INTRODUCTION AND BRIEF DESCRIPTION

An order can be issued for property outside Canada with necessary modifications.

SECTION WORDING

462.43(2) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

EXPLANATION

Section 462.43(2) of the Criminal Code of Canada grants the courts the power to issue orders with respect to property situated outside Canada, albeit with necessary modifications, where the circumstances so demand. This provision forms part of the broader legislative framework that empowers Canadian courts to seize and forfeit proceeds of crime, including property that is believed to be either directly or indirectly tainted by criminal activity. Typically, such orders are made in cases involving organized crime, drug offences, and other serious criminal activities. The importance of section 462.43(2) of the Criminal Code of Canada is that it expands the jurisdiction of the Canadian courts to cover property situated outside the country, thereby eliminating the opportunity for criminals to hide their ill-gotten assets beyond the reach of Canadian law enforcement agencies. The courts can issue orders for the forfeiture of such properties whenever there is sufficient evidence to suggest that the assets were acquired through criminal means or were used to facilitate criminal activities. The provision is further enhanced by the presence of bilateral and multilateral agreements between Canada and other countries, which enable the courts to request assistance from foreign law enforcement agencies in the seizure and forfeiture of assets situated outside Canada. Overall, section 462.43(2) of the Criminal Code of Canada plays a central role in the fight against organized crime and other serious crimes by ensuring that criminals are unable to enjoy the fruits of their illegal activities, wherever they may be located.

COMMENTARY

Section 462.43(2) of the Criminal Code of Canada is an important provision that allows for the issuance of orders concerning property situated outside Canada. This allows Canadian authorities to effectively combat crime that may have transnational implications. The provision enables Canadian courts to issue orders to deal with properties located anywhere in the world. In cases where property is involved in criminal activity, such as money laundering or drug trafficking, the authorities may seize such property and subsequently obtain a court order to forfeit it. This provision allows Canadian authorities to target not only those who commit offenses in Canada but also those who commit them abroad. The provision is significant because it enables Canadian authorities to act globally to prevent and deter criminal activities. Criminals who believe that having their assets situated abroad would provide them with immunity may be surprised to learn that such assets may be subject to seizure and forfeiture under this provision. This provision also allows Canadian courts to modify orders according to the circumstances of each case. For example, the court may order that the property be forfeited to the Canadian Crown, or it may direct the property to be sold, with the proceeds being provided to a victim or to the authorities to prevent future criminal activities. The provision thus allows for a flexible response to each situation. Additionally, this provision enables Canada to comply with international obligations concerning the recovery of assets acquired through criminal activities. For example, the United Nations Convention Against Corruption (UNCAC) requires State Parties to cooperate in the recovery of proceeds of corruption. Section 462.43(2) permits Canada to comply with such obligations. This provision also has implications for international cooperation in the fight against crime because it permits Canada to collaborate with other States in the recovery of assets located abroad. For example, Canadian authorities could work with foreign authorities to freeze assets in a foreign jurisdiction and subsequently obtain a forfeiture order under Section 462.43(2). However, one potential challenge with this provision is the issue of jurisdiction. Canadian courts may face difficulties when it comes to jurisdiction over properties located abroad. This may be particularly challenging where there are no mutual agreements between Canada and other States on how to deal with cross-border criminal activities. Therefore, Canadian authorities will need to establish and maintain good relations with foreign governments to ensure that they can effectively pursue assets situated abroad. In conclusion, Section 462.43(2) of the Criminal Code of Canada is a key provision that has significant implications for the fight against transnational crime. This provision allows Canadian authorities to target criminal activities that extend beyond Canada's borders, and thus contributes to the global fight against crime. However, Canadian authorities must remain vigilant, as they face challenges when it comes to dealing with assets situated abroad. The provision requires the implementation of effective international cooperation to overcome these difficulties.

STRATEGY

Section 462.43(2) of the Criminal Code of Canada provides law enforcement agencies with a powerful tool to seize and forfeit property situated outside of Canada. This provision is intended to help Canada fight transnational crime by disrupting the financial base of criminal organizations that operate across borders. However, invoking this provision requires careful strategic considerations, and law enforcement agencies must balance various interests to ensure that they use this provision effectively and efficiently. One key strategic consideration is the legal regime governing the foreign property in question. If the foreign property is located in a country that has laws restricting the seizure of such property, law enforcement agencies may face challenges in executing an order under Section 462.43(2). In such circumstances, a strategic approach would be to seek the cooperation of the authorities of the foreign country and work with them to execute the order lawfully. If this is not practical or possible, the courts in Canada may require extra evidence to establish the legitimacy of the property seizure, which could delay the process significantly. Another strategic consideration is the value of the foreign property in question. In some cases, seizing foreign property can have a punitive effect on a criminal organization, but it may also have broader negative consequences. For example, if the property belongs to a legitimate business that has no connection to the criminal activity, its seizure could result in job losses, decreased foreign investment, and other knock-on effects. Similarly, if the property is of little or no value, pursuing an order under Section 462.43(2) may be more trouble than it is worth. A third strategic consideration is the relationship between the Canadian law enforcement agencies and the authorities of the foreign country where the property is located. Building and maintaining positive relationships with foreign partners can pay dividends in a variety of ways, including facilitating the legal execution of orders under Section 462.43(2). Alternatively, poor diplomatic relationships may hinder this kind of cooperation and create obstacles to successful enforcement. Strategies that could be employed when dealing with Section 462.43(2) include establishing clear policies and procedures for its use, training law enforcement personnel in its operation, and seeking collaboration with foreign partners. Building strong relationships with foreign authorities can also help in securing information about the location and value of foreign property, which can inform law enforcement decisions about whether to pursue an order. Additionally, authorities can gather and store data on the property and its value, which can be used to inform the decision-making process. In conclusion, while Section 462.43(2) provides law enforcement agencies with significant powers to seize and forfeit foreign-based property, it is not a straightforward process, and careful strategic considerations need to be made. In summary, considerations may include the legal jurisdiction in which the foreign property is situated, its value, and cross-border working relationships with foreign authorities. Employing strategies that focus on transparency, cooperation, and collaborative decision-making can lead to successful execution of orders under this provision.