Forfeiture of Computer-related Property

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General Principles

Section 164.2 allows for the Crown to seek forfeiture of computer equipment on conviction for distribution of intimate images (162.1), child pornography (s. 163.1), child luring (172.1), or agree or arrange an offence against a child (172.2).

Forfeiture after conviction
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 162.1, 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing

(a) was used in the commission of the offence; and
(b) is the property of
(i) the convicted person or another person who was a party to the offence, or
(ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.

[(2) to (5)]
2002, c. 13, s. 7; 2008, c. 18, s. 4; 2012, c. 1, s. 18; 2014, c. 31, s. 6.


CCC

Section 164.2 requires that the attorney general prove on the balance of probabilities that:

  1. the thing was not real property;
  2. the thing was "used in the commission of the offence";
  3. the thing was the property of:
    1. "the convicted person";
    2. "a party to the offence"; or
    3. a "person who acquired the thing from" the convicted person or party to the offence "under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture".

Third Party Rights

164.2
(1)...
Third party rights
(2) Before making an order under subsection (1), the court shall cause notice to be given to, and may hear, any person whom it considers to have an interest in the thing, and may declare the nature and extent of the person’s interest in it.
Right of appeal — third party
(3) A person who was heard in response to a notice given under subsection (2) may appeal to the court of appeal against an order made under subsection (1).
Right of appeal — Attorney General
(4) The Attorney General may appeal to the court of appeal against the refusal of a court to make an order under subsection (1).
Application of Part XXI
(5) Part XXI [Appeals — Indictable Offences] applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) and (4).
2002, c. 13, s. 7; 2008, c. 18, s. 4; 2012, c. 1, s. 18; 2014, c. 31, s. 6.
[annotation added]


CCC

See Also