section 462.34(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the circumstances under which a judge may order the return of property seized as part of a criminal investigation or revoke a restraint order.

SECTION WORDING

462.34(4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit, (a) if the applicant enters into a recognizance before the judge, with or without sureties, in such amount and with such conditions, if any, as the judge directs and, where the judge considers it appropriate, deposits with the judge such sum of money or other valuable security as the judge directs; (b) if the conditions referred to in subsection (6) are satisfied; or (c) for the purpose of (i) meeting the reasonable living expenses of the person who was in possession of the property at the time the warrant was executed or the order was made or any person who, in the opinion of the judge, has a valid interest in the property and of the dependants of that person, (ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i), or (iii) permitting the use of the property in order to enter into a recognizance under Part XVI, if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.

EXPLANATION

Section 462.34(4) of the Criminal Code of Canada outlines the provisions for returning property or revoking a restraint order that was made pursuant to section 462.33(3). The section allows an individual who has had their property seized to apply to a judge for the return of their property. The judge will hear from the applicant, the Attorney General, and any other person who was given notice pursuant to section 462.34(2)(b), before making a decision. The judge may order that the property or part of it be returned to the applicant if certain conditions are met. These conditions include the applicant entering into a recognizance with or without sureties, and posting a deposit as directed by the judge. Additionally, the conditions referred to in subsection (6) must be satisfied before the property can be returned. In some cases, the judge may allow for the return of the property to meet the reasonable living expenses of the person who had possession of the property, the person's dependents, or to meet reasonable business and legal expenses. The judge must be satisfied that the applicant has no other assets or means available, and that no other person appears to be the lawful owner of or entitled to possession of the property. Overall, section 462.34(4) provides a mechanism for individuals who have had their property seized to apply for its return and outlines the conditions that must be satisfied before a judge can make an order for its return.

COMMENTARY

Section 462.34(4) of the Criminal Code of Canada provides a mechanism for the return of property that has been seized under a restraint order or search warrant in relation to an offence. It enables an individual to apply to a judge for the return of their property and sets out the grounds on which such an application may be granted. The section provides that the judge may order the property or a part thereof be returned to the applicant, if the applicant enters into a recognizance before the judge with or without sureties. This recognizance may require the applicant to comply with certain conditions, and the judge may also require the applicant to deposit a sum of money or other valuable security. Additionally, the judge may order the return of property or revoke or vary the restraint order if certain conditions are met. These conditions include if the property is necessary for the reasonable living expenses or business and legal expenses of the person in possession of the property or if the property is needed to enter into a recognizance under Part XVI. The purpose of this section is to provide an avenue for individuals to have their property returned to them if it was seized in relation to an offence but is not directly related to the commission of the offence. It recognizes that such individuals may have a legitimate interest in the property and that the seizure of the property may be causing them hardship. This section also serves to balance the interests of the individual seeking the return of their property with the interests of the state in preventing criminal activity. The section provides that the judge may impose conditions on the return of the property to ensure that any potential risk to public safety or harm to individuals is minimized. Overall, section 462.34(4) of the Criminal Code of Canada serves as a means of ensuring that individuals who have property seized in relation to an offence are not unduly burdened by the seizure. It provides a mechanism for the return of property in appropriate circumstances and ensures that public safety is not compromised in the process.

STRATEGY

Section 462.34(4) of the Criminal Code of Canada outlines the various circumstances under which a judge may order the return of property or parts of it after a warrant is issued or an order is made. This section is essential for defendants who have had their property seized or restrained under a warrant. However, navigating this section requires strategic considerations and the employment of some strategies to ensure that the property is returned as quickly as possible. One of the key considerations when dealing with section 462.34(4) is timing. A person seeking the return of their property must act quickly to file an application with the court, and the timing of the application is essential. A successful application for the return of property depends on several factors. However, it is essential to note that delays can lead to the loss of the property. Once an application is filed, the person must request an expedited hearing as soon as possible. Another consideration when dealing with this section is demonstrating that the conditions for revoking, varying, or making the order are satisfied. The applicant needs to show that they have a right to the property or have a lawful interest in it. Evidence presented to the court must convince the judge that they should either return the property or limit the restraint order. The applicant must also show that the conditions referred to in subsection (6) are met or, in the alternative, show that they have no other assets or means available for their living expenses or business and legal expenses. Another crucial consideration when dealing with this section is the need for legal representation. An experienced criminal defense lawyer can help navigate the complexities of this section. Lawyers can advise on the chances of success, the evidence required, and the proper strategy to secure the property's quick return. Lawyers can also ensure that the application is correctly filed and that it contains all the necessary information and evidence. In summary, several strategic considerations need to be made when dealing with section 462.34(4) of the Criminal Code of Canada. These considerations include timely filing of an application, demonstrating a right or lawful interest in the property, showing that the conditions referred to in subsection (6) are satisfied, and seeking legal representation. Engaging an experienced criminal defense lawyer can enhance the chances of success and ensure the property's quick return.