Full Text:Volume 3C

Miscellaneous Judicial Authorization Provisions

This page was last substantively updated or reviewed May 2017. (Rev. # 79445)

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Review of Production Order Provisions

Review

487.021 (1) Within seven years after the coming into force of this section, a comprehensive review of the provisions and operation of sections 487.011 to 487.02 [provisions on preservation and production of 3rd party records] shall be undertaken by such committee of the House of Commons as may be designated or established by the House for that purpose.

Report

(2) The committee referred to in subsection (1) [review of provisions by house of commons] shall, within a year after a review is undertaken pursuant to that subsection or within such further time as the House may authorize, submit a report on the review to the Speaker of the House, including a statement of any changes the committee recommends.
2014, c. 31, s. 20.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Preservation Demands and Orders

This page was last substantively updated or reviewed January 2016. (Rev. # 79445)

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General Principles

Voluntary Request for Preservation

For greater certainty

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

No civil or criminal liability

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
2014, c. 31, s. 20.

– CCC (CanLII), (DOJ)

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Preservation Demand

Preservation demand

487.012 (1) A peace officer or public officer may make a demand to a person in Form 5.001 requiring them to preserve computer data that is in their possession or control when the demand is made.

Conditions for making demand

(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state;

(b) in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and

(c) the computer data is in the person’s possession or control and will assist in the investigation of the offence.

Limitation

(3) A demand may not be made to a person who is under investigation for the offence referred to in paragraph (2)(a) [preservation demand – conditions for demand – suspect an offence].

Expiry and revocation of demand

(4) A peace officer or public officer may revoke the demand by notice given to the person at any time. Unless the demand is revoked earlier, the demand expires

(a) in the case of an offence that has been or will be committed under this or any other Act of Parliament, 21 days after the day on which it is made; and

(b) in the case of an offence committed under a law of a foreign state, 90 days after the day on which it is made.

Conditions in demand

(5) The peace officer or public officer who makes the demand may impose any conditions in the demand that they consider appropriate — including conditions prohibiting the disclosure of its existence or some or all of its contents — and may revoke a condition at any time by notice given to the person.

No further demand

(6) A peace officer or public officer may not make another demand requiring the person to preserve the same computer data in connection with the investigation.
2004, c. 3, s. 7; 2014, c. 31, s. 20.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Preservation Orders

Preservation order — computer data

487.013 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to preserve computer data that is in their possession or control when they receive the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.002 [forms]

(a) that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state, that the computer data is in the person’s possession or control and that it will assist in the investigation of the offence; and

(b) that a peace officer or public officer intends to apply or has applied for a warrant or an order in connection with the investigation to obtain a document that contains the computer data.

Offence against law of foreign state

(3) If an offence has been committed under a law of a foreign state, the justice or judge must also be satisfied that a person or authority with responsibility in that state for the investigation of such offences is conducting the investigation.

Form

(4) The order is to be in Form 5.003 [forms].

Limitation

(5) A person who is under investigation for an offence referred to in paragraph (2)(a) [preservation order re computer data] may not be made subject to an order.

Expiry of order

(6) Unless the order is revoked earlier, it expires 90 days after the day on which it is made.
2004, c. 3, s. 7; 2014, c. 31, s. 20.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Destruction of Preserved

Destruction of preserved computer data and documents — preservation demand

487.0194 (1) A person to whom a preservation demand is made under section 487.012 [preservation demand] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the demand expires or is revoked, unless they are subject to an order made under any of sections 487.013 to 487.017 [certain preservation and production orders] with respect to the computer data.

Destruction of preserved computer data and documents — preservation order

(2) A person who is subject to a preservation order made under section 487.013 [preservation order re computer data] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the order expires or is revoked, unless they are subject to a new preservation order or to a production order made under any of sections 487.014 to 487.017 with respect to the computer data.

Destruction of preserved computer data and documents — production order

(3) A person who is subject to a production order made under any of sections 487.014 to 487.017 [certain preservation and production orders] with respect to computer data that they preserved under a preservation demand or order made under section 487.012 [preservation demand] or 487.013 [preservation order re computer data] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the earlier of

(a) the day on which the production order is revoked, and

(b) the day on which a document that contains the computer data is produced under the production order.

