section 462.42(6)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows individuals to apply to the Attorney General for the return of seized property or payment of its value after certain legal procedures have been exhausted.

SECTION WORDING

462.42(6) The Attorney General shall, on application made to the Attorney General by any person who has obtained an order under subsection (4) and where the periods with respect to the taking of appeals from that order have expired and any appeal from that order taken under subsection (5) has been determined, (a) direct that the property or the part thereof to which the interest of the applicant relates be returned to the applicant; or (b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

EXPLANATION

Section 462.42(6) of the Criminal Code of Canada is an important provision that provides for the return of property that has been seized by law enforcement agencies. This section applies to cases where a person has obtained an order for the return of their property, and the period for filing an appeal has expired, or any appeal that was filed has been dismissed. The section provides two possible remedies for the individual seeking the return of their property. First, the Attorney General may direct that the property or a part of it is returned directly to the applicant. Second, if the property cannot be returned for whatever reason, the Attorney General may direct that an amount equal to the value of the applicant's interest in the property, as declared in the order, is paid to the applicant. The provision is important as it ensures that individuals who have had their property seized by law enforcement agencies can obtain compensation once the legal process has run its course. This serves as a vital safeguard against the misuse of state powers and provides a way for individuals to get back their property or seek compensation for the loss of their property. Overall, section 462.42(6) represents an important safeguard for individuals whose property has been seized in the justice system. It ensures that individuals have a way to reclaim their property or seek compensation once the legal process has run its course.

COMMENTARY

Section 462.42(6) of the Criminal Code of Canada establishes a provision for the return of property or payment of its value to an applicant who has obtained an order pursuant to subsection (4) of the same section. This provision is triggered when the periods for appeal from the order have expired, and any appeals taken under subsection (5) have been determined. The Attorney General is responsible for implementing this provision, and may direct that the property be returned to the applicant or that an amount equal to the value of the interest of the applicant be paid. This provision is part of a larger series of measures designed to combat organized crime and related activities, including money laundering, drug trafficking, and gang activity. Section 462.42 provides for the forfeiture of property that was obtained as a result of, or used in, such criminal activity. Subsection (4) establishes a process for obtaining an order for the forfeiture of property, which requires clear and convincing evidence that the property in question was obtained through criminal activity. Once such an order is obtained, the property in question is forfeited to the Crown. However, subsection (6) provides a mechanism for restitution to those who may have an interest in the forfeited property. While the primary purpose of forfeiture is to combat crime and prevent criminals from benefiting from their activities, it is recognized that innocent third parties may also have an interest in the property in question. This provision allows for such interests to be protected and for those third parties to be compensated accordingly. Interestingly, subsection (6) does not spell out the process for making an application to the Attorney General for the return of property or payment of its value. This may be because the process for obtaining an order for forfeiture under subsection (4) is somewhat complex, and it is assumed that those who have been able to successfully navigate that process will be well-informed about their rights to seek restitution. However, this lack of clarity may also create some uncertainty for those trying to avail themselves of this provision. Overall, subsection (6) strikes a balance between the need to combat organized crime and other criminal activities and the need to protect the interests of innocent third parties. It provides a mechanism for restitution in cases where property has been forfeited, and ensures that those who have obtained a legitimate interest in that property are not unfairly deprived. While some may argue that the provision could be clearer or more detailed, it serves an important purpose in the Canadian justice system and helps to ensure that justice is served in cases of organized crime and related activities.

STRATEGY

Section 462.42(6) of the Criminal Code of Canada provides an avenue for individuals who have obtained an order under subsection (4) to apply for the return of their property or the value of their interest in the property. However, there are several strategic considerations that one must keep in mind before making an application under this section. The first consideration is timing. As per the section, the application for the return of property or value can only be made after the expiration of all appeal periods and after any appeal taken under subsection (5) has been determined. Therefore, the applicant must carefully consider the timing of the application. If they apply too early, their application may be dismissed, and they may have to go through the process again, resulting in unnecessary delay and expense. The second consideration is the strength of the applicant's case. The section requires the Attorney General to direct the return of the property or payment of the value of the interest only if there is an order under subsection (4). Therefore, the applicant must ensure that they have a strong case before making an application. This includes having a clear understanding of their interest in the property, the basis for the seizure of the property, and any legal arguments that support their claim. The third consideration is the potential impact on ongoing criminal proceedings. If the property was seized in connection with an ongoing criminal investigation, the return of the property or payment of its value may have implications for the prosecution's case. Therefore, the applicant must carefully consider the potential impact of their application on ongoing legal proceedings and may wish to seek legal advice before proceeding. In terms of strategies that could be employed when dealing with this section, one approach is to engage with the authorities early on in the process. By understanding why the property was seized and working with the authorities to resolve any issues, the applicant may be able to avoid the need for an application altogether. Additionally, the applicant may want to consider alternative dispute resolution methods, such as mediation or arbitration, to resolve the matter without going to court. Another strategy is to gather evidence and build a strong case. This may involve conducting a thorough investigation into the seizure of the property, obtaining expert opinions or reports, and gathering witness statements. By presenting a compelling case, the applicant may increase their chances of success in their application. In conclusion, while section 462.42(6) of the Criminal Code of Canada provides a mechanism for the return of seized property or payment of its value, there are several strategic considerations that one must keep in mind. By carefully considering timing, the strength of their case, and potential implications for ongoing legal proceedings, applicants may be able to increase their chances of success in their application.