Criminal Code of Canada - section 462.34(2) - Notice to Attorney General

section 462.34(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the requirements for giving notice to the Attorney General and potentially other interested parties for an application regarding property under criminal forfeiture.

SECTION WORDING

462.34(2) Where an application is made under paragraph (1)(a), (a) the application shall not, without the consent of the Attorney General, be heard by a judge unless the applicant has given to the Attorney General at least two clear days notice in writing of the application; and (b) the judge may require notice of the application to be given to and may hear any person who, in the opinion of the judge, appears to have a valid interest in the property.

EXPLANATION

Section 462.34(2) of the Criminal Code of Canada pertains to applications made under paragraph (1)(a) in relation to property seized by law enforcement officials. This provision requires the applicant to provide two clear days' notice in writing to the Attorney General before any judge can hear the application. Furthermore, the judge hearing the application has the power to require notice of the application to be given to any person who has a valid interest in the property. The purpose of this provision is to ensure that the Attorney General, as the Chief Law Officer of the Crown, is notified and given an opportunity to be heard regarding applications pertaining to seized property. This provision also recognizes the potential interest of other parties who may have a legal claim to the seized property. In practical terms, this provision requires the applicant to follow certain procedural requirements before the application can be heard. The applicant must provide written notice to the Attorney General, and the judge may require notice to be given to other interested parties. Failure to provide notice to the Attorney General may result in the judge not hearing the application until the Attorney General has been given an opportunity to respond. Overall, this provision ensures fairness and transparency in the judicial process, allowing all interested parties to be heard and ensuring that seized property is appropriately dealt with in accordance with the law.

COMMENTARY

Section 462.34(2) of the Criminal Code of Canada is a provision that outlines the procedures that must be followed when an application is made to a judge seeking the release of property that has been seized by law enforcement agencies under a forfeiture order. This provision is significant as it involves the balance between the rights of the government to seize properties that are suspected to be connected to criminal activity, and the rights of individuals who may have a claim to those properties. When an application is made under paragraph (1)(a) of Section 462.34, the applicant seeks the release of the seized property. However, this cannot be done without proper notice and adherence to procedural requirements. Firstly, under sub-paragraph (a) of Section 462.34(2), an application may not be heard by a judge unless the applicant has given the Attorney General of Canada notice in writing of the application at least two clear days before the hearing. This requirement assists in ensuring the proper administration of justice by giving the Attorney General sufficient time to be aware of the application and prepare their submissions. The requirement further extends to obtaining the Attorney General's consent before beginning the hearing. Interestingly, sub-paragraph (b) of Section 462.34(2) raises issues relating to fairness and has the potential to adversely affect the rights of third parties. In particular, it empowers the judge to require notice of the application to be given to any person who appears to have a valid interest in the property and hear them. This provision serves as a protective measure for property owners who may be affected by the hearing and acts as an opportunity for them to present their case to the judge. However, this provision also raises questions of fairness regarding what amounts to a "valid interest", and whether this could be interpreted too broadly, leading to unnecessary procedural delays in the recovery of seized property. Overall, Section 462.34(2) of the Criminal Code ensures that proper procedural requirements are followed in applications for the release of seized property. This provision demonstrates the balance between the rights of the government to investigate and prosecute crimes and the rights of citizens to protect their property. However, it is important to recognize that, while the provision acts as a protective measure for property owners, it may also result in undue delays. Therefore, the courts must carefully scrutinize any applications made under this provision to ensure that all parties' rights are protected while also ensuring the efficient administration of justice.

STRATEGY

Section 462.34(2) of the Criminal Code of Canada imposes certain requirements and limitations on the ability to make an application for the return of seized property. There are several strategic considerations that should be taken into account when dealing with this section. One key consideration is timing. Under paragraph (a) of subsection (2), the applicant must give at least two clear days' notice in writing to the Attorney General before the application can be heard by a judge, unless the Attorney General consents to waive this requirement. This means that an applicant should not delay in initiating the application process, as it may take some time to prepare the necessary documents and provide the required notice. Moreover, the applicant should be aware that the Attorney General may object to the application or seek to delay the hearing, so strategic planning is essential. Another strategic consideration is the requirement for notice to be given to any person who appears to have a valid interest in the property. This could include not only the owner of the property, but also any creditors, lienholders, or other parties with a legal claim or interest in the property. The judge has discretion to determine who should be given notice and heard, so it is important to carefully review the relevant laws and regulations and to identify all potential interested parties. One strategy that could be employed in dealing with this section is to engage the services of a lawyer who specializes in this area of law. A lawyer with experience in seized property applications can provide valuable insights and guidance on the legal requirements, the procedures involved, and the best strategies to achieve the desired outcome. Additionally, a lawyer can assist in preparing the necessary documents, providing notice to the Attorney General and other interested parties, and representing the applicant in court. Another strategy that could be useful is to conduct a thorough investigation and review of the circumstances surrounding the seizure of the property. This may involve gathering evidence, interviewing witnesses, reviewing relevant documents and records, and conducting legal research. By doing so, an applicant may be able to identify potential legal issues or weaknesses in the case against them that could be raised in court and used to support their application for the return of the seized property. In conclusion, section 462.34(2) of the Criminal Code of Canada imposes certain requirements and limitations on the ability to apply for the return of seized property. By carefully considering the legal requirements and strategic considerations involved, applicants can maximize their chances of success and achieve the best possible outcome in their case.