Criminal Code of Canada - section 462.37(2.03) - Offender may establish that property is not proceeds of crime

section 462.37(2.03)

INTRODUCTION AND BRIEF DESCRIPTION

The court cant order forfeiture of property if the offender proves its not proceeds of crime.

SECTION WORDING

462.37(2.03) A court shall not make an order of forfeiture under subsection (2.01) in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime.

EXPLANATION

Section 462.37(2.03) of the Criminal Code of Canada is an important provision that establishes a court's power to order the forfeiture of property that is believed to be connected to criminal activity. Specifically, this provision states that a court cannot make an order of forfeiture under subsection (2.01) in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime. In practice, this means that if the Crown (the prosecution in criminal cases) seeks an order of forfeiture in relation to a particular asset, such as a car or a house, the onus is on the offender to establish that the property in question was not obtained through criminal activity. The burden of proof is therefore on the offender, who must present evidence to convince the court that the asset was acquired through legitimate means. This provision is significant because it ensures that offenders are given a fair opportunity to demonstrate that their assets were not obtained illegally. Without this provision, the Crown would be able to seize and forfeit assets without having to prove that they were actually the proceeds of crime, which could lead to serious injustices. Overall, section 462.37(2.03) plays an important role in maintaining fairness and justice in Canada's criminal justice system. By requiring the Crown to prove that assets are the proceeds of crime in order to forfeit them, it provides a critical safeguard against arbitrary or unjust seizures of property.

COMMENTARY

The Criminal Code of Canada has provisions that provide for the forfeiture of property that was acquired through criminal activity. However, section 462.37(2.03) of the Criminal Code of Canada introduces an important limitation on the government's power to seize such property. It states that a court cannot make an order of forfeiture under subsection (2.01) in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime. This provision is an important protection for individuals whose assets might otherwise be seized by the government without sufficient evidence that the property was acquired through criminal activity. The burden of proof lies with the offender who must establish, on a balance of probabilities, that the property does not constitute proceeds of crime. This means that the offender must convince the court that it is more likely than not that the property was acquired through lawful means. In practical terms, this provision means that the government cannot seize an individual's assets simply because they suspect that the property was acquired through criminal activity. Any allegations of criminal activity must be substantiated by evidence that meets the standard of proof required by law. In cases where there is no evidence to suggest that the property was acquired through criminal activity, the government cannot seize the asset. It is important to note that this provision does not provide an absolute defense against the forfeiture of assets acquired through criminal activity. If the offender is unable to establish, on a balance of probabilities, that the property is not the proceeds of crime, then the government may still be able to seize the asset. However, this provision does provide an important protection for individuals who are facing allegations of criminal activity. This provision also highlights the importance of strong evidentiary standards in criminal cases. The government cannot simply rely on suspicion or allegations to seize an individual's assets. Instead, they must meet the burden of proof required by law to establish that the property was acquired through criminal activity. In conclusion, section 462.37(2.03) of the Criminal Code of Canada provides an important protection for individuals whose assets might otherwise be seized by the government. It ensures that the burden of proof lies with the government to establish that property was acquired through criminal activity. This provision highlights the importance of strong evidentiary standards in criminal cases and helps to protect the rights of individuals who are facing allegations of criminal activity.

STRATEGY

Section 462.37(2.03) of the Criminal Code of Canada is applicable in cases where the authorities attempt to seize property allegedly procured through criminal activity. The section prohibits the court from ordering the forfeiture of such property if the offender can provide evidence that the said property is not a product of criminal activity. In practice, the burden of proof in such cases is usually on the defendant, who must establish, on a balance of probabilities, that the property is not proceeds of crime. This standard is lower than the one required in criminal cases, which is proof beyond a reasonable doubt. Strategic considerations when dealing with this section of the Criminal Code of Canada are manifold and depend on the specific circumstances of each case. Some of the primary factors to consider include the strength of the evidence presented by the prosecution, the type and value of the property in question, the resources available to the defendant, and the credibility and expertise of the legal team representing the defendant. One strategy that could be employed is to challenge the validity of the evidence presented by the prosecution. This could involve questioning the legality of the search and seizure procedures used by the authorities, contesting the reliability of the forensic analysis conducted on the property, or pointing out inconsistencies or contradictions in the testimonies of the prosecution witnesses. Another tactic that could be pursued is to initiate negotiations with the prosecution to try and reach a plea agreement that would involve the return of some or all of the seized property. The success of this approach would depend on the strength of the prosecution's case and the willingness of the authorities to negotiate. A third strategy is to hire expert witnesses to provide testimony in court to support the defendant's claim that the property in question was not obtained through criminal activity. Such experts could include forensic accountants, appraisers, or other specialists who can provide evidence to refute the prosecution's allegations. Finally, the defendant could seek to challenge the constitutionality of Section 462.37(2.03) on the grounds that it violates their right to due process or their Charter rights. Any such challenge would depend on the facts of the case and the legal expertise of the defendant's legal team. In conclusion, the strategic considerations when dealing with Section 462.37(2.03) of the Criminal Code of Canada are complex and multifaceted. Depending on the specific circumstances of each case, a range of strategic options are available to the defendant, including challenging the evidence presented by the prosecution, negotiating a plea agreement, hiring expert witnesses, and potentially bringing a constitutional challenge to the section itself.