Forfeiture of Proceeds of Crime

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General Principles

See also: Seizure of Proceeds of Crime

Part XII.2 was enacted in Bill C61 to meet Canada's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.[1]

The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them."[2] It is also intended to recognize "that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity."[3]

Part XII.2 provides two manners of forfeiting property:

  1. forfeiture of proceeds upon conviction or discharge[4]
  2. forfeiture of proceeds upon death or abscondment of accused[5]

The proceeds of crime provision provide no discretion to the court on whether property falls within the definition.[6]

Part XII.2 does not affect the interpretation of any other legislation relating to forfeiture of property.[7]

Regulations
The Attorney General may make regulations relating to the disposal of proceeds of crime under s. 462.5[8]

  1. Hubbard, Murphy, ODonnell, "Money Laundering & Proceeds of Crime" (Irwin Law 2004) at p.79
  2. Quebec (AG) v Laroche, 2002 SCC 72 (CanLII), [2002] 3 SCR 708
  3. R v Wilson, (1993) 86 CCC (3d) 464 (ONCA)
  4. see 462.37
  5. see 462.38
  6. R v Lavigne, 2006 SCC 10 (CanLII) at para 15
  7. see s. 462.49(1) which states:
    462.49 (1) This Part does not affect the operation of any other provision of this or any other Act of Parliament respecting the forfeiture of property.
  8. Regulations
    462.5 The Attorney General may make regulations governing the manner of disposing of or otherwise dealing with, in accordance with the law, property forfeited under this Part.
    R.S., 1985, c. 42 (4th Supp.), s. 2.

Proceeds of Crime Defined

Section 462.3 defines Proceeds of Crime as:

462.3
...
“proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of

(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

...
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7.


CCC

Parliament has intended to "apply to the widest possible range of property."[1]

  1. R v Lavigne, 2006 SCC 10 (CanLII) at para 15

Designated Offence Defined

Under Part XII.2 of the Code entitled Proceeds of Crime, s. 462.3 states:

462.3
...
“designated offence” means

(a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);


...
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7.


CCC

The list of offences excluded from the definition of "designated offence" are found in Regulations Excluding Certain Indictable Offences From the Definition of "Designated Offence", SOR/2002-63,

Forfeiture Upon Conviction or Discharge

Under s. 462.37, the Attorney General may apply to seek the forfeiture of proceeds of crime upon conviction or discharge of a particular offence.

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 a designated 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 designated 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 designated 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.
...
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6.


CCC

The standard is on a balance of probabilities. If the requirements are satisfied forfeiture is mandatory.

Forfeiture Upon Death or Flight

Under s. 462.38, the Attorney General may apply to seek the forfeiture of items seized where the accused is deceased or has absconded.

Forfeiture of Money

To seize money during a criminal proceedings, the Crown must prove on a balance of probabilities that:

  1. The seized monies are in relation to offences for which the defendant has been convicted; and,
  2. The property is proceeds of crime.

"Property of an offender" under s. 462.37(3) can include stolen cash[1] and so can be forfeited under those provisions.

  1. Robichaud v R., 2011 NBCA 112 (CanLII)

Priority in Forfeiture

Where proceeds are forfeited, the priority goes to victims who are owed restitution:

46.249
...
Priority for restitution to victims of crime
(2) The property of an offender may be used to satisfy the operation of a provision of this or any other Act of Parliament respecting the forfeiture of property only to the extent that it is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to or compensation of persons affected by the commission of offences.
R.S., 1985, c. 42 (4th Supp.), s. 2.


Fine in Lieu of Forfeiture

See Also