CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XII.2 PROCEEDS OF CRIME
Search, Seizure and Detention of Proceeds of Crime
(3.01) Subsections 462.32(2.1) and (2.2) apply, with such modifications as the circumstances require, in respect of a restraint order.
Appointment of Minister of Public Works and Government Services
(3.1) Where the Attorney General of Canada so requests, a judge appointing a person under subparagraph 462.33(3)(b)(i) shall appoint the Minister of Public Works and Government Services.
(4) An order made by a judge under subsection (3) may be subject to such reasonable conditions as the judge thinks fit.
(5) Before making an order under subsection (3) in relation to any property, a judge may require notice to be given to and may hear any person who, in the opinion of the judge, appears to have a valid interest in the property unless the judge is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property or otherwise affect the property so that all or a part thereof could not be subject to an order of forfeiture under subsection 462.37(1) or 462.38(2).
(6) An order made under subsection (3) shall be made in writing.
Undertakings by Attorney General
(7) Before making an order under subsection (3), a judge shall require the Attorney General to give such undertakings as the judge considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and execution of the order.
(8) A copy of an order made by a judge under subsection (3) shall be served on the person to whom the order is addressed in such manner as the judge directs or as may be prescribed by rules of court.
(9) A copy of an order made under subsection (3) shall be registered against any property in accordance with the laws of the province in which the property is situated.
(10) An order made under subsection (3) remains in effect until
(a) it is revoked or varied under subsection 462.34(4) or revoked under paragraph 462.43(a);
(b) it ceases to be in force under section 462.35; or
(c) an order of forfeiture or restoration of the property is made under subsection 462.37(1), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament.
(11) Any person on whom an order made under subsection (3) is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s. 60; 1997, c. 18, s. 30.
Application for review of special warrants and restraint orders
462.34 (1) Any person who has an interest in property that was seized under a warrant issued pursuant to section 462.32 or in respect of which a restraint order was made under subsection 462.33(3) may, at any time, apply to a judge
(a) for an order under subsection (4); or
(b) for permission to examine the property.
(2) Where an application is made under paragraph (1)(a),
(a) the application shall not, without the consent of the Attorney General, be heard by a judge unless the applicant has given to the Attorney General at least two clear days notice in writing of the application; and
(b) the judge may require notice of the application to be given to and may hear any person who, in the opinion of the judge, appears to have a valid interest in the property.
(3) A judge may, on an application made to the judge under paragraph (1)(b), order that the applicant be permitted to examine property subject to such terms as appear to the judge to be necessary or desirable to ensure that the property is safeguarded and preserved for any purpose for which it may subsequently be required.
Order of restoration of property or revocation or variation of order
(4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,
(a) if the applicant enters into a recognizance before the judge, with or without sureties, in such amount and with such conditions, if any, as the judge directs and, where the judge considers it appropriate, deposits with the judge such sum of money or other valuable security as the judge directs;
(b) if the conditions referred to in subsection (6) are satisfied; or
(c) for the purpose of
(i) meeting the reasonable living expenses of the person who was in possession of the property at the time the warrant was executed or the order was made or any person who, in the opinion of the judge, has a valid interest in the property and of the dependants of that person,
(ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i), or
(iii) permitting the use of the property in order to enter into a recognizance under Part XVI,
if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.
(5) For the purpose of determining the reasonableness of legal expenses referred to in subparagraph (4)(c)(ii), a judge shall hold an in camera hearing, without the presence of the Attorney General, and shall take into account the legal aid tariff of the province.
(5.1) For the purpose of determining the reasonableness of expenses referred to in paragraph (4)(c), the Attorney General may
(a) at the hearing of the application, make representations as to what would constitute the reasonableness of the expenses, other than legal expenses; and
(b) before or after the hearing of the application held in camera pursuant to subsection (5), make representations as to what would constitute reasonable legal expenses referred to in subparagraph (4)(c)(ii).
(5.2) The judge who made an order under paragraph (4)(c) may, and on the application of the Attorney General shall, tax the legal fees forming part of the legal expenses referred to in subparagraph (4)(c)(ii) and, in so doing, shall take into account
(a) the value of property in respect of which an order of forfeiture may be made;
(b) the complexity of the proceedings giving rise to those legal expenses;
(c) the importance of the issues involved in those proceedings;
(d) the duration of any hearings held in respect of those proceedings;
(e) whether any stage of those proceedings was improper or vexatious;
(f) any representations made by the Attorney General; and
(g) any other relevant matter.
