Criminal Code of Canada - section 462.37(2.01) - Order of forfeiture- particular circumstances

section 462.37(2.01)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the forfeiture of an offenders property if they have engaged in criminal activity for material gain or if their income cannot reasonably account for the value of their property.

SECTION WORDING

462.37(2.01) A court imposing sentence on an offender convicted of an offence described in subsection (2.02) shall, on application of the Attorney General and subject to this section and sections 462.4 and 462.41, order that any property of the offender that is identified by the Attorney General in the application be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law if the court is satisfied, on a balance of probabilities, that (a) within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit; or (b) the income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all the property of the offender.

EXPLANATION

Section 462.37(2.01) of the Criminal Code of Canada allows for the forfeiture of property of an offender who has been convicted of a designated offense. The court may order such forfeiture upon application of the Attorney General, subject to certain conditions outlined in Sections 462.4 and 462.41. If the court is satisfied on a balance of probabilities that the offender engaged in a pattern of criminal activity for the purpose of receiving a material benefit, or if the income of the offender from unrelated sources cannot explain the value of the property, then the court may order the forfeiture of the property to the Crown. The purpose of this section is to deter criminal activity by targeting the financial resources of offenders. The forfeiture of property ensures that offenders do not profit from their criminal activity and that the proceeds of crime are not used to fund future illegal activities. The funds generated by the sale of forfeited property are then used to support law enforcement and victim services. The use of forfeiture in criminal proceedings is controversial, as it can result in the loss of property for individuals who may not have been directly involved in criminal activity or who may have acquired property through legitimate means. Critics argue that the process can be subject to abuse and that there should be greater protections for individuals who may be affected by forfeiture orders. Nonetheless, forfeiture remains a key tool in the fight against organized crime and other criminal activity.

COMMENTARY

Section 462.37(2.01) of the Criminal Code of Canada deals with the forfeiture of property of offenders who have engaged in criminal activity to receive financial or material benefits. Essentially, this section allows the Attorney General to apply for the forfeiture of any property belonging to the offender that is believed to have been obtained through designated offences. The purpose of this section is to deter individuals from engaging in criminal activity for financial gain and to ensure that those who do engage in such activity are not able to profit from it. By forfeiting their property, offenders are deprived of the material benefits that motivated them to engage in criminal activity, thereby removing the incentive to reoffend. The criteria for forfeiting property under this section are quite specific. The court must be satisfied, on a balance of probabilities, that the offender engaged in a pattern of criminal activity for the purpose of receiving a material benefit within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced. Alternatively, the court may order forfeiture if the income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all their property. Notably, this section only applies to offences that are designated by the Criminal Code of Canada. These offences include drug offences, money laundering, and gang-related offences. This means that the forfeiture of property cannot be applied to all criminal offences and is only applicable to certain types of criminal activity that involve financial gain. The decision to forfeit property under this section is not automatic. The court must hear submissions from the parties involved and make a determination based on the evidence presented. The offender has the opportunity to challenge the application for forfeiture and present evidence in support of their claim to the property. The forfeiture of property under this section is a serious consequence for offenders. It involves the loss of property, which can be a significant financial burden for individuals. The section recognizes that criminal activity for financial gain is a serious problem and takes steps to address it by removing the incentive to commit such offences. Overall, this section of the Criminal Code of Canada represents an important tool for law enforcement and justice officials. It allows for the forfeiture of property that has been obtained through criminal activity and deprives offenders of the material benefits that motivate them to engage in such activity. It also serves as a deterrent to others who may be considering engaging in criminal activity for financial gain.

STRATEGY

Section 462.37(2.01) of the Criminal Code of Canada provides the Attorney General with the power to seize and forfeit the property of an offender who has been convicted of certain criminal offences. This section is designed to prevent criminals from benefiting from their illegal activities and to disrupt their ability to continue engaging in criminal activity. However, there are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code. One of the key strategic considerations is the potential impact of the forfeiture order on the offender and their family. Seizing an offender's property can have significant financial consequences for them and their loved ones, especially if the property is the offender's primary source of income or their family home. As such, it is essential to weigh the potential benefits of the forfeiture order against the potential harm it may cause to the offender and their family. Another important strategic consideration is the potential impact of the forfeiture order on the community. Forfeiting an offender's property can have a significant deterrent effect on other criminals and may help to disrupt criminal organizations and networks. However, it is important to consider the potential impact of the forfeiture order on innocent third parties who may be affected by the loss of property, such as employees or business partners. In addition to these strategic considerations, there are several strategies that could be employed when dealing with section 462.37(2.01) of the Criminal Code. One possible strategy is to negotiate a plea agreement with the offender that includes a forfeiture order. This approach can help to resolve the case quickly and efficiently while also ensuring that the offender is held accountable for their actions. Another possible strategy is to conduct a thorough investigation of the offender's assets and determine which ones are connected to their criminal activities. By identifying these assets, law enforcement officials can seize them more effectively, thereby reducing the impact on innocent parties. Finally, it is also possible to use the threat of a forfeiture order as a bargaining chip in negotiations with the offender. If the offender is aware that their property may be seized if they do not agree to certain conditions, such as cooperating with law enforcement or testifying against others in their criminal network, they may be more willing to negotiate and cooperate. In conclusion, section 462.37(2.01) of the Criminal Code of Canada provides a powerful tool for law enforcement officials to disrupt criminal activity and prevent offenders from benefiting from their illegal activities. However, it is important to take strategic considerations into account when using this section, and to employ effective strategies to mitigate the potential harm to innocent parties and maximize its impact on criminal organizations.