section 354(2)

INTRODUCTION AND BRIEF DESCRIPTION

Possession of a motor vehicle with a removed or obliterated vehicle identification number is considered proof that it was obtained through a punishable offense and that the possessor knew it was obtained unlawfully.

SECTION WORDING

354(2) In proceedings in respect of an offence under subsection (1), evidence that a person has in his possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained, and that such person had the motor vehicle or part, as the case may be, in his possession knowing that it was obtained, (a) by the commission in Canada of an offence punishable by indictment; or (b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

EXPLANATION

Section 354(2) of the Criminal Code of Canada deals with the offence of possessing a motor vehicle or a part of it with a removed or obliterated vehicle identification number. The section provides that in a prosecution under this subsection, if there is evidence that a person has possession of a vehicle or a part with the vehicle identification number removed or obliterated, it is presumed that the possession was with the knowledge that the vehicle or part was obtained through an offence punishable by indictment committed in Canada or an offence that would have been punishable by indictment if it had taken place in Canada. This provision is intended to combat the theft and trafficking of stolen vehicles and their parts. It creates a strong inference that a person who possesses a vehicle or part with a removed or obliterated vehicle identification number is aware that the vehicle or part was stolen. This presumption puts the burden on the accused to provide evidence to the contrary, thereby strengthening the prosecution's case. This section imposes strict liability, meaning that the accused's intent or knowledge is not a necessary element of the offence, so long as the evidence shows that the vehicle or part in their possession has a removed or obliterated vehicle identification number. The penalty for this offence may vary depending on the severity of the underlying offence, but can include imprisonment and fines. In summary, section 354(2) of the Criminal Code of Canada is a crucial provision in the fight against stolen vehicles and their parts. It places a heavy burden on the accused to refute the presumption that they knew the vehicle or part was obtained through an indictable offence, thereby facilitating effective prosecution of such cases.

COMMENTARY

Section 354(2) of the Criminal Code of Canada is an important provision that seeks to combat motor vehicle theft and related offenses. The provision creates a presumption that a person in possession of a motor vehicle or its part containing a removed or obliterated vehicle identification number (VIN) obtained it through illegal means. Specifically, it presumes that the person knew that the vehicle or its part was stolen or otherwise unlawfully obtained. The significance of this provision lies in the fact that the VIN is a unique identifier that is used to trace the history of a motor vehicle. It contains information about the vehicle's make, model, year, and country of origin, among other things. When a VIN is missing or altered, it can make it difficult or impossible to determine the vehicle's original owner or track its movements. This makes it easier for criminals to disguise stolen vehicles or their parts and to sell them for profit. By creating a presumption of knowledge, the provision shifts the burden of proof to the accused to show that they acquired the vehicle or its part lawfully. This is consistent with the principle of innocent until proven guilty but recognizes the practical difficulties in proving the origin of a vehicle or its part with missing or altered VINs. The provision also covers offenses committed outside Canada that would be punishable by indictment if committed within Canada, which reflects the global nature of motor vehicle theft and the need for international cooperation to address it. One potential criticism of this provision is that it may be used to unfairly target individuals who are not involved in motor vehicle theft but may have acquired a vehicle or its part with missing or altered VINs unwittingly. For example, a person may purchase a used vehicle from a private seller without realizing that the VIN has been removed or altered. In such cases, the provision may result in unwarranted criminal charges or confiscation of property. To address these concerns, courts have recognized that the presumption in section 354(2) can be rebutted by evidence to the contrary. This means that a person charged under this provision can challenge the presumption by providing evidence that they did not know that the vehicle or its part was stolen or that they acquired it lawfully. Factors that may be considered in rebutting the presumption include the accused's knowledge and experience in the motor vehicle industry, their due diligence in verifying the origin of the vehicle or its part, and any documentation or other evidence that supports their claim of lawful acquisition. Overall, while section 354(2) of the Criminal Code of Canada may have some potential risks and criticisms, it plays a vital role in preventing and punishing motor vehicle theft and related offenses. By creating a strong deterrent against possession of vehicles or their parts with missing or altered VINs, it helps to protect both the public and private property and creates a safer and more secure society for all.

STRATEGY

Section 354(2) of the Criminal Code of Canada deals with the offence of possession of a stolen vehicle or its parts. The section outlines the evidentiary rule that enables the prosecution to prove that the accused person had knowledge that the vehicle or its parts were obtained by an offence punishable by indictment where the vehicle identification number (VIN) has been wholly or partially removed or obliterated. However, there are several strategic considerations that both the prosecution and defence counsel should take into account when dealing with this provision. One of the primary considerations is the admissibility of the evidence. The section provides that in the absence of evidence to the contrary, the possession of a stolen vehicle or its parts with a tampered VIN is proof of an offence. Therefore, the prosecution must prove that the VIN was removed or obliterated and that the accused had knowledge that the vehicle or its parts were obtained by a criminal act. In contrast, the defence counsel may challenge the admissibility of the evidence by demonstrating that the accused did not know that the vehicle or its parts were stolen or that there was no intention to possess stolen property. Another strategic consideration is establishing chain of custody. The prosecution must establish a clear chain of custody when presenting the evidence of the tampered VIN. This involves ensuring that the evidence is secure and uncontaminated from the point of obtaining the evidence to the time of presentation in court. Moreover, it is crucial to identify all the individuals who had access to the evidence to eliminate any possibility of tampering or alteration. Furthermore, the location of the offence is another critical consideration. Section 354(2) applies to offences committed in Canada and those committed anywhere that would have constituted an offence punishable by indictment if they occurred in Canada. Therefore, the prosecution must establish the location of the offence by proving that the offence occurred in a place where it would have constituted an offence punishable by indictment if it occurred in Canada. The defence may challenge the location of the offence by demonstrating that the offence was committed in a jurisdiction where it would not have been an offence punishable by indictment in Canada. In conclusion, when dealing with section 354(2) of the Criminal Code of Canada, there are strategic considerations that both the prosecution and defence counsel should take into account. These considerations include the admissibility of the evidence, establishing chain of custody, and the location of the offence, among others. To successfully navigate this section of the Criminal Code, various strategies may be employed, including challenging the admissibility of the evidence, establishing the location of the offence, and ascertaining the intent to possess stolen property. Both the prosecution and defence counsel should be well-versed in these strategies to ensure the appropriate application of the Criminal Code.