(6) An order under paragraph (4)(b) in respect of property may be made by a judge if the judge is satisfied
(a) where the application is made by
(i) a person charged with an enterprise crime offence or a designated substance offence, or
(ii) any person who acquired title to or a right of possession of that property from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property,
that a warrant should not have been issued pursuant to section 462.32 or a restraint order under subsection 462.33(3) should not have been made in respect of that property, or
(b) in any other case, that the applicant is the lawful owner of or lawfully entitled to possession of the property and appears innocent of any complicity in an enterprise crime offence or designated substance offence or of any collusion in relation to such an offence, and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property,
and that the property will no longer be required for the purpose of any investigation or as evidence in any proceeding.
(7) Section 354 of this Act and subsection 8(1) of the Controlled Drugs and Substances Act do not apply to a person who comes into possession of any property or thing that, pursuant to an order made under paragraph (4)(c), was returned to any person after having been seized or was excluded from the application of a restraint order made under subsection 462.33(3).
(8) A recognizance entered into pursuant to paragraph (4)(a) may be in Form 32.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, ss. 69, 70; 1997, c. 18, ss. 31, 140.
Application of property restitution provisions
462.341 (1) Subsection 462.34(2), paragraph 462.34(4)(c) and subsections 462.34(5), (5.1) and (5.2) apply, with such modifications as the circumstances require, in respect of a person who has an interest in money or banknotes that are seized under this Act or the Controlled Drugs and Substances Act and in respect of which proceedings may be taken under subsection 462.37(1) or 462.38(2).
1997, c. 18, ss. 32, 140.
Expiration of special warrants and restraint orders
462.35 (1) Subject to this section, where property has been seized under a warrant issued pursuant to section 462.32 or a restraint order has been made under section 462.33 in relation to property, the property may be detained or the order may continue in force, as the case may be, for a period not exceeding six months from the seizure or the making of the order, as the case may be.
(2) The property may continue to be detained, or the order may continue in force, for a period that exceeds six months if proceedings are instituted in respect of which the thing detained may be forfeited.
(3) The property may continue to be detained or the order may continue in force for a period or periods that exceed six months if the continuation is, on application made by the Attorney General, ordered by a judge, where the judge is satisfied that the property is required, after the expiration of the period or periods, for the purpose of section 462.37 or 462.38 or any other provision of this or any other Act of Parliament respecting forfeiture or for the purpose of any investigation or as evidence in any proceeding.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 33.
Forwarding to clerk where accused to stand trial
462.36 Where a judge issues a warrant under section 462.32 or makes a restraint order under section 462.33 in respect of any property, the clerk of the court shall, when an accused is ordered to stand trial for an enterprise crime offence, cause to be forwarded to the clerk of the court to which the accused has been ordered to stand trial a copy of the report filed pursuant to paragraph 462.32(4)(b) or of the restraint order in respect of the property.
R.S., 1985, c. 42 (4th Supp.), s. 2.
Forfeiture of Proceeds of Crime
Order of forfeiture of property on conviction
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of an enterprise crime offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the enterprise crime offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
Proceeds of crime derived from other offences
(2) Where the evidence does not establish to the satisfaction of the court that the enterprise crime offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.
(3) Where a court is satisfied that an order of forfeiture under subsection (1) should be made in respect of any property of an offender, but that that property or any part thereof or interest therein cannot be made subject to such an order and, in particular,
(a) cannot, on the exercise of due diligence, be located,
(b) has been transferred to a third party,
(c) is located outside Canada,
(d) has been substantially diminished in value or rendered worthless, or
(e) has been commingled with other property that cannot be divided without difficulty,
the court may, instead of ordering that property or part thereof or interest therein to be forfeited pursuant to subsection (1), order the offender to pay a fine in an amount equal to the value of that property, part or interest.
Imprisonment in default of payment of fine
(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall
(a) impose, in default of payment of that fine, a term of imprisonment
(i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,
(ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,
(iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,
(iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,
(v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,
(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or
(vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and
(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.
Fine option program not available to offender
(5) Section 736 does not apply to an offender against whom a fine is imposed pursuant to subsection (3).
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10.
462.371 (1) In this section, "order" means an order made under section 462.37 or 462.38.
(2) An order may be executed anywhere in Canada.
