INTRODUCTION AND BRIEF DESCRIPTION

If a person is subject to a prohibition order, any prohibited items in their possession are forfeited to the government, unless otherwise specified in the order.

SECTION WORDING

115(1) Unless a prohibition order against a person specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person is forfeited to Her Majesty.

EXPLANATION

Section 115(1) of the Criminal Code of Canada is a provision that regulates the possession of prohibited items. According to this section, if a prohibition order is issued against an individual, the possession of anything that is prohibited by the order will be considered a criminal offense and the item will be forfeited to the Crown. This means that the prohibited item will be confiscated by the state and owned by the Government of Canada. Prohibition orders are typically used in cases where a person has been convicted of certain criminal offences, such as drug possession or trafficking, or firearms offenses. These orders are designed to restrict the individual's ability to engage in certain activities that could pose a risk to themselves or others. The purpose of section 115(1) is to ensure that the criminal justice system is able to effectively enforce prohibition orders and prevent individuals from possessing contraband items that are deemed to be harmful or illegal. By forfeiting the prohibited item to the Crown, the state can effectively remove the item from circulation, while also punishing the individual who has contravened the prohibition order. It is important to note that section 115(1) only applies to items that are specifically prohibited by the prohibition order. Any other items that may be in the possession of the individual will not be affected by this section. Overall, section 115(1) of the Criminal Code of Canada plays a critical role in preventing the possession of prohibited items and enforcing prohibition orders. By seizing and forfeiting these items to the Crown, this section helps to protect individuals and communities from harm.

COMMENTARY

Section 115(1) of the Criminal Code of Canada deals with the imposition of prohibition orders on individuals who have been convicted of certain criminal offenses. A prohibition order is a legal order that prohibits an individual from possessing certain things or engaging in certain activities. The order may be imposed to protect the public, prevent future crimes, or facilitate the rehabilitation of the offender. Under subsection 115(1), any thing that an individual is prohibited from possessing by virtue of a prohibition order is forfeited to the government of Canada unless the order specifies otherwise. This means that the individual loses ownership and possession of the item, and it becomes the property of the Crown. The purpose of this provision is to ensure that individuals who are prohibited from possessing certain things do not have access to those items and cannot use them to commit further crimes. The forfeiture of property as a consequence of criminal activity is not a new concept. It has been part of criminal law for centuries and is known as "confiscation." The idea behind confiscation is that individuals who engage in criminal activity should not benefit from their wrongdoing. Confiscation also serves as a deterrent to others who might be tempted to engage in criminal activity for financial gain. Section 115(1) is not the only provision in the Criminal Code that allows for the forfeiture of property. Other sections deal with the forfeiture of property used in the commission of an offense, proceeds of crime, and property obtained through criminal activity. In all cases, the goal is to ensure that criminals do not benefit from their actions and that the proceeds of crime are taken away from them. Forfeiture of property is not without controversy. Some argue that it can be used as a punishment without due process, that innocent third parties may be affected, and that it can disproportionately affect marginalized communities. However, the Supreme Court of Canada has upheld the constitutionality of forfeiture provisions in the Criminal Code, provided that they are used only in appropriate circumstances and with appropriate procedural safeguards. In terms of section 115(1), the provision seems straightforward and necessary for the enforcement of prohibition orders. However, there are potential issues that may arise. For example, it may be difficult to enforce the forfeiture provision if the individual hides or disposes of the prohibited item before the order is imposed. There may also be issues related to the valuation of the item and the calculation of any compensation owed to the individual if the item is forfeited. Overall, section 115(1) is an important provision in the Criminal Code that assists in the enforcement of prohibition orders. It is part of a broader set of measures aimed at preventing and deterring criminal activity. While there are potential issues related to the provision, it is an important tool for law enforcement and the courts in maintaining public safety and pursuing justice.

STRATEGY

Section 115(1) of the Criminal Code of Canada specifies that any prohibited item in possession of a person on the commencement of a prohibition order is to be forfeited to Her Majesty unless the order specifies otherwise. This section of the criminal code presents several strategic considerations for law enforcement agencies, prosecutors, and defense attorneys. In this article, we explore some of these considerations and potential strategies that could be employed in response. For law enforcement agencies, one strategic consideration is the need for thorough and effective investigations. Prohibition orders are often issued in response to criminal activities such as drug trafficking, firearms offenses, or organized crime. As a result, officers need to conduct comprehensive investigations to ensure that they have identified all the items that should be prohibited. Additionally, officers must ensure that prohibited items are seized effectively to avoid any potential legal challenges by the accused. For example, a defense attorney could argue that an item was not properly seized or inventoried, leading to the prohibition order being invalid. Another strategic consideration for prosecuting attorneys is the need to prove that the accused was in possession of the prohibited items. To do this, the prosecution must rely on the evidence collected by law enforcement agencies during their investigations. The prosecution must also ensure that the evidence gathered is admissible in court and that it links the accused to the prohibited items. Additionally, the prosecution must prove that the accused was aware that the items were prohibited, as the possession must be done knowingly to be considered a criminal offense. Defense attorneys, on the other hand, must consider whether the prohibition order was validly issued and whether the accused was aware that the items were prohibited. For example, a defense attorney could challenge a prohibition order on the basis that it was not issued by a competent authority. Additionally, the defense could argue that the accused was not aware that the items were prohibited, as this knowledge is a prerequisite for a conviction under section 115(1). In response, several strategies could be employed. Law enforcement agencies could increase training and resources to ensure that investigations into prohibited items are thorough and effective. This could include using specialized units to target specific types of criminal activity and working closely with other agencies to share information and intelligence. Additionally, the use of technology such as body-worn cameras and GPS tracking could help officers gather admissible evidence. Prosecuting attorneys could also focus on building strong cases that establish the link between the accused and the prohibited items. This could include using forensic evidence such as DNA analysis or fingerprints to establish a connection, or relying on witness testimony to prove that the items were in the accused's possession. For defense attorneys, strategies could include challenging the validity of the prohibition order or arguing that the accused was unaware that the items were prohibited. Additionally, the defense could conduct its investigation into the case to identify any weaknesses or inconsistencies in the prosecution's case. In conclusion, section 115(1) of the Criminal Code of Canada presents several strategic considerations for law enforcement agencies, prosecutors, and defense attorneys. Thorough and effective investigations, admissible evidence, and knowledge of the law are all essential in successfully prosecuting or defending against charges under this section. By employing careful strategies and using all available resources, these parties can achieve successful outcomes in cases involving prohibited items.