INTRODUCTION AND BRIEF DESCRIPTION
Property used in the commission of certain offences may be forfeited upon conviction.
SECTION WORDING
412(2) Anything by means of or in relation to which a person commits an offence under section 407, 408, 409, 410 or 411 is, unless the court otherwise orders, forfeited on the conviction of that person for that offence.
EXPLANATION
Section 412(2) of the Criminal Code of Canada outlines the forfeiture of property used in the commission of certain offences. This section applies to offences committed under sections 407, 408, 409, 410 or 411 of the Criminal Code. These offences include theft, mischief, fraud, falsifying books and documents, and conspiracy. The provision states that anything that is used directly or indirectly in the commission of an offence listed above is subject to forfeiture upon conviction of the offender. The forfeiture order applies to the property that was used in relation to the offence, not just the proceeds obtained from the offence. The court has the discretion to order an exception to the forfeiture if it would cause undue hardship for an innocent third-party owner of the property. This exception is typically only applied in cases where the owner of the property was not involved in the commission of the offence and did not know that their property was being used in such a manner. In practice, this provision allows the Crown to seize assets that an offender used in the commission of an offence and sell them in order to pay for restitution or other costs associated with the prosecution of the offence. This forfeiture can also be used as a deterrent to prevent individuals from using property in a criminal manner. Overall, section 412(2) of the Criminal Code of Canada provides a powerful tool for law enforcement to seize and forfeit property that has been used in the commission of certain crimes, with the aim of deterring criminal activity and compensating victims of the offence.
COMMENTARY
Section 412(2) of the Criminal Code of Canada is a provision relating to forfeiture of property used in the commission of certain offences, namely those enumerated in sections 407 to 411 of the Code. It mandates that anything used by a person to commit an offence under these sections is forfeited upon their conviction for that offence, unless the court orders otherwise. The offences under sections 407 to 411 of the Criminal Code of Canada include theft, robbery, breaking and entering, and mischief, all of which involve the taking or destruction of property. Section 412(2) is aimed at preventing offenders from profiting or benefiting from their crimes by seizing the property used in the commission of the offence. The provision of forfeiture of property serves multiple purposes. Firstly, it acts as a deterrent to potential offenders who may be discouraged by the prospect of losing their assets if caught. Also, the seizure of property can be an effective tool for law enforcement officers to prevent the use of assets in criminal activities, reducing the likelihood of future offences. More so, the disposition of seized property serves a secondary economic role, benefitting the community. Confiscated property can be sold by the state, the proceeds of which are typically used to fund government programs or community initiatives. However, the application of section 412(2) has long been controversial, with concerns over potential violations of property rights and due process. Critics argue that the provision unfairly allows for the forfeiture of property that has not been proven to be connected to the offence in question. As a result, innocent third parties who legitimately own the property may also suffer the consequences of forfeiture. Moreover, potential abuse of asset forfeiture laws by law enforcement agencies adds fuel to these concerns. Despite these concerns, courts have generally upheld section 412(2), recognizing its importance in the fight against crime. However, the courts have made it clear that the forfeiture of property must be proportionate to the gravity of the offence committed. In other words, the forfeiture order must be reasonable based on the nature, extent, and value of the property in question and its connection to the offence. In conclusion, section 412(2) of the Criminal Code of Canada provides for the forfeiture of property used in the commission of certain offences, with the aim of preventing offenders from profiting or benefiting from their crimes. This provision, however, must be applied with caution to ensure that it does not result in the violation of property rights or due process. Therefore, it is incumbent on the courts to scrutinize each case to ensure that the forfeiture of property is proportionate and reasonable in light of the circumstances.
STRATEGY
Section 412(2) of the Criminal Code of Canada is a powerful provision that allows the courts to order the forfeiture of property used or obtained through criminal activity. This provision is often used in cases involving organized crime, drug trafficking, and fraud. In this essay, we will discuss some strategic considerations and strategies that could be employed when dealing with this provision. Strategic Considerations When dealing with Section 412(2) of the Criminal Code, there are several strategic considerations that must be taken into account. These include: 1. The nature and value of the property: The court will only order forfeiture when the property in question is connected to the criminal offence and is of a considerable value. Therefore, it is essential to carefully evaluate the nature and value of the property to determine whether it is worth pursuing forfeiture. 2. The rights of innocent third parties: When property is seized, innocent third parties may be affected. Therefore, it is imperative to identify and address any potential claims by innocent third parties to avoid any legal challenges. 3. The impact on future cases: The court's decision to order forfeiture may set a precedent in similar cases. Therefore, it is necessary to carefully consider the implications of the court's decision for future cases and ensure that the decision aligns with established legal principles. Strategies When dealing with Section 412(2) of the Criminal Code, several strategies can be employed to ensure a successful outcome. These include: 1. Early engagement with law enforcement: Early engagement with law enforcement can help to identify any assets that may be subject to forfeiture. This can allow for a targeted approach, and reduce the likelihood of innocent third parties being adversely affected. 2. Collateral challenges to the validity of the forfeiture order: Challenging the validity of the forfeiture order can be an effective strategy. For example, if the order is based on tainted evidence, it may be possible to exclude the evidence and challenge the order. 3. Settlement negotiations: Settlement negotiations can be used to reach an agreement with the Crown on the forfeiture of assets. This can be a more cost-effective and less time-consuming approach than pursuing forfeiture through the court system. 4. Strategic use of court proceedings: When a court proceeding is initiated, it is essential to strategically use the process to achieve the desired outcome. For example, it may be possible to delay the proceedings to give the accused time to sell or transfer the assets, making it more difficult for the court to order forfeiture. Conclusion Section 412(2) of the Criminal Code of Canada is a powerful tool for law enforcement to combat organized crime, drug trafficking, and fraud. However, careful consideration must be given to the strategic implications of engaging with this provision. Strategies such as early engagement with law enforcement, collateral challenges to the validity of the forfeiture order, settlement negotiations, and strategic use of court proceedings can all be employed to ensure a successful outcome. Ultimately, it is essential to balance the benefits of pursuing forfeiture with the rights of innocent third parties and the impact on future cases.