section 462.38(2)

INTRODUCTION AND BRIEF DESCRIPTION

Property determined to be proceeds of crime and related to a designated offence can be forfeited to the government if the accused has died or absconded.

SECTION WORDING

462.38(2) Subject to sections 462.39 to 462.41, where an application is made to a judge under subsection (1), the judge shall, if the judge is satisfied that (a) any property is, beyond a reasonable doubt, proceeds of crime, (b) proceedings in respect of a designated offence committed in relation to that property were commenced, and (c) the accused charged with the offence referred to in paragraph (b) has died or absconded, order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

EXPLANATION

Section 462.38(2) of the Criminal Code of Canada outlines the conditions under which property can be forfeited to the government if it is determined to be the proceeds of crime. This provision applies when an application is made to a judge and the judge is convinced that the property in question is, beyond reasonable doubt, linked to criminal activity, and that there have been proceedings against the accused for a designated offense related to that property. If the accused has either died or absconded, the judge will order that the said property be forfeited to the Canadian government, to be either disposed of as directed by the Attorney General or dealt with as prescribed by the law. Section 462.38(2) is part of the Criminal Code of Canada's broader program for the forfeiture of proceeds of unlawful activity. For example, following a conviction for an offense under the Criminal Code of Canada, the court may order the forfeiture of the proceeds obtained directly or indirectly from the unlawful conduct. This section applies in situations when the accused is not available to proceed with forfeiture, either because they have died or left the country, making it challenging to seize their property or recover fines or compensation associated with an offense. Overall, the goal of this section is to ensure that individuals cannot profit from criminal activities and forfeit such funds to the government.

COMMENTARY

Section 462.38(2) of the Criminal Code of Canada addresses the forfeiture of property that is considered to be proceeds of crime. This section outlines the circumstances under which the court may order the forfeiture of such property to the government. The section is intended to prevent individuals from holding onto property obtained through criminal means and using it to fund further criminal activities. The purpose of the section is to disrupt the cycle of crime by depriving criminals of their ill-gotten gains. The section specifies three conditions that must be met before the judge can order the forfeiture of the property. Firstly, the judge must be satisfied beyond a reasonable doubt that the property in question is proceeds of crime. This means that the prosecution must have presented enough evidence to convince the judge that the property was obtained through criminal means. Secondly, proceedings must have been initiated with respect to a designated offence committed in relation to the property. This condition ensures that the property is related to a specific offence, and that the government is not seizing property that is unrelated to any criminal activity. Finally, the accused charged with the offence must have died or absconded, meaning that they have fled and cannot be located. This condition is important because if the accused is still able to attend court, they should be given the opportunity to challenge any forfeiture orders. If these conditions are met, then the judge must order that the property be forfeited to the government. The property can then be disposed of as directed by the Attorney General, which may include selling the property and using the proceeds to fund law enforcement initiatives or community programs. Alternatively, the property may be dealt with in accordance with other relevant laws in Canada. Section 462.38(2) highlights the importance of addressing the issue of proceeds of crime. Seizing these assets can help to disrupt the cycle of crime and prevent individuals from benefiting from their illegal activities. The section is also in line with other international and domestic laws targeting money laundering and illegal activity. By preventing criminals from holding onto the proceeds of their criminal activities, law enforcement agencies can work to reduce the incentives for committing crimes and promote public safety and welfare. Overall, Section 462.38(2) of the Criminal Code of Canada represents an important tool for combating crime by targeting the financing aspects of illegal activities. The section, when enforced properly, can help to disrupt criminal networks and undermine the economic benefits of criminal activities.

STRATEGY

Section 462.38(2) of the Criminal Code of Canada deals with the forfeiture of property that is suspected to be proceeds of crime. There are several strategic considerations that must be taken into account when dealing with this section of the Criminal Code. Firstly, it is important to note that the judge must be satisfied beyond a reasonable doubt that the property in question is proceeds of crime. This means that the burden of proof is on the prosecution to prove that the property is linked to criminal activity. As a result, any defence strategy must focus on challenging the prosecution's evidence linking the property to criminal activity. Secondly, it is important to note that the property can only be forfeited if proceedings have been commenced in respect of a designated offence committed in relation to that property. This means that the prosecution must prove that the accused committed a designated offence in relation to the property in question. Defence strategies should focus on challenging the prosecution's evidence linking the accused to the designated offence committed in relation to the property. Thirdly, it is important to note that if the accused charged with the offence has died or absconded, the property can be forfeited to Her Majesty. This means that defence strategies should focus on preventing the accused from dying or absconding, or on challenging the validity of the order if the accused has died or absconded. Some strategies that could be employed in dealing with this section of the Criminal Code include challenging the prosecution's evidence linking the property to criminal activity, challenging the prosecution's evidence linking the accused to the designated offence committed in relation to the property, preventing the accused from dying or absconding, and challenging the validity of the order if the accused has died or absconded. In conclusion, Section 462.38(2) of the Criminal Code of Canada is a powerful tool for law enforcement agencies to forfeit property that is suspected to be proceeds of crime. Defence strategies should focus on challenging the prosecution's evidence linking the property to criminal activity, challenging the prosecution's evidence linking the accused to the designated offence committed in relation to the property, preventing the accused from dying or absconding, and challenging the validity of the order if the accused has died or absconded.