Criminal Code of Canada - section 741(2) - Moneys found on offender

section 741(2)

INTRODUCTION AND BRIEF DESCRIPTION

Money found in possession of an offender at the time of arrest can be used to pay fines or restitution if no disputes over ownership or right to possession are present.

SECTION WORDING

741(2) All or any part of an amount that is ordered to be paid under section 738 or 739 may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.

EXPLANATION

Section 741(2) of the Criminal Code of Canada outlines the procedure for the government to reclaim any money an offender may have possessed at the time of their arrest. This section specifically applies to situations where an offender has been ordered to pay a fine or restitution under sections 738 or 739 of the Criminal Code. Under this provision, the court has the power to direct that some or all of the money found in the possession of the offender at the time of their arrest can be applied towards the payment of the fine or restitution. However, this decision will only be made if the court is satisfied that the ownership or possession of the money is not disputed by anyone other than the offender. This provision is important in ensuring that offenders are held accountable for their actions and are required to compensate their victims or pay penalties for their offences. It also acts as a deterrent for future offences and provides a means for the government to recover some of the costs associated with criminal activity. Overall, section 741(2) is an important aspect of the Canadian criminal justice system as it supports the principles of accountability and deterrence, and helps to ensure that offenders are held responsible for the harm they have caused.

COMMENTARY

Section 741(2) of the Criminal Code of Canada is an important legal provision that authorizes the government to recover the proceeds of crime from offenders. The section allows the court to order the seizure of assets found in the possession of the offender at the time of their arrest to satisfy the payment of a restitution order made under sections 738 or 739 of the Code. This provision is an essential tool for law enforcement and the justice system to ensure that those who benefit from criminal activities do not profit from them. The provision applies to a wide range of criminal activities, including theft, fraud, and other offenses that result in financial losses to victims. Under this section, all or part of the amount ordered to be paid under section 738 or 739 can be taken out of the money found in the possession of the offender at the time of their arrest. The court must be satisfied that ownership of or the right to possession of these moneys is not disputed by claimants other than the offender. This provision protects the interests of innocent third parties who may have a legitimate claim to the seized assets. The objective of Section 741(2) is to ensure that offenders do not benefit from their criminal activities, and that restitution orders made by the court are satisfied. The provision also serves as a deterrent to others who may contemplate engaging in criminal activities for financial gain. It sends a message that the government is committed to recovering the proceeds of crime and that criminals will not be allowed to keep their ill-gotten gains. However, this section of the Criminal Code has been subject to some criticism. Some argue that the provision is not clear enough about the criteria for determining whether the ownership or right to possession of seized assets is disputed by third parties. Others argue that the provision can be abused by law enforcement agencies to seize assets that are not directly linked to criminal activities. To address these concerns, the Supreme Court of Canada has provided some guidance on the interpretation and application of Section 741(2). In the case of R. v. Smith, the court held that when considering the ownership or right to possession of seized assets, the court must follow the principles of civility and fair play, and ensure that innocent third parties are not unduly deprived of their property rights. The court also emphasized that the provision must be applied in a manner that is consistent with the fundamental principles of justice and the rule of law. In conclusion, Section 741(2) is an important legal provision that enables the government to recover the proceeds of crime from offenders and ensure that restitution orders made by the court are satisfied. The provision serves as a deterrent to others who may contemplate engaging in criminal activities for financial gain. However, the provision must be applied in a manner that is consistent with the fundamental principles of justice and the rule of law, and safeguards the interests of innocent third parties.

STRATEGY

Section 741(2) of the Criminal Code of Canada provides a legal mechanism for law enforcement agencies to seize and confiscate funds from an offender at the time of their arrest, which can be used to cover any court-ordered payments under sections 738 or 739. However, it is essential to consider the strategic implications of implementing this section to ensure fair and lawful seizure practices. First and foremost, it is necessary to determine if there are any claimants other than the offender who may dispute the ownership or right to possession of the seized funds. If there are any other parties claiming ownership of the funds, the court may need to hold a hearing to determine their claims, delaying the process and potentially increasing legal costs. In addition, it is essential to follow proper procedures when seizing the funds. The arrest and seizure of funds must be conducted in accordance with the Charter of Rights and Freedoms, and the Criminal Code of Canada. The funds must be seized lawfully, and the offender must be given an opportunity to challenge the seizure in court. Any infringement of the offender's rights may result in the invalidation of the seizure and may even result in damages awarded against the police. Once it is established that the funds belong to the offender, other strategic considerations come into play. For example, law enforcement agencies will need to weigh the available resources and the cost of pursuing the seizure against the amount of money they hope to confiscate. It may not be cost-effective to pursue a seizure in all cases, and the agencies may decide to focus on high-value seizures. Another strategic consideration is communicating the consequences of the seizure to the offender. Seizing an offender's funds may have negative consequences beyond the immediate loss of assets. It could trigger emotional and psychological reactions from the offender, especially if they are struggling to make ends meet. Any communication should include an explanation of why the seizure is necessary and the process to be followed in case the offender wants to challenge the seizure. There are several strategies that law enforcement agencies could employ when dealing with section 741(2) of the Criminal Code of Canada. For instance, agencies could rely on intelligence to identify offenders with vast financial assets, making it easier to locate and seize their funds. They could also work with other agencies to combine resources and expertise, making it more straightforward to track and seize money. Another approach is to develop internal protocols and procedures that specify the necessary steps to take when seizing funds. These protocols should consider issues such as accounting for the funds, handling the money while in custody and managing any disputes that may arise. Lastly, agencies could consider training their officers on the ethical and legal considerations when seizing funds. Officers should be aware of their role in the process, the rights of the offender, and the procedures to follow during the arrest and seizure of funds. In conclusion, section 741(2) of the Criminal Code of Canada provides law enforcement agencies with a powerful tool to combat criminal activities. However, strategic considerations must be taken when dealing with this section to ensure that the process is fair and lawful. By implementing proper protocols and procedures and providing adequate training to officers, law enforcement agencies can optimize the use of this legal mechanism and safeguard both the offender's rights and the public's interest.