INTRODUCTION AND BRIEF DESCRIPTION
This section criminalizes fraudulently disposing of goods on which the consignee has advanced money or given valuable security and aiding or assisting in such actions.
SECTION WORDING
389(1) Every one who (a) having shipped or delivered to the keeper of a warehouse or to a factor, an agent or a carrier anything on which the consignee thereof has advanced money or has given valuable security, thereafter, with intent to deceive, defraud or injure the consignee, disposes of it in a manner that is different from and inconsistent with any agreement that has been made in that behalf between him and the consignee, or (b) knowingly and wilfully aids or assists any person to make a disposition of anything to which paragraph (a) applies for the purpose of deceiving, defrauding or injuring the consignee, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
EXPLANATION
Section 389(1) of the Criminal Code of Canada deals with the offense of fraudulently disposing of goods that have been shipped to a warehouse or delivered to a factor, an agent, or carrier by the consignee who has advanced money or given valuable security. The provision makes it an indictable offense punishable by imprisonment for up to two years for anyone who, with the intent to deceive, defraud, or injure the consignee, disposes of such goods in a manner inconsistent with any agreement made between themselves and the consignee. The provision is intended to protect consignees who have advanced money or given valuable security over the goods and to prevent dishonest shippers from altering their arrangement with the consignee after the goods have been shipped or delivered. The types of conduct covered by the provision include fraudulent disposal, concealment, or destruction of the goods, as well as any assistance provided to another person to do so. The provision is in line with Canada's commitment to preventing economic crimes and protecting the interests of individuals and businesses in the country. It serves as a deterrence to dishonest shippers and provides recourse for consignees who may suffer harm if their goods are fraudulently disposed of. Overall, the provision is an integral part of the Canadian Criminal Code's efforts to promote honesty and integrity in business transactions and prevent fraudulent activities.
COMMENTARY
Section 389(1) of the Criminal Code of Canada, in essence, criminalizes the act of disposing of goods in a manner inconsistent with the agreement between the consignee and the shipper, factor, agent, or carrier. The objective of this provision is to prevent cheating, fraud, or injury to the consignee by the concerned parties. This provision applies to situations where the consignee has advanced money or given valuable security to the shipper, factor, agent or carrier, with the understanding that such funds or security would be used to secure the safe delivery of the goods to the consignee. In such cases, any act of disposing of the goods that is inconsistent with the agreed-upon manner, with an intent to deceive, defraud or injure the consignee, is considered a criminal offence. This provision applies to both the principals and the accomplices who knowingly and willfully assist in the act of disposing of the goods in an inconsistent manner with the agreement between the consignee and the shipper, factor, agent, or carrier. A person found guilty of violating this provision is liable to face imprisonment for a term not exceeding two years. The provision is essential in protecting the rights and interests of the consignee who may be vulnerable to the fraudulent acts of their shippers or agents. It makes it illegal for anyone to deceive or defraud the consignee by deviating from the agreed-upon delivery terms and conditions. The provision provides an effective legal mechanism for holding responsible parties accountable for any wrongful acts resulting in injury or loss to the consignee. Overall, Section 389(1) of the Criminal Code of Canada serves as a vital regulatory framework that keeps the shipping and delivery industry transparent, honest, and accountable. It is crucial in ensuring the integrity of transactions that involve the advance payment of funds or valuable security to secure the proper delivery of goods to the consignee. The provision helps protect the consignee's rights and interests, maintain the trust between trading partners, and ultimately support the growth and development of businesses operating in the shipping and delivery industry.
STRATEGY
Section 389(1) of the Criminal Code of Canada provides legal protection for consignees who have advanced money or given valuable security for items that are stored with a warehouse, factor, agent or carrier. The section prohibits individuals from disposing of such items in a manner that is inconsistent with the agreement made between the consignee and the disposer. Any person found guilty of violating Section 389(1) may face imprisonment for a maximum period of two years. When dealing with Section 389(1) of the Criminal Code of Canada, it is essential to note that the section applies only to situations where the consignee has advanced money or given valuable security. Section 389(1) also requires that the person disposing of the item must have had the intent to deceive, defraud or injure the consignee. Therefore, the prosecution must prove both elements of this section for a successful conviction. Strategic considerations when dealing with Section 389(1) include: 1. Ensuring that the prosecution proves all the necessary elements: One of the most crucial considerations when dealing with Section 389(1) is to ensure that the prosecution adequately proves all the necessary elements of the section. The prosecution must prove that the individual disposed of the item in a manner that is different from and inconsistent with the agreement between the consignee and the disposer. The prosecution must also prove that the disposer had the intent to deceive, defraud or injure the consignee. 2. Establishing a defense of bona fide purchaser: One of the most common defenses that an accused can raise under Section 389(1) is the defense of bona fide purchaser. The defense implies that the accused purchased the item without any knowledge of any agreement between the consignee and the disposer. Thus, the accused was not aware that the consignee had advanced money or given valuable security for the item in question. 3. Negotiating plea bargains: Another strategic consideration when dealing with Section 389(1) is negotiating plea bargains. In some cases, the accused may consider negotiating a plea bargain if the prosecution has a strong case against them. 4. Preparing the case for trial: Lastly, when dealing with Section 389(1), it is essential to ensure that the case is properly prepared for trial. This includes collecting and organizing all the necessary evidence, identifying potential witnesses, and developing a strong defense strategy. In conclusion, strategic considerations when dealing with Section 389(1) of the Criminal Code of Canada include ensuring that the prosecution proves all the necessary elements, establishing a defense of bona fide purchaser, negotiating plea bargains, and preparing the case for trial. By taking these considerations into account, individuals can adequately defend themselves against accusations of violating Section 389(1).