Criminal Code of Canada - section 355.4 - Possession of property obtained by crime trafficking

section 355.4

INTRODUCTION AND BRIEF DESCRIPTION

Possession for the purpose of trafficking any property, thing or proceeds obtained from the commission of an indictable offence, anywhere, is considered an offence.

SECTION WORDING

355.4 Everyone commits an offence who has in their possession, for the purpose of trafficking, any property or thing or any proceeds of any property or thing knowing that all or part of the property, thing or proceeds was obtained by or derived directly or indirectly from (a) the commission in Canada of an offence punishable by indictment; or (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

EXPLANATION

Section 355.4 of the Criminal Code of Canada criminalizes the possession of any property or proceeds derived from an indictable offence for the purpose of trafficking. This section applies to individuals who knowingly possess an item or proceeds that were obtained through an indictable offence committed in Canada or anywhere else, which would have constituted such an offence had it occurred in Canada. The section aims to deter individuals from profiting from illegal activity by creating a significant disincentive for those who knowingly possess items or proceeds derived from criminal activity with the intent to sell them. This section is part of a broader effort to combat organized crime and prevent individuals from profiting from the proceeds of illegal activity. Importantly, the section does not require proof of an individual's involvement in the underlying offence that led to the possession of the property or proceeds. Rather, it is sufficient to establish that the person had knowledge that the property or proceeds were obtained through criminal activity and intended to traffic in them. In summary, section 355.4 of the Criminal Code of Canada is a crucial legal tool for deterring the trafficking of property or proceeds obtained through criminal activity. It serves as a means of disrupting the illicit flow of profits from organized crime and punishing those who seek to profit from the proceeds of illegal activity.

COMMENTARY

Section 355.4 of the Criminal Code of Canada is a significant provision that deals with the possession of proceeds of crime by a person who intends to traffic it. It is also called the "trafficking in property obtained by crime provision." The section targets individuals who knowingly possess property or proceeds derived from an indictable offence and have an intention to traffic them. The offence carries a significant punishment, and the Crown can pursue both the possessions and the proceeds of the crime if they are seized. The legislation is an essential component of Canada's anti-money laundering framework. The law provides strong disincentives for criminals to use the proceeds of their crimes to finance further criminal activities. The law has received considerable attention due to its broad scope and wide application. The Crown and law enforcement agencies have used it extensively to prosecute individuals and organizations that engage in criminal activities such as fraud, drug trafficking, and other organized crimes. The reasoning behind the drafting of section 355.4 is straightforward: by making it illegal to deal with the proceeds of a crime, law enforcement agencies can work more effectively to cut off the financial systems that perpetuate crime. The section indirectly targets the underlying cause of crimes, thereby reducing the number of people who may become victims of such crimes. However, the provisions have not been without criticism. Some critics suggest that the broad nature of the law may pose a risk to individuals who unknowingly receive the proceeds of a crime. The concern is that individuals who purchase an item in good faith may be subject to prosecution even if they had no knowledge that the item was derived from criminal activities. In response, the section contains a provision that excludes individuals who obtain property or proceeds through lawful means. Another potential criticism of Section 355.4 is that it may subject individuals to prosecution who are relatively minor players in the crime. The law may target individuals who knowingly possess the proceeds of a crime, but who are not actively participating or organizing the criminal activities. However, these concerns have not, to date, been significant enough to warrant any substantial changes to the section. In conclusion, Section 355.4 of the Criminal Code of Canada is an essential piece of legislation that targets individuals who knowingly possess or traffic the proceeds of an indictable offence. By targeting the underlying financial systems that perpetuate criminal activities, the legislation indirectly reduces the number of victims of crimes. However, the broad scope of the law has led to concern that individuals who unknowingly receive the proceeds of a crime may be subject to prosecution. Nonetheless, the law has been effectively used in the fight against organized crimes and is an important weapon in the fight against money laundering and financial crime.

STRATEGY

Dealing with Section 355.4 of the Criminal Code of Canada can be a daunting task for lawyers and offenders alike. The stakes are high, as a conviction under this provision can result in lengthy prison sentences and hefty fines. As such, it is essential to approach this section strategically. This article considers some of the strategic considerations when dealing with Section 355.4, as well as some strategies that could be employed to ensure the best possible outcome. Strategic Considerations 1. Hire a Competent Lawyer: When dealing with any criminal case, including charges under Section 355.4, the first and most important step is to retain the services of a competent criminal defense lawyer. A skilled lawyer can help you navigate the legal system and structure your case in a manner that is most likely to produce a favorable outcome. 2. Study the Evidence: To mount a successful defense against charges under Section 355.4, it is crucial to study the evidence carefully. Examining the evidence will help you identify discrepancies, inconsistencies, and any weaknesses in the prosecution's case. 3. Develop a Defense Strategy: Once you have studied the evidence, you can then work with your attorney to develop a defense strategy that can help you mount a robust defense against the charges. A carefully crafted defense strategy can increase your chances of getting a positive outcome in court. 4. Plea Bargain: In some cases, it may be wise to consider a plea bargain. A plea bargain is an agreement between the defense and the prosecution, where the defendant agrees to plead guilty in exchange for a reduced sentence or a lesser charge. Plea bargaining can be a good option for defendants who are facing significant charges and are unlikely to win in court. Strategies that Could be Employed 1. Challenge the Evidence: One of the most striking defense strategies for charges under Section 355.4 is to challenge the evidence presented by the prosecution. This entails examining the prosecution's evidence, making objections, and raising points of law that may weaken the prosecution's case. 2. Argue Lack of Knowledge: To convict under Section 355.4, the prosecution has to prove that the defendant knew or believed that the money or property was obtained through illegal means. Arguing lack of knowledge can be an effective defense strategy, especially if the defendant was not directly involved in the criminal activity that led to the proceeds. 3. Establish a Chain of Custody: In some cases, it may be possible to establish a chain of custody for the property or money seized by the prosecution. This can help create reasonable doubt and weaken the prosecution's case. Establishing a chain of custody can be challenging, but it is a crucial defense strategy in cases where the prosecution argues that money or property is obtained through illegal means. 4. Raise a Charter of Rights Issue: Finally, when dealing with charges under Section 355.4, it is always wise to consider raising a Charter of Rights issue. In some cases, police officers may have violated the Charter of Rights when conducting a search or seizure, leading to the discovery of the proceeds of illegal activity. If a Charter of Rights issue is successfully raised, it can result in the exclusion of the evidence and the dismissal of the charges. Conclusion In conclusion, Section 355.4 of the Criminal Code of Canada is a crucial provision that deals with the possession of property or proceeds obtained through illegal means. To mount a robust defense against charges under this provision, it is essential to approach the case strategically. Hiring a competent lawyer, studying the evidence, developing a defense strategy, and considering strategies such as challenging the evidence, arguing lack of knowledge, establishing a chain of custody, and raising a Charter of Rights issue can all increase the chances of getting a positive outcome in court.