INTRODUCTION AND BRIEF DESCRIPTION
This section allows a judge to make an order restraining a person from disposing of or dealing with any property that may be subject to forfeiture under certain circumstances.
SECTION WORDING
462.33(3) A judge who hears an application for a restraint order made under subsection (1) may — if the judge is satisfied that there are reasonable grounds to believe that there exists, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2), in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction — make an order prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in the manner that may be specified in the order.
EXPLANATION
Section 462.33(3) of the Criminal Code of Canada pertains to the application of a restraint order by a judge. The section authorizes the judge to issue a restraint order if there is evidence to suggest that there is property within the province or another province that may be subject to forfeiture. The restraint order prohibits any individual from disposing of or carrying out any other transaction related to any interest in the property that is identified in the order. The order typically outlines the manner in which the property must be managed until it is determined whether or not it will be subject to forfeiture. This section is significant because it reduces the likelihood that people accused of designated offenses will transfer property to third parties as a means of avoiding forfeiture. By putting a restraint order in place, the judge ensures that the accused will not be able to dispose of the property, which may be used to satisfy any fines imposed as part of the legal process or any other penalties related to the designated offense. This section additionally provides the necessary legal framework to ensure that criminals are unable to profit from their illegal activities and to ensure that the legal system is able to operate effectively.
COMMENTARY
Section 462.33(3) of the Criminal Code of Canada provides for the issuance of a restraint order by a judge upon an application made under subsection (1) if the judge is satisfied that there are reasonable grounds to believe that there exists, within the province where the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2), in respect of a designated offence alleged to have been committed within the jurisdiction of the judge. The purpose of a restraint order is to prevent the disposal or other dealings of property that may be subject to forfeiture under the Criminal Code. It is intended to preserve the property and prevent its dissipation pending the final disposition of the underlying criminal proceedings. The law recognizes that property can be tainted by criminal activity and as such, allows for its forfeiture, as a means of punishing the criminal and deterring others from engaging in similar activities. The issuance of a restraint order is a serious matter and should only be done in situations where there is a legitimate concern that the property may be subject to forfeiture. The power to issue a restraint order is discretionary and is dependent on the existence of reasonable grounds to believe that the property in question may be subject to forfeiture. The section provides for the issuance of a restraint order in situations where the designated offence alleged to have been committed occurred within the province where the judge has jurisdiction or any other province. This means that the judge has the power to issue a restraint order regardless of where the property is located. This provision is important in situations where criminal activity may have taken place in one province, but the proceeds of that activity were moved or concealed in another province. The section also provides for the prohibition of any person from disposing of or dealing with any interest in the property specified in the order otherwise than in the manner that may be specified in the order. This means that once a restraint order is issued, any dealing or disposal of the property is prohibited unless authorized by the order. This ensures that the property remains intact and available for seizure should it be subject to forfeiture. In conclusion, Section 462.33(3) of the Criminal Code of Canada provides a powerful tool for law enforcement to preserve property that may be subject to forfeiture in criminal proceedings. It is an important provision that helps to ensure that those who engage in criminal activity do not profit from their crimes and that the proceeds of criminal activity are not hidden or dissipated. The power to issue a restraint order is discretionary and should only be exercised when there is a legitimate concern that the property in question may be subject to forfeiture.
STRATEGY
Section 462.33(3) of the Criminal Code of Canada provides for the possibility of a restraint order in relation to property that may ultimately be subject to forfeiture in relation to an alleged designated offence. This provides Crown prosecutors with an important tool for securing assets that may be subject to forfeiture in the event of a conviction. Importantly, this provision is not dependent on the accused's conviction and can be applied at any stage of the proceedings. One of the key strategic considerations when dealing with this section is whether and when to seek a restraint order. The decision to seek a restraint order will depend on a number of factors, including the strength of the Crown's case, the value of the assets in question, and the potential impact of the restraint on the accused and any innocent third parties. It may be appropriate to seek a restraint order early in the proceedings to ensure that assets are not dissipated before they can be subject to forfeiture. Another important strategic consideration is the scope of the restraint order. The order can prohibit any person from disposing of or dealing with any interest in the property specified in the order, but it may be possible to tailor the order to ensure that it is proportionate to the alleged offence and the value of the assets in question. For example, it may be appropriate to limit the scope of the order to specific assets or to specify certain exceptions, such as allowing for the payment of reasonable living expenses. It may also be necessary to consider the impact of the restraint order on any third-party interests in the property. For example, if the property subject to the order is jointly owned, the restraint may impact the innocent co-owner's ability to dispose of or deal with their interest in the property. In such cases, it may be appropriate to seek an exception to the order to allow the innocent co-owner to deal with their share of the property. Overall, the decision to seek a restraint order under section 462.33(3) of the Criminal Code of Canada requires a careful balancing of various factors and consideration of all available strategic options. By employing a nuanced and strategic approach, Crown prosecutors can effectively use this provision to secure assets that may ultimately be subject to forfeiture in relation to a designated offence.