INTRODUCTION AND BRIEF DESCRIPTION
This section allows the court to order the forfeiture of items used in the commission of an offence under section 394 of the Criminal Code of Canada.
SECTION WORDING
394(6) If a person is convicted of an offence under this section, the court may order anything by means of or in relation to which the offence was committed, on such conviction, to be forfeited to Her Majesty.
EXPLANATION
Section 394(6) of the Criminal Code of Canada allows the court to order the forfeiture of any property used in committing the offence of robbery. This provision is designed to deter robbers from using property such as weapons or vehicles to facilitate the commission of the offence. When a person is convicted of robbery, the court can order that the property used in the offence be forfeited to the Crown. The Crown can then either sell the property and use the proceeds to compensate victims of the crime, or retain the property for its own use. This provision is important because it can help to prevent future robberies by making it more difficult for offenders to obtain the tools they need to commit the crime. To be subject to forfeiture, the property must be directly related to the commission of the offence. This means that if the offender uses a vehicle to flee the scene of the robbery, for example, the court could order the forfeiture of the vehicle. Similarly, if the offender uses a weapon to threaten or harm the victim, the weapon could be subject to forfeiture. Overall, section 394(6) of the Criminal Code of Canada is an important tool for deterring robbery and ensuring that offenders are held accountable for their actions. By allowing the court to order the forfeiture of property used in committing the offence, the law sends a strong message that criminal activity will not be tolerated.
COMMENTARY
Section 394(6) of the Criminal Code of Canada provides for the forfeiture of items that were used in the commission of an offence under this section. This provision allows the court to order that anything that was used in the commission of the offence, be it a weapon, a vehicle, or any other object, be forfeited to Her Majesty. The rationale behind this provision is to ensure that the instruments of crime are taken out of circulation and cannot be used again in the future. This serves as a deterrent to future offenders, and also as a means of automatically punishing repeated offenders with the forfeiture of their property. The forfeiture of property can be a significant financial loss to an offender and may also serve as a deterrent to other potential criminals. The courts have consistently held that the power to order forfeiture should be exercised sparingly and that any such order should be proportionate to the offence committed. The decision to order forfeiture is ultimately left to the discretion of the sentencing judge. There are, however, some potential drawbacks to the forfeiture of property. One such issue is that it can disproportionately impact lower-income individuals who may not be able to afford the loss of their property, even if it was obtained through legal means. In cases where the seized property belongs to a third party who was not involved in the crime, the forfeiture may also be seen as unfair. Additionally, the seizure of property by the state raises concerns about individual property rights and the right to due process. As a result, there have been calls for greater transparency and accountability in the forfeiture process, including requirements for the state to prove that the seized property was used or obtained through criminal activity. There have also been calls to ensure that individuals have access to effective recourse if they believe the forfeiture of their property was unjust. In conclusion, the power to order forfeiture is an important tool in the fight against crime and serves as a means of deterring future criminal activity. However, it is crucial that forfeiture is applied proportionately and fair to all individuals involved. There is a need for greater transparency and accountability in the forfeiture process, and this requires a delicate balance between the rights of individuals and the goals of law enforcement.
STRATEGY
One of the strategic considerations when dealing with section 394(6) of the Criminal Code of Canada is whether or not to negotiate a plea deal with the prosecution. This is especially important in cases where the accused is facing charges that may result in a forfeiture of the property. In such cases, it may be worthwhile to negotiate with the prosecution for a reduced charge or sentence in exchange for surrendering the property to the Crown. Another strategic consideration is to challenge the constitutionality of the section. The Charter of Rights and Freedoms guarantees the right to be free from unreasonable search and seizure. However, section 394(6) allows the government to seize property without due process or proof of guilt beyond a reasonable doubt. As such, a defence attorney may argue that this section is unconstitutional and should be struck down. Furthermore, it is important to carefully consider the wording of the order of forfeiture. The order may be limited to certain assets or property alleged to be involved in the offence, or it may apply to all assets of the accused, including innocent assets. Depending on the situation, it may be wise to limit the order, or to challenge the forfeiture of certain assets. Another strategy is to ensure that the prosecution can prove beyond a reasonable doubt that the property in question was used in relation to the offence. If the prosecution can only prove a tangential connection between the property and the offence, it may be possible to argue against forfeiture. It is also important to ensure that the Crown does not profit from the forfeiture and that the property is sold at fair market value. Finally, it is important to be aware that section 394(6) is a discretionary provision that may be applied differently by different judges. As such, a defence attorney may wish to research previous cases to determine the likelihood of forfeiture in a given situation, and to tailor their arguments accordingly. In conclusion, when dealing with section 394(6) of the Criminal Code of Canada, it is important to carefully consider all possible strategies, including the possibility of negotiating a plea deal, challenging the constitutionality of the provision, limiting the scope of the order of forfeiture, challenging the connection between the property and the offence, and researching previous cases to determine the likelihood of forfeiture.