INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the process for disposing of items or documents that have been seized by a peace officer.
SECTION WORDING
117.05 (1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.
EXPLANATION
Section 117.05(1) of the Criminal Code of Canada outlines the process for dealing with the disposition of things or documents that have been seized under subsection 117.04(1) or (2). The section states that the justice who issued the warrant authorizing the seizure, or a justice who might have issued a warrant if none had been issued, must be notified of the seizure within 30 days. The justice will then set a date for a hearing to consider an application from a peace officer for the disposition of the seized item. The purpose of this section is to ensure that the seizure of materials is done in a lawful manner, and that there is a clear process for dealing with seized items. By requiring a hearing for the disposition of seized materials, the section ensures that individuals have a chance to object to the seizure and make arguments for the return of their property. This helps to protect the rights of individuals who may have been improperly targeted by law enforcement. Overall, section 117.05(1) is an important element of the Criminal Code of Canada that helps provide a fair and transparent process for the seizure of materials by law enforcement officials. By setting clear guidelines for the disposition of seized items, the section protects the rights of individuals and helps maintain the integrity of the criminal justice system.
COMMENTARY
Section 117.05(1) of the Criminal Code of Canada outlines the process for disposing of items or documents that have been seized during an investigation or search. It is important to note that this section only applies to items or documents seized under subsection 117.04(1) or (2). Subsection 117.04(1) permits the seizure of property that is believed to be obtained by or used in the commission of an offence related to organized crime. Subsection 117.04(2) allows for the seizure of property that is believed to be proceeds obtained through organized crime. Under section 117.05(1), the justice who issued the warrant (if one was obtained) or a justice who could have issued a warrant (if no warrant was obtained) must be informed of the seizure within thirty days. The justice will then schedule a hearing to determine the disposition of the seized items or documents. Notice of this hearing must be given to such persons or in such manner as the justice may specify. This section serves an important purpose in ensuring that items seized during an investigation or search are not unnecessarily retained by law enforcement. It also ensures that individuals whose property has been seized have a fair opportunity to challenge the seizure and seek the return of their property, if appropriate. However, this section of the Criminal Code has also been subject to criticism. Some argue that the thirty-day period for scheduling a hearing is too long, given the potential impact on individuals whose property has been seized. Others argue that the notice requirements may not adequately ensure that affected individuals receive timely or sufficient information about the disposition hearing. Despite these criticisms, Section 117.05(1) remains an important safeguard for protecting the rights of individuals whose property has been seized during an investigation or search. Its key purpose is to ensure that such individuals have a fair and transparent process for challenging the seizure of their property. This section therefore serves a critical role in maintaining the integrity and legitimacy of the criminal justice system in Canada.
STRATEGY
Section 117.05(1) of the Criminal Code of Canada is an important provision that outlines the procedures that must be followed when dealing with seized documents or things. When dealing with this section, there are several strategic considerations that must be kept in mind to ensure that the best outcome is achieved. Some of these considerations and strategies are outlined below. 1. Timing is critical: One of the most important strategic considerations when dealing with section 117.05(1) is timing. The provision requires that an application for the disposition of the seized thing or document must be made within thirty days after the date of execution of the warrant or seizure without a warrant. It is important to ensure that the application is made within this time frame to avoid any delays or complications. 2. Communication is key: Another important strategic consideration when dealing with section 117.05(1) is communication. It is important to ensure that all parties involved are aware of the hearing date and the reasons for the seizure. This may include the person from whom the thing or document was seized, as well as any other interested parties. Effective communication can help to avoid misunderstandings and ensure that everyone is on the same page. 3. Preparation is essential: Preparation is another key strategy when dealing with section 117.05(1). This includes ensuring that all necessary documentation and evidence is available for the hearing. It also involves preparing and presenting a convincing argument to the justice who will be hearing the application. A well-prepared argument can help to ensure that the application is successful. 4. Compliance is important: Compliance with the requirements of section 117.05(1) is crucial. Failure to comply with the provisions of this section could lead to the exclusion of evidence or other negative consequences. It is important to understand the requirements of the provision and ensure that they are followed to the letter. 5. Consultation with legal counsel: Finally, it is always advisable to consult with legal counsel when dealing with any aspect of criminal law, including section 117.05(1). An experienced criminal lawyer can help to ensure that all legal requirements are met and that the best possible outcome is achieved. In conclusion, section 117.05(1) of the Criminal Code of Canada is an important provision that outlines the procedures that must be followed when dealing with seized documents or things. When dealing with this section, it is important to consider timing, communication, preparation, compliance, and consultation with legal counsel to ensure the best outcome is achieved.