INTRODUCTION AND BRIEF DESCRIPTION
The section states that anyone who intentionally obstructs the saving of wreck is committing an offence.
438(2) Every one who wilfully prevents or impedes or wilfully endeavours to prevent or impede the saving of wreck is guilty of an offence punishable on summary conviction.
Section 438(2) of the Criminal Code of Canada deals with the offence of preventing or impeding the saving of wreck. This offence arises when an individual intentionally prevents or attempts to prevent the successful saving or preservation of wreck, which refers to any stranded or distressed vessel, cargo, or goods. The offence also includes acts that impede or interfere with the efforts to save the wreck, even if they do not prevent it entirely. This section is essential to ensure the safety of navigable waters and the individuals involved in maritime rescue operations. It recognizes the importance of preserving and salvaging wreck and promoting the safety of human life at sea. The offence is punishable on summary conviction, which means that the penalty will not exceed a maximum of two years' imprisonment, or a fine, or both. The severity of the punishment reflects the seriousness of the offence and its potentially disastrous consequences. The offence can be committed by anyone who intentionally impedes or attempts to impede the saving of wreck, including the owner of the wreck, the crew or passengers on board, or any other individual that interferes with the rescue efforts. The offence can also be committed through various means, such as by damaging the rescue equipment, creating obstructions that prevent the rescue teams from accessing the site, or intentionally causing further peril to the vessel or individuals in distress. Overall, Section 438(2) of the Criminal Code of Canada seeks to deter individuals from intentionally obstructing or impeding the saving of wreck, recognizing the critical importance of these rescue operations. It holds accountable those who threaten the safety of human life at sea and the preservation of navigable waters.
Section 438(2) of the Criminal Code of Canada makes it a criminal offence to wilfully prevent or impede the saving of wreck. This section seeks to prevent individuals from obstructing or hindering efforts to save wreckage, whether it be from a shipwreck, plane crash or any other event that results in the loss of property or equipment. The offence carries a summary conviction, which means that the punishment will typically involve a monetary fine or a brief jail term. One of the primary objectives of this section is to protect human life and to ensure the safety of individuals who may be involved in salvage and recovery operations. Salvage efforts are crucial, not only to recover lost property but also to prevent environmental damage, such as oil spills, which can have a significant impact on marine ecosystems and communities. The law recognizes the importance of salvage work and provides legal remedies for salvagers who successfully recover lost property. However, this section of the Criminal Code identifies a significant concern when it comes to the recovery of wreckage. In particular, the law recognizes that some individuals may intentionally seek to prevent others from salvaging wreck by using physical force or other means of obstruction. Such action is not only dangerous to those involved in salvage work, but it can also be a criminal offence. This section of the Criminal Code has an essential role in preventing the wilful prevention of wreck-saving. The word "wilfully" in the section highlights the requirement for a level of intention or premeditation in the act of preventing or impeding the saving of wreck. The use of force or the obstruction of those engaging in salvage work without a legitimate reason could lead to prosecution under this section. It is notable that the section does not require a specific intent to cause harm or damage. This means that an individual can be found guilty of an offence even if they did not intend to cause any harm. The mere act of preventing or impeding the saving of wreck is sufficient grounds for prosecution. The severity of the punishment, however, will depend on the specific circumstances of the offence and the harm caused. Given the importance of the salvage work, it is crucial that individuals do not inadvertently or intentionally impede the saving of wreck. The section not only serves as a deterrent to those who may consider causing obstruction but also provides legal remedies for those who may encounter a situation where obstruction or other impediments have occurred, allowing them to seek justice and recompense. It is essential to note that this section does not provide a blanket authorisation for anyone to engage in salvage work or to prevent others from doing so. Those involved in salvage work must comply with relevant laws and regulations and must ensure their actions are not causing any harm. In conclusion, section 438(2) of the Criminal Code of Canada is an important provision that provides legal remedies for those involved in the recovery of wrecked or lost property. The section recognizes the importance of this work and the need to protect those who do undertake it. By making it a criminal offence to wilfully prevent or impede the saving of wreck, the law ensures that people who engage in salvage work can do so safely and without the fear of obstruction or harm.
Section 438(2) of the Criminal Code of Canada pertains to the prevention or obstruction of the salvaging of a shipwreck. In cases where this section is applicable, lawyers and defendants need to consider various strategic factors. Some of the factors that may influence strategy selection include the nature and extent of the alleged offence, the strength of evidence and the prosecutor's resources and disposition. One strategic consideration when dealing with section 438(2) is to develop a comprehensive understanding of the offence. According to the section, it is an offence to intentionally prevent or impede the saving of a wreck. An offence can be proven even if the person did not intend to cause harm or damage. Therefore, a defendant needs to understand what constitutes an offence and the elements that the prosecutor needs to establish to secure a conviction. Understanding the offence could inform and shape the strategic choices and tactics employed. Another strategic consideration is conducting a detailed review of the evidence against the defendant. The evidence must be strong enough to secure a conviction. A defence lawyer may consider various defence arguments to challenge the evidence's admissibility, reliability, and credibility. For instance, the defence may argue that the evidence was obtained through illegal or improper means, that it was tampered with or that it was not direct or conclusive. A review of the evidence can inform the development of the defence's case theory and trial strategy. Resource management is another strategic consideration when dealing with the section. In most cases, the prosecutor's office has more resources than the defendant. Therefore, defence lawyers need to build alliances with other stakeholders, including experts, witnesses and counsellors. The defendant and the defence lawyers need to know who the critical witnesses are and their positions. Negotiation is another strategic consideration when dealing with cases involving section 438(2). In cases where the evidence is strong, the defence may explore plea bargaining. A plea bargain is an agreement between the prosecution and the defence in which the defendant pleads guilty to a less serious charge in exchange for a recommendation for a lesser sentence. Plea bargaining could be a strategic option in instances where the defendant is likely to be found guilty and wishes to receive a reduced sentence or punishment. Lastly, when dealing with the section, a defendant may consider exploring alternative justice solutions. Alternative justice solutions include restorative justice, which focuses on the damage caused by the offence and seeks to repair and heal it. A defendant may wish to pursue restorative justice if they have acknowledged responsibility for their actions, and the impact on the community and victims requires a more restorative response. In conclusion, section 438(2) of the Criminal Code of Canada requires strategic considerations when dealing with offences involving the prevention or impeding of salvaging wreck. Strategic considerations such as developing a strong understanding of the offence, a meticulous review of evidence, resource management, negotiation and alternative justice solutions can help the defendant or the defence team to secure a favourable outcome. Ultimately, a sound strategy and a robust defence can help protect the rights and interests of the defendants in the criminal justice system.