INTRODUCTION AND BRIEF DESCRIPTION

Forfeited items will be disposed of or handled according to the Attorney Generals instructions.

SECTION WORDING

115(2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Attorney General directs.

EXPLANATION

Section 115(2) of the Criminal Code of Canada deals with the disposition of items and property that have been forfeited to Her Majesty under subsection (1). This section gives the Attorney General the power to direct the manner in which the forfeited property will be disposed of or otherwise dealt with. Subsection (1) of section 115 of the Criminal Code outlines the circumstances under which property may be forfeited to Her Majesty. This section provides that property may be forfeited if it was obtained through the commission of a crime, or if it was used in the commission of a crime. The property may be forfeited even if the person who committed the crime has not been convicted or sentenced for the offense. The purpose of section 115(2) is to ensure that forfeited property is dealt with appropriately and in accordance with the law. The Attorney General, as the chief law officer in Canada, is responsible for determining how the property will be disposed of or dealt with. The power of the Attorney General to make this determination is important because it allows for a consistent and fair approach to the handling of forfeited property across the country. The disposition of forfeited property can take many different forms. For example, the property may be sold at auction and the proceeds used to fund law enforcement efforts. Alternatively, the property may be destroyed or disposed of in some other manner. The decision as to how the property will be handled will depend on various factors, including the type of property, its value, and the circumstances surrounding its forfeiture. In summary, section 115(2) of the Criminal Code of Canada provides for the proper disposition of property that has been forfeited to Her Majesty under subsection (1). The Attorney General is responsible for determining how the property will be dealt with, and this power ensures a consistent and fair approach to the handling of forfeited property.

COMMENTARY

Section 115(2) of the Criminal Code of Canada establishes a mechanism to dispose of items that have been seized by law enforcement agencies due to their association with criminal activity. This provision grants the Attorney General the power to direct the disposal of such properties which have been forfeited to the Crown. However, it is important to analyze why and how the law enforcement agencies come to possess these items, and the impact of their forfeiture on the individuals involved. The Canadian legal system establishes due process as a fundamental aspect of its criminal justice system, where every individual accused of a crime is entitled to a fair trial and presumed innocent until proven guilty. However, if law enforcement agencies suspect that an individual has obtained properties through illegal activities, they can initiate a forfeiture proceeding against them. This process allows law enforcement agencies to seize properties that they believe have been acquired through proceeds from criminal activities, such as drug trafficking, money laundering, or organized crime. The forfeiture of properties impacts individuals differently, and it can have serious consequences on their lives. For example, if a car has been used to transport drugs, it can be seized as it is associated with the commission of a crime. This could result in the loss of the vehicle for someone who may not have had any involvement in the illegal activities themselves. In some cases, individuals may lose their entire livelihoods, houses, or investments that have been seized. Moreover, critics argue that the current system of forfeiture in Canada may not align with constitutional guarantees of due process. In particular, they assert that individuals who have not been convicted of any crime may have their properties seized, and they may not have sufficient opportunities to challenge these seizures. As a result, innocent individuals may lose their properties without any form of compensation, and with minimal or no evidence presented against them. Interestingly, some studies suggest that the forfeiture of properties has a limited impact on the deterrence of crime. Some law enforcement agencies point out that forfeiture enables them to disrupt organized crime networks by disrupting their financial gain, reduce drug usage, and confiscate firearms. While all of these may be beneficial in the short term, long-term effects are much more difficult to measure, especially as organizations may eventually reassemble. Section 115(2) establishes a mechanism to dispose of items that have been seized by law enforcement agencies due to their association with criminal activity. By giving the Attorney General the power to direct the disposal of such properties, the Criminal Code of Canada seeks to prevent properties from falling into wrongful hands. However, how this mechanism is enforced can significantly impact the individuals involved, and there is a need to balance the rights of individuals with the government's responsibility to maintain public safety. Therefore, further analysis is required to strike an appropriate balance between the need to fight crime and the rights of individuals.

STRATEGY

Section 115(2) of the Criminal Code of Canada empowers the Attorney General to direct the disposal or other treatment of items that have been forfeited to Her Majesty under subsection (1). The section applies to items that have been seized by law enforcement officers as a result of a criminal investigation or criminal conviction. The broad scope of this provision makes it necessary for law enforcement agencies and prosecutors to carefully consider the various strategic considerations to ensure that they are getting the best possible outcome. One of the primary considerations when dealing with Section 115(2) is determining the appropriate disposal method for the forfeited items. Law enforcement agencies must decide whether to destroy the items, sell them, or use them for public benefit. The decision should be guided by the nature of the items and their potential impact on society. For instance, illicit drugs may be destroyed, while vehicles may be auctioned to generate revenue. Additionally, firearms may be donated to law enforcement agencies or other government agencies to enhance public safety. Another strategic consideration to keep in mind is the legal requirements surrounding the forfeiture process. The Criminal Code outlines the forfeiture process and sets out the requirements that must be met to forfeit an item. In general, the items must be involved in a criminal offense or be connected to the proceeds of a crime. The law enforcement agency must provide evidence that establishes the connection between the items and the criminal activity. The prosecutor must also follow the appropriate procedures to ensure they meet the legal threshold for forfeiture. Protecting the rights of individuals is another critical strategic consideration when dealing with Section 115(2) of the Criminal Code. Law enforcement agencies and prosecutors must ensure that individuals who have an interest in the forfeited item are given the opportunity to contest the forfeiture. This includes providing adequate notice and an opportunity for a hearing, as well as respecting the rights of claimants who may have a legitimate interest in the property. The government must also ensure that the constitutional rights of the accused are protected during the criminal proceedings that lead to the forfeiture. Lastly, the discretion of the Attorney General in directing the disposal of items forfeited under subsection (1) highlights the importance of transparency and accountability in the decision-making process. The public may perceive the government's handling of forfeiture as arbitrary or unfair, which could undermine the public's trust in law enforcement agencies and the justice system. Therefore, prosecutors and law enforcement agencies must be transparent, and their actions must be seen to be objective and fair. They must follow established protocols and procedures and provide regular updates on the progress of forfeiture cases. In conclusion, Section 115(2) of the Criminal Code presents several strategic considerations for law enforcement agencies and prosecutors. Careful consideration of the best-disposal method, legal requirements, protection of individual rights, and transparency and accountability are critical to ensuring that the forfeited items are disposed of in a fair and responsible way. By adopting effective strategies, the government can enhance public safety, generate revenue, and maintain the public's trust.