INTRODUCTION AND BRIEF DESCRIPTION
This section allows for the return of assets or payment of their value to a lawful owner if they were seized under a prohibition order but were not involved in the offense and the owner had no reason to believe they would be.
117 Where the competent authority that makes a prohibition order or that would have had jurisdiction to make the order is, on application for an order under this section, satisfied that a person, other than the person against whom a prohibition order was or will be made, (a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 115(1) and is lawfully entitled to possess it, and (b) in the case of a prohibition order under subsection 109(1) or 110(1), had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the prohibition order was made, the competent authority shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
Section 117 of the Criminal Code of Canada deals with the return of property that has been seized or forfeited to the Crown. When a prohibition order is made, the authorities may seize or forfeit property that they believe has been used or is likely to be used in the commission of an offense. It could be argued that during the seizure or forfeiture process, the authorities may seize property belonging to a third party who has no involvement in the offense. According to section 117, if it is found that property or its proceeds were legally owned by a person who is not the accused in a case and had no reasonable grounds to believe that it would be used in the commission of the offense, then such a person is entitled to the property or compensation equivalent to its value. In other words, the forfeited property must only belong to the accused and not a third party, and there should be no reasonable grounds to believe that the third party had an involvement in the commission of the offense. This provision is important in protecting innocent third parties from losing their property unjustly. It sets a standard for the competent authority to ensure that only the property of the accused is seized and that it is not disposed of or sold until it is clear who legally owns the property. It is also noteworthy that this section only applies to forfeiture under section 115 of the Criminal Code, which deals with the proceeds of crime, and not under other specific provisions of the Code.
Section 117 of the Criminal Code of Canada operates as a safeguard measure that exists to ensure that the property rights of innocent individuals are not violated when it is sought to seize and forfeit goods or property under subsection 115(1) of the Criminal Code. Subsection 115(1) empowers the courts to order forfeiture of any property found to be, for example, proceeds of crime or property used in connection with the commission of an offence. However, there are situations where the subject matter of a prohibition order may have been in ownership of someone else who was not involved in the crime. This section of the Criminal Code acknowledges that a person can be the lawful owner of a thing, yet still be subject to its forfeiture if it is found to be involved in a criminal enterprise. Therefore, this section of the Criminal Code allows an innocent person, who may have been deprived of their property, to apply for an order to have it returned to them. The competent authority has the discretion to order the return of the thing or the payment of proceeds from its sale. In that respect, it is a measure designed to achieve a just and fair outcome in cases of property seizure or forfeiture. Furthermore, section 117 provides reasons that can enable the competent authority to order that a thing be returned. One reason is that the person is the lawful owner of the property, while the second reason is that the person had no reasonable grounds to suspect that the item in question may have been used in connection with a criminal offence. The second reason is particularly noteworthy in light of the presumption of innocence that is usually afforded to criminal defendants. Section 117 essentially reproduces the essence of the common law doctrine of innocent ownership, where it is deemed that the owner of property did not intend that it be employed in criminal wrongdoing. Thus, it restores the presumption of innocence, where that presumption was not validly applied to all aspects of property forfeiture. Section 117 of the Criminal Code is a vital provision of Canadian criminal law, designed to prevent innocent individuals from being unfairly deprived of their property through forfeiture. It makes it clear that an individual's right to property cannot be reclaimed in all circumstances, but that they may have the chance to make a case for its release. By making provision for the repayment of the item or compensation for its loss, section 117 offers a way for those who have had their property seized or destroyed hope of a refund, keeping in line with Canadian values of fairness and justice.
Section 117 of the Criminal Code of Canada provides a process for property owners to reclaim their belongings or the sale proceeds after a prohibition order is made under subsections 109(1) or 110(1) of the Code. The section also allows for a reimbursement for destroyed property, equal to its value, to the owner under the same conditions. Strategic considerations when dealing with this section of the Criminal Code of Canada primarily revolve around working with a competent authority that makes the prohibition order or has the jurisdiction to make it. It is critical to take legal counsel on the relevant requirements, regulations, and practices with regard to this section. The first strategy that could be employed is to establish the legal right and entitlement of the owner. The person claiming their thing must be able to show that they have a lawful right to possess the property when they apply for a reimbursement. Therefore, the claimant must have the legal entitlement to the property or the compensation. Any evidence to back up the ownership rights should be submitted for consideration by the competent authority. Secondly, it is necessary to demonstrate that there was no reasonable belief that the thing would or might be used in the commission of the crime that led to the prohibition order. In most cases, the prohibition order is made to restrict the use of the property due to the belief that it may be used in an illegal activity. However, if the owner can show that there were no reasonable grounds for that belief, he or she could be able to successfully reclaim the item. Thirdly, it is essential to consider the timeline for filing the application for the property's return or compensation in court. This is critical because there is a definite timeline for applications to be made after a prohibition order is made. The application must be made within 30 days from the time the prohibition order is made. After this time, the owner loses their right to apply for compensation. Lastly, it is necessary to be prepared to provide clear and convincing evidence supporting the application for the property's return or compensation. Claims must be substantiated with adequate evidence, such as legal documents supporting the ownership claim and circumstances surrounding the use of the thing during the relevant time frame. Such information helps the competent authority evaluate the legitimacy and credibility of a claim. In conclusion, strategic considerations when dealing with Section 117 of the Criminal Code of Canada includes proving ownership rights, proving that property use was not connected to a prohibited offence, filing within 30 days, and providing adequate evidence to back up the claims. The above strategies could help an owner successfully reclaim their belongings after a prohibition order is made, or receive compensation for their destroyed assets.