INTRODUCTION AND BRIEF DESCRIPTION
This section of the Criminal Code of Canada presumes that in cases of selling or purchasing valuable minerals, the seller is not the owner or authorized agent, and the purchaser had reason to believe so.
SECTION WORDING
394(4) In any proceeding in relation to subsection (2) or (3), in the absence of evidence raising a reasonable doubt to the contrary, it is presumed that (a) in the case of a sale, the seller is not the owner of the valuable mineral or the owner’s agent or someone otherwise acting under lawful authority; and (b) in the case of a purchase, the purchaser, when buying the valuable mineral, had reason to believe that the seller was not the owner of the mineral or the owner’s agent or someone otherwise acting under lawful authority.
EXPLANATION
Section 394(4) of the Criminal Code of Canada relates to the offence of trafficking in stolen goods, specifically in relation to valuable minerals. This section outlines the legal presumption that arises in the absence of any evidence to the contrary. Subsection (2) of Section 394 makes it an offence to sell or offer to sell a valuable mineral that has been stolen or fraudulently obtained. Subsection (3) makes it an offence to buy or receive a valuable mineral that has been stolen or fraudulently obtained. Subsection (4) of Section 394 sets out two legal presumptions that are intended to facilitate prosecution in cases where the ownership of the valuable mineral is in question. Firstly, in the case of a sale, the law presumes that the seller is not the owner of the valuable mineral or an authorised agent of the owner at the time of the sale, unless evidence is presented that raises reasonable doubt. Secondly, in the case of a purchase, the law presumes that the buyer had reason to believe that the seller was not the owner of the valuable mineral or an authorised agent of the owner at the time of the sale, unless evidence to the contrary is presented. In practical terms, this means that if someone is charged with the offence of trafficking in stolen valuable minerals, the Crown does not need to prove that they knew the mineral was stolen or fraudulently obtained. Instead, the law presumes that the seller was not the owner and that the buyer had reason to believe this was the case, unless the accused can present evidence to the contrary that raises reasonable doubt. This legal presumption serves to protect the rights of rightful owners of valuable minerals and deter those who would seek to profit from the theft or fraudulent acquisition of these minerals.
COMMENTARY
Section 394(4) of the Criminal Code of Canada establishes a legal presumption in relation to the buying and selling of valuable minerals. This provision applies in situations where an individual is charged with buying or selling a valuable mineral without the proper legal authority to do so. The provision states that in any proceeding related to subsection (2) or (3) of section 394 of the Criminal Code, there is a presumption that the seller is not the owner of the valuable mineral or the owner's agent or someone otherwise acting under lawful authority. Similarly, there is a presumption that the buyer, when purchasing the valuable mineral, had reason to believe that the seller was not the owner of the mineral or the owner's agent or someone otherwise acting under lawful authority. The purpose of this provision is to shift the burden of proof to the accused in situations where there is evidence of illegal buying or selling of valuable minerals. Essentially, the accused must provide evidence raising a reasonable doubt to the presumption in order to avoid conviction. There are several important considerations to keep in mind when analyzing this provision. At its core, section 394(4) reflects a legal presumption that is designed to protect the interests of valuable mineral owners. Valuable minerals, such as precious stones or rare metals, are often highly sought after and can be extremely valuable. As a result, these minerals are subject to theft, fraud, and other illegal activities. The presumption established by section 394(4) works to deter illegal buying and selling of valuable minerals by making it more difficult for accused parties to defend themselves against charges. By presuming that the seller is not the owner of the valuable mineral or the owner's agent or someone otherwise acting under lawful authority, the provision creates a legal disincentive for parties to engage in these types of transactions. However, it is also important to recognize that legal presumptions can have negative consequences. In particular, legal presumptions can unfairly disadvantage defendants who may be innocent of the charges against them. By placing the burden of proof on the accused, legal presumptions can make it more difficult for defendants to mount a successful defense. In addition, the language of section 394(4) raises potential issues related to due process and the right to a fair trial. The provision creates a presumption that must be rebutted by the accused, effectively shifting the burden of proof away from the prosecutor and onto the defendant. This raises questions about whether the provision violates the principle of innocent until proven guilty, which is a fundamental pillar of the Canadian criminal justice system. Ultimately, section 394(4) reflects a complex legal provision that seeks to balance the interests of valuable mineral owners with the rights of accused parties. While the provision may be effective in deterring illegal buying and selling of valuable minerals, it is important to carefully consider the potential consequences of legal presumptions and ensure that defendants are afforded their full rights to a fair trial.
STRATEGY
Section 394(4) of the Criminal Code of Canada is significant when dealing with valuable minerals, such as gold, diamonds, and other precious stones. This section creates a legal presumption that the seller in a sale transaction is not the owner of the mineral, and the purchaser in a buy transaction knows or should have known that the seller did not have lawful authority to sell the mineral. The legal presumption created by this section is challenging to overcome, and strategic considerations need to be taken when dealing with this provision. One strategic consideration when dealing with section 394(4) is to ensure that all ownership and authorization documents are in order. The section presumes that the seller is not the owner of the mineral or has any lawful authority to sell it. Therefore, the seller must provide evidence that they are the rightful owners of the mineral or that they have proper authorization from the mineral's owner to sell it. This documentation must be available to present to the courts, or a reasonable doubt may not be raised. An experienced lawyer can help ensure that these documents are in order and ready for presentation before the court. Another strategy to consider when dealing with section 394(4) is to use an intermediary or a middleman. The section presumes that the purchaser knows or should have known that the seller did not have lawful authority to sell the mineral. To prevent this presumption from attaching to the purchaser, an intermediary can be used. The intermediary buys the mineral from the seller and then sells it to the purchaser, creating a trail that shows that the purchaser did not know or should not have known that the seller did not have lawful authority. In addition to using an intermediary, another strategy is to conduct a due diligence investigation before purchasing the mineral. The due diligence investigation would seek to verify the seller's ownership or authorization to sell the mineral and determine any risks of investing in such a mineral. The results of the due diligence investigation can be used to create an audit trail that shows that the purchaser took all reasonable steps to ascertain the seller's ownership or authority. Lastly, it is crucial to understand that the presumption created by section 394(4) is only raised in the absence of evidence raising a reasonable doubt to the contrary. Therefore, it is essential to create evidence that casts doubt on the presumption. The evidence can be in the form of documents, testimony from experts, or other information that shows that the seller has lawful authority to sell the mineral or that the purchaser did not have knowledge or reason to suspect that the seller did not have lawful authority. In conclusion, dealing with section 394(4) of the Criminal Code of Canada requires careful planning and strategic consideration. Ensuring that all ownership and authorization documents are in order, using an intermediary, conducting due diligence, and creating evidence that casts doubt on the presumption are all critical strategies that can help overcome the challenging presumption. An experienced lawyer can assist in developing a plan that best suits your individual situation.