets and can also be an effective way of putting pressure on suspects to cooperate with the investigation. In conclusion, section 462.33(2) of the Criminal Code of Canada is an important tool for preventing criminal organizations from profiting from their illegal activities. However, strategic considerations must be taken into account when dealing with this provision, particularly in relation to the evidentiary support for the application, the identification and description of the property, and the potential impact on innocent parties. By adopting appropriate strategies, law enforcement agencies can use this provision effectively to disrupt criminal activity and recover the proceeds of crime.