INTRODUCTION AND BRIEF DESCRIPTION
This section allows for an order to be filed with a superior court clerk and for a writ of fieri facias to be issued and delivered to the sheriff for the purpose of enforcing the order on the principal or suretys property.
SECTION WORDING
771(3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if an order is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.
EXPLANATION
Section 771(3.1) of the Criminal Code of Canada pertains to the filing and enforcement of restitution orders issued under subsection (2). When a restitution order is made against a defendant under subsection (2), the order may be filed with the clerk of the superior court, which essentially means that it is officially recorded in the court's records. Once the order is filed, the clerk is required to issue a writ of fieri facias in Form 34, which is essentially a legal document that authorizes a sheriff to enforce the order. The writ is then delivered to the sheriff of each of the territorial divisions in which the defendant or any surety resides, carries on business, or has property. This means that the sheriff is authorized to seize property or assets belonging to the defendant or their surety, and use those assets to satisfy the restitution order. The sheriff may also be authorized to place liens on real estate owned by the defendant or their surety. Overall, section 771(3.1) serves to ensure that restitution orders issued under subsection (2) are effectively enforced and that victims are able to receive the compensation owed to them by the defendant. It is an important component of the criminal justice system in Canada that aims to provide justice to victims of crime.
COMMENTARY
Section 771(3.1) of the Criminal Code of Canada is an essential provision that enables the enforcement of a restitution order made against a convicted offender. The provision stipulates that upon the issuance of a restitution order under subsection (2), the order can be filed with the clerk of the superior court, who shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business, or has property. The purpose of this provision is to ensure that the restitution order is enforced by taking a legal remedy against the property of the convicted offender or their sureties. The writ of fieri facias is a legal order that commands the sheriff to seize and sell sufficient property of the judgment debtor to satisfy the amount owed in restitution. The importance of this provision cannot be overemphasized as it empowers victims of crimes to seek and obtain restitution from their offenders. Restitution is an essential component of the Canadian criminal justice system, and it is a form of punishment that seeks to compensate victims for losses suffered as a result of criminal conduct. It is a way of holding offenders accountable for their actions and helping victims to recover from the harm they have suffered. However, the effectiveness of restitution orders in Canada has been limited due to various reasons. One of the major factors is the lack of enforcement of restitution orders, which renders them meaningless. The provision in section 771(3.1) seeks to address this issue by providing a mechanism for the enforcement of restitution orders. Another factor that limits the effectiveness of restitution orders is the ability of the offenders to pay the amount ordered. Many offenders lack the financial means to pay restitution, and this undermines the purpose of the restitution order. The provision in section 771(3.1) addresses this issue by allowing for the seizure and sale of the property of the offender or their sureties to satisfy the restitution order. In conclusion, the provision in section 771(3.1) of the Criminal Code of Canada is crucial in ensuring the enforceability of restitution orders. It provides victims of crimes with a legal remedy to seek compensation from their offenders and holds them accountable for their actions. The provision also addresses the issue of non-payment of restitution by allowing for the seizure and sale of the property of the offender or their sureties. This provision is an essential tool for ensuring that restitution orders are effective, and it contributes to the overall goal of achieving a just and fair criminal justice system in Canada.
STRATEGY
Section 771(3.1) of the Criminal Code of Canada provides a powerful tool for the enforcement of orders made under subsection (2). This provision enables the creditor to file the order with the superior court clerk, who in turn will issue a writ of fieri facias and deliver it to the sheriff for execution against the debtor's property. Such an order has the effect of creating an enforceable judgment which is executable by the sheriff. The debtor's assets such as real estate, vehicles, and bank accounts can be seized and sold to satisfy the judgment. Strategic considerations for dealing with this provision of the Criminal Code of Canada include issues such as identifying the most effective assets to target for seizure, minimizing the debtor's ability to evade the judgment, and managing the legal costs of the enforcement process. Some strategies that could be employed are discussed below. Asset identification One of the key strategic considerations when enforcing a judgment is identifying the most effective assets to target for seizure. To do this, the creditor must conduct a thorough investigation of the debtor's financial situation and assets. The debtor's bank accounts, real estate properties, and vehicles are among the most commonly targeted assets. In some cases, a debtor may have hidden assets that are not readily apparent. It is therefore important to conduct a comprehensive investigation to identify all potential assets that can be seized under the writ of fieri facias. Minimize ability to evade judgment Another strategic consideration when enforcing a judgment is to minimize the debtor's ability to evade the judgment. Debtors may take a variety of steps to avoid seizure of their assets, such as transferring assets to third parties, hiding assets, or moving to a different jurisdiction. To minimize the debtor's ability to evade seizure, it is important to act quickly once the writ of fieri facias has been issued. It is also important to monitor the debtor's financial transactions and movements, and to seek injunctive relief if necessary to prevent the transfer of assets. Managing legal costs The enforcement of a judgment can be costly, particularly if the debtor is not cooperative or has limited assets. One strategy to manage legal costs is to negotiate a settlement with the debtor that provides for partial payment of the judgment in exchange for a release of all claims. Another strategy is to seek the assistance of a creditor's rights lawyer who specializes in debt collection and enforcement. Such a lawyer can provide guidance on the most effective enforcement methods, and can work to minimize legal costs by negotiating with the debtor and managing the enforcement process. Conclusion Section 771(3.1) of the Criminal Code of Canada provides a powerful tool for the enforcement of judgments against debtors. Strategic considerations when dealing with this provision include identifying the most effective assets to target for seizure, minimizing the debtor's ability to evade the judgment, and managing legal costs. Effective strategies include thorough asset investigation, quick action to prevent asset transfer or hiding, negotiating settlement and working with specialized creditor's rights lawyers. With these strategies in place, creditors can significantly increase their chances of successfully enforcing a judgment against a debtor.