Criminal Code of Canada - section 462.37(1) - Order of forfeiture of property on conviction

section 462.37(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the forfeiture of property believed to be proceeds of crime and related to a designated offense upon conviction or discharge under section 730.

SECTION WORDING

462.37(1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

EXPLANATION

Section 462.37(1) of the Criminal Code of Canada relates to the forfeiture of the proceeds of crime. This provision allows for the court to order the forfeiture of any property that is deemed to be the proceeds of crime by the court, following an application made by the Attorney General. The section applies where an offender has been convicted or discharged under section 730 of a designated offence, and the court is satisfied, based on a balance of probabilities, that the property is proceeds of crime, and that the offence was committed in relation to that property. The designated offences are listed in Schedule 1 of the Criminal Code and include a variety of serious offences such as drug trafficking, fraud, and organized crime. The forfeiture of the proceeds of crime is an important tool in combating criminal activity and disrupting the profitability of criminal enterprises. The forfeiture process can also serve as a deterrent by removing the financial gain associated with the criminal activity. The forfeiture process can be initiated at any time after an offender has been convicted or discharged of the designated offence. The Attorney General can apply to the court for a forfeiture order, which requires the court to be satisfied that the property is proceeds of crime and that the offence was committed in relation to that property. The court has the discretion to order the forfeiture of the property to Her Majesty, to be disposed of as the Attorney General directs, or to otherwise deal with the property in accordance with the law. Overall, Section 462.37(1) of the Criminal Code of Canada provides a mechanism for the forfeiture of the proceeds of crime, which is an important tool in the fight against serious criminal activity. By removing the financial gains associated with criminal activity, the forfeiture process can disrupt criminal enterprises and serve as an effective deterrent against criminal activity.

COMMENTARY

Section 462.37(1) of the Criminal Code of Canada is an extensive provision that deals with the forfeiture of property obtained through criminal activities. Under this section, an offender who is convicted or discharged of a designated offense may have their property seized if the court is convinced on a balance of probabilities that the property was obtained through proceeds of crime and was used in the commission of the offense. The section provides for the application of the Attorney General for the forfeiture of the property to her Majesty, and the court is tasked with enforcing the order by ensuring that the property is disposed of in accordance with the law. The provision is a vital tool in the government's fight against organized crime and other related offenses. It's worthy to note that the objective of the provision is not to punish the offender but to take away the gains of their criminal activity. Thus, even an offender who is found not guilty of the designated offense may still have their property forfeited if the court is convinced on a balance of probabilities that the property was obtained through proceeds of crime. The section recognizes that criminal activities that generate large amounts of profits usually involve the use of property like real estate, vehicles, and other expensive assets. Therefore, the provision is aimed at interrupting the cycle of crime by stripping the profits of their illegal activities, which would otherwise be used to finance subsequent criminal activities or enjoy a lavish lifestyle. Furthermore, section 462.37(1) of the Criminal Code of Canada must be read in conjunction with other provisions that govern the principles of forfeiture. The court must ensure that in executing the order, it does not infringe on the Charter of Rights and Freedoms, particularly the forfeiture of property without due compensation. The provision also provides for an appeal process, which allows the offender or any member of the affected party to challenge the forfeiture order. This can be done by challenging the grounds upon which the order was issued or the manner in which the order was executed. The provision also provides for a notice requirement, which requires the Prosecutor to inform the affected parties of the proposed forfeiture order, allowing them to challenge the order. In conclusion, section 462.37(1) of the Criminal Code of Canada is an essential provision that provides for the forfeiture of property obtained through criminal activities. The section is crucial in the fight against organized crime and other related offenses, as it aids in interrupting the cycle of crime by stripping the profits of illegal activities. However, it must be executed in strict compliance with the Charter of Rights and Freedoms and other related provisions that govern the principles of forfeiture.

STRATEGY

Section 462.37(1) of the Criminal Code of Canada allows for the forfeiture of property that is deemed to be proceeds of crime in relation to a designated offence. This section presents a number of strategic considerations for legal practitioners and law enforcement agencies. The following are some strategies that could be employed when dealing with this section. 1. Building a Strong Case Before applying for forfeiture under Section 462.37(1), it is crucial to build a strong case that proves beyond reasonable doubt that a specific property is proceeds of crime. Evidence must be gathered and presented in court to support the claim that the property in question was obtained through criminal activity. Building a strong case will require working closely with law enforcement agencies, forensic accountants, and other experts who can provide necessary testimony. 2. Applying for Forfeiture of Property Strategic considerations must be taken into account when deciding which property to apply for forfeiture. The properties chosen should have significant value and be likely to cause significant harm to the offender if forfeited. The use of forfeiture as a deterrent can be a powerful message to other offenders who may be tempted to engage in criminal activity. 3. Negotiation In some cases, it may be possible to negotiate with the offender to forfeit their property voluntarily. This strategy can be effective in cases where the property in question is valuable and the offender wishes to avoid the legal costs associated with forfeiture proceedings. Legal practitioners should always consider the cost-benefit analysis when deciding whether voluntary forfeiture is the best strategy. 4. Proceeds of Crime Applications Another strategy to consider is to file separate proceeds of crime" applications against the offender. These applications are independent of the criminal proceedings and can be initiated at any time. They allow the Crown to recover any proceeds of crime that were not identified during the course of criminal proceedings. This strategy can be particularly useful in cases where the offender has hidden or moved funds offshore. 5. Subsequent Application If the initial forfeiture application is unsuccessful, it may be possible to file an application again at a later date. For example, new evidence may be discovered that provides additional support for the forfeiture claim. Alternatively, legal practitioners may wait for a change in circumstances, such as the disposal of the property in question, which could change the courts' opinion on the matter. In conclusion, while the forfeiture of property under Section 462.37(1) of the Criminal Code of Canada can be a powerful tool for law enforcement agencies and legal practitioners, careful consideration must be taken into account to build a strong case and decide on the best strategy to pursue. Legal practitioners must work closely with law enforcement agencies, forensic accountants, and other experts to ensure the best outcome is achieved.