Destruction of preserved computer data and documents — warrant

(4) Despite subsections (1) to (3) [preservation and production of computer data and documents], a person who preserved computer data under a preservation demand or order made under section 487.012 [preservation demand] or 487.013 [preservation order re computer data] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section when a document that contains the computer data is obtained under a warrant.

2014, c. 31, s. 20.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Breach of Preservation Obligations

• Breach of Preservation and Production Obligations (Offence)

See Also

• Production Orders

Revocation or Variation of a Proceeds Restraint Order

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

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• < Search and Seizure
• < Seizure of Property

General Principles

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 [search and seizure of proceeds of crime] or in respect of which a restraint order was made under subsection 462.33(3) [application for restraint order – requirements for granting order] may, at any time, apply to a judge

(a) for an order under subsection (4) [order for restoration of property or revocation or variation of order]; or

(b) for permission to examine the property.

Notice to Attorney General

(2) Where an application is made under paragraph (1)(a) [restraint orders – order to restore, revoke or vary],

(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.

Terms of examination order

(3) A judge may, on an application made to the judge under paragraph (1)(b) [restraint orders – order to examine], 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) [restraint orders – order to restore, revoke or vary] 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) [restraint orders – notice to 3rd parties], 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) [conditions to be satisfied] 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 relation to an undertaking or release order,

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.

Hearing

(5) For the purpose of determining the reasonableness of legal expenses referred to in subparagraph (4)(c)(ii) [order for restoration of property or revocation or variation of order – release for legal expenses], 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.

Expenses

(5.1) For the purpose of determining the reasonableness of expenses referred to in paragraph (4)(c) [order for restoration of property or revocation or variation of order – release for use of assets], 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) [taxing legal fees], make representations as to what would constitute reasonable legal expenses referred to in subparagraph (4)(c)(ii) [order for restoration of property or revocation or variation of order – release for legal expenses].

Taxing legal fees

(5.2) The judge who made an order under paragraph (4)(c) [order for restoration of property or revocation or variation of order – release for use of assets] 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.

Conditions to be satisfied

(6) An order under paragraph (4)(b) [order for restoration of property or revocation or variation of order – conditions to make order] 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 a designated 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 [search and seizure of proceeds of crime] or a restraint order under subsection 462.33(3) [application for restraint order – requirements for granting order] 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 a designated 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.

Saving provision

(7) Sections 354 [possession of stolen property], 355.2 [trafficking in property obtained by crime] and 355.4 [possession of property obtained by crime — trafficking] do not apply to a person who comes into possession of any property that, by virtue of an order made under paragraph (4)(c) [order for restoration of property or revocation or variation of order – release for use of assets], 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) [application for restraint order – requirements for granting order].
[(8) repealed, 2019, c. 25, s. 182]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, ss. 69, 70; 1997, c. 18, ss. 31, 140; 2001, c. 32, s. 17; 2010, c. 14, s. 8; 2019, c. 25, s. 182.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Return Funds to Pay for Defence Counsel

The accused may apply under s. 462.34(4) for the release of funds in order to pay counsel's legal fees.

There is some debate over whether the accused must exhaust the option of availing the use of Legal Aid before the Court can consider releasing funds for the purpose of funding the accused's defence.

Real Property

Application of property restitution provisions

462.341 Subsection 462.34(2) [restraint orders – notice to AG], paragraph 462.34(4)(c) [order for restoration of property or revocation or variation of order – release for use of assets] and subsections 462.34(5) [taxing legal fees], (5.1) [order for restoration of property or revocation or variation of order – expenses] and (5.2) [order for restoration of property or revocation or variation of order – taxing legal fees] apply, with any modifications that the circumstances require, to a person who has an interest in money or bank-notes that are seized under this Act, the Controlled Drugs and Substances Act or the Cannabis Act and in respect of which proceedings may be taken under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture].

