Criminal Code of Canada - section 773(1) - Committal when writ not satisfied

section 773(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the procedure for obtaining a warrant of committal when goods and chattels cannot be found to satisfy a writ of fieri facias.

SECTION WORDING

773(1) Where a writ of fieri facias has been issued under this Part and it appears from a certificate in a return made by the sheriff that sufficient goods and chattels, lands and tenements cannot be found to satisfy the writ, or that the proceeds of the execution of the writ are not sufficient to satisfy it, a judge of the court may, upon the application of the Attorney General or counsel acting on his behalf, fix a time and place for the sureties to show cause why a warrant of committal should not be issued in respect of them.

EXPLANATION

Section 773(1) of the Criminal Code of Canada pertains to the issuance of a writ of fi-fa or fieri facias. This writ allows a sheriff or bailiff to seize and sell the property of an individual against whom a judgment has been obtained to satisfy the amount owed. However, in situations where the proceeds from the sale of such property are insufficient, a certificate is issued by the sheriff certifying the same. In such a scenario, provision has been made under section 773(1) wherein a judge of the court may be approached by either the Attorney General or counsel acting on his behalf. A time and place are fixed for the sureties, or individuals who have guaranteed the payment of the judgment amount, to present their cause and show why a warrant of committal should not be issued against them. This section serves as a safeguard for the plaintiff in a legal matter to obtain the full amount due to them, even in situations where the sale of the property is insufficient to satisfy the judgment. The provision of sureties also ensures that the party against whom the judgment is obtained cannot evade their liability and is held accountable for their actions. This section of the Criminal Code of Canada reinforces the importance of enforcing judgments and ensuring that individuals are held accountable for their legal obligations. In this manner, the legal system in Canada ensures that justice is served, and individuals are held responsible for their actions.

COMMENTARY

Section 773(1) of the Criminal Code of Canada deals with the issuance of a writ of fieri facias and the possibility that it may not be able to be satisfied through the seizure of goods, chattels, lands, and tenements. When this situation arises, the section allows for a judge to consider issuing a warrant of committal in respect of the sureties that provided guarantees for the payment of the debt or judgment that the writ sought to enforce. The writ of fieri facias is a commonly used tool in civil law, allowing for the seizure and sale of property belonging to a debtor for the purpose of satisfying a debt. This procedure is often used by creditors as a last resort when other collection methods have failed. When a writ of fieri facias has been issued, the sheriff is responsible for executing it, typically by seizing assets belonging to the debtor and selling them at auction to pay the outstanding debt. However, there are situations where the sheriff may not be able to find sufficient property to satisfy the writ, or the proceeds from the sale of seized property are not enough to cover the outstanding debt. When this occurs, the section allows for the Attorney General or counsel acting on their behalf to make an application to a judge to issue a warrant for committal against the sureties. The sureties referred to in the section are those individuals who have provided guarantees to the creditor indicating that they will be responsible for paying the debt if the debtor is unable to. These guarantees are often included as part of a loan agreement or other financial contract where the person taking out the loan or benefiting from the contract has insufficient credit or collateral to secure it on their own. The section provides a mechanism for holding the sureties accountable for the debt, even if the debtor is unable to pay. By allowing for the issuance of a warrant of committal, the sureties are required to appear before a judge and show cause as to why they should not be held responsible for the debt and be committed to prison if they fail to pay it. While some may argue that the use of a warrant of committal against the sureties is harsh, it provides a strong incentive for them to ensure that the debtor is able to meet their obligations. It also serves as a reminder that providing a guarantee for a debt is a serious undertaking that should not be taken lightly. Overall, section 773(1) of the Criminal Code of Canada provides a mechanism for ensuring that debts are paid, even if the debtor is unable to satisfy the writ of fieri facias through the seizure of their property. While it may be seen as a last resort, it serves as an important tool for creditors and provides a strong incentive for sureties to take their obligations seriously.

STRATEGY

Section 773(1) of the Criminal Code of Canada provides a remedy for the Attorney General to obtain a committal warrant where a writ of fieri facias has been issued, but sufficient goods and chattels, lands, and tenements cannot be found to satisfy the writ or its proceeds are not enough to satisfy it. This section of the Code outlines the strategic considerations and strategies that could be employed to deal with the situation. One strategic consideration when dealing with this section of the Criminal Code is to carefully assess the availability and worth of the debtor's assets before initiating the writ of fieri facias. Conducting thorough research into the assets owned by the debtor is critical to ensuring that enough goods and chattels can be found to satisfy the writ. If the assets are insufficient, the Attorney General may have to consider whether to commence an alternative legal proceeding to recover the debt or negotiate a payment plan with the debtor to avoid committing to committal proceedings. Another strategic consideration is the timing of the application for a committal warrant. The Attorney General or counsel on behalf should only apply for the warrant when it's evident, after a reasonable search and inquiry, that the debtor has no viable assets left. This step is critical for ensuring that the committal proceedings are successful, and the debtor is held accountable for their debt. When a committal application is made, the Attorney General or counsel must have a solid case to establish the debtor's willful omission or refusal to pay the debt, failure to comply with the court order, or misrepresentations made in the debtor's financial statements. If the evidence is insufficient, the application for the committal warrant can be rejected or dismissed. In addition to these considerations, there are several strategies that the Attorney General or counsel can employ when dealing with this section of the Criminal Code. Here are some of the strategies that they could consider: Negotiating a payment schedule with the debtor: This involves negotiating an installment payment plan with the debtor until the debt is fully paid. This strategy can save both parties money and time in committal proceedings. Seeking alternative means of recovery: The Attorney General or counsel can consider initiating a levy execution, garnishment, or writ of seizure and sale of movable or immovable assets to recover the debt instead of a committal application. Issuing a notice of examination: This involves compelling the debtor to attend an examination hearing where they are required to give evidence under oath of the amount owed, their assets, and income. Seeking security in anticipation of the committal: The Attorney General or counsel can consider seeking security from the debtor while the committal proceedings are pending. This involves obtaining a bond or other form of financial guarantee to cover the debt owed. Conclusion In conclusion, Section 773(1) of the Criminal Code of Canada presents several strategic considerations and strategies that could be employed when dealing with the situation where a committal warrant is required. By carefully assessing the debtor's assets, timing the application for committal, establishing a solid case for non-compliance, and considering alternative means of recovery such as installment repayment plans or seizure of assets, the Attorney General or counsel can recover the debt successfully. These strategies can save time and resources and help to ensure that justice is served in debt recovery proceedings.