Filing of order from another province
(3) Where the Attorney General of a province in which property that is the subject of an order made in another province is situated receives a certified copy of the order and files it with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.
(4) Where the Attorney General of Canada receives a certified copy of an order made in a province in respect of property situated in another province and files the order with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.
(5) An order has, from the date it is filed in a court of a province under subsection (3) or (4), the same effect as if it had been an order originally made by that court.
(6) Where an order has been filed in a court under subsection (3) or (4), it shall not be executed before notice in accordance with subsection 462.41(2) is given to every person who, in the opinion of the court, appears to have a valid interest in the property.
(7) Section 462.42 applies, with such modifications as the circumstances require, in respect of a person who claims an interest in property that is the subject of an order filed under subsection (3) or (4).
Application under section 462.42 to be made in one province
(8) No person may make an application under section 462.42 in relation to property that is the subject of an order filed under subsection (3) or (4) if that person has previously made an application in respect of the same property in another province.
(9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) or (4) as to whether or not an applicant referred to in subsection 462.42(4) is affected by the forfeiture referred to in that subsection or declaring the nature and extent of the interest of the applicant under that subsection is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment.
1997, c. 18, s. 34.
462.38 (1) Where an information has been laid in respect of an enterprise crime offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) in respect of any property.
Order of forfeiture of property
(2) Subject to sections 462.39 to 462.41, where an application is made to a judge under subsection (1), the judge shall, if the judge is satisfied that
(a) any property is, beyond a reasonable doubt, proceeds of crime,
(b) proceedings in respect of an enterprise crime offence committed in relation to that property were commenced, and
(c) the accused charged with the offence referred to in paragraph (b) has died or absconded,
order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
(3) For the purposes of this section, a person shall be deemed to have absconded in connection with an enterprise crime offence if
(a) an information has been laid alleging the commission of the offence by the person,
(b) a warrant for the arrest of the person or a summons in respect of a corporation has been issued in relation to that information, and
(c) reasonable attempts to arrest the person pursuant to the warrant or to serve the summons have been unsuccessful during the period of six months commencing on the day the warrant or summons was issued, or, in the case of a person who is not or never was in Canada, the person cannot be brought within that period to the jurisdiction in which the warrant or summons was issued,
and the person shall be deemed to have so absconded on the last day of that period of six months.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 35.
462.39 For the purpose of subsection 462.37(1) or 462.38(2), the court may infer that property was obtained or derived as a result of the commission of an enterprise crime offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to enterprise crime offences or designated substance offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70.
462.4 A court may,
(a) prior to ordering property to be forfeited under subsection 462.37(1) or 462.38(2), and
(b) in the case of property in respect of which a restraint order was made under section 462.33, where the order was served in accordance with subsection 462.33(8),
set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the order under section 462.33, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 36(E).
462.41 (1) Before making an order under subsection 462.37(1) or 462.38(2) in relation to any property, a court shall require notice in accordance with subsection (2) to be given to and may hear any person who, in the opinion of the court, appears to have a valid interest in the property.
Service, duration and contents of notice
(2) A notice given under subsection (1) shall
(a) be given or served in such manner as the court directs or as may be prescribed by the rules of the court;
(b) be of such duration as the court considers reasonable or as may be prescribed by the rules of the court; and
(c) set out the enterprise crime offence charged and a description of the property.
Order of restoration of property
(3) Where a court is satisfied that any person, other than
(a) a person who is charged with, or was convicted of, an enterprise crime offence or a designated substance offence, or
(b) a person who acquired title to or a right of possession of that property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property,
is the lawful owner or is lawfully entitled to possession of any property or any part thereof that would otherwise be forfeited pursuant to subsection 462.37(1) or 462.38(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part thereof be returned to that person.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss. 37, 140.
Application by person claiming interest for relief from forfeiture
462.42 (1) Where any property is forfeited to Her Majesty under subsection 462.37(1) or 462.38(2), any person who claims an interest in the property, other than
(a) a person who is charged with, or was convicted of, an enterprise crime offence or a designated substance offence that was committed in relation to the property forfeited, or
(b) a person who acquired title to or a right of possession of that property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property,
may, within thirty days after that forfeiture, apply by notice in writing to a judge for an order under subsection (4).
(2) The judge to whom an application is made under subsection (1) shall fix a day not less than thirty days after the date of filing of the application for the hearing thereof.
CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XII.2 PROCEEDS OF CRIME
Search, Seizure and Detention of Proceeds of Crime