INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the seizure and disposition of items found during a search, including detention for inquiry or trial, restoration to the owner, or forfeiture to the province.
SECTION WORDING
395(2) Where, on search, anything mentioned in subsection (1) is found, it shall be seized and carried before the justice who shall order (a) that it be detained for the purposes of an inquiry or a trial; or (b) if it is not detained for the purposes of an inquiry or a trial, (i) that it be restored to the owner, or (ii) that it be forfeited to Her Majesty in right of the province in which the proceedings take place if the owner cannot be ascertained.
EXPLANATION
Section 395(2) of the Criminal Code of Canada pertains to the search and seizure of items or objects in relation to an inquiry or trial for an offence. It mandates that if an officer executing a warrant or conducting a search finds anything as specified in subsection (1), it must be seized and presented before a justice of peace. The justice of peace can then order that the item be detained, restored to the owner or forfeited to the province. This section serves as a safeguard mechanism that ensures the fair administration of justice and upholds the rights of the accused and the injured parties. The section provides the authority to seize and detain items that may be crucial in an inquiry or trial process. This could be anything from drugs or weapons to documents, computers or any other object that may have evidence of the offence. The objective of this section is to ensure that no potential evidence is lost or destroyed, which could otherwise have a significant impact on the outcome of the case. The detention of the items is mandated if they are deemed relevant to the inquiry or trial, whereas the restoration or forfeiture occurs when the items are not required. If the owner of the item cannot be identified, the item will be forfeited to the province. Additionally, this section emphasizes the importance of due process and ensures that the accused has access to the evidence and the opportunity to present a defense to the charges brought against them. It is an essential provision that safeguards against arbitrary seizures and detentions of items and ensures that they are used only in a legally permissible manner.
COMMENTARY
Section 395(2) of the Criminal Code of Canada is a significant provision as it deals with the search, seizure, and forfeiture of items that may be found during an investigation or trial. The section lays down the guidelines for the process of seizure and detention of items that may be connected to the commission of a crime. The section states that any item, which is suspected to be connected with the commission of an offense or may provide evidence in a criminal case, can be seized during a search. Once an item is found, it should be taken before a justice, who will determine what should be done with it. The justice has three options under the section. Firstly, if the item is required for an inquiry or trial, it should be retained. Secondly, if the item is not required, then it can be either returned to its owner or forfeited to the Crown. If the item is detained for the purposes of an inquiry or trial, then it becomes a crucial piece that can provide valuable evidence in the prosecution of a case. The detention allows investigators to examine the item for any potential link with the offense in question or the individuals involved. This can include items such as weapons, documents, or even physical evidence that would help link a suspect with the commission of a crime. Detention is an essential part of the investigation process, and it enables justice to be served. If, however, the item is not required for an inquiry or trial, then the justice has the discretion to either return it to the owner or forfeit it to the Crown. This provision recognizes that not all seized items might be necessary for an inquiry or trial. The decision to return an item is based on factors such as the ownership of the item, its importance as evidence, and any other relevant considerations. Finally, the provision allows for the forfeiture of items to the Crown in circumstances where the owner of the item cannot be ascertained. This recognizes that there may be occasions when the ownership of an item is uncertain or difficult to establish. The forfeiture provision ensures that even in such cases, the item is not simply returned to an unknown owner but instead is reclaimed for the benefit of the Crown. In essence, Section 395(2) of the Criminal Code of Canada is a significant provision in the administration of justice. It provides clear guidelines on the search, seizure, and detention of items that may be associated with a criminal offense. Furthermore, it ensures that the appropriate measures are taken to safeguard potential evidence while also recognizing the legitimate rights of property owners. Overall, it is a critical provision that plays a crucial role in the fair and effective administration of the criminal justice system in Canada.
STRATEGY
Section 395(2) of the Criminal Code of Canada deals with the seizure, detention, restoration, or forfeiture of items discovered during a search. This section is critical in any criminal investigation since the handling of evidence can impact a case positively or negatively. Here are some strategic considerations when dealing with this section of the Criminal Code of Canada and strategies that can be employed. 1. Preservation of Evidence The preservation of evidence is critical in any investigation as it helps establish the facts of the case. After seizing an item, it is essential to ensure that it is kept under conditions that ensure its integrity. The item should be properly documented and stored in a secure location to prevent tampering. It is also important to ensure that the item is protected from contamination during transportation. 2. Chain of Custody The chain of custody refers to the chronological documentation of the journey of evidence from the point of discovery to the point of presentation in court. The chain of custody is crucial in establishing the authenticity and reliability of evidence. It is essential to ensure that the entire process is documented, and the evidence is properly labeled and stored to prevent tampering. The investigators should also ensure that the evidence is only handled by authorized personnel who are properly trained in handling evidence. 3. Restoration of Items If an item seized during a search is not used as evidence, it may be restored to the owner. However, the decision to release the item should be made after careful consideration of the possible consequences. If the item could be used to commit another offense, it may not be in the public interest to return it to the owner. Therefore, it is critical to evaluate the potential risks before deciding to restore an item to an owner. 4. Forfeiture of Items If the owner of the seized item cannot be ascertained, the item may be forfeited to Her Majesty in right of the province in which the proceedings take place. This raises questions about the ethical implications of this section of the Criminal Code. While the seizure of property is necessary to prevent crime, it only serves as punishment for people who have not been found guilty. Therefore, it is necessary to consider the impact of forfeiture on the community, particularly vulnerable individuals. 5. Collaboration Effective collaboration between investigators, prosecutors, and defense lawyers is critical in dealing with Section 395(2) of the Criminal Code. Investigators must provide comprehensive reports and documentation to prosecutors to enable them to make informed decisions. Defense lawyers can challenge the legal basis of the seizure and detention of an item and can also challenge the admissibility of evidence. Conclusion The handling of seized items is a critical aspect of any criminal investigation. Section 395(2) of the Criminal Code of Canada governs how items seized during a search can be handled. Strategic considerations in dealing with this section of the Criminal Code include the preservation of evidence, maintaining the chain of custody, considering the restoration or forfeiture of items, and effective collaboration between all parties involved. Adequate implementation of these strategies can help ensure that justice is served, and the rights of all parties involved are protected.