INTRODUCTION AND BRIEF DESCRIPTION
This section allows for the forfeiture of any instrument or device used in the commission of a crime, in addition to any punishment imposed, to be disposed of as directed by the Attorney General.
SECTION WORDING
327(2) Where a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), any instrument or device in relation to which the offence was committed or the possession of which constituted the offence, on such conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.
EXPLANATION
Section 327(2) of the Criminal Code of Canada deals with the forfeiture of instruments or devices used or possessed in the commission of offences under subsection (1) or paragraph 326(1)(b) of the Code. These offences refer to the use of instruments or devices to commit or facilitate the commission of a crime, such as lock picks or tools used to break into a building or vehicle. Upon conviction, in addition to any sentence imposed, the court may order that any instruments or devices used or possessed in the commission of the offence be forfeited to the Crown. This means that ownership of the items in question is transferred to the government, and they may be disposed of as directed by the Attorney General. The purpose of this provision is to prevent individuals from being able to use these instruments or devices to commit further crimes in the future. By forfeiting the items to the Crown, it ensures that they can no longer be used to facilitate criminal activity. It is important to note that the court has discretion in whether or not to order forfeiture of the instruments or devices. Factors such as the nature and seriousness of the offence, the offender's criminal history, and other circumstances of the case may be taken into consideration in making this decision. Overall, section 327(2) is a tool utilized by the Canadian legal system to help prevent and deter future criminal activity by removing instruments or devices that could be used to commit crimes.
COMMENTARY
Section 327(2) of the Criminal Code of Canada deals with the forfeiture of instruments or devices that are used in the commission of certain criminal offences. The section allows for the forfeiture of instruments or devices that are used in the commission of certain offences, including fraud, theft, and possession of stolen property. The section also allows for the forfeiture of instruments or devices that are used in the possession of such offences. The section, which allows the Attorney General to dispose of such instruments or devices as they direct, is intended to help deter criminal activity and provide the government with a means of both punishing and preventing further criminal activity. The forfeiture of such instruments or devices is seen as an effective way to ensure that those who engage in criminal activity are held accountable for their actions. The use of this provision, however, is not without controversy. Some argue that the ability to forfeit instruments or devices used in the commission of a crime may violate privacy rights or infringe upon legitimate uses of the items confiscated. For example, a phone or computer used in the commission of a crime may contain information or data that is not related to the crime itself. The confiscation and eventual disposal of such items could be seen as overreaching and unnecessary. Others argue that the provision is too broad in scope and may allow for the confiscation of instruments or devices that have no connection to the commission of a crime. For example, a person may forget to return a library book and be charged with theft. The provision could potentially allow for the confiscation of that person's personal property, such as a laptop or camera, even though they were not used in the commission of the crime. Despite these concerns, the Supreme Court of Canada has upheld the constitutionality of this provision in several cases. In R v. Allen, for example, the court held that the provision did not violate the Canadian Charter of Rights and Freedoms because the forfeiture was not considered punishment in the traditional sense. Instead, it was seen as a means of enforcing compliance with the law. Overall, Section 327(2) of the Criminal Code of Canada is an important tool in the government's fight against criminal activity. While it is not without controversy, it has been upheld by the courts as a legitimate means of punishing those who engage in criminal activity and deterring others from doing so. However, it is important that the provision is used judiciously and with consideration for any potential impacts on privacy and property rights.
STRATEGY
Section 327(2) of the Criminal Code of Canada outlines the potential forfeiture of instruments or devices used in the commission of an offense under subsection (1) or paragraph 326(1)(b). When dealing with this section, there are several strategic considerations that must be taken into account, including the potential impact on the defendant, the possible repercussions for third-party interests, and the role of the Attorney General in directing the disposal of forfeited items. One of the most important strategic considerations when dealing with Section 327(2) is the potential impact on the defendant. If an instrument or device is forfeited as a result of a conviction, it can have serious financial and practical consequences for the individual involved. For example, if a defendant's vehicle is forfeited due to its use in the commission of a criminal offense, they may be left without transportation or be forced to incur significant costs in replacing the vehicle. As a result, it may be in a defendant's best interests to contest any forfeiture orders issued under Section 327(2), either by challenging the underlying offense or arguing that the instrument or device should not be forfeited. Another strategic consideration when dealing with Section 327(2) is the potential repercussions for third-party interests. In some cases, the instrument or device subject to forfeiture may be owned by a third party, such as a rental company or a co-owner of a business. If such an item is forfeited, it can have significant financial and practical impacts on the third party. As a result, it may be necessary to involve these parties in any forfeiture proceedings or negotiate arrangements with them to mitigate the impact of the forfeiture. When dealing with Section 327(2), there are several strategies that could be employed to mitigate the potential consequences of forfeiture. One option is to negotiate a plea agreement with the Crown that avoids forfeiture or limits the scope of the items subject to forfeiture. This may involve accepting a guilty plea for a lesser offense or providing evidence that minimizes the involvement of certain instruments or devices in the commission of the offense. Another strategy is to challenge the forfeiture order on the grounds that it is disproportionate or unreasonable, particularly if the impact on the defendant or third parties is significant. Such challenges may involve invoking constitutional protections, such as the right to property or due process. Ultimately, when dealing with Section 327(2) of the Criminal Code of Canada, it is important to carefully consider the potential impacts of forfeiture on all parties involved, including the defendant, third parties, and the public interest. By understanding the strategic considerations at play and developing effective strategies for addressing them, it may be possible to achieve more favorable outcomes in forfeiture proceedings, protect the interests of those involved, and ensure that justice is served.