Criminal Code of Canada - section 462.371(9) - Finding in one court binding

section 462.371(9)

INTRODUCTION AND BRIEF DESCRIPTION

Court findings regarding property subject to forfeiture are binding in the province entered as a judgment.

SECTION WORDING

462.371(9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) or (4) as to whether or not an applicant referred to in subsection 462.42(4) is affected by the forfeiture referred to in that subsection or declaring the nature and extent of the interest of the applicant under that subsection is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment.

EXPLANATION

Section 462.371(9) of the Criminal Code of Canada deals with the forfeiture of property that is subject to a court order. Under this section, if a court in a province determines whether an applicant is affected by the forfeiture, or declares the nature and extent of the applicant's interest in the property, that decision is binding on the superior court of criminal jurisdiction of the same province where the order was entered. This section ensures that there is consistency in the application of forfeiture laws across different courts in the same province. It also enhances the efficiency of the legal system by avoiding the need for multiple applications for the same property in different courts. Furthermore, it protects the rights of the parties involved in forfeiture proceedings. For example, if an applicant claims an interest in the property, the court in one province may determine the nature and extent of their interest. This prevents another court in the same province from reaching a different conclusion that could undermine the applicant's claim. In summary, section 462.371(9) of the Criminal Code of Canada promotes the efficient and consistent application of forfeiture laws while protecting the rights of the parties involved.

COMMENTARY

Section 462.371(9) of the Criminal Code of Canada is a vital provision that governs the nature and extent of the interest of a third party in property subject to forfeiture. The provision sets out the circumstances under which a court's finding in a province regarding the impact of forfeiture on a claimant is binding on the superior court of criminal jurisdiction where the order for forfeiture is entered as a judgement. The provision is instrumental in ensuring fairness and transparency in the forfeiture process, particularly for innocent third parties who may have a legitimate interest in the forfeited property. Before delving into the importance of Section 462.371(9), it is essential first to define some key concepts in the section. Subsection (3) and (4) of Section 462.371 provide for the filing of an order for the forfeiture of property in criminal proceedings. Specifically, subsection (3) allows for an order for forfeiture after a conviction, while subsection (4) permits an interim order for forfeiture before a trial or during a trial. In the event of a forfeiture order under subsections (3) or (4), subsection 462.42(4) permits any person to make an application to the court for relief from the forfeiture. Such individuals may only seek relief if they have an interest in the property, and if the forfeiture would be "disproportional to the gravity of the offence." In making the determination, the court must have regard to the interests of justice and the rights of any person who may have a legitimate interest in the property. With these concepts in mind, the significance of Section 462.371(9) becomes clear. The provision ensures that the decision of a provincial court concerning the impact of forfeiture on third-party claimants is binding on the superior court of criminal jurisdiction where the order is entered as a judgement. This provision ensures consistency and predictability in the forfeiture process, and it provides certainty and clarity to all parties involved. An individual who has an interest in the forfeited property can make an application to the court under the provisions of Section 462.42(4). If the provincial court finds that the application meets the legal criteria for relief from forfeiture, it will make a finding as to the nature and extent of the applicant's interest in the property. This finding will be binding on the superior court of criminal jurisdiction where the order for forfeiture is entered as a judgment. The binding nature of the provincial court's finding serves to protect the rights of innocent third parties with a legal interest in the property while allowing the state to carry out its mandate of combatting organized crime and corruption. The provision recognizes that the forfeiture of property can have a significant impact on the rights of individuals and organizations and ensures that the rights of all parties are appropriately considered. In conclusion, Section 462.371(9) is an essential provision in the Criminal Code that promotes fairness and transparency in the forfeiture process. By ensuring that the findings of the provincial court regarding the impact of forfeiture on third parties are binding on the superior court of criminal jurisdiction, the provision promotes consistency and certainty in the forfeiture process. Additionally, it recognizes the importance of protecting the rights of innocent individuals and organizations with an interest in the property while allowing the state to carry out its mandate in combating organized crime and corruption.

STRATEGY

Section 462.371(9) of the Criminal Code of Canada allows a court in a province to make a finding on whether or not an applicant is affected by the forfeiture of property referred to in subsection 462.42(4). If such a finding is made, it is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment. This section has significant strategic implications for both the prosecution and the defense in a criminal proceeding. For the prosecution, the strategic consideration is primarily one of timing. If property is subject to forfeiture under subsections (3) or (4) of section 462.42, the prosecution may choose to apply for an order of forfeiture at an early stage of the criminal proceedings. Doing so will allow the prosecution to seek a finding from the court as to whether any third parties have an interest in the property and whether they will be affected by the forfeiture. If the court determines that a third party will be affected by the forfeiture, that finding will be binding on the superior court of criminal jurisdiction in the province. This means that the third party cannot later claim an interest in the property and that any subsequent attempt to do so will be unsuccessful. For the defense, the strategic consideration is primarily one of preserving the rights of any third parties who may have an interest in the property. The defense may choose to challenge an order of forfeiture and seek a finding from the court as to whether any third parties are affected by the forfeiture and the nature and extent of their interest in the property. If the court finds that a third party is affected by the forfeiture, the defense can use that finding to argue against the order of forfeiture and to seek a remedy, such as an order that the property be returned to the third party. Strategies that can be employed by both the prosecution and the defense include: 1. Timing: As noted above, the prosecution may choose to seek an order of forfeiture early in the criminal proceedings, while the defense may choose to wait until later stages of the proceedings to challenge the order. 2. Evidence: Both the prosecution and the defense will need to present evidence to the court in support of their arguments. The prosecution will need to demonstrate that the property is subject to forfeiture and that no third parties have an interest in the property. The defense will need to present evidence to show that third parties have an interest in the property and will be affected by the forfeiture. 3. Negotiation: In some cases, the prosecution and the defense may be able to negotiate an agreement regarding the forfeiture of the property that takes into account the interests of any third parties. For example, the prosecution may agree to forfeit only a portion of the property or to compensate third parties for their losses. 4. Appeals: If the court makes a finding that is unfavorable to either the prosecution or the defense, either party may choose to appeal the decision to a higher court. In conclusion, section 462.371(9) of the Criminal Code of Canada has significant strategic implications for both the prosecution and the defense in criminal proceedings involving the forfeiture of property. Both parties will need to carefully consider their arguments and evidence in light of this section and may choose to employ a range of strategies in order to achieve their goals.