1997, c. 18, ss. 32, 140; 1999, c. 5, s. 14; 2005, c. 44, s. 5; 2018, c. 16, s. 213.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Misc

Return of Forfeiture of Copies on Order of Release of Records

Copies of documents returned or forfeited

462.46 (1) If any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) [terms of examination order] or (4) [order for restoration of property or revocation or variation of order], 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances], 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders], the Attorney General may, before returning the document or complying with the order, cause a copy of the document to be made and retained.

Probative force

(2) Every copy made under subsection (1) [copies of documents returned or forfeited] shall, if certified as a true copy by the Attorney General, be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the original document would have had if it had been proved in the ordinary way.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 11.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Termination of Order

Under s. 462.33(10), an order for restraint of property will be terminated where:

• it is revoked under s. 462.34(4) or 462.43(a)
• it is expires under s. 462.35
• an order of forfeiture or restoration of property is made under s. 462.37(1),(2.01), 462.38(2), or 462.4(3)

An application under s. 462.43 can be made to revoke an order of restraint.

Restraint of Offence-related Property

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

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General Principles

Section 490.8 relates to orders of restraint, prohibiting the disposal of "offence-related property".

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.

Procedure

(2) An application made under subsection (1) [authority to apply for restraint order] 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 indictable 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.

Restraint order

(3) Where an application for a restraint order is made to a judge under subsection (1) [authority to apply for restraint order], the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order 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.

Property outside Canada

(3.1) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Conditions

(4) A restraint order made by a judge under this section may be subject to any reasonable conditions that the judge thinks fit.

Order in writing

(5) A restraint order made under this section shall be made in writing.

Service of order

(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.

Registration of order

(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.

Order continues in force

(8) A restraint order made under this section remains in effect until

(a) an order is made under subsection 490(9) [disposal of things seized] or (11) [order of return or order to forfeit seized property], 490.4(3) [order of restoration of property] or 490.41(3) [denial of forfeiture of property order and cancelation of restraint order] in relation to the property; or

(b) an order of forfeiture of the property is made under section 490 or subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture].

Offence

(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

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

1997, c. 23, s. 15; 2001, c. 32, s. 35; 2019, c. 25, s. 206.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Under s. 490.8(1), the Attorney General may make an application for a restraint order against "offence-related property".

Requirement for Order

To make the order, the judge must be satisfied that "that there are reasonable grounds to believe that the property is offence-related property, make a restraint order 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."(s. 490.8(4))

Procedure

Under s. 490.8(2), the application can be made ex parte and consist of an affidavit which includes:

1. the indictable offence to which the offence-related property relates;
2. the person who is believed to be in possession of the offence-related property; and
3. a description of the offence-related property.

Other Applicable Rules

Sections 489.1 and 490 applicable

490.9 (1) Subject to sections 490.1 to 490.7 [forfeiture of offence-related property provisions], sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] 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 [restraint orders for offence-related property].

Recognizance

(2) Where, pursuant to subsection (1) [application of ss. 489.1 and 490 to restraint orders], an order is made under paragraph 490(9)(c) [disposal of things seized – return to lawful owner] for the return of any offence-related property that is the subject of a restraint order under section 490.8 [restraint orders for offence-related property], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Management Orders

Management order

490.81 (1) With respect to offence-related property other than a controlled substance within the meaning of the Controlled Drugs and Substances Act or cannabis as defined in subsection 2(1) of the Cannabis Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, a judge or justice in the case of offence-related property seized under section 487 [territorial search warrants], or a judge in the case of offence-related property restrained under section 490.8 [restraint orders for offence-related property], may, if he or she is of the opinion that the circumstances so require,

(a) appoint 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 or justice; and

(b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

Appointment of Minister of Public Works and Government Services

(2) When the Attorney General of Canada so requests, a judge or justice appointing a person under subsection (1) [management order] shall appoint the Minister of Public Works and Government Services.

Power to manage

(3) The power to manage or otherwise deal with property under subsection (1) [management order] includes

(a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and

(b) in the case of property that has little or no value, the power to destroy that property.

Application for destruction order

(4) Before a person appointed to manage property destroys property that has little or no value, he or she shall apply to a court for a destruction order.

Notice

(5) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (6) [manner of giving notice] 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.

Manner of giving notice

(6) A notice shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.

Order

(7) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.

