CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XV SPECIAL PROCEDURE AND POWERS
Forfeiture of Offence-related Property
(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 the filing of the application for the hearing of the application.
(3) An applicant shall serve a notice of the application made under subsection (1) and of the hearing of it on the Attorney General at least fifteen days before the day fixed for the hearing.
Order declaring interest not affected by forfeiture
(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant
(a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any criminal organization offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and
(b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver,
the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.
Appeal from order made under subsection (4)
(5) An applicant or the Attorney General may appeal to the court of appeal from an order made under subsection (4), and the provisions of Part XXI with respect to procedure on appeals apply, with any modifications that the circumstances require, in respect of appeals under this subsection.
(6) The Attorney General shall, on application made to the Attorney General by any person in respect of whom a judge has made an order under subsection (4), and where the periods with respect to the taking of appeals from that order have expired and any appeal from that order taken under subsection (5) has been determined, direct that
(a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or
(b) an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.
1997, c. 23, s. 15.
Appeals from orders under subsection 490.2(2)
490.6 Any person who, in their opinion, is aggrieved by an order made under subsection 490.2(2) may appeal from the order as if the order were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, under Part XXI, and that Part applies, with any modifications that the circumstances require, in respect of such an appeal.
1997, c. 23, s. 15.
Suspension of order pending appeal
490.7 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 490.1(1), 490.2(2) or 490.5(4) is suspended pending
(a) any application made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for restoration or forfeiture of the property, or
(b) any appeal taken from an order of forfeiture or restoration in respect of the property,
and the property shall not be disposed of or otherwise dealt with until thirty days have expired after an order is made under any of those provisions.
1997, c. 23, s. 15.
Application for restraint order
490.8 (1) The Attorney General may make an application in accordance with this section for a restraint order under this section in respect of any offence-related property.
(2) An application made under subsection (1) for a restraint order in respect of any offence-related property may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to the following matters:
(a) the criminal organization offence to which the offence-related property relates;
(b) the person who is believed to be in possession of the offence-related property; and
(c) a description of the offence-related property.
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order
(a) prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order; and
(b) at the request of the Attorney General, where the judge is of the opinion that the circumstances so require,
(i) appointing a person to take control of and to manage or otherwise deal with all or part of the property in accordance with the directions of the judge, and
(ii) requiring any person having possession of the property to give possession of it to the person appointed under subparagraph (i).
(4) A restraint order made by a judge under this section may be subject to any reasonable conditions that the judge thinks fit.
(5) A restraint order made under this section shall be made in writing.
(6) A copy of a restraint order made under this section shall be served on the person to whom the order is addressed in any manner that the judge making the order directs or in accordance with the rules of the court.
(7) A copy of a restraint order made under this section shall be registered against any property in accordance with the laws of the province in which the property is situated.
(8) A restraint order made under this section remains in effect until
(a) an order is made under subsection 490(9) or (11) in relation to the property; or
(b) an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2).
(9) Any person on whom a restraint order made under this section 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.
1997, c. 23, s. 15.
Sections 489.1 and 490 applicable
490.9 (1) Subject to sections 490.1 to 490.7, sections 489.1 and 490 apply, with any modifications that the circumstances require, to any offence-related property that is the subject of a restraint order made under section 490.8.
(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) for the return of any offence-related property that is the subject of a restraint order under section 490.8, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in any amount and with any conditions that the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice any sum of money or other valuable security that the judge or justice directs.
1997, c. 23, s. 15.
Forfeiture of weapons and ammunition
491. (1) Subject to subsection (2), where it is determined by a court that
(a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or
(b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained,
the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.
(2) If the court by which a determination referred to in subsection (1) is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
(3) Where any thing in respect of which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General or, where an order is made under subsection (2), to the person who was, immediately prior to the sale, the lawful owner of the thing.
R.S., 1985, c. C-46, s. 491; 1991, c. 40, s. 30; 1995, c. 39, s. 152.
Order for restitution or forfeiture of property obtained by crime
491.1 (1) Where an accused or defendant is tried for an offence and the court determines that an offence has been committed, whether or not the accused has been convicted or discharged under section 730 of the offence, and at the time of the trial any property obtained by the commission of the offence
(a) is before the court or has been detained so that it can be immediately dealt with, and
(b) will not be required as evidence in any other proceedings,
section 490 does not apply in respect of the property and the court shall make an order under subsection (2) in respect of the property.
(2) In the circumstances referred to in subsection (1), the court shall order, in respect of any property,
(a) if the lawful owner or person lawfully entitled to possession of the property is known, that it be returned to that person; and
(b) if the lawful owner or person lawfully entitled to possession of the property is not known, that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
When certain orders not to be made
(3) An order shall not be made under subsection (2)
(a) in the case of proceedings against a trustee, banker, merchant, attorney, factor, broker or other agent entrusted with the possession of goods or documents of title to goods, for an offence under section 330, 331, 332 or 336; or
(b) in respect of
(i) property to which a person acting in good faith and without notice has acquired lawful title for valuable consideration,
(ii) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it,
(iii) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed, or
(iv) property in respect of which there is a dispute as to ownership or right of possession by claimants other than the accused or defendant.
