section 462.38(1)

INTRODUCTION AND BRIEF DESCRIPTION

The Attorney General can apply for an order of forfeiture of property related to a designated offence.

SECTION WORDING

462.38(1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) in respect of any property.

EXPLANATION

Section 462.38(1) of the Criminal Code of Canada deals with forfeiture of property in relation to designated offences. The term 'designated offence' refers to a broad range of criminal activities, from drug trafficking to organized crime. When an information (a formal document that outlines the criminal charges against a person) has been laid in respect of a designated offence, the Attorney General of Canada can apply to a judge for an order of forfeiture under subsection (2) in respect of any property. Forfeiture means the loss of ownership and possession of property, and in the context of criminal law, it is a tool used to disrupt and dismantle criminal organizations and to recover the proceeds of crime. The purpose of section 462.38(1) is to allow the government to seize assets that may have been acquired through criminal activity, even if the person charged with the offence is acquitted or not found guilty in criminal court. The Attorney General must demonstrate that the property in question is either proceeds of crime, meaning that it was obtained directly or indirectly as a result of the commission of a designated offence, or is property that was intended to be used for or was used in the commission of a designated offence. The onus is on the government to prove that the property should be forfeited, and the person who owns the property has the right to challenge the application in court. If the judge grants an order of forfeiture, the property is transferred to the custody of the Crown, which may sell it or dispose of it in a manner that does not contravene any other laws. The proceeds of the sale are then used to pay any valid claims against the property, such as mortgages or liens, and the balance is deposited into the Criminal Property Forfeiture Fund, which is used to support law enforcement efforts. Overall, the aim of section 462.38(1) is to combat organized crime and to deprive criminals of the proceeds of their illegal activities.

COMMENTARY

Section 462.38(1) of the Criminal Code of Canada is a significant aspect in Canada's legal system. It states that whenever an information is filed for a designated offence, the Attorney General has the right to apply to a judge for an order of forfeiture under subsection (2) in respect of any property. This section is put in place to fight against unlawful activities, such as drug trafficking, money laundering, organized crime, and fraud. The section is designed to confiscate the proceeds of crime. In the legal system, this forfeiture is considered to be a civil action against property rather than an action against the person accused of the designated offence. The judge has the power to grant an order of forfeiture of property if it is determined that the property is considered to be the proceeds of crime. The power given to the Attorney General under section 462.38(1) of the Criminal Code of Canada is to seize the property used in the commission of a designated offence. The Attorney General takes the responsibility of ensuring that the property that is confiscated is fairly disposed of. Proceeds realized from the confiscated property are used in designated programs, such as programs for persons who are victims of crime. The designated offences that apply under section 462.38(1) are listed in the Criminal Code of Canada. Some of these offences include drug trafficking, terrorism financing, organized criminal activity, and money laundering. The objective of the section is to prevent those involved in these illegal activities from benefiting from the proceeds of crime. By doing so, it is hoped that the profits realized through these illegal activities will be reduced, thus discouraging criminal activities in the country. Section 462.38(1) is essential in fighting crime in the country. It makes it easier for the judiciary to confiscate the assets of any person who is involved in illegal activities. This becomes particularly important in cases where the accused has not been convicted of the crime, and the prosecution does not have hard evidence to prove their case, but there are reasonable grounds to believe that the assets in question are proceeds of crime. One potential issue with this section is that it can potentially undermine the presumption of innocence. The criminal justice system's primary principle is that every accused person is presumed innocent until proven guilty beyond a reasonable doubt. However, section 462.38(1) allows for the confiscation of property even before the accused person is convicted. This could potentially lead to a situation where the accused's livelihood is disrupted, and a significant part of their assets are confiscated, even if they are later found innocent. In conclusion, section 462.38(1) of the Criminal Code of Canada is a critical part of Canada's legal system. It grants the Attorney General the power to confiscate the properties of those involved in designated offences. The objective of the section is to deter criminals by ensuring that they do not benefit from the proceeds of crime. The section is a step towards reducing criminal activities in Canada. Nevertheless, there is a need for the authorities to ensure that it is carefully enforced to prevent the erosion of fundamental rights.

STRATEGY

Section 462.38(1) of the Criminal Code of Canada allows for the forfeiture of property in respect of designated offences. This section should be considered in the broader context of the criminal case and the overall strategy of the defence or prosecution. Some strategic considerations when dealing with this section of the Criminal Code of Canada are as follows: 1. Nature of the designated offence: The first strategic consideration is the nature of the designated offence. The designated offence must be analyzed to determine the likelihood of conviction, the severity of the consequences, and the countervailing evidentiary hurdles the Crown might face. Outlining the consequences of a forfeiture order for a client's assets and liberty can have a significant impact on the client's decision when considering a plea bargain. 2. Type of property: The second strategic consideration is the type of property that is being forfeited. For instance, in the case of proceeds of crime, it is essential to ensure that any amount that is being claimed was, in fact, obtained through criminal activity. In such cases, legal advice should be sought to determine the best strategy to contest the forfeiture. 3. Appropriate forum: The third strategic consideration is whether the case should be heard in the criminal or civil court system. In some cases, it may be more advantageous to contest the forfeiture in the civil court system since the burden of proof is typically lower than in the criminal justice system. In such cases, legal counsel is essential in weighing the cost and benefit of each forum. 4. Timing: The fourth strategic consideration is the timing of the application for forfeiture. If the Crown makes the application early in the proceedings, it could prompt the defence to concede guilt earlier than intended. Conversely, a late application could be problematic for both parties since it may breach the right to a fair trial or unduly delay proceedings. 5. Collateral effects: The fifth strategic consideration is the potential collateral consequences of a forfeiture order on the defendant's livelihood or their family. Legal advice should be sought to better understand the potential impact of a forfeiture order on the defendant's potential to make a living or support their dependents. Strategies that could be employed in dealing with this section of the Criminal Code of Canada are: 1. Contesting the forfeiture: Where the Crown is seeking forfeiture of property, the defence should consider contesting the application to preserve the defendant's assets and contest the potential collateral effects of forfeiture. Depending on the case, this might entail bringing a Charter application or challenging the evidence presented by the prosecution. 2. Early settlement: Depending on the circumstances of the case, it may be advantageous to seek an early and favourable settlement with the Crown to limit the damages that would accrue through protracted litigation. Legal advice should be sought to determine the potential risks and benefits of a settlement relative to contesting the forfeiture order. 3. Alternative remedies: Creative and strategic thinking may uncover alternative remedies that could mitigate the impact of a forfeiture order. For instance, in some cases, an agreed upon restitution plan could satisfy the Crown's interest in the matter without a forfeiture order. 4. Negotiation: Legal counsel could approach the Crown on behalf of their client to negotiate a more favourable outcome than what the Crown's initial application envisages, but consistent with the goals of the Crown's forfeiture program. In conclusion, the application of Section 462.38(1) of the Criminal Code of Canada is a complex matter requiring careful consideration of the facts of the case and the broader strategic aims of the defence or prosecution. Contesting the matter early, seeking a favourable settlement, exploring alternative remedies, and negotiating with the Crown are all potential strategies that could be employed.