INTRODUCTION AND BRIEF DESCRIPTION
This section allows for the forfeiture of devices used to commit certain offences.
SECTION WORDING
192(1) Where a person is convicted of an offence under section 184 or 191, any electro-magnetic, acoustic, mechanical or other device by means of which the offence was committed or the possession of which constituted the offence, on the conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty whereupon it may be disposed of as the Attorney General directs.
EXPLANATION
Section 192(1) of the Criminal Code of Canada pertains to the forfeiture of any electronic, acoustic, mechanical or other device that was used to commit an offence under sections 184 or 191 of the Act. Section 184 deals with unlawfully intercepting or recording private conversations, while Section 191 pertains to possessing or distributing prohibited devices. In the event of a conviction, the court has the power to order the forfeiture of the device, on top of any other penalties imposed. The purpose of this section is to discourage individuals from using electronic or other devices to commit crimes such as unlawfully intercepting communication or breaking into computer systems. The forfeiture of such devices serves to remove them from the possession of those who have used them for criminal purposes, while also sending a message to others that the use of these devices for illegal activities is not condoned by the legal system. It is important to note that, following forfeiture, the device is disposed of in accordance with the directions of the Attorney General. This ensures that the device does not fall into the wrong hands and potentially continue to be used for criminal purposes. Furthermore, the forfeiture of the device is an additional punishment, imposed in addition to any other penalties deemed appropriate for the offence committed. In conclusion, Section 192(1) of the Criminal Code of Canada serves as a deterrent for the use of electronic devices for criminal purposes, while also ensuring that these devices are removed from the possession of those who have used them for illegal activities.
COMMENTARY
Section 192(1) of the Criminal Code of Canada is an essential legal provision that lays the foundation for the forfeiture of any device used in the commission of criminal offences under sections 184 or 191. This law mandates that any device used to commit offences such as fraud, theft, or extortion can be seized by the government and forfeited to the Crown upon conviction. The purpose of this provision is to deprive criminals of the proceeds of their crimes and to deter others from engaging in similar activities. The forfeiture of devices used in committing crimes under this law is an additional measure of punishment that complements other forms of punishment, such as fines, imprisonment, or community service. The provision is aimed at disrupting crime patterns, reducing the risk of future crime, and ensuring public safety. Section 192(1) is also a powerful legal tool for law enforcement agencies. The provision allows law enforcement officers to track and seize the devices used in criminal activities, thereby disrupting criminal networks. For example, a cell phone used to facilitate drug trafficking can be seized, which would prevent drug dealers from communicating and coordinating their activities. Moreover, the provision enables the government to dispose of the confiscated devices as directed by the Chief Federal Prosecutor, which can be used for investigations or future prosecutions. The forfeiture of devices under this law is not limited to specific devices and can extend to any device that facilitated the crime, such as a telephone, computer, or a social media account. The law recognizes that technological advancements have changed the way crimes are committed and that devices play an essential role in modern crimes. Therefore, Section 192(1) ensures that all devices used in a criminal offence are susceptible to forfeiture. The provision of Section 192(1), however, is not without limitations. One of the key criticisms of this provision is that it may infringe on an individual's property rights. Critics argue that the government can use this provision to seize the property of individuals without proper justification. The Constitution of Canada, being the supreme law of the land, guarantees property rights under Section 7 of the Charter of Rights and Freedoms. The provision of Section 192(1) may, therefore, be interpreted in light of this constitutional guarantee to balance the right to property with public safety concerns. In conclusion, Section 192(1) of the Criminal Code of Canada is a critical legal tool that enables the government to seize and forfeit any device used in criminal activities. The provision is aimed at deterring crime, disrupting criminal networks, and ensuring public safety. However, the provision's application must be balanced with individual property rights, and the courts must ensure that the government does not infringe or abuse these rights.
STRATEGY
Section 192(1) of the Criminal Code of Canada empowers the court to order the forfeiture of any device used to commit certain offences. The section is meant to deter the use of technology to commit crimes and to deprive criminals of the tools they used in committing crime. The effect of a forfeiture order is that the device is handed over to the Crown and disposed of in the manner directed by the Attorney General. The following are some strategic considerations when dealing with this section of the Criminal Code of Canada. 1. Identification of devices: The Crown must prove that the device was used in committing an offence before it can be forfeited. The identification of devices used in committing crimes may pose a challenge to the Crown. Thus, the Crown should have a team of experts with the technical expertise required to identify such devices. 2. Value of device: The value of the device is an important consideration when deciding whether to seek a forfeiture order. In some cases, the value of the device may be insignificant compared to the cost of litigation. In such cases, the Crown may decide not to pursue a forfeiture order. 3. Public interest: The public interest is a key consideration in seeking a forfeiture order. The Crown must demonstrate that the forfeiture of the device is necessary to protect the public interest. The forfeiture must be proportionate to the harm caused by the offence. The Crown must balance the rights of the accused against the public's interest in preventing the use of technology to commit crimes. 4. Timing of forfeiture: The timing of the forfeiture order is also important. The court may make a forfeiture order at the time of sentencing or at a later stage. If a forfeiture order is made at the time of sentencing, the offender is deprived of the device immediately. If the order is made at a later stage, the offender may continue to use the device pending the outcome of the appeal. 5. Knowledge of devices: Defence counsel should be knowledgeable about the types of devices that may be subject to forfeiture. Defence counsel should also be aware of the evidence required to establish that a device was used in committing an offence. Defence counsel should also be familiar with the defences that may be raised in relation to the forfeiture order. Some strategies that could be employed when dealing with this section of the Criminal Code of Canada are: 1. Plea negotiations: The Crown may offer to drop a forfeiture order in exchange for a guilty plea. This strategy may work if the value of the device is insignificant, and the accused is willing to accept a sentencing recommendation. 2. Defence expert: Defence counsel may retain an expert to challenge the Crown's evidence that a device was used in committing an offence. This strategy may work if the Crown's evidence is weak and the device is critical to the defence. 3. Mediation: Mediation may be an effective means of resolving forfeiture issues. The accused and the Crown may agree to a compromise where the device is forfeited, but the Crown agrees to compensate the accused for the value of the device. 4. Appeal: The accused may appeal the forfeiture order on the basis that the value of the device is disproportionate to the harm caused by the offence. This strategy may work if the forfeiture order is unreasonable. In conclusion, Section 192(1) of the Criminal Code of Canada is a tool to deter the use of technology in committing crimes. Strategic considerations should be taken into account when dealing with this section. The Crown and defence counsel should be knowledgeable about the types of devices subject to forfeiture and the evidence required to establish an offence. The public interest should be the overriding consideration in making a forfeiture order. Defence counsel should be aware of the defences that may be raised and know the strategies that could be employed to mitigate the impact of the forfeiture order.