INTRODUCTION AND BRIEF DESCRIPTION
This section requires judges to consider the impact of property forfeiture on family members and their innocence in cases related to terrorist activities.
SECTION WORDING
83.14(9) Where all or part of property that is the subject of an application under subsection (1) is a dwelling-house, the judge shall also consider (a) the impact of an order of forfeiture on any member of the immediate family of the person who owns or controls the dwelling-house, if the dwelling-house was the member’s principal residence at the time the dwelling-house was ordered restrained or at the time the forfeiture application was made and continues to be the member’s principal residence; and (b) whether the member appears innocent of any complicity or collusion in the terrorist activity.
EXPLANATION
Section 83.14(9) of the Criminal Code of Canada is an important provision that deals with the forfeiture of property in cases involving terrorism. This provision stipulates that where a dwelling-house is the subject of an application for forfeiture, the judge must take into account the impact of the order on any member of the immediate family of the person who owns or controls the property, if the house was the member's principal residence at the time it was restrained or at the time the forfeiture application was made and continues to be the member's principal residence. In other words, the judge must consider how the forfeiture of the house would affect the family members living in it. Additionally, the judge must also take into account whether the family member appearing innocent of any complicity or collusion in the terrorist activity. This means that if a family member was not involved in the terrorist activity that led to the forfeiture application, they should not be made to suffer the consequences of their relative's actions. The purpose of this provision is to ensure that the forfeiture of property is proportionate to the harm caused by the terrorist activity and does not unfairly punish innocent family members. By taking into account the impact of the order on innocent family members, the provision addresses concerns related to human rights and fundamental freedoms. It also ensures that the order is consistent with the principles of fundamental justice. In summary, Section 83.14(9) of the Criminal Code of Canada is an essential safeguard that protects the rights of innocent family members in cases involving the forfeiture of property due to terrorist activity. By ensuring that the forfeiture order is proportionate and just, this provision upholds the values of democracy and human dignity.
COMMENTARY
Section 83.14(9) is a provision of the Criminal Code of Canada that requires judges to consider the impact of an order of forfeiture on the immediate family members of the person who owns or controls a dwelling-house, if the dwelling-house is the member's principal residence at the time of the terrorist activities. The provision is significant as it aims to protect the rights of innocent family members who may be affected by the actions of other family members involved in terrorist activities. The primary function of subsection (9) is to ensure that the forfeiture of property under subsection (1) does not unfairly impact the innocent family members of the person who owns or controls the property. The section mandates that judges consider the impact of the forfeiture order on the immediate family members who reside in the dwelling-house that is the subject of the application. The judge must make a determination of whether the immediate family members who reside in the dwelling-house were involved in the terrorist activities or were merely innocent bystanders caught up in the situation. Subsection (9) also considers the innocent family member's own involvement in the terrorist activities. The judge must determine whether the immediate family member appears to be innocent of any complicity or collusion in the terrorist activity. If the family member appears to be innocent, the judge may not allow for the forfeiture order to be applied. This safeguards family members who may not have played any direct role in the terrorist activity but were caught up in the situation due to their relationship with the perpetrator. The protection of the innocent family members of a person involved in terrorist activities is crucial, as such individuals are often subjected to harsh societal discrimination and stigma. These innocent family members may find it increasingly difficult to find work, access public services, and maintain their social standing due to their association with the perpetrator. Moreover, such innocent family members may also fall victim to retaliation and acts of violence from those who feel aggrieved by the terrorist activities. Therefore, it is essential to guard the interests of innocent family members in situations of this nature. In conclusion, subsection (9) of Section 83.14 of the Criminal Code of Canada aims to protect innocent family members who may be affected by forfeiture orders made against the property of perpetrators of terrorist activities. The provision ensures that the impact of these forfeiture orders is minimized and that innocent family members are not punished for the actions of those with whom they share a dwelling house. The subsection ensures that deterrence against terrorist activities does not come at the cost of innocent family members who may already be victims of the situation.
STRATEGY
Section 83.14(9) of the Criminal Code of Canada focuses on the impact of an order of forfeiture on innocent family members living in a dwelling-house that is the subject of the application. This provision was introduced to protect these individuals from being further harmed by the effects of terrorism-related activities. In this context, there are several strategic considerations that could assist a judge in making an informed decision about the forfeiture application. First and foremost, the judge must consider whether the dwelling-house in question was the principal residence of a member of the owner or controller's immediate family at the time of the terrorism-related activity. This information is important as it establishes whether innocent family members could potentially be adversely affected by the forfeiture order. If the property seized is the principal residence of an innocent family member, the judge must consider the impact of the forfeiture on that person's well-being and living conditions. Depending on the individual circumstances, the judge may consider various strategies to address the potential adverse impact of the forfeiture order on innocent family members. One possible strategy could be to impose an alternative remedy, such as an order for restitution or compensation, instead of forfeiture. This approach would balance the needs of the state to deter terrorist activities with the need to protect the innocent family members affected by the actions of the offender. Another option could be to transfer ownership of the dwelling-house to the innocent family member(s) affected by the forfeiture order. This strategy would ensure that the innocent person(s) can continue to live in their home, albeit without the ownership rights of the accused or convicted individual. This approach would be especially useful if the property in question has special significance, such as religious or cultural value, to the affected family member(s). In other cases, the judge could impose appropriate conditions to ensure that innocent family members are not unfairly penalized by the forfeiture order. For example, the judge may require that the innocent family member(s) be given a reasonable period to vacate the dwelling-house. Alternatively, the judge may require that the innocent family member(s) be provided with alternative accommodation, such as a rental property or alternative dwelling-house. Finally, the judge must consider the issue of the complicity or collusion of the innocent family member(s) in the terrorism-related activity. If the innocent family member(s) appear to be involved or have knowledge of the terrorist activity, the judge may be less inclined to grant any relief from the forfeiture order. In these instances, the judge may rule that the innocent family members' interests are subordinate to the state's interests and grant an order of forfeiture. In conclusion, Section 83.14(9) of the Criminal Code of Canada is a valuable provision that ensures that innocent family members are protected from the effects of terrorism-related activities. Judges should apply this section strategically and thoughtfully, taking into account all the relevant facts and circumstances. Employing appropriate strategies, such as alternative remedies, transfers of ownership, or imposing suitable conditions, can assist in addressing the potential adverse impact of the forfeiture order on innocent family members.