INTRODUCTION AND BRIEF DESCRIPTION
Property can only be forfeited under subsection 83.14(5) if it is not needed for restitution or compensation to victims under other Acts of Parliament.
SECTION WORDING
83.17(2) Property is subject to forfeiture under subsection 83.14(5) only to the extent that it is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to, or compensation of, persons affected by the commission of offences.
EXPLANATION
Section 83.17(2) of the Criminal Code of Canada is a provision that provides clarity on the conditions under which property can be forfeited under subsection 83.14(5). This subsection authorizes the seizing of property connected with terrorism offenses that is suspected to have been used or intended to be used to facilitate terrorism, or property that is the proceeds of such offenses. According to section 83.17(2), property cannot be forfeited under this provision if it is required to satisfy any other provision of the Criminal Code or any other Act of Parliament that relates to restitution or compensation of persons affected by the commission of offenses. In other words, if a claim for restitution or compensation has been made by a victim of the offense, and this claim is still outstanding, forfeiture of the property cannot take place until the claim is satisfied. In practical terms, this means that if a terrorist defendant is ordered to pay restitution or compensation to a victim, and the defendant's property is seized under subsection 83.14(5), this property cannot be forfeited until the victim's claim is satisfied. This provision ensures that victims' claims are given priority over the confiscation of property related to terrorism offenses. Overall, section 83.17(2) of the Criminal Code of Canada strengthens the principles of justice and fairness by ensuring that victims of terrorism offenses are not disadvantaged when the property of a terrorist is confiscated. It underscores the importance of restitution and compensation for victims of crime to ensure their voices are heard in criminal proceedings.
COMMENTARY
Section 83.17(2) of the Criminal Code of Canada deals with the forfeiture of property obtained through the commission of offenses related to terrorism. It states that property is subject to forfeiture only to the extent that it is not required to satisfy any other provision of the Act of Parliament or any other statute that relates to compensation or restitution of the people affected by the offense. This provision is significant as it aims to ensure that the victims of terrorism receive appropriate compensation for the harm they have suffered. It recognizes that the forfeiture of property obtained through the commission of terrorist offenses might not be the only source of restitution that the victims need. It also provides a mechanism for the victims to seek compensation through other provisions of the Criminal Code or any other statute that applies. In practice, this provision helps to balance the interests of the state and the victims of terrorism. The state has a legitimate interest in seizing and forfeiting property that has been used or obtained through terrorist financing, as such funds can contribute to future terrorist activities. At the same time, the victims of terrorism must receive restitution for the harm they have suffered. They may have lost their property, livelihoods, or loved ones as a result of terrorist attacks. This section of the Criminal Code also promotes the principles of fairness and equity in the administration of justice. It recognizes that the forfeiture of property is a serious sanction that can have significant impacts on the alleged offender's financial situation, and that the victims of terrorism have a right to seek compensation for their losses. It also underscores the importance of proportionality in sentencing and the need to consider each case's unique circumstances. It is worth noting that the scope of this provision is limited to the forfeiture of property related to terrorism offenses. Other offenses under the Criminal Code or other statutes may not fall under this section's purview. It should also be noted that this provision may not be sufficient to provide full restitution or compensation to victims of terrorism in all cases. Other legal mechanisms, such as civil litigation or government-backed compensation programs, may also be necessary to address the victims' needs fully. In conclusion, the Criminal Code provision on the forfeiture of property obtained through terrorism offenses recognizes the importance of compensating and providing restitution to the victims of such offenses. It demonstrates the government's commitment to balancing the interests of the state and the victims of crime while upholding the principles of fairness, proportionality, and equity.
STRATEGY
Section 83.17(2) of the Criminal Code of Canada allows for the forfeiture of property that has been used to commit offences related to terrorism, but only to the extent that it is not required to satisfy the operation of any other provision of the Criminal Code or any other Act of Parliament related to restitution or compensation for persons affected by the offence. This provision raises several strategic considerations when dealing with the forfeiture of property in the context of terrorism. One important consideration is the potential impact on innocent third parties. For example, if property that is subject to forfeiture is jointly owned by multiple parties, there may be innocent individuals who have an interest in the property and who may be negatively impacted by its forfeiture. It is essential to consider the potential collateral consequences of forfeiture and to explore all possible legal avenues for minimizing harm to third parties. Another strategic consideration is the potential use of alternative measures to forfeiture. Forfeiture is not always the most appropriate or effective response to terrorist activities, and in some cases, it may be more appropriate to pursue other measures, such as criminal charges, fines, or community service. By exploring alternative measures, it may be possible to achieve the same goals as forfeiture while minimizing the potential negative consequences. Moreover, the decision to pursue forfeiture should be considered early in the process of investigating and prosecuting terrorism-related offences. This is because, to seize property, it must be shown that there are reasonable grounds to believe that the property is subject to forfeiture. If that evidence is not obtained during the early stages of the investigation, it may be challenging to make the case for forfeiture later on. Additionally, it is also important to consider the potential impact of criminal and constitutional law on forfeiture proceedings. Any attempt to forfeit property in the context of terrorism must comply with all of the applicable provisions of the Criminal Code and the Canadian Charter of Rights and Freedoms. Failure to do so may result in the forfeiture being challenged in court or deemed unconstitutional, which weakening the state's position in prosecuting the alleged terrorism-related offence. Moreover, the issue of asset forfeiture in the terrorism context is complex and requires a significant amount of resources. However, by prioritizing the recovery of assets arising from the proceeds of terrorism, a coordinated and targeted approach may result in maximizing the recovery of the proceeds of terrorism to compensate the victims of terrorism. Overall, due to the significant consequences that the forfeiture of property may have on both the accused and third parties affected by the offence, it is crucial that the Crown consider the strategic considerations of forfeiture, and whether alternative measures would be more suitable in achieving their objectives in matters of terrorism, always keeping in mind the impact on innocent third parties, and ensuring compliance with Canadian statutory and constitutional law.