Criminal Code of Canada - section 462.34(5.2)

section 462.34(5.2)

INTRODUCTION AND BRIEF DESCRIPTION

This section permits judges to assess and tax legal fees for the purpose of forfeiture orders, taking into account various factors including the complexity of proceedings and the value of property involved.

SECTION WORDING

462.34(5.2) The judge who made an order under paragraph (4)(c) may, and on the application of the Attorney General shall, tax the legal fees forming part of the legal expenses referred to in subparagraph (4)(c)(ii) and, in so doing, shall take into account (a) the value of property in respect of which an order of forfeiture may be made; (b) the complexity of the proceedings giving rise to those legal expenses; (c) the importance of the issues involved in those proceedings; (d) the duration of any hearings held in respect of those proceedings; (e) whether any stage of those proceedings was improper or vexatious; (f) any representations made by the Attorney General; and (g) any other relevant matter.

EXPLANATION

Section 462.34(5.2) of the Criminal Code of Canada provides guidance for judges on how to tax legal fees associated with the forfeiture process. When property is suspected to have been obtained through criminal activity, the Crown can apply for an order of forfeiture to seize that property. In such cases, legal fees may be incurred as part of the legal expenses, which are subject to taxation. Under this section, the judge who made the order of forfeiture can, upon the Attorney General's application, tax the legal fees incurred by the parties involved. The judge will take multiple factors into account, including the complexity of the proceedings, the importance of the issues, and the duration of any hearings. The judge will also consider whether any stage of the proceedings was improper or vexatious, along with any representations made by the Attorney General. This section gives judges flexibility to tax legal fees based on the specifics of each case, rather than using a one-size-fits-all approach. By considering various factors, judges can make decisions that reflect the unique nature of each case and strike a balance between protecting the rights of individuals and ensuring the integrity of the justice system. Ultimately, the goal of this section is to ensure fairness and transparency in the forfeiture process, which is an important tool in combating criminal activity and protecting society.

COMMENTARY

Section 462.34(5.2) of the Criminal Code of Canada outlines the process by which legal fees can be taxed and taken into account when determining the forfeiture of property. This section is important in ensuring fairness and justice in cases where the government is seeking to seize assets obtained through criminal activities. Under this section, a judge who made an order under paragraph (4)(c) has the authority to tax the legal fees forming part of the legal expenses referred to in subparagraph (4)(c)(ii). This is a crucial safeguard that ensures that individuals who are facing forfeiture proceedings are not bankrupted or stripped of their assets by exorbitant legal fees. There are several criteria that must be taken into account when determining the amount of legal fees that can be taxed. These include the value of property in respect of which an order of forfeiture may be made, the complexity of the proceedings giving rise to those legal expenses, and the importance of the issues involved in those proceedings. The duration of any hearings held in respect of those proceedings is also taken into account, as well as whether any stage of those proceedings was found to be improper or vexatious. This ensures that individuals who are facing forfeiture proceedings are not subjected to unnecessarily protracted legal battles. In addition to these factors, any representations made by the Attorney General must also be considered, as well as any other relevant matter. This ensures that all relevant factors are taken into account when determining the amount of legal fees that can be taxed. Overall, section 462.34(5.2) of the Criminal Code of Canada is an important safeguard that ensures individuals facing forfeiture proceedings are not unfairly stripped of their assets through exorbitant legal fees. By taking into account the value of property, the complexity of the proceedings, and the duration of any hearings, among other factors, this section promotes fairness and justice in the administration of forfeiture proceedings.

STRATEGY

Section 462.34(5.2) of the Criminal Code of Canada allows a judge to tax legal fees that are part of the legal expenses referred to in subparagraph (4)(c)(ii). This means that in the context of a forfeiture proceeding, the judge can assess the reasonableness of the legal fees charged by a lawyer and potentially reduce the amount that the government is required to pay. One strategy that could be employed in dealing with this section is to carefully document and justify all legal fees incurred in the forfeiture proceeding. This could involve keeping detailed records of the work done by the lawyer, including the time spent on each task, and the hourly rate charged. It could also involve providing the judge with a detailed breakdown of the legal fees, outlining the work that was done and the reasons why it was necessary. Another strategy that could be employed is to demonstrate the importance and complexity of the issues involved in the forfeiture proceeding. This could involve presenting evidence to the judge that shows that the case was particularly complex, that it involved important legal or constitutional issues, or that it required a significant amount of preparation and expertise on the part of the lawyer. In addition, it may be helpful to provide the judge with information about any other relevant matters that could impact the taxation of legal fees. This could include information about the value of the property that is the subject of the forfeiture, as well as any other factors that may have a bearing on the case. Ultimately, the goal of any strategy employed in dealing with this section of the Criminal Code of Canada should be to ensure that the legal fees charged by the lawyer are reasonable and justifiable, and that the government is not required to pay an excessive amount. This can be achieved through careful documentation, effective advocacy, and a thorough understanding of the factors that will be considered by the judge in making their decision.