INTRODUCTION AND BRIEF DESCRIPTION

The court must provide notice and hear from anyone with a valid interest in the property before making a destruction order.

SECTION WORDING

462.331(5) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (6) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

EXPLANATION

Section 462.331(5) of the Criminal Code of Canada outlines the procedure that a court must follow before issuing a destruction order in relation to any property. This section establishes the requirement for notice to be given to any person who appears to have a valid interest in the property and allows for the court to hear from such individuals before making a decision. The purpose of this section is to protect the rights of innocent parties who may have an interest in the property that is subject to the destruction order. The notice provisions in subsection (6) specify that the notice must be given in writing and must be served on the person at least 30 days before the court makes a decision on the destruction order. This allows the person to have an opportunity to respond and present evidence to the court demonstrating their interest in the property. The requirement for notice is particularly important in cases where there may be multiple parties with different interests in the property, such as co-owners or creditors. The court also has the discretion to hear from any person who it believes has a valid interest in the property. This may include witnesses, experts, or other interested parties who can provide relevant information that may impact the court's decision. The ability to hear from these individuals is important in ensuring that the court has access to all relevant information before making a decision. Overall, section 462.331(5) is an important provision in the Criminal Code of Canada that protects the interests of third parties who may be impacted by a destruction order. This section ensures that such parties are given notice of the proceedings and have an opportunity to be heard before the court makes a decision.

COMMENTARY

It is a criminal offence to carry a concealed weapon or prohibited device without authorization.

STRATEGY

Section 462.331(5) of the Criminal Code of Canada provides for destruction orders in relation to property seized under various provisions of the Code, such as those related to drugs, proceeds of crime, and weapons. The section requires that a court give notice to any person who may have a valid interest in the property before making a destruction order. This provision has important implications for both prosecutors and defence counsel in criminal cases and requires strategic considerations. One key consideration when dealing with this section is identifying who may have a valid interest in the property. This may include owners, lessees, and others with a legal or equitable interest in the property. It is important to conduct a thorough investigation to identify such persons and to provide them timely notice to ensure they have an opportunity to be heard. Another consideration is the potential impact of a destruction order on the property's value. Destruction could render the property worthless, especially in cases where the property is a business. In such cases, it may be advisable to seek an adjournment of the proceedings to allow for the sale or transfer of the property to mitigate potential losses for innocent third parties. A strategy that could be employed to avoid destruction orders is to negotiate an alternative resolution with the Crown. For example, a plea bargain could include forfeiture of the seized property or a requirement to sell it to someone with a valid interest. This could be a win-win situation where the Crown gets the proceeds of crime while the innocent third parties retain the value of their interests in the property. If a destruction order is inevitable, another strategy is to challenge the validity of the seizure itself. For instance, where the seizure was carried out illegally or violated the Charter of Rights and Freedoms, the court may set aside the seizure, and the destruction order would become moot. It is also important to keep in mind the potential for unintended consequences of destruction orders. For example, destruction of seized drugs could lead to environmental contamination, putting public health and safety at risk. Therefore, it may be necessary to seek expert advice on the implications of destruction in specific cases. In conclusion, Section 462.331(5) of the Criminal Code of Canada raises several strategic considerations when dealing with property seizures. Careful identification of persons with a valid interest, negotiation with the Crown, challenging the validity of the seizure, and expert advice on the implications of destruction are all potential strategies that could be employed in different situations. Ultimately, any strategy must balance the interests of justice with the rights of innocent third parties.