Criminal Code of Canada - section 462.371(8) - Application under section 462.42 to be made in one province

section 462.371(8)

INTRODUCTION AND BRIEF DESCRIPTION

A person cannot apply for the seizure of property previously applied for in another province under section 462.42.

SECTION WORDING

462.371(8) No person may make an application under section 462.42 in relation to property that is the subject of an order filed under subsection (3) or (4) if that person has previously made an application in respect of the same property in another province.

EXPLANATION

Section 462.371(8) of the Criminal Code of Canada places restrictions on individuals who seek to make an application under section 462.42 in relation to property that is the subject of an order filed under subsection (3) or (4) of the same code. This provision prohibits any individual who has previously made an application in respect of the same property in another province from doing so. This section is intended to prevent a situation where multiple individuals attempt to make an application for the same property across different provinces, which may result in confusion and conflicting outcomes. The provision is aimed at ensuring that only one application is made with respect to a particular property, regardless of the province or territory in which the applicant resides or operates. The purpose of section 462.42 is to allow individuals to apply for the return of property that has been seized in the context of criminal investigations or proceedings. This can include the return of cash or other assets that have been taken by law enforcement agencies as part of an investigation or as evidence in a criminal trial. To prevent a situation where individuals are competing for the return of the same property in different jurisdictions, section 462.371(8) specifies that only one application can be made for a given property. In conclusion, section 462.371(8) of the Criminal Code of Canada aims to ensure consistency and fairness in the application process for the return of seized property. It ensures that only one application is made for a particular property, regardless of the province in which they reside, preventing conflicting outcomes and reducing the burden on the court system.

COMMENTARY

Section 462.371(8) of the Criminal Code of Canada deals with the duplication of applications in relation to property that is the subject of an order filed under subsection (3) or (4). This section prevents an individual from making an application under section 462.42 in relation to the same property previously applied for in another province. The purpose of this section is to prevent multiple applications for the same property in different provinces. It ensures that the process of confiscating, preserving, and restoring proceeds of crime and related property is done in a streamlined and efficient manner. The section recognizes that multiple applications can lead to confusion and may negatively affect the administration of justice. This section is also intended to prevent individuals from forum shopping when seeking relief under section 462.42. Forum shopping refers to the practice of choosing the most favorable jurisdiction to file an application. It is a manipulative device used by some individuals to obtain the best possible outcome in their case. They may choose to apply in jurisdictions where the asset is likely to be preserved or returned, regardless of where the crime occurred or where the asset was acquired or used. By preventing duplicate applications, this section promotes fairness and equal treatment under the law. Moreover, section 462.371(8) of the Criminal Code of Canada recognizes the principles of comity and cooperation among the provinces. Comity refers to the principle of mutual respect and deference among states or jurisdictions. It is a principle that lies at the heart of federalism and cooperation among different levels of government. In the context of confiscation and forfeiture proceedings, it means that provinces should not interfere with each other's orders, but rather, should respect and enforce them. By preventing multiple applications, this section promotes the principles of comity and cooperation among the provinces. In interpreting this section, the courts have emphasized the importance of preventing abuse of process and of promoting the finality and certainty of court orders. The courts have held that the section applies to all applications, whether they are made by the Crown or by third-party claimants. They have also held that the section operates to bar only the second or subsequent applications in respect of the same property, and not the first application. This means that an individual can apply for relief under section 462.42 in relation to property that has not been subject to an order in another province. In conclusion, section 462.371(8) of the Criminal Code of Canada is an important provision that promotes the efficient and fair administration of justice in confiscation and forfeiture proceedings. It prevents multiple applications, promotes the principles of comity and cooperation among the provinces, and ensures fairness and equality under the law. The section is consistent with the broader objectives of the proceeds of crime legislation, which seeks to deprive criminals of the fruits of their illegal activity and to deter future criminal conduct.

STRATEGY

Section 462.371(8) of the Criminal Code of Canada can pose significant challenges for individuals or organizations seeking to forfeit property allegedly involved in criminal activity in different provinces. Once an order is filed under subsections (3) or (4), no person can apply for forfeiture of the same property in another province. Therefore, it is crucial for individuals or organizations to consider some strategic factors before filing an application. One of the essential strategic considerations when dealing with Section 462.371(8) is to determine whether the property has been subject to an order filed under subsections (3) or (4) in another province. Therefore, conducting a thorough due diligence investigation and searching various jurisdiction registries before filing an application is critical. Failure to conduct a proper investigation may lead to the rejection of the forfeiture application, and may also result in significant legal expenses and delays. Another essential strategic consideration is to develop a comprehensive legal strategy and plan that effectively addresses the legal issues related to the application. For instance, it may be necessary to engage the services of competent legal counsel experienced in forfeiture litigation. Legal counsel can analyze the relevant criminal codes and precedents and develop a legal strategy that maximizes the chances of success while minimizing legal expenses. Legal counsel can also advise on the most appropriate province to file the application after considering the specifics of the case. This could include factors such as the nature and significance of the property, the specific legal remedies available in each jurisdiction, and the reputation of the provincial judicial system. An appropriate province could be one that allows standing and has a favorable interpretation of forfeiture legislation. Additionally, before filing an application, it could be strategic to engage in negotiations with the alleged property owner seeking to recover any proceeds of the property's sale or agreeing to a lesser interest in the property. Negotiating with the alleged property owner could help limit the risk of additional litigation and also ensure a quicker resolution for all parties involved. In conclusion, section 462.371(8) of the Criminal Code of Canada can pose significant challenges for individuals or organizations seeking to forfeit property alleged to have been involved in criminal activity. However, with a thorough investigation, comprehensive legal strategy, and proper negotiations with the property owner, individuals or organizations can successfully overcome these challenges and recover property proceeds.