Criminal Code of Canada - section 462.37(2) - Proceeds of crime derived from other offences

section 462.37(2)

INTRODUCTION AND BRIEF DESCRIPTION

The court can order forfeiture of proceeds of crime if evidence doesnt prove a specific offence, but property is still believed to be obtained from criminal activities.

SECTION WORDING

462.37(2) Where the evidence does not establish to the satisfaction of the court that the designated offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.

EXPLANATION

Section 462.37(2) of the Criminal Code of Canada allows for the forfeiture of property that is determined to be the proceeds of crime, even if the offender has not been convicted or discharged under section 730 in relation to that specific property. The section specifies that if the evidence does not prove beyond reasonable doubt that the designated offence was committed in relation to the property in question, but it is clear that the property is proceeds of crime, the court may still order forfeiture under section 462.37(1). This provision is in place to combat organized crime and prevent criminals from profiting from their illegal activities. By allowing for the forfeiture of property that is proven to be the proceeds of crime, the state can disrupt criminal enterprises and remove the financial incentives for criminal behavior. It also serves as a deterrent to individuals engaging in criminal activity, as they risk losing their ill-gotten gains if caught. However, it is important to note that the process for forfeiture must adhere to principles of natural justice and due process. The onus is on the Crown to prove beyond a reasonable doubt that the property in question is the proceeds of crime, and the owner of the property has the right to challenge the forfeiture in court. In cases where forfeiture is ordered, there are guidelines in place for the distribution of the assets, including provisions for compensation to innocent parties affected by the forfeiture. Overall, section 462.37(2) is an important tool in the fight against organized crime and serves as a means of disrupting criminal enterprises and preventing individuals from profiting from their illegal activities.

COMMENTARY

Section 462.37(2) of the Criminal Code of Canada allows the court to make an order of forfeiture in relation to property that is considered to be proceeds of crime, even if the designated offence of which the offender is convicted or discharged under section 730, was not committed in relation to that property. This section provides the court with the power to confiscate property that has been acquired through illegal means, and ensures that offenders are not able to benefit from their criminal activities. The use of forfeiture as a means of punishing criminals has become more common in recent years, as it has proven to be an effective deterrent against criminal activities. This section of the Criminal Code of Canada allows the court to take away the proceeds of crime, which can include cash, vehicles, real estate, and other assets that have been acquired using money obtained through illegal means. By taking away these assets, the court ensures that criminals are not able to benefit from their illegal activities, and also sends a strong message that crime will not be tolerated in society. One of the main benefits of this section is that it allows the court to focus on the proceeds of crime, rather than on the specific crime committed by the offender. This means that even if the offender is not charged with a specific crime related to the property in question, the court can still order the forfeiture of that property if it is deemed to be the proceeds of crime. This provision ensures that criminals cannot use loopholes in the law to protect their assets, and that they are held accountable for all of their criminal activities. However, this section of the Criminal Code of Canada also raises concerns about due process and fairness. The fact that the court can make an order of forfeiture even if the evidence does not establish the designated offence to which the property is related, may be seen as infringing upon the rights of the accused. There may be situations where the accused has legitimately acquired the property, and it may not be fair to take away that property without sufficient evidence that it is the proceeds of crime. Therefore, it is important for the courts to carefully consider all the evidence presented before making a decision to order forfeiture. In conclusion, Section 462.37(2) of the Criminal Code of Canada is an important provision that allows the court to order the forfeiture of property that is deemed to be the proceeds of crime, even if it is not directly related to the designated offence. While this provision helps to deter criminal activities and hold offenders accountable for their actions, it is important that the courts exercise caution and ensure that due process and fairness are maintained in all cases. Ultimately, the use of forfeiture as a means of punishment must strike a balance between justice for victims and the protection of the rights of the accused.

STRATEGY

Section 462.37(2) of the Criminal Code of Canada is a provision that allows courts to make an order of forfeiture of property in cases where a person is convicted of a designated offence and the property is found to be proceeds of crime. There are several strategic considerations that should be employed when dealing with this section of the Criminal Code. Firstly, it is important to understand the scope of the section. Section 462.37(2) applies only in cases where the evidence does not establish beyond a reasonable doubt that the designated offence was committed in relation to the property in question. In such cases, the prosecutor must establish beyond a reasonable doubt that the property is proceeds of crime. Secondly, it is important to consider the implications of an order of forfeiture. An order of forfeiture can result in the loss of property, which can have significant consequences for the convicted person. It is therefore important to carefully consider the circumstances of the case and any potential defenses. One strategy that could be employed is to challenge the prosecutor's evidence that the property is proceeds of crime. This could involve questioning the reliability or sufficiency of the evidence, or providing evidence to suggest that the property was obtained through legitimate means. Another strategy could be to negotiate with the Crown to reach a plea agreement that avoids the need for an order of forfeiture. This could involve agreeing to plead guilty to a lesser charge or to provide restitution in lieu of forfeiture. It is also important to consider the potential consequences of a contested hearing. If the court ultimately finds that the property is proceeds of crime, the convicted person may be ordered to pay the costs of the proceedings. As such, it may be more strategic to negotiate a plea agreement to avoid the risk of a costly and unsuccessful hearing. Finally, it is important to consider the impact of an order of forfeiture on any innocent parties who may have an interest in the property. If the property is subject to mortgage or other security interests, it may be necessary to involve these parties in the proceedings or seek their consent to the order of forfeiture. In summary, when dealing with Section 462.37(2) of the Criminal Code of Canada, it is important to carefully consider the evidence, potential defenses, and consequences of an order of forfeiture. Strategies such as challenging the prosecutor's evidence, negotiating a plea agreement, and considering the impact on innocent parties can all be employed to achieve a favorable outcome.