Criminal Code of Canada - section 117.05(3)

section 117.05(3)

INTRODUCTION AND BRIEF DESCRIPTION

At a hearing for an application made under subsection (1), the justice must consider all relevant evidence, including the value of the item in question.

SECTION WORDING

117.05(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.

EXPLANATION

Section 117.05(3) of the Criminal Code of Canada is a provision that directs a justice to examine all relevant evidence, including evidence of an item's value when hearing an application under subsection (1). This section is important as it seeks to balance the interests of the Crown and the owner of seized property, by ensuring that a justice takes a comprehensive view of the case and considers all available information in making an appropriate decision. Subsection (1) of this provision deals with the situation where the Minister or a peace officer has seized property believed to be proceeds of crime or an instrument of unlawful activity. Once this has occurred, an application can be made to the court seeking an order for the property's forfeiture. The hearing of such an application is where Section 117.05(3) comes into play. At the hearing, both the Crown and the owner of the property have the opportunity to present their evidence. The justice must consider all the relevant evidence, including the value of the property in question. The value at issue may be of particular importance, particularly when it comes to assessing the scope and impact of any crime, and determining whether the property in question is related to or a consequence of the crime. This section refers broadly to "relevant evidence," which includes any evidence that is of direct or indirect relevance to the matter at issue. Evidence could include, for example, records, financial statements, expert assessments, or witness statements that speak to any aspects of the case. The purpose of this provision is to ensure that the justice has the necessary information to make an informed decision regarding the disposition of the property. In general, Section 117.05(3) seeks to uphold the principles of transparency and fairness in this part of the criminal law. It ensures that both sides have a voice and that decisions are made based on all the relevant information, including the value of the property in question. By so doing, it provides for greater public confidence in the administration of justice.

COMMENTARY

Section 117.05(3) of the Criminal Code of Canada offers direction regarding the appropriate handling of evidence in the course of a hearing pertaining to an application made pursuant to subsection (1) of the same code. The section mandates that all relevant evidence be heard at such a hearing, with particular mention of evidence related to the value of the item in question. As an artificial intelligence language model, I am not in a position to express my views on this provision or offer an analysis of its implications in Canadian criminal law. However, I can provide some general information on the importance of this section when it comes to the conduct of a hearing where an application pursuant to subsection (1) is being made. As per Section 117.05(1) of the Criminal Code of Canada, any prosecutor is entitled to apply to the court for an order prohibiting any individual from possessing, obtaining, or disposing of any property that is subject to forfeiture under the Act. The Section places the onus on the prosecutor to prove the statutory predicate for the forfeiture, though the burden of proof shifts to the defendant or the claimant of the property if they intend to challenge the forfeiture claim. The hearing in this context pertains to convincing the court that it should order the forfeiture of the subject property in question. It is essential for justice to be served, that all relevant evidence be heard during the proceedings. This ensures that the court has an objective and comprehensive basis for making an informed decision. Furthermore, as the value of the item in question is specifically mentioned in this section, its inclusion is consequential to the conclusion of such proceedings. Often, the value of the item may be directly related to the severity of the crime committed, and any monetary loss borne by those affected by the crime. Therefore, the requirement to hear evidence relating to the value of the item in question ensures that the sentencing decision is just and proportionate. At the same time, it provides a subjectively quantifiable aspect, which can help deter similar offenses in the future. In conclusion, Section 117.05(3) of the Criminal Code of Canada reinforces the significance of evidence during a hearing that pertains to an application made pursuant to subsection (1) of the same code. The provision ensures that all relevant evidence, including evidence relating to the value of the item in question, are heard, and the value of the item is taken into account in the final sentencing decision. The implementation of this provision is critical to ensuring that decisions made by the courts are based on objective and comprehensive data to provide just outcomes that protect the integrity of Canada's criminal justice system.

STRATEGY

Section 117.05(3) of the Criminal Code of Canada outlines the criteria that must be considered by a justice when hearing an application made under subsection (1) of the same section. The central consideration under this provision is the value of the thing in question. Hence, this subsection is of utmost importance in asset forfeiture cases. Asset forfeiture is the process through which the state confiscates property that is suspected or known to be involved in or acquired through criminal activity. The idea of asset forfeiture is to deprive criminals of the proceeds of their illegal activities, to deter criminal behavior, and to compensate victims of crime. However, asset forfeiture can also be misused and abused by the state, leading to the unjust seizure of property from innocent individuals. Therefore, asset forfeiture is a controversial issue, and there must be a balance between the interests of the state and the rights of individuals. Considering the importance of section 117.05(3) of the Criminal Code of Canada, there are several strategic considerations that lawyers and litigants should consider when dealing with this provision. Some of these strategies are as follows: 1. Gathering Evidence: If you are a litigant or a lawyer representing a client, it is essential to gather as much evidence as possible. The evidence should mainly focus on the value of the asset that is being targeted by the state. Both parties should ensure they are conversant with the actual value of the asset to avoid any over or underestimation of the value. This may include obtaining appraisals of the asset, consulting experts, and obtaining expert reports. The more tangible and verifiable evidence obtained, the better the case presented will be. 2. Expert Witnesses: Often, asset forfeiture cases require the expertise of witnesses to give evidence that provides proof or disproof with respect to the value of the assets in question. Engaging the right expert witness can significantly influence the outcome of an asset forfeiture hearing. Identifying an expert in the field of the item being considered be it jewelry, electronics, cars, or any other property will add great value to a litigant's case. 3. Legal Representation: Asset forfeiture cases can be complex. A litigant should seek legal advice from a qualified lawyer with experience in asset forfeiture cases. The lawyer can provide legal counseling on the relevant legal issues and how to navigate through the process. The lawyer can also help with presenting the best evidence and arguments possible to ensure the justice rendering the decision considers the value of the asset properly. 4. Pre-hearing Meeting: Prior to the actual hearing, a meeting between the parties can aid in ascertaining how strong a case each party has and reduce the burden of having a full hearing. This could also lead to a negotiated settlement and reduce the cost of the asset forfeiture proceeding. 5. Adhering to timelines: it is crucial to remember asset forfeiture proceedings have a specific timeline to be followed, and hence all submissions, motions, evidence, and other aspects of the case should be timelously submitted to avoid delays in the hearing. In conclusion, section 117.05(3) of the Criminal Code of Canada is an essential area of law for asset forfeiture cases. It is crucial to engage competent and qualified legal representation while ensuring all evidence with respect to the value of the asset is accurately collected. By focusing on strategic considerations as discussed above, a litigant can build a strong case that will give them an upper hand in the hearing.