INTRODUCTION AND BRIEF DESCRIPTION
This section states that certain sections regarding possession of property do not apply if the property was returned or excluded from a restraint order made under a previous section.
SECTION WORDING
462.34(7) Sections 354, 355.2 and 355.4 do not apply to a person who comes into possession of any property that, by virtue of an order made under paragraph (4)(c), was returned to any person after having been seized or was excluded from the application of a restraint order made under subsection 462.33(3).
EXPLANATION
Section 462.34(7) of the Criminal Code of Canada refers to the possession of property that has been seized by authorities as part of a criminal investigation. When property is seized, it is taken from its owner with the intent of using it as evidence in a criminal proceeding. However, there are situations where such property may need to be returned to its rightful owner or excluded from the application of a restraint order made under subsection 462.33(3). This section provides an exception to certain rules under the Criminal Code for a person who comes into possession of such property. Specifically, Sections 354, 355.2, and 355.4 of the Criminal Code do not apply to an individual who has come into possession of property under the circumstances outlined above. These sections of the Criminal Code relate to the possession, trafficking, importing, and exporting of property obtained by crime. In other words, if a person receives property that has been returned or excluded under an order made by a court, they will not be subject to charges of possession, trafficking, importing, or exporting property obtained by crime. This exception is important because it ensures that innocent individuals are not unfairly punished for possessing property that was previously seized by authorities, but has since been deemed eligible for return to its rightful owner. In summary, Section 462.34(7) provides a safeguard for individuals in possession of property that was previously seized as part of a criminal investigation and has been returned or excluded under an order made by a court. It ensures that innocent individuals are not caught up in criminal proceedings for possessing such property.
COMMENTARY
Section 462.34(7) of the Criminal Code of Canada provides an exemption to individuals who come into possession of property that has been returned to its rightful owner after having been seized or excluded from the application of a restraint order. This section is a part of the provisions related to the forfeiture of proceeds of crime and property used in the commission of an offense. The forfeiture of proceeds of crime and property used in the commission of an offense is a legal concept whereby the state takes possession of such property and proceeds and renders them unusable or destroys them. The purpose behind this concept is to deprive the offender of the benefits derived from their criminal activity and to deter future individuals from engaging in criminal activities. The provisions of the Criminal Code of Canada allow for the forfeiture of proceeds of crime and property used in the commission of an offense before an individual is convicted of an offense. However, the provision in section 462.34(7) of the Criminal Code of Canada provides an exemption to those individuals who come into possession of such property after it has been returned to its rightful owner or excluded from the application of a restraint order. This means that if an individual acquires property that was previously in the possession of an offender but has since been legally returned to its rightful owner or no longer subject to a restraint order, that individual cannot be charged with an offense related to the property. This exemption is crucial as it prevents innocent individuals from being punished for possessing property obtained legally. It recognizes that such individuals had no knowledge that the property was once used in the commission of an offense or constituted proceeds of crime. It also serves as a deterrent to those who may want to exploit the law to frame innocent individuals. However, it is essential to note that this exemption does not apply to individuals who come into possession of proceeds of crime or property used in the commission of an offense that is still subject to a restraint order or has not been legally returned to its rightful owner. The law must continue to hold individuals accountable for their actions and ensure that proceeds of crime and property used in the commission of an offense are forfeited to the state. Overall, section 462.34(7) of the Criminal Code of Canada provides a critical exemption that recognizes the innocence of individuals who come into possession of property that has been rightfully returned to its owner or excluded from the application of a restraint order. It is essential to uphold this exemption to prevent the abuse of the forfeiture of proceeds of crime and property used in the commission of an offense and to ensure that due process and justice are upheld.
STRATEGY
Section 462.34(7) of the Criminal Code of Canada can have significant implications on criminal cases where property is seized or restrained by authorities. This section may give rise to strategic considerations for both the prosecution and defense counsel. For the prosecution, Section 462.34(7) poses a challenge in that it limits the application of Sections 354, 355.2, and 355.4 to a person who has possession of any property that has been returned to its rightful owner, or that has been excluded from a restraint order. This means that if the prosecution is seeking forfeiture of property, they may need to prove that the property in question was not subject to the above provisions of the Criminal Code. To do so, prosecutors may need to rely on other investigative techniques, such as financial analysis or witness testimony, to show that the property in question was not subject to an order under Section 462.33. For the defense, Section 462.34(7) may provide an opportunity to avoid forfeiture of seized or restrained property. Defense counsel may argue that the property in question was returned to their client by authorities, or that it was excluded from a restraint order. If successful, this could result in the return of the property to its rightful owner, or ensure that the property is not forfeited to the state. One possible strategy that could be employed by the defense in cases where property has been seized or restrained is to actively seek a return of the property from the authorities. By doing so, defense counsel may be able to take advantage of the provisions of Section 462.34(7) and ensure that their client is not subject to forfeiture proceedings. This strategy may require careful negotiation with law enforcement authorities, as well as cooperation with the prosecution. Another strategy that may be employed by the defense is to challenge the basis for the seizure or restraint of the property in question. If the seizure or restraint was made without a valid legal basis, defense counsel may be able to argue that the property should not be subject to forfeiture proceedings. This could involve challenging the validity of search warrants or restraint orders, or arguing that the seizure or restraint violated their client's rights under the Charter of Rights and Freedoms. In summary, Section 462.34(7) of the Criminal Code of Canada can have significant implications for criminal cases involving the seizure or restraint of property. Both the prosecution and defense may need to carefully consider this provision when developing their strategies, and may need to employ creative tactics to successfully navigate its provisions.