INTRODUCTION AND BRIEF DESCRIPTION
Subsection (6) of section 394 does not apply to real property not built or significantly modified for the purpose of facilitating the commission of an offence under this section.
SECTION WORDING
394(7) Subsection (6) does not apply to real property other than real property built or significantly modified for the purpose of facilitating the commission of an offence under this section.
EXPLANATION
Section 394 of the Criminal Code of Canada outlines the crime of robbery and its various forms. Subsection (7) of this section specifically addresses the issue of real property, such as land or buildings, and its relevance to the crime of robbery. This subsection states that the preceding subsection (6), which deals with the sentencing of robbery offenders, does not apply to real property that was not built or substantially altered for the purpose of aiding in the commission of a robbery. In other words, if a person is convicted of robbery and their crime involved the use of a property that was specifically designed for criminal purposes, such as a building with secret entrances or exits, the sentencing process would be different compared to if the property was not modified for criminal use. This subsection reflects the principle of proportionality in criminal sentencing. The sentencing of an offender should match the severity of the crime committed. If a property was built or substantially altered for criminal purposes, it suggests premeditation and a greater degree of planning, which can be considered aggravating factors in sentencing. Overall, subsection (7) of section 394 of the Criminal Code of Canada serves to clarify the relevance of real property in the commission of the crime of robbery and emphasizes the importance of proportionality in criminal sentencing.
COMMENTARY
Section 394(7) of the Criminal Code of Canada specifies a narrow exception to subsection (6) of the same section. This subsection is concerned with the offence of robbery and outlines different scenarios in which it can occur, including when property is taken from a person, dwelling, or motor vehicle. However, it also warns against charging a person with robbery if the property taken is real property that has not been built or significantly modified for the purpose of facilitating the commission of an offence under this section. The purpose of this exception is to clarify that the offence of robbery only applies to tangible property that can be taken through force or threat, and not to real estate, which has a more permanent and immovable nature. Nonetheless, the qualifier of "built or significantly modified" introduces an interesting aspect to the law. By explicitly limiting the prohibition of charging an individual with robbery for taking real property to only those instances where the property was "built or significantly modified" for the purpose of committing an offence, the section acknowledges that there are instances where owning or modifying real property can be linked with criminal activity. It can also serve as a deterrent against building or modifying property with the intention of using it for illegal purposes. In practice, this exception means that an individual cannot be charged with robbery for taking, for example, an empty plot of land or an unfinished construction site, even if the intention was to use it for criminal purposes. However, if the individual were to steal tools or materials meant for that site, they could be charged with the offence. It is also interesting to note that this exception only applies to real property and not to personal property itemized in subsection (6). This suggests that the Canadian Criminal Code has taken a more nuanced approach to the types of property that are protected under robbery laws, recognizing that there are clear differences between personal and real property. Overall, section 394(7) of the Criminal Code of Canada serves as an important clarifying element in the law regarding the offence of robbery. By defining a narrow exception that only applies to specific types of property, the section highlights the importance of tangible property in the act of robbery while also acknowledging that there are instances where real property can be linked to criminal activity. This law serves as a reminder of the importance of careful and deliberate property ownership and modification, with criminal liability attached to those who act against that intention.
STRATEGY
Section 394(7) of the Criminal Code of Canada pertains to an important issue in criminal law, namely the seizure or forfeiture of proceeds of crime or instruments of offence. The provision establishes an exception to the general rule that allows the authorities to seize and forfeit property used or intended to be used in the commission of an offence, including real property. The exception relates to situations where the real property was not built or significantly modified for the purpose of facilitating the commission of the offence under section 394. This means that the Crown must prove that the property was specifically adapted or customized in some way to enable the commission of the offence. The provision serves as a safeguard against the indiscriminate seizure or forfeiture of property that has no direct relationship to the criminal activity. When dealing with section 394(7), there are several strategic considerations that parties should bear in mind. For example, the Crown will likely rely on expert evidence to establish that the real property was built or modified for the purpose of facilitating the offence. The defence may challenge the reliability or validity of that evidence, and may seek to present alternative interpretations of the facts. The defence may also argue that the property was used for legitimate purposes, such as a business or residential use, and that any connection to the offence is tenuous or incidental. Another strategic consideration is the potential impact of the seizure or forfeiture on innocent third parties, such as tenants, co-owners, or family members. Section 7 of the Canadian Charter of Rights and Freedoms protects the right to life, liberty, and security of the person, and may require the authorities to take into account the interests of affected persons before seizing or forfeiting property. The defence may seek to argue that the seizure or forfeiture would be disproportionate or unfair given its impact on third parties. In terms of strategies that could be employed, parties may consider the use of expert witnesses, forensic accountants, or other professionals to support their case. Expert witnesses can provide valuable insights into issues such as the ownership structure, use history, valuation, and marketability of the property. Forensic accountants can review financial records and transactions to establish the source and extent of any proceeds of crime or other illicit funds that may have been used to purchase or maintain the property. Another strategy is to negotiate a settlement or consent order with the Crown that avoids a contested hearing or trial. Parties can explore the possibility of a conditional or partial forfeiture, whereby only a portion of the property is seized or forfeited, or where the value of the property is preserved through a sale or transfer. Settlements can potentially save time, costs, and resources, and may result in a more favorable outcome for all parties. In conclusion, section 394(7) of the Criminal Code of Canada is an important provision that limits the scope of property seizure and forfeiture in certain circumstances. Parties should carefully consider the strategic implications of the provision and employ suitable strategies to protect their interests. The involvement of qualified legal and other professionals can facilitate an effective and efficient resolution of the matter.