When management order ceases to have effect

(8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to an applicant or forfeited to Her Majesty.

Application to vary conditions

(9) The Attorney General may at any time apply to the judge or justice to cancel or vary any condition to which a management order is subject, but may not apply to vary an appointment made under subsection (2) [appointing minister of public works and govt. serv. as manager].
2001, c. 32, s. 36; 2017, c. 7, s. 68; 2018, c. 16, s. 217.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Order of Restraint Under the Controlled Drugs and Substances Act

Application for restraint order

14 (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.

Procedure

(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 offence against this Act 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.

Restraint order

(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 prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in such manner as may be specified in the order.

Property outside Canada

(4) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Conditions

(5) A restraint order made by a judge under this section may be subject to such reasonable conditions as the judge thinks fit.

Order in writing

(6) A restraint order made under this section shall be made in writing.

Service of order

(7) A copy of a restraint order made under this section shall be served on the person to whom the order is addressed in such manner as the judge making the order directs or in accordance with the rules of the court.

Registration of order

(8) 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.

Order continues in force

(9) A restraint order made under this section remains in effect until

(a) an order is made under subsection 19(3) or 19.1(3) of this Act or subsection 490(9) [disposal of things seized] or (11) [order of return or order to forfeit seized property] of the Criminal Code in relation to the property; or

(b) an order of forfeiture of the property is made under subsection 16(1) or 17(2) of this Act or section 490 of the Criminal Code.

Offence

(10) 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.
1996, c. 19, ss. 14, 93.2; 2001, c. 32, s. 49.
[annotation(s) added]

– CDSA

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CDSA Management Orders

Management order

14.1 (1) On application of the Attorney General or of any other person with the written consent of the Attorney General, a justice in the case of offence-related property seized under section 11, or a judge in the case of offence-related property restrained under section 14, may, where he or she is of the opinion that the circumstances so require,

(a) appoint 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 or justice; and

(b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

Appointment of Minister of Public Works and Government Services

(2) When the Attorney General of Canada so requests, a judge or justice appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.

Power to manage

(3) The power to manage or otherwise deal with property under subsection (1) includes

(a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and

(b) in the case of property that has little or no value, the power to destroy that property.

Application for destruction order

(4) Before a person appointed to manage property destroys property that has little or no value, he or she shall apply to a court for a destruction order.

Notice

(5) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (6) 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.

Manner of giving notice

(6) A notice shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.

Order

(7) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.

When management order ceases to have effect

(8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to an applicant or forfeited to Her Majesty.

Application to vary conditions

(9) The Attorney General may at any time apply to the judge or justice to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2).
2001, c. 32, s. 50.

– CDSA

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Sections 489.1 and 490 of the Criminal Code applicable

15 (1) Subject to sections 16 to 22, sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] of the Criminal Code apply, with such modifications as the circumstances require, to any offence-related property that is the subject-matter of a restraint order made under section 14.

Recognizance

(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) of the Criminal Code for the return of any offence-related property that is the subject of a restraint order under section 14, 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 such amount and with such conditions, if any, as the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice such sum of money or other valuable security as the judge or justice directs.

– CDSA

---

See Also

• Forfeiture of Offence-related Property

Restraint of Terrorism-related Property

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Criminal Law/Sentencing
• < Offences
• < Terrorism

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

Freezing of Property

Freezing of property

83.08 (1) No person in Canada and no Canadian outside Canada shall knowingly

(a) deal directly or indirectly in any property that is owned or controlled by or on behalf of a terrorist group;

(b) enter into or facilitate, directly or indirectly, any transaction in respect of property referred to in paragraph (a); or

(c) provide any financial or other related services in respect of property referred to in paragraph (a) to, for the benefit of or at the direction of a terrorist group.

No civil liability

(2) A person who acts reasonably in taking, or omitting to take, measures to comply with subsection (1) [freezing of property] shall not be liable in any civil action arising from having taken or omitted to take the measures, if they took all reasonable steps to satisfy themselves that the relevant property was owned or controlled by or on behalf of a terrorist group.
2001, c. 41, s. 4; 2013, c. 9, s. 3.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Exemptions

83.09 (1) The Minister of Public Safety and Emergency Preparedness, or a person designated by him or her, may authorize any person in Canada or any Canadian outside Canada to carry out a specified activity or transaction that is prohibited by section 83.08, or a class of such activities or transactions.

