Criminal Code of Canada - section 462.42(4) - Order declaring interest not subject to forfeiture

section 462.42(4)

INTRODUCTION AND BRIEF DESCRIPTION

A judge may declare that the interest of an applicant is not affected by forfeiture if they are not involved in the designated offence.

SECTION WORDING

462.42(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant is not a person referred to in paragraph (1)(a) or (b) and appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest.

EXPLANATION

Section 462.42(4) of the Criminal Code of Canada outlines the procedure for an application to be made in order to declare that one's interest is not affected by forfeiture. This provision is relevant in the context of designated offences which may lead to forfeiture of property. In general, forfeiture pertains to the seizing of property associated with the commission of a criminal offense. It is commonly sought by law enforcement officers as a means of disrupting criminal activities and deterring similar offenses. The section states that if an applicant can demonstrate that they are neither involved in the commission of a designated offense nor have colluded with anyone involved in such an offense, the judge can make an order declaring their interest in the property as unaffected by the forfeiture. This means that if an applicant can prove their innocence and lack of involvement in the crime, they can retain their interest in the property even if it would otherwise be forfeited. The order will also declare the exact nature and extent of the said interest in the property. This provision is an important protection for innocent property owners who would otherwise be unfairly deprived of their property due to direct or indirect involvement in a criminal activity. It therefore ensures that the seizure of property is appropriately targeted towards the proceeds of crime, rather than broad and arbitrary seizures which may lead to unjust results. All said, Section 462.42(4) thus serves as an important guard for the rights of affected parties in the face of forfeiture proceedings in Canada.

COMMENTARY

Section 462.42(4) of the Criminal Code of Canada is an important legal provision that provides a remedy to innocent parties whose property has been caught up in a forfeiture order. Essentially, the provision allows parties who are not involved in any designated offence that resulted in the forfeiture to apply to have their interest in the property declared unaffected by the forfeiture. This provision is significant because it recognizes the potential unfairness of forfeitures and seeks to provide a means for innocent parties to protect their interests. Forfeitures are a powerful tool used by law enforcement agencies to disrupt criminal organizations and deter criminal activity. However, they can also have unintended consequences, such as depriving innocent parties of their property. The provision reflects a balancing of interests between the government's interest in combating criminal activity and the rights of property owners. It recognizes that not all parties who have an interest in forfeited property should be treated the same way, and that some parties may be entirely innocent. Section 462.42(4) applies when an application is made under subsection (1), which provides the general procedure for applying to have an interest in forfeited property declared unaffected by the forfeiture. The judge must be satisfied that the applicant is not a person referred to in paragraph (1)(a) or (b), which relate to parties who have been charged with or convicted of a designated offence. The judge must also be satisfied that the applicant appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence. If these criteria are met, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest. This order essentially sets aside the forfeiture with respect to the innocent party and allows them to retain their interest in the property. Overall, section 462.42(4) is an important provision that recognizes the potential unfairness of forfeiture orders and seeks to redress that unfairness for innocent parties. It represents an important protection for property owners and recognizes the need to balance the government's interest in combating criminal activity with the rights of individuals.

STRATEGY

Section 462.42(4) of the Criminal Code of Canada provides a chance for individuals who are not involved in a designated offence to claim their interest in property that has been forfeited. However, there are several strategic considerations that individuals and their legal representatives need to take into account when dealing with this section. Firstly, it is important to note that the burden of proof lies with the applicant to prove that they are not involved in any designated offence and appear innocent of any complicity or collusion in relation to such an offence. Therefore, it is crucial to gather as much evidence as possible to support the claim. Secondly, it is important to note that there is a time limit of 30 days from the date of forfeiture to file an application under subsection (1) of section 462.42. Therefore, it is necessary to act promptly and file the application within the time limit. Another key consideration is the nature and extent of the interest that is being claimed. The individual needs to be specific and provide evidence to support the claim of their interest in the property. Additionally, if there are multiple claimants, it is necessary to establish the priority of their interests. Moreover, it is crucial to consider the potential risks associated with making a claim. If the judge is not satisfied with the evidence presented, the claimant may be at risk of being charged with a designated offence. Therefore, it is necessary to weigh the potential benefits and risks before making a claim. Lastly, it is essential to have a strong legal team who can provide guidance and support throughout the process. They can assist with gathering evidence, presenting a strong case, and navigating the legal system. In terms of strategies that could be employed, individuals and their legal representatives could consider the following: - Conducting a thorough investigation into the circumstances surrounding the forfeiture to gather evidence to support the claim - Engaging with experts, such as forensic accountants, to provide evidence and analysis to support the claim - Presenting a clear and concise argument, supported by evidence, to establish the nature and extent of the interest in the property - Preparing for potential challenges to the claim, such as from other claimants or the Crown - Seeking legal advice on the potential risks and benefits of making a claim and weighing them against each other before making any decisions. In summary, when dealing with section 462.42(4) of the Criminal Code of Canada, it is essential to consider the burden of proof, the time limit, the nature and extent of the interest being claimed, the potential risks associated with making a claim, and the need for a strong legal team. Employing strategies such as conducting a thorough investigation, engaging with experts, presenting a clear argument, preparing for challenges, and seeking legal advice can increase the chances of a successful outcome.