INTRODUCTION AND BRIEF DESCRIPTION

This section requires a judge to make an order declaring that a property is not subject to seizure under subsection (1) of section 83.14 of the Criminal Code of Canada if an application for such seizure is refused.

SECTION WORDING

83.14(6) Where a judge refuses an application under subsection (1) in respect of any property, the judge shall make an order that describes the property and declares that it is not property referred to in that subsection.

EXPLANATION

Section 83.14(6) of the Criminal Code of Canada deals with the issue of property that may be subject to forfeiture in terrorism-related cases. This provision outlines what happens when a judge refuses an application for forfeiture of property by the Crown in such cases. Under subsection (1) of this section, the Crown can apply to a judge for an order of forfeiture of property that it believes is proceeds of crime related to terrorism or a terrorism offence. The judge must then consider the evidence provided by both the Crown and the individual who owns the property and determine whether or not the property should be forfeited. If the judge decides that the property should not be forfeited, section 83.14(6) specifies that the judge must issue an order that describes the property and declares that it is not subject to forfeiture under subsection (1). This order is important because it ensures that the individual who owns the property is not left with any lingering uncertainty about whether or not their property could be subject to forfeiture in the future. This provision is an important protection for property owners who may be caught up in terrorism-related investigations or prosecutions. It ensures that judges carefully consider all of the evidence before making a decision about forfeiture and that property owners are not left in a state of limbo about the status of their property. Ultimately, this provision helps to balance the need to combat terrorism-related crime with the need to protect the rights of property owners.

COMMENTARY

Section 83.14(6) of the Criminal Code of Canada is an essential part of the legal framework governing property seizures in cases involving terrorism offences. The provision establishes the process that must be followed when an application to seize property is refused. The section is an important aspect of justice as it ensures that the property owner's rights are protected even after a seizure application has been denied. In cases of terrorism offences, the authorities have the powers to seize any property that may have been used in the commission of the crime or property that may be used to fund or support the commission of the offence. Section 83.14(1) outlines the circumstances under which property can be seized. The section grants the court the power to order the forfeiture of any property that was in the possession of the accused person at the time of the offence or any property that is held by the accused person or others for the benefit of a terrorist group involved in the offence. Section 83.14(6) provides a mechanism for protecting property rights when a seizure application is denied. The provision requires that the judge must make an order describing the property and declaring that it is not property referred to in subsection (1). This order ensures that the property owner is protected from any future seizure attempts. The provision protects property rights and is in keeping with the principles of justice and due process. The provision is an important part of the Criminal Code of Canada as it ensures that the rights of property owners are protected by requiring a court order before the seizure of property can occur. This provision is reasonable and just, and it is an essential part of Canadian law that seeks to balance the interests of the state and the property owner. Moreover, the provision's inclusion in the Canadian Criminal Code is necessary to guide the actions of law enforcement in property seizure cases. When law enforcement officers fail to observe the principles outlined in this provision, they may be subjected to legal liabilities and may end up in court. Therefore, this section serves as a guide for law enforcement in handling cases relating to property seizures after a refusal to seize. In conclusion, section 83.14(6) of the Criminal Code of Canada is a critical provision that helps to safeguard the rights of property owners in cases of terrorism. The provision ensures that the court must make an order before a property is seized and protects the property owner's rights even when an application is denied. Therefore, the provision strikes a balance between the interests of the state and the rights of property owners. This provision is a significant aspect of the Canadian Criminal Code and promotes justice and fairness in the legal system.

STRATEGY

Section 83.14(6) of the Criminal Code of Canada is an important provision that outlines the process that must be adopted in cases where a judge refuses an application for property forfeiture under subsection (1). The section requires the judge to make an order that describes the property and declares that it is not property referenced under subsection (1). When dealing with this section of the Criminal Code of Canada, it is important for legal practitioners to be aware of several strategic considerations. These considerations include: 1. Diligent Preparation: Defence counsel must be thorough in their case preparation. This will include researching the relevant case law, gathering evidence, and building effective legal arguments that will support their case. They must also ensure to engage expert witnesses, where necessary, to provide testimony that would strengthen defence. 2. Effective Litigation Strategy: A litigation strategy is a plan that outlines the best way to approach the legal dispute. A defence counsel should establish a comprehensive strategy that includes preparation, discovery, trial, and post-trial stages of the litigation. A well-developed litigation strategy can give a defendant an advantage over the prosecution and may also contribute significantly to the success of the case. 3. Creative Defence Arguments: To dispute the forfeiture of property in cases under subsection (1), defence counsel often creates creative arguments, grounded in the law and the facts that distinguish the case from others. It can include utilizing Charter rights, technical breaches, or challenging the constitutionality of the forfeiture provision. 4. Cross-Examination: One of the crucial aspects of a successful defence is cross-examination of prosecution's witnesses. In most cases, prosecutors obtain evidence through police investigations. Cross-examination presents the opportunity to challenge the prosecution's evidence presented and establish inconsistencies in their opposition. This is important for discrediting the prosecution's asset forfeiture application. 5. Settlement Considerations- Defence counsel must consider the cost-benefit of challenging the forfeiture application in terms of the impact it would have on the defendant's future earnings, reputation, and freedom. The defendant will be weighing the benefits of defending the asset forfeiture against the risks of losing important assets in a lengthy court battle. In terms of strategies that could be employed, it is recommended that defence counsel must develop a cohesive and multi-faceted approach. The right strategy will depend on the facts of the case, the procedural requirements of the law, and the legal team's capabilities. Primarily, the following strategies can be employed: 1. Technical Defences- Defence counsel can argue that the prosecution's forfeiture application is procedurally defective. This may occur when the prosecution fails to follow the proper procedures in concluding its investigations or did not have the requisite cause to make the asset forfeiture application. 2. Challenging The Validity Of The Forfeiture Provision- Defence counsel can argue that the constitutionality of the legislation enabling the prosecution's application is defective. This strategy requires proof of the law's conflict with the Charter of Rights and Freedoms or any other statute. 3. Raise Exemption Under Section 83.14- This strategy arises when the asset forfeiture application is against property exempted under the subsection. Thus it will be necessary for the defence counsel to provide evidence establishing that the property in question qualifies for an exception under the law. In conclusion, the effectiveness of challenging the asset-forfeiture application under section 83.14 of the Criminal Code primarily lies in how well the defence counsel is prepared to develop arguments and present them to the court. A multi-faceted approach to defending against the application and preserving the assets is crucial. It is essential to leverage competent legal representation that possesses the right skills and knowledge to protect and defend against unjust enforcement overreach.