Criminal Code of Canada - section 462.37(2.06) - Application under subsection (1) not prevented

section 462.37(2.06)

INTRODUCTION AND BRIEF DESCRIPTION

Attorney General can make an application for property regardless of previous subsection.

SECTION WORDING

462.37(2.06) Nothing in subsection (2.01) shall be interpreted as preventing the Attorney General from making an application under subsection (1) in respect of any property.

EXPLANATION

Section 462.37(2.06) of the Criminal Code of Canada deals with the forfeiture of property that is believed to have been obtained through criminal activities. The section relates to subsection (2.01), which sets out the criteria that must be met before the court can make an order for the forfeiture of property. Specifically, subsection (2.01) requires that the property in question must have been acquired as a result of certain criminal activities, which include drug trafficking, money laundering, and organized crime. Subsection (2.06) makes it clear that nothing in subsection (2.01) should be interpreted as preventing the Attorney General from making an application for the forfeiture of property. This means that even if the criteria set out in subsection (2.01) are not met, the Attorney General can still apply to have the property forfeited if there is reason to believe that it was obtained through criminal activity. The purpose of this provision is to ensure that the government has the tools it needs to combat organized crime and other forms of criminal activity. By allowing the Attorney General to seek forfeiture even in cases where the criteria in subsection (2.01) are not met, the government can seize assets that may have been obtained illegally, regardless of their origin. Overall, section 462.37(2.06) is an important part of Canada's criminal justice system and helps to support the government's efforts to combat organized crime and other forms of criminal activity.

COMMENTARY

Section 462.37(2.06) of the Criminal Code of Canada is a provision that is often overlooked by many. But it is a provision that is important for anyone who wants to understand the law surrounding the forfeiture of property. This provision essentially allows the Attorney General to make an application to forfeit property even if the property owner is not being prosecuted for a criminal offence. To understand the significance of this provision, it is important to understand the broader context of property forfeiture in Canada. Property forfeiture is a legal process by which the government can seize property that is believed to be the proceeds of crime or used in the commission of a crime. This process is designed to take the profit out of crime and deter criminal activity. In Canada, property forfeiture can occur in two ways: Civil forfeiture or Criminal forfeiture. Civil forfeiture is a process where property is seized and forfeited without there being any criminal charges laid against the property owner. It is a process that is typically used where there is evidence that the property was purchased with the proceeds of crime. Criminal forfeiture, on the other hand, occurs as part of a criminal proceedings where the property is declared "proceeds of crime" and ordered forfeit along with an underlying criminal conviction. Section 462.37(2.01) of the Criminal Code provides for Criminal forfeiture of property in cases where a person is convicted of a criminal offence. This means that if someone is convicted of a crime, the Crown can apply to have any property that is believed to have been used in the commission of that crime forfeited. It is an essential tool for law enforcement to prevent the profits of crimes from being used again to commit more crimes. However, Section 462.37(2.06) allows the AG to apply for forfeiture even if there is no underlying criminal proceeding against the property owner. This section provides the Crown with a powerful tool, which is necessary for the effective prosecution of organized crime. Organized crime groups often operate through front businesses and individuals, and the proceeds of their criminal activity are buried deep within these companies. Criminal charges may not be laid against these companies or individuals, but the government can still use this provision to seize and forfeit their assets. While it is important to have these powers, it is also important to ensure that they are not abused. The use of forfeiture powers has been the subject of much debate in recent years, with some arguing that the process can be unfair and that innocent people can lose their property without being convicted of a crime. To address these concerns, the government has introduced some changes to the forfeiture process. For example, the process of Civil forfeiture has been reformed, and now includes safeguards such as the requirement that the government show a connection between the seized property and the alleged criminal activity. Section 462.37(2.06) is an important provision that gives law enforcement the tools they need to combat organized crime. It is a power that must be used carefully to ensure that it is not abused. The use of forfeiture powers must always be balanced against the need to protect individual rights and freedoms. This section strikes a balance by allowing for the Attorney General to take legal action to forfeit properties related to criminal matters, even when criminal charges are not being pursued.

STRATEGY

Section 462.37(2.06) of the Criminal Code of Canada grants the Attorney General the authority to make an application for the forfeiture of any property, despite the application of subsection (2.01). This provision gives rise to strategic considerations both for the government and the accused party. One strategic consideration for the government is determining whether making an application for forfeiture is the best course of action. The government must consider the value of the property in question, its impact on the accused party, and the potential benefits of pushing for forfeiture. For example, if the value of the property is low, it may not be worth the time, expense, and effort to make an application for forfeiture. On the other hand, if the property in question is of significant value, the government may pursue forfeiture with greater zeal. For example, if the government has reason to believe that the accused party used the property to commit a crime or that the property is the proceeds of a criminal activity, the government may believe that forfeiture is warranted. Another strategic consideration for the government is whether or not to make use of this provision. While section 462.37(2.06) grants the Attorney General the authority to make an application for forfeiture notwithstanding subsection (2.01), the government must weigh the advantages and disadvantages of using this provision. One advantage is that it gives the government greater latitude to pursue forfeiture, but it may also draw the attention of the accused party or their legal team to the provision and lead to challenges in court. Similarly, the accused party or their legal team must also consider strategies to deal with this provision. One strategy is to focus on subsection (2.01) and argue that the Attorney General's application for forfeiture is barred by this provision. The accused party may argue that the property in question was not acquired or used in connection with the alleged crime, or that they have an innocent ownership interest in the property. Another strategy is to challenge the validity of the provision itself, on the grounds that it is vague or overbroad and violates the Charter of Rights and Freedoms. The accused party may argue that the provision allows the government to unfairly seize their property without due process of law or that it infringes on their right to property. In conclusion, section 462.37(2.06) of the Criminal Code of Canada allows the Attorney General to make an application for forfeiture of property despite the applicable provisions in the Criminal Code. This provision gives rise to strategic considerations for the government and the accused party. The government must consider whether forfeiture is the best course of action and whether to make use of this provision, while the accused party may challenge the validity of the provision or argue against the application for forfeiture.