(4) An order made under this section shall, on the direction of the court, be executed by the peace officers by whom the process of the court is ordinarily executed.
R.S., 1985, c. 27 (1st Supp.), s. 74, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18.
491.2 (1) Before any property that would otherwise be required to be produced for the purposes of a preliminary inquiry, trial or other proceeding in respect of an offence under section 334, 344, 348, 354, 362 or 380 is returned or ordered to be returned, forfeited or otherwise dealt with under section 489.1 or 490 or is otherwise returned, a peace officer or any person under the direction of a peace officer may take and retain a photograph of the property.
Certified photograph admissible in evidence
(2) Every photograph of property taken under subsection (1), accompanied by a certificate of a person containing the statements referred to in subsection (3), shall be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the property would have had if it had been proved in the ordinary way.
Statements made in certificate
(3) For the purposes of subsection (2), a certificate of a person stating that
(a) the person took the photograph under the authority of subsection (1),
(b) the person is a peace officer or took the photograph under the direction of a peace officer, and
(c) the photograph is a true photograph
shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the certificate without proof of the signature of the person appearing to have signed the certificate.
Secondary evidence of peace officer
(4) An affidavit or solemn declaration of a peace officer or other person stating that the person has seized property and detained it or caused it to be detained from the time that person took possession of the property until a photograph of the property was taken under subsection (1) and that the property was not altered in any manner before the photograph was taken shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature or official character of the person appearing to have signed the affidavit or solemn declaration.
Notice of intention to produce certified photograph
(5) Unless the court orders otherwise, no photograph, certificate, affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2), (3) or (4) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.
(6) Notwithstanding subsection (3) or (4), the court may require the person who appears to have signed a certificate, an affidavit or a solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the facts contained in the certificate, affidavit or solemn declaration.
Production of property in court
(7) A court may order any property seized and returned pursuant to section 489.1 or 490 to be produced in court or made available for examination by all parties to a proceeding at a reasonable time and place, notwithstanding that a photograph of the property has been received in evidence pursuant to subsection (2), where the court is satisfied that the interests of justice so require and that it is possible and practicable to do so in the circumstances.
(8) In this section, "photograph" includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, an X-ray film, a motion picture and a videotape.
R.S., 1985, c. 23 (4th Supp.), s. 2; 1992, c. 1, s. 58.
492. (1) Every person who executes a warrant issued under section 487 or 487.1 may seize any explosive substance that he suspects is intended to be used for an unlawful purpose, and shall, as soon as possible, remove to a place of safety anything that he seizes by virtue of this section and detain it until he is ordered by a judge of a superior court to deliver it to some other person or an order is made pursuant to subsection (2).
(2) Where an accused is convicted of an offence in respect of anything seized by virtue of subsection (1), it is forfeited and shall be dealt with as the court that makes the conviction may direct.
(3) Where anything to which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General.
R.S., 1985, c. C-46, s. 492; R.S., 1985, c. 27 (1st Supp.), s. 70.
Information for tracking warrant
492.1 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that is relevant to the commission of that offence, including the whereabouts of any person, can be obtained through the use of a tracking device, may at any time issue a warrant authorizing a person named therein or a peace officer
(a) to install, maintain and remove a tracking device in or on any thing, including a thing carried, used or worn by any person; and
(b) to monitor, or to have monitored, a tracking device installed in or on any thing.
(2) A warrant issued under subsection (1) is valid for the period, not exceeding sixty days, mentioned in it.
(3) A justice may issue further warrants under this section.
Definition of "tracking device"
(4) For the purposes of this section, "tracking device" means any device that, when installed in or on any thing, may be used to help ascertain, by electronic or other means, the location of any thing or person.
1993, c. 40, s. 18.
Information re number recorder
492.2 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of that offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a person named in it or a peace officer
(a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and
(b) to monitor, or to have monitored, the number recorder.
(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order.
(3) Subsections 492.1(2) and (3) apply to warrants and orders issued under this section, with such modifications as the circumstances require.
Definition of "number recorder"
(4) For the purposes of this section, "number recorder" means any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or is intended to be received.
1993, c. 40, s. 18.
Interpretation
493. In this Part,
"accused" includes
(a) a person to whom a peace officer has issued an appearance notice under section 496, and
(b) a person arrested for a criminal offence;
"appearance notice" «citation à comparaître»
"appearance notice" means a notice in Form 9 issued by a peace officer;
"judge" means
(a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,
(b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,
(c) [Repealed, 1992, c. 51, s. 37]
(d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland, a judge of the superior court of criminal jurisdiction of the Province,
(e) in the Yukon Territory and the Northwest Territories, a judge of the Supreme Court;
(f) [Repealed, R.S., 1985, c. 27 (2nd Supp.), s. 10]
CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XV SPECIAL PROCEDURE AND POWERS
Forfeiture of Offence-related Property