Criminal Code of Canada - section 462.34(6) - Conditions to be satisfied

section 462.34(6)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions for making an order in respect of property forfeiture under certain circumstances.

SECTION WORDING

462.34(6) An order under paragraph (4)(b) in respect of property may be made by a judge if the judge is satisfied (a) where the application is made by (i) a person charged with a designated offence, or (ii) any person who acquired title to or a right of possession of that property from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property, that a warrant should not have been issued pursuant to section 462.32 or a restraint order under subsection 462.33(3) should not have been made in respect of that property, or (b) in any other case, that the applicant is the lawful owner of or lawfully entitled to possession of the property and appears innocent of any complicity in a designated offence or of any collusion in relation to such an offence, and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property, and that the property will no longer be required for the purpose of any investigation or as evidence in any proceeding.

EXPLANATION

Section 462.34(6) of the Criminal Code of Canada governs the process of making an order in respect of property that has been seized in connection with a designated offence. This section allows for a judge to order the return of seized property to a person who can satisfy the legal requirements outlined in this section. Paragraph 4(b) in this section refers to the process of forfeiture of property as a result of a conviction or guilty plea in connection with a designated offence. In such cases, the government can seek an order to have property connected to the offence forfeited to the Crown. Section 462.34(6) provides an avenue for individuals who find themselves in possession of seized property, either as the owner or due to a transfer of title, to apply for the return of the property prior to forfeiture. For an order to be granted under subsection (6)(a), the applicant must demonstrate that the warrant or restraint order should not have been issued. This could arise if the warrant or order was issued on improper grounds or is otherwise not valid. Alternatively, subsection (6)(b) allows for an order where the applicant can prove that they are the lawful owner or entitled to possession of the property and have not been involved in the designated offence or colluded with others to commit such an offence. This requirement ensures that only those who are innocent of any involvement in the offence can seek the return of the property. Overall, section 462.34(6) provides an important mechanism for individuals to seek the return of their property in certain situations where it would otherwise be subject to forfeiture.

COMMENTARY

Section 462.34(6) of the Criminal Code of Canada provides an avenue for individuals to challenge the forfeiture of property that has been seized by the government in relation to a designated offence. This provision requires a judge to consider a number of factors when determining whether an order should be made to allow the return of the property to the individual. The provision applies in two situations. First, it applies where the application is made by a person charged with a designated offence or any person who acquired title to or a right of possession of the property from such a person under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding forfeiture. This provision recognizes that in some cases, individuals may seek to transfer their property to avoid forfeiture, and provides an avenue for those who received the property in such circumstances to challenge its seizure. Second, the provision applies in any other case where the applicant is the lawful owner of or entitled to possession of the property, and appears innocent of any complicity in a designated offence or any collusion in relation to such an offence. Here, the provision recognizes that innocent individuals may have their property seized in relation to a criminal investigation, and provides them with a means to challenge that seizure and have their property returned. In both situations, the provision requires a judge to satisfy themselves that the property should not have been subject to a warrant or restraint order, or that the applicant is the lawful owner of or entitled to possession of the property, and is innocent of any involvement in a designated offence or any collusion in relation to such an offence. The judge must also be satisfied that no other person appears to be the lawful owner of or entitled to possession of the property, and that the property will no longer be required for the purpose of any investigation or as evidence in any proceeding. This provision strikes an important balance between the need to seize and forfeit property connected to criminal activity, and the rights of innocent individuals who may have their property seized. It provides individuals with an opportunity to challenge the seizure and forfeiture of their property, and ensures that a judge carefully considers the circumstances of each case before making a decision. Ultimately, this provision helps to safeguard the property rights of Canadians and promote a fair and just criminal justice system.

STRATEGY

Section 462.34(6) of the Criminal Code of Canada is a critical provision that deals with the forfeiture of property in criminal cases. Given the severity of the consequences of forfeiture, it is important to consider various strategic factors when dealing with this section. One of the main strategic considerations is the timing of the application. In some cases, it may be more advantageous to wait until after a conviction before seeking an order under this section. This is because a conviction can reduce the burden of proof required to obtain an order and establish the applicant's innocence of any complicity in a designated offence. Moreover, waiting for a conviction can also give the applicant time to gather evidence that supports their claim to the property. Waiting can also give the applicant an opportunity to negotiate with the prosecution to avoid forfeiture altogether. Another strategic consideration is the strength of the evidence. To obtain an order under this section, the applicant must satisfy the judge that they are the lawful owner of or lawfully entitled to possession of the property and that they are innocent of any complicity in a designated offence. This requires presenting strong and convincing evidence that supports these claims. Therefore, applicants must ensure that they have gathered all relevant documents and records that prove their ownership or entitlement to the property. They should also gather any evidence that refutes any allegations of complicity or collusion with respect to the designated offence. Strategic considerations also include the factors that the judge will consider when making an order. The judge will consider various factors, such as the seriousness of the designated offence, the nature of the property, and the applicant's conduct. Therefore, applicants must be prepared to address each of these factors in their submissions and provide compelling evidence that rebuts any negative inferences that may be drawn from the circumstances of the case. Another strategic consideration is the use of legal counsel. Applicants seeking an order under this section should consult with experienced legal counsel who can assist them in preparing their case and presenting their submissions to the court. Legal counsel can also negotiate with the prosecution to avoid forfeiture altogether or to reach a settlement that is more favourable to the applicant. Ultimately, the strategies that an applicant will employ to deal with section 462.34(6) of the Criminal Code will depend on the facts and circumstances of their case. However, by carefully considering the timing of the application, the strength of the evidence, the factors that the judge will consider, and the use of legal counsel, applicants can increase their chances of obtaining a favourable order that prevents or limits the forfeiture of their property.