Proceeds of Crime and Asset Forfeiture (Respondent) - Pre-Trial Restraint and Variation - s.462.33 to s.462.35

Jurisdiction: Federal - ss 462.33-462.35 Criminal Code RSC 1985 c C-46. This fork applies in all provincial courts and superior courts across Canada where a federal restraint order has been made.

The Process at a Glance: Counsel reviews the restraint order and identifies whether it was obtained ex parte, whether it has been registered on real property title under s 462.33(9), and whether any exemptions exist for ordinary living or business expenses. A variation application is prepared under s 462.34, served on the AG with at least 2 clear days notice (weekends and public holidays excluded), and filed with the court. At the hearing, the in camera procedure must be invoked for any legal fees component - the AG is completely excluded from this portion. The judge assesses the billing estimate against the provincial legal aid tariff. If the Crown does not lay charges or seek a judicial extension within 6 months, counsel files immediately to demand the return of all property. Where digital assets or virtual currency are restrained, the same variation rules apply under s 462.341.

Key Legislation and Case Law: Criminal Code Part XII.2 - Justice Laws - s 462.33 (restraint orders - ex parte, nationwide effect, s 462.33(9) registration on real property title, police power to detain property about to be dealt with), s 462.34 (variation application - living expenses, business expenses, legal fees, bail; 2 clear days notice to AG; no other assets or means test; recognisance conditions under s 462.34(4)(a); in camera hearing for legal fees under s 462.34(5)), s 462.34(4)(c) (purposes of release: living expenses, business expenses to maintain legitimate business, legal fees, bail), s 462.34(5) (in camera hearing for legal fees - AG excluded completely), s 462.34(5.1) (AG may only appear before or after the in camera portion for legal expenses - not during), s 462.35(1) (6-month detention limit from date of seizure or service), s 462.35(3) (AG may apply for judicial extension), s 462.341 (all variation rules apply to digital assets and virtual currency).

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