INTRODUCTION AND BRIEF DESCRIPTION
Applicants must serve notice of their application and hearing to the Attorney General at least 15 days prior to the hearing.
SECTION WORDING
462.42(3) An applicant shall serve a notice of the application made under subsection (1) and of the hearing thereof on the Attorney General at least fifteen days before the day fixed for the hearing.
EXPLANATION
Section 462.42(3) of the Criminal Code of Canada refers to the legal requirement for an applicant to serve a notice of the application and hearing thereof to the Attorney General at least fifteen days prior to the hearing. This section is a part of the Criminal Code that deals with the forfeiture of property obtained through criminal activity. The purpose of this notice is to ensure that the Attorney General, who represents the interests of the government and the public, has the opportunity to participate in the hearing. It is vital that the government's interests are represented during these proceedings as they may have significant claims to the asset in question. The notice gives the Attorney General adequate time to prepare for the hearing and to take a position on whether the property should be forfeited. The forfeiture of assets is a powerful tool used by Canadian law enforcement agencies to deter, disrupt and dismantle criminal organizations. These organizations sometimes utilize unlawful means to acquire assets, which may include cash, property, or other valuable items. Criminal assets are considered to be instrumentalities of criminal activity, and they can be subjected to forfeiture if obtained by illegitimate means. Therefore, this section of the Criminal Code plays a crucial role in ensuring that forfeiture proceedings are fair and transparent. It acts as a safeguard against the misuse of this power by ensuring that all interested parties are provided with an opportunity to be heard and to ensure that the forfeiture is justified. In conclusion, Section 462.42(3) of the Criminal Code of Canada embodies the principle of natural justice, as it guarantees the government the opportunity to present its case in a lawful and unbiased manner. By requiring sufficient notice to be provided to the Attorney General, this provision ensures that the forfeiture process is conducted in a transparent and just manner and protects the fundamental rights of the parties involved.
COMMENTARY
Section 462.42(3) of the Criminal Code of Canada stipulates that an applicant seeking to obtain a restraint or forfeiture order must serve a notice of the application and the hearing on the Attorney General at least fifteen days before the scheduled hearing. This requirement is intended to ensure that the Attorney General, who is the chief legal advisor of the government, is made aware of applications for such orders, and is given adequate time to prepare a response. This provision is part of the broader scheme of civil forfeiture laws in Canada, which allow the government to seize assets alleged to have been acquired through the commission of a crime. Civil forfeiture is a powerful tool for law enforcement agencies and enables them to disrupt criminal organizations and deprive them of the proceeds of crime. However, it also raises concerns about due process and property rights, as the government can seize assets without securing a criminal conviction. This is why Section 462.42(3) is so important. By requiring the applicant to notify the Attorney General of the hearing, the provision ensures that the government has an opportunity to participate in the proceeding and makes the process more transparent. It also gives the Attorney General an opportunity to challenge the application if they believe it is unfounded or unfair. Moreover, the requirement for notice under Section 462.42(3) also serves the purpose of protecting the rights of third parties who may have an interest in the property that is the subject of the application. For example, if the property in question is owned jointly by two people, and only one is alleged to have committed a crime, the innocent co-owner has the right to be notified of the proceedings and given a chance to be heard. In summary, Section 462.42(3) is a fundamental provision of the civil forfeiture laws in Canada. It ensures that the government is notified of applications for restraint or forfeiture orders and has an opportunity to participate in the process. This makes the process more transparent, protects the rights of third parties and ensures that due process is respected.
STRATEGY
Section 462.42(3) of the Criminal Code of Canada outlines the requirement of serving a notice of the application made under subsection (1) and of the hearing thereof on the Attorney General at least 15 days before the day fixed for the hearing. This section is a critical provision for individuals who seek to have their seized property returned, and many strategic considerations must be made when dealing with it. One of the primary strategic considerations when dealing with this section of the Criminal Code is to ensure that the applicant complies with the notification requirements. Failure to comply with this requirement can lead to significant delays in the proceedings or the dismissal of the application altogether. It is essential to serve the notice in a timely and proper manner, as any deficiencies in service can lead to the rejection of the application. Another critical strategic consideration is the timing of the application and the hearing. Applicants should consider the most opportune time to file the application since they only have one chance to apply under this provision. It is essential to consider the availability of legal counsel, the availability of necessary evidence, and the schedule of the court when filing and scheduling the hearing. The applicant should also consider the position of the Attorney General concerning the application. A well-informed applicant would research previous cases where the Attorney General opposed such applications. This would help the applicant anticipate and address issues likely to be raised by the Attorney General during the proceedings. To strengthen their case, an applicant should have all the necessary documentation and evidence to show that the seized assets were not obtained through criminal means. This evidence may include financial statements, tax returns, employment letters, and any other relevant document. The applicant must also consider the potential for litigation arising from the Attorney General opposing the application. As a result, the applicant should be mindful of the cost, time, and effort they will need to put into the process and should weigh the decision to ensure that the potential benefits outweigh the potential risks involved. In conclusion, to effectively navigate section 462.42(3) of the Criminal Code of Canada, several strategic considerations must be made. These include complying with notification requirements, meticulously timing the application successfully, being aware of the Attorney General's position, gathering relevant documentation, and weighing the potential risks and benefits of moving forward. Employing an experienced legal professional conversant with the intricacies of the law is often helpful in ensuring successful outcomes.