INTRODUCTION AND BRIEF DESCRIPTION
This section specifies that orders made under subsection (3) may be in Form 47.
EXPLANATION
Section 462.48(16) of the Criminal Code of Canada outlines the possibility of utilizing Form 47 for orders made under subsection (3) of the same section. Subsection (3) provides the courts with the jurisdiction to make a restraining order against property that is suspected to be proceeds of crime, if it is satisfied that it is in the interest of justice to do so. This means that the court can order the property to be forfeited or confiscated if it is considered to have been obtained through criminal activity. The use of Form 47 for these orders provides a standardized format that must be followed by judges when issuing these types of orders. This ensures that the order is properly articulated and clearly communicated to the parties involved, while enhancing the consistency of the court's decision-making process. Furthermore, it is important to note that these orders may be subject to judicial review. This means that if the parties affected by the order believe that it was incorrectly issued or that the property in question is not proceeds of crime, they can apply to have the order reviewed by a higher court. Overall, section 462.48(16) serves to strengthen the Canadian justice system's ability to combat criminal activity by providing a clear, uniform process for restraining orders against property suspected to be proceeds of crime.
COMMENTARY
Section 462.48(16) of the Criminal Code of Canada plays a crucial role in determining the form and the manner in which an order made under subsection(3) should be implemented. This section is a part of the broader review mechanism that is primarily intended to oversee the application and impact of various provisions of the Criminal Code of Canada. The said provision lays down a specific procedure that needs to be followed when implementing or enforcing an order made under subsection(3). The key takeaway from this section of the Criminal Code of Canada is that all orders made under subsection (3) must be in Form 47. This means that any order issued by a court of law, pursuant to subsection (3), must conform to the specified format and structure. This particular provision is essential as it ensures that all orders are consistent and conform to legal standards, making it easier for law enforcement authorities to implement and enforce them. Furthermore, the use of Form 47 also ensures that all parties involved in the enforcement process are aware of their obligations and responsibilities. This is because the use of the specified form ensures that the order contains specific information that is necessary for the proper implementation and enforcement of the order. For example, the order must specify the nature of the unlawful activity or the offence that a person or organization has been found guilty of, the period for which the order remains in force, and the conditions that must be satisfied for the order to be lifted. Overall, the use of Form 47 is a critical safeguard that ensures the proper implementation and enforcement of all orders made under subsection (3). This provision ensures that all parties involved in the enforcement process are aware of their obligations and responsibilities, and that there is consistency and conformity in the way these orders are issued and enforced. As such, it serves as an essential part of the Criminal Code's review mechanism, which is designed to promote transparency, accountability, and the effective implementation of criminal justice. In conclusion, Section 462.48(16) of the Criminal Code of Canada sets out a specific procedure that must be followed when implementing or enforcing an order made under subsection (3). This provision emphasizes the importance of consistency, conformity, and transparency in the way orders are issued and enforced, and serves as a critical safeguard to ensure that all parties involved in the enforcement process understand their obligations and responsibilities. Ultimately, this helps to promote accountability, transparency, and the effective implementation of the criminal justice system, which is essential for promoting public safety and maintaining the rule of law.
STRATEGY
Section 462.48(16) of the Criminal Code of Canada grants the courts the power to issue orders to freeze assets in cases involving suspected criminal activity. The code provides guidance on the form and content of such orders, but it does not provide any guidance on the strategic considerations involved in seeking or contesting these orders. This essay will explore some of the strategic considerations involved in dealing with this section of the Criminal Code of Canada and outline some strategies that could be employed. One strategic consideration is the timing of the application for an order under subsection (3). This section allows the court to freeze assets before the accused is convicted of a criminal offence. Therefore, a strategic decision must be made on whether to seek an order early in the investigation or to wait until evidence of criminal activity is stronger. Seeking an order too early could lead to a lack of evidence being presented to the court, which could result in the order being overturned upon challenge. Conversely, waiting too long could mean that assets have already been dispersed or hidden, making the order ineffective. Another strategic consideration is the scope of the order sought. The court has broad powers to issue orders that affect property, bank accounts, and other assets. However, a too-broad order could lead to the freezing of legitimate assets and cause significant disruption to the accused's business or personal life. Therefore, it is important to carefully consider the scope of the order sought and ensure it is targeted to the assets that are most likely to be involved in criminal activity. A third strategic consideration is the cost of challenging an order under subsection (3). Contesting an order can be a costly and time-consuming process, and success is not guaranteed. Therefore, accused parties must decide whether the potential cost of a legal challenge is worth the risk of losing key assets. Additionally, a legal challenge could draw negative media attention and create further legal headaches. One legal strategy that could be employed when seeking an order is to provide extensive documentary evidence to the court, including financial records, emails, and other correspondence. This evidence should be properly organized and presented in a clear and concise manner to support the argument that a freeze order is necessary. Lawyers who represent accused parties should be well-versed in the procedural rules related to these types of orders and be prepared to advocate skillfully on behalf of their clients. Another strategy that an accused party could pursue when contesting a freeze order is to seek support from key stakeholders, such as business partners, employees, or community leaders. These stakeholders can provide testimonials and evidence to the court that would support the argument that the accused party is not involved in criminal activity or that the scope of the order is too broad. In conclusion, section 462.48(16) of the Criminal Code of Canada permits the court to issue orders to freeze assets in cases involving suspected criminal activity. When dealing with this section, strategic considerations must be made regarding the timing of the application, the scope of the order, and the cost of a legal challenge. Legal strategies including providing extensive documentary evidence to support an order and seeking support from key stakeholders when contesting an order can be employed to maximize the chances of success.