section 462.37(2.07)

INTRODUCTION AND BRIEF DESCRIPTION

Courts may choose not to order property forfeiture if they deem it in the interests of justice, with reasons provided.

SECTION WORDING

462.37(2.07) A court may, if it considers it in the interests of justice, decline to make an order of forfeiture against any property that would otherwise be subject to forfeiture under subsection (2.01). The court shall give reasons for its decision.

EXPLANATION

Section 462.37(2.07) of the Criminal Code of Canada permits a court to decline to make an order of forfeiture against any property subject to forfeiture under subsection (2.01). Subsection (2.01) states the conditions under which property is subject to forfeiture. Generally, if the property is involved in or is the proceeds of an indictable offence, it is subject to forfeiture. However, the court may choose not to order forfeiture if it believes it would be in the interests of justice to do so. Essentially, this section gives the court discretion in deciding whether to order forfeiture in a given case. The court must take into account any factors that may influence the interests of justice, such as the nature of the offence, the nature of the property, and the impact that forfeiture would have on the owner of the property. The primary aim of forfeiture is to prevent criminals from benefitting from illegal activities and to deter others from committing similar offences. However, the court must balance this aim against considerations of fairness and proportionality. There may be cases in which forfeiture would be unduly harsh or would have negative consequences for innocent third parties. In such cases, the court has the discretion to decline to make an order of forfeiture. This provision emphasizes the importance of individual rights and liberties. While the criminal justice system is designed to punish offenders and protect society, it must also respect the rights of individuals and avoid imposing unfair or disproportionate penalties. By allowing the court to decline to order forfeiture in appropriate cases, this provision ensures that justice is served in a fair and equitable manner. Overall, section 462.37(2.07) plays an important role in maintaining a balanced and just criminal justice system. It serves as a reminder that the interests of justice must always be at the forefront of legal decision-making.

COMMENTARY

Section 462.37(2.07) of the Criminal Code of Canada gives the court discretionary power to decline an order of forfeiture against any property that is otherwise subject to forfeiture under subsection (2.01) if it is considered to be in the interests of justice. This provision recognizes that there may be exceptional circumstances where it would be unjust to forfeit property, even if the property was used in the commission of a criminal offence. One possible scenario where this provision could apply is where the forfeiture would cause undue hardship to innocent third parties who have a legitimate interest in the property. For example, consider a family whose home is used by a relative to traffick drugs. If the home was forfeited, the family would be left homeless and without any source of income. In such a case, the court could decline to order forfeiture to protect the family's interests. Another potential scenario is where the property has significant sentimental or cultural value that outweighs the harm caused by its use in the commission of a criminal offence. For instance, a historical artifact used in the commission of a crime may have significant historical or cultural significance that extends beyond its use in the crime. In such a case, the court could decline to order forfeiture to preserve the artifact's cultural value. However, it is crucial to note that the court must provide reasons for its decision to decline an order of forfeiture under section 462.37(2.07). This requirement ensures that the court's decision is transparent and accountable. The reasons provided must be based on the principles of justice and fairness, and not be arbitrary or whimsical. Moreover, the decision to decline an order of forfeiture cannot be made in a vacuum. The court must consider all the relevant factors, including the severity of the offence, the nature of the property, the impact of the forfeiture on innocent third parties, and other mitigating or aggravating factors. The court must balance these factors to arrive at a decision that considers the interests of justice and fairness. In conclusion, the provision in section 462.37(2.07) recognizes that there may be exceptional circumstances where it would be unjust to forfeit property, even if it was used in the commission of a crime. The provision provides the court with the discretionary power to decline an order of forfeiture in the interests of justice. However, the court must provide reasons for its decision and balance the relevant factors to ensure that its decision is transparent and accountable. Ultimately, the interests of justice and fairness should always guide the court's decision-making process.

STRATEGY

Section 462.37(2.07) of the Criminal Code of Canada provides a mechanism for courts to decline the forfeiture of property under certain circumstances. This provision allows for discretion with respect to the forfeiture of property in situations where it may not be in the interests of justice to do so. There are several strategic considerations that must be taken into account when dealing with this section of the Code. Firstly, the wording of the provision is quite broad - a court may decline to make an order of forfeiture if it considers it to be in the interests of justice to do so. This gives the court a wide degree of discretion in assessing the situation and determining whether or not forfeiture is appropriate. As such, it is important to build a strong case that supports the argument that forfeiture would not be in the interests of justice. Secondly, it is essential to understand the factors that the court may consider when making its decision. In particular, the court may consider the impact that forfeiture would have on innocent third parties, the severity of the offence that led to the forfeiture, and the value of the property in question. Given these factors, it is important to present evidence that demonstrates that the forfeiture of the property will have a significant negative impact on innocent parties or that the severity of the offence does not warrant such a harsh penalty. Thirdly, it is important to consider the potential consequences of an unsuccessful challenge to forfeiture. In particular, if the court declines to exercise its discretion under section 462.37(2.07), the property in question will be forfeited to the Crown. As such, it may be necessary to weigh the cost of litigating the matter against the potential benefits of making a successful argument for non-forfeiture. Some strategies that could be employed when dealing with section 462.37(2.07) include: 1. Providing evidence that demonstrates the impact that forfeiture would have on innocent parties, such as family members or business partners. 2. Arguing that the severity of the offence does not warrant forfeiture, especially if the value of the property is relatively low. 3. Showing that the property in question was not used for the commission of the offence or that it was obtained through legitimate means. 4. Making a public interest argument, such as that forfeiture would be a disproportionate response that undermines the purpose of the criminal justice system. 5. Arguing that forfeiture would result in a financial hardship that would make it difficult or impossible for the individual to rehabilitate and reintegrate into society. Overall, section 462.37(2.07) of the Criminal Code of Canada provides a valuable tool for challenging the forfeiture of property in appropriate circumstances. However, it is important to understand the factors that the court may consider when making its decision and to carefully consider the potential consequences of an unsuccessful challenge. With the right evidence and a well-crafted legal strategy, it may be possible to successfully argue against forfeiture and preserve valuable assets.