Ministerial authorization

(2) The Minister, or a person designated by him or her, may make the authorization subject to any terms and conditions that are required in their opinion and may amend, suspend, revoke or reinstate it.

Existing equities maintained

(3) All secured and unsecured rights and interests in the frozen property that are held by persons, other than terrorist groups or their agents, are entitled to the same ranking that they would have been entitled to had the property not been frozen.

Third party involvement

(4) If a person has obtained an authorization under subsection (1) [freezing of property – exemptions], any other person involved in carrying out the activity or transaction, or class of activities or transactions, to which the authorization relates is not subject to sections 83.08 [freezing of property], 83.1 [mandatory disclosure by citizens of information re terrorist property] and 83.11 [mandatory audit by corps for possession of terrorist property] if the terms or conditions of the authorization that are imposed under subsection (2), if any, are met. 2001, c. 41, s. 4; 2005, c. 10, s.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Disclosure

83.1 (1) Every person in Canada and every Canadian outside Canada shall disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service

(a) the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist group; and

(b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

Immunity

(2) No criminal or civil proceedings lie against a person for disclosure made in good faith under subsection (1) [freezing of property – exemptions].
2001, c. 41, s. 4; 2013, c. 9, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Audit

83.11 (1) The following entities must determine on a continuing basis whether they are in possession or control of property owned or controlled by or on behalf of a listed entity:

(a) authorized foreign banks within the meaning of section 2 of the Bank Act in respect of their business in Canada, or banks to which that Act applies;

(b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;

(c) foreign companies within the meaning of subsection 2(1) of the Insurance Companies Act in respect of their insurance business in Canada;

(c.1) companies, provincial companies and societies within the meaning of subsection 2(1) of the Insurance Companies Act;

(c.2) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities, and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;

(d) companies to which the Trust and Loan Companies Act applies;

(e) trust companies regulated by a provincial Act;

(f) loan companies regulated by a provincial Act; and

(g) entities authorized under provincial legislation to engage in the business of dealing in securities, or to provide portfolio management or investment counselling services.

Monthly report

(2) Subject to the regulations, every entity referred to in paragraphs (1)(a) to (g) must report, within the period specified by regulation or, if no period is specified, monthly, to the principal agency or body that supervises or regulates it under federal or provincial law either

(a) that it is not in possession or control of any property referred to in subsection (1) [mandatory audit by corps for possession of terrorist property – applicable entities], or

(b) that it is in possession or control of such property, in which case it must also report the number of persons, contracts or accounts involved and the total value of the property.

Immunity

(3) No criminal or civil proceedings lie against a person for making a report in good faith under subsection (2) [mandatory audit by corps for possession of terrorist property – monthly report].

Regulations

(4) The Governor in Council may make regulations

(a) excluding any entity or class of entities from the requirement to make a report referred to in subsection (2) [mandatory audit by corps for possession of terrorist property – monthly report], and specifying the conditions of exclusion; and

(b) specifying a period for the purposes of subsection (2) [mandatory audit by corps for possession of terrorist property – monthly report].

2001, c. 41, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Seizure and Restraint of Property

Seizure and restraint of assets

83.13 (1) Where a judge of the Federal Court, on an ex parte application by the Attorney General, after examining the application in private, is satisfied that there are reasonable grounds to believe that there is in any building, receptacle or place any property in respect of which an order of forfeiture may be made under subsection 83.14(5) [granting order of forfeiture of terrorism property], the judge may issue

(a) if the property is situated in Canada, a warrant authorizing a person named therein or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection; or

(b) if the property is situated in or outside Canada, a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, that property other than as may be specified in the order.

Contents of application

(1.1) An affidavit in support of an application under subsection (1) [seizure and restraint of assets re terrorism offences] may be sworn on information and belief, and, notwithstanding the Federal Court Rules, 1998, no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.

Appointment of manager

(2) On an application under subsection (1) [seizