section 339(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section places the burden of proof on an accused who is in possession of lumber or lumbering equipment with another persons marks or names.

SECTION WORDING

339(5) Where an accused or his servants or agents are in possession of lumber or lumbering equipment marked with the mark, brand, registered timber mark, name or initials of another person, the burden of proving that it came lawfully into his possession or into possession of his servants or agents is, in proceedings under subsection (1), on the accused.

EXPLANATION

Section 339(5) of the Criminal Code of Canada addresses the issue of the possession of marked lumber or lumbering equipment by an accused or their servants or agents. Essentially, if someone is found to be in possession of lumber or lumbering equipment that bears someone else's registered mark, brand, name, or initials, the burden is on the accused to prove that they obtained it lawfully. The provision is particularly relevant in cases concerning the theft or illegal sale of timber. It serves to prevent anyone from profiting from the sale of lumber or timber that belongs to someone else. In essence, it places the onus on the accused to explain how they came into possession of marked timber or equipment. This provision highlights the importance of the proper marking and registration of timber and lumbering equipment. It also underscores the seriousness of offenses related to the theft, illegal sale, or possession of timber or lumbering equipment without proper authorization. Overall, Section 339(5) is meant to ensure that individuals cannot profit from the unauthorized sale of another person's timber or lumbering equipment. It serves to deter such activities and reinforces the importance of respecting the rights of individuals and companies involved in the forestry industry in Canada.

COMMENTARY

Section 339(5) of the Criminal Code of Canada establishes the legal responsibility of an accused person or their team in terms of proving that lumber or lumbering equipment was lawfully obtained, if it bears the mark, initials, brand, or registered timber mark of another individual. This provision aims to deter the illegal possession or trading of lumber and lumbering equipment that are not rightfully owned by the accused. The provision seems to be clear and unambiguous on its face but raises several legal and practical considerations. Firstly, the section shifts the burden of proof to the accused person or their servants/agents to demonstrate that the lumber or equipment in question was legally obtained. This means that the accused has to establish, on a balance of probabilities, that they did not acquire the property through any dishonest or illegal means. The accused must disprove the inference of theft, fraud, or other illegal activities by showing that they had legal authority, permission, or justification to acquire the property. The provision aligns with the basic principles of criminal law, which require the prosecution to prove the accused's guilt beyond a reasonable doubt. However, in this case, the burden of proof shifts in proceedings under Section 339(1), which requires that the accused prove their innocence regarding possession of property with another person's mark, brand, or name. This may be seen as increasing the burden on the accused and potentially leading to wrongful convictions. Additionally, the provision explicitly includes the accused's servants or agents in the scope of the burden of proof. This means that even if the accused did not acquire the property themselves, they would still be accountable for the legality of its possession by those under their employ or direction. The intention behind this is likely to hold accountable those who profit from illegal activities and also to prevent attempts to absolve oneself of responsibility by claiming ignorance or fault of an employee. The provision could potentially pose challenges in terms of enforcement. It puts the onus on the accused to show lawful possession, which could be challenging if they do not have documentation or other evidence to prove this. For instance, if the lumber or equipment was obtained from a third-party dealer who in turn bought it from an illegal source, the accused may not have any tangible way of proving lawful acquisition. The prosecution, therefore, does not have to prove that the property was stolen or acquired illegally; instead, they can rely on the lack of evidence to establish the necessary inference of unlawful possession. In conclusion, Section 339(5) of the Criminal Code of Canada seeks to deter the possession of unlawfully acquired lumber or lumbering equipment by shifting the burden of proof to the accused or their servants/agents to show lawful acquisition. While the provision aligns with the basic principles of criminal law, it increases the burden on the accused and may lead to challenges in enforcement. It is therefore essential for the judiciary and legal practitioners to exercise caution in interpreting and applying this provision to ensure justice is served and wrongful convictions are prevented.

STRATEGY

Section 339(5) of the Criminal Code of Canada pertains to the possession of lumber or lumbering equipment marked with the mark, brand, registered timber mark, name, or initials of another person. The burden of proving that it came lawfully into their possession or into the possession of their servants or agents falls on the accused in proceedings under subsection (1). This section of the Criminal Code of Canada poses various strategic considerations that must be taken into account when dealing with the charge of illegal possession of lumber or lumbering equipment. First and foremost, it is essential to recognize that the onus of proof is on the accused to demonstrate that the lumber or equipment came into their possession lawfully. This means that they have to present clear and convincing evidence that the mark, brand, registered timber mark, name, or initials on the lumber or equipment do not indicate ownership by another person but denote genuine acquisition. One strategy that could be employed by the accused is to gather as much evidence as possible to prove the lawful possession of the lumber or equipment. This could include documentation like receipts, bills of sale, or contracts showing the purchase or transfer of ownership of the lumber or equipment. Other evidence could include affidavits or statements from witnesses who can attest to the transaction of the property ownership and transfer of the lumber or equipment. Another strategic consideration that must be taken into account is the role of servants or agents in the possession of the lumber or equipment. If the servants or agents possessed the lumber or equipment on the accused's behalf, it is important to establish their relationship with the accused and the extent of their authority. The accused may have to present evidence that the servants or agents acted within their authority parameters and that the accused was unaware of any illegal action. In some cases, it may be challenging to establish the lawful possession of lumber or equipment, especially if the accused cannot present appropriate documentation or evidence. In such circumstances, the accused may have to rely on the argument that they acted in good faith and had no knowledge of the illegal possession of the lumber or equipment. This defense relies on the accused being unaware that the property was unlawfully obtained, believing that it was acquired legally. It is also essential to understand that the penalty for illegal possession of lumber or equipment can be severe. The accused could be subject to imprisonment, hefty fines, or both, depending on the severity of the offense and the value of the property. Therefore, it is essential to put up a robust defense to avoid severe consequences. In conclusion, when dealing with section 339(5) of the Criminal Code of Canada, the accused has the burden to provide clear and convincing evidence that the lumber or equipment came into their possession lawfully. To this end, a strategic defense may include gathering relevant evidence, examining the role of servants or agents, arguing good faith, or any other consideration that might mitigate the severity of the charge. The ultimate goal is to avoid a conviction and minimize penalties if convicted.