INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the process for revoking a restraint order or recognizance, and determining the disposition of seized property no longer needed for forfeiture or investigation purposes.
SECTION WORDING
462.43(1) Where property has been seized under a warrant issued pursuant to section 462.32, a restraint order has been made under section 462.33 in relation to any property or a recognizance has been entered into pursuant to paragraph 462.34(4)(a) in relation to any property and a judge, on application made to the judge by the Attorney General or any person having an interest in the property or on the judge’s own motion, after notice given to the Attorney General and any other person having an interest in the property, is satisfied that the property will no longer be required for the purpose of section 462.37, 462.38 or any other provision of this or any other Act of Parliament respecting forfeiture or for the purpose of any investigation or as evidence in any proceeding, the judge (a) in the case of a restraint order, shall revoke the order; (b) in the case of a recognizance, shall cancel the recognizance; and (c) in the case of property seized under a warrant issued pursuant to section 462.32 or property under the control of a person appointed pursuant to paragraph 462.331(1)(a), (i) if possession of it by the person from whom it was taken is lawful, shall order that it be returned to that person, (ii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, shall order that it be returned to the lawful owner or the person who is lawfully entitled to its possession, or (iii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is not known, may order that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.
EXPLANATION
Section 462.43(1) of the Criminal Code of Canada deals with the procedures related to the revocation of a restraint order, cancellation of a recognizance, and the return or forfeiture of seized property. If property has been seized under a warrant issued pursuant to section 462.32, or a restraint order has been made under section 462.33, or a recognizance has been entered into pursuant to paragraph 462.34(4)(a), this section lays out the process for returning or forfeiting the property. If a judge, on application made by the Attorney General or any interested party or on the judge's own motion, is satisfied that the property will no longer be required for the purpose of any investigation or as evidence in any proceeding, the judge may revoke the restraint order or cancel the recognizance. If the property has been seized under a warrant or is under the control of a person appointed pursuant to paragraph 462.331(1)(a), the judge may order the property to be returned to the lawful owner or the person who is lawfully entitled to its possession, or it may be forfeited to Her Majesty. The purpose of this section is to ensure that the return or forfeiture of seized property is conducted in a fair and just manner while also ensuring that the property is not used for any illegal means or activities. The section seeks to balance the interests of the state in investigating and enforcing laws, with the interests of individuals who have a legal interest in the property.
COMMENTARY
Section 462.43(1) of the Criminal Code of Canada outlines the process for revoking a restraint order, cancelling a recognizance, and returning or forfeiting seized property in cases where it is no longer required for forfeiture-related purposes or as evidence in any proceeding. The provision emphasizes the importance of ensuring that property seized under a warrant issued pursuant to section 462.32 or subjected to a restraint order or recognizance will no longer be required for the purposes of forfeiture or investigation, or as evidence in any proceeding. This highlights the need to ensure that the property rights of individuals are not unduly infringed upon by the state, and that their property is not held indefinitely without proper justification. The revocation of a restraint order or cancellation of a recognizance entails the release of property from restrictions that prohibit it from being transferred, sold, or otherwise disposed of. This is an important component of property rights protection, as individuals should not be prevented from accessing and using their lawfully-acquired assets, absent justifiable state intervention. Moreover, the provision acknowledges that the return of seized property may be applicable to both lawful and unlawful possessors, with the latter being dependent on the knowledge of the lawful owner or person who is entitled to its possession. This allows for a degree of flexibility in ensuring that property is returned to those who have a legitimate claim to it, while providing for appropriate consequences where the person from whom it was taken is not entitled to possess it. Where the lawful owner or person entitled to the possession of seized property is not known, the provision states that it may be forfeited to Her Majesty and disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law. This recognizes that in certain circumstances, the possession of property by an unknown or unidentifiable owner may pose a risk to public safety or may otherwise be contravention of the law. Overall, section 462.43(1) of the Criminal Code of Canada is a crucial component of property rights protection in Canada. It ensures that individuals are free to use and dispose of their lawfully-acquired assets, while recognizing the need for state intervention in cases where the possession of property poses a risk to public safety or contravenes the law. It also highlights the importance of justifiability and due process in any state intervention that may require the seizure or restraint of property.
STRATEGY
Section 462.43(1) of the Criminal Code of Canada outlines the process for revoking a restraint order, cancelling a recognizance or returning seized property to its lawful owner or forfeiting it to Her Majesty. When dealing with this section, there are several strategic considerations that must be taken into account. The first strategic consideration is determining the reason for the revocation, cancellation or return of the seized property. The judge must be satisfied that the property will no longer be required for the purpose of forfeiture or any investigation or as evidence in any proceeding. It is important to carefully evaluate the reasons behind the original seizure and to ensure that revocation or return of the property will not hinder the investigation or impede the pursuit of justice. The second strategic consideration is the interests of all parties involved. Any person with an interest in the property, including the lawful owner or person entitled to its possession, must be given notice and an opportunity to be heard before any order is made. It is important to take into account the interests of all parties and to address any concerns or objections they may have. The third strategic consideration is the impact of the order on the ongoing investigation or proceeding. If the seized property is no longer needed as evidence, the revocation or return of the property may have little impact on the investigation or proceeding. However, if the property is still needed, the revocation or return of the property could have a significant impact on the outcome of the case. Some strategies that could be employed to navigate these strategic considerations include carefully evaluating the reasons for the original seizure and determining if revocation or return of the property will hinder the investigation or impede the pursuit of justice. It may also be helpful to engage in open and transparent communication with all parties involved to ensure their concerns are heard and addressed. Additionally, consulting with legal experts and other professionals can help navigate the complexities of forfeiture proceedings and ensure that all strategic considerations are adequately addressed.