INTRODUCTION AND BRIEF DESCRIPTION
This section places the burden of proof on the accused to establish a bona fide intention to buy or sell shares or goods in criminal proceedings.
SECTION WORDING
383(2) Where, in proceedings under this section, it is established that the accused made or signed a contract or an agreement for the sale or purchase of shares of stock or goods, wares or merchandise, or acted, aided or abetted in the making or signing thereof, the burden of proof of a bona fide intention to acquire or to sell the shares, goods, wares or merchandise or to deliver or to receive delivery thereof, as the case may be, lies on the accused.
EXPLANATION
Section 383(2) of the Criminal Code of Canada outlines the burden of proof in cases where the accused has made or signed a contract or agreement for the sale or purchase of shares, goods, wares, or merchandise. This provision applies in situations where criminal charges have been brought against an individual for fraud, theft, or other offences related to the sale or purchase of these items. The section places the burden of proof on the accused to demonstrate that their intentions in entering into the contract or agreement were bona fide. In other words, the accused must demonstrate that they truly intended to acquire or sell the shares or goods in question, or to deliver or receive delivery of them, rather than engaging in fraudulent or illegal activities. This provision is aimed at ensuring that individuals are held accountable for their actions in relation to the sale or purchase of shares, goods, wares, or merchandise. It ensures that those who enter into contracts or agreements with fraudulent intentions are held responsible for their actions, while also protecting individuals who may have entered into such agreements with legitimate intentions. Overall, section 383(2) serves as an important safeguard against fraudulent activities in the marketplace, and helps to ensure that those who engage in illegal behaviours are held accountable for their actions.
COMMENTARY
Section 383(2) of the Criminal Code of Canada pertains to the burden of proof in cases where an individual is being prosecuted for fraudulently obtaining goods or shares of stock. The section places the burden of proof on the accused to establish that they had a bona fide intention to acquire or sell the shares, goods, wares or merchandise. This provision is significant because it shifts the burden of proof away from the Crown and places it on the accused. The section aims to address situations where an individual purchases goods or shares of stock with the intention of never paying for them or selling them for a profit. These types of fraudulent activities are harmful to the individuals or entities that are defrauded, as well as the broader economic system. Fraudulent activities can lead to significant financial losses, and may also contribute to a lack of trust and confidence in financial markets. Placing the burden of proof on the accused in these types of cases is an important element in deterring fraudulent activities. It provides a strong disincentive for individuals to engage in fraudulent activities, as they know that they will be required to prove their bona fide intention to acquire or sell the goods or shares of stock. This requirement serves to protect individuals and businesses from fraudulent actors looking to take advantage of their trust. The provision also ensures that individuals who are falsely accused of fraudulent activities have the opportunity to demonstrate that they acted with legitimate intentions. This provision is an essential safeguard for individuals who may be wrongly accused of such crimes and must prove that they acted in good faith. In practice, the burden of proof of a bona fide intention may be difficult to establish. The law recognizes that intent is a critical element in proving a case of fraud, and the accused must present strong evidence to establish that they acted in good faith. The burden of proof may require the accused to present evidence of their commercial practices or testimony from parties who can verify their intent. Overall, Section 383(2) of the Criminal Code of Canada plays an important role in preventing fraudulent activities and ensuring that individuals accused of fraudulent activities have the opportunity to establish their innocence. The provision serves as a powerful deterrent to those who may otherwise engage in fraudulent activities, and it helps to protect the integrity of financial markets and the broader economy.
STRATEGY
Section 383(2) of the Criminal Code of Canada imposes a significant burden on an accused individual to prove their intention to acquire or sell shares, goods, wares, or merchandise in a bona fide manner. This section is particularly relevant in cases where an accused individual is charged with fraud or other related offenses. In order to properly defend against these charges, counsel must consider a range of strategic considerations. One of the most important strategic considerations when dealing with section 383(2) is the strength of the evidence supporting the prosecution's case. Counsel will need to carefully examine the facts and circumstances of the case to determine the strength of the evidence against the accused. In particular, counsel will need to consider any evidence relating to the accused's intent, including any documentary evidence related to the contract or agreement at issue. If the evidence against the accused is strong, counsel may need to consider strategies aimed at minimizing the damage to their client. For example, counsel may seek to negotiate a plea deal with the prosecution in exchange for a reduced sentence or other favorable terms. Alternatively, counsel may seek to have the charges reduced or dropped altogether. If the evidence against the accused is weaker, counsel may have more options available to them. For instance, counsel might challenge the admissibility of evidence or question the credibility of key witnesses. Counsel may also seek to introduce evidence that supports their client's position, such as expert testimony or character evidence. Another important strategic consideration when dealing with section 383(2) is the potential for collateral consequences. In some cases, even if an accused is able to successfully defend against criminal charges, they may still face significant legal or financial consequences. For example, an accused may be subject to civil lawsuits or regulatory actions related to the same conduct. Counsel will need to carefully consider these potential consequences when advising their client on how to proceed. Ultimately, the strategy employed by counsel will depend on the specific facts and circumstances of the case, as well as the goals and priorities of the client. Some strategies that may be employed in a case involving section 383(2) include: - Mounting a robust defense aimed at disproving the prosecution's case; - Seeking to negotiate a plea deal or favorable sentence in exchange for cooperation or other concessions; - Arguing that the accused did not have the intent required to commit the offense; - Challenging the admissibility of evidence or the credibility of key witnesses; - Introducing evidence that supports the accused's position; - Focusing on minimizing the damage to the accused, even if some level of guilt is admitted. In conclusion, section 383(2) of the Criminal Code of Canada poses a significant burden on an accused individual to prove their intention in relation to the sale or purchase of goods. As such, it is important for counsel to carefully consider a range of strategic considerations when dealing with this section of the code, including the strength of the evidence, the potential for collateral consequences, and the goals and priorities of the client. By doing so, counsel will be better equipped to mount an effective defense and achieve the best possible outcome for their client.