I am not very happy about subsection 2 of 630. It reads as follows:
Where an accused is tried for an indictable offence but is not convicted, and the court finds that an indictable offence has been committed, the court may order that any property obtained by the commission of the offence shall be restored to the person entitled to it, if at the time of the trial the property is before the court . . .
What bothers me here is that an accused may be convicted of an offence for which he is indicted and charged, yet the court may order that property obtained by the commission of some other indictable offence, which it can only imagine has been committed because the accused has not been found guilty of it, be restored to some other person. The section seems to me to be full of difficulties. I think it is a new provision. I have been comparing it with the section noted on the righthand page, section 1050. It seems to me that the relevant part of 1050 is subsection 3 which provides in part:
... If the jury declares, as it may do, or if, in case the offender is tried without a jury, it is
proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness . . .
-then the property may be restored to such prosecutor or witness. In other words, under section 1050 you have to prove before the court in which the accused is actually tried that the property belongs to a specific person before it may be restored. On the other hand, under clause 630 you do not have to prove that it belongs to anybody. It just depends upon whether the court is of opinion that some offence has been committed, even although the accused has not been convicted of that offence. The court may then order restitution of the property to the person entitled to it. There is no necessity for that degree of proof which is necessary under section 1050.
In view of the fact that under the new clause the accused will have been charged and found not guilty of the offence for which he was charged, I think it opens up too wide and too vague a possibility that incorrect orders may be made with regard to the ownership of property. The mind of the court may somehow or other be prejudiced against the accused, perhaps by his conduct in court or some such thing, and I am sure the minister will agree that there is a very wide possibility there of making unfair orders with regard to property found in the possession of an accused who has nevertheless been found not guilty of the offence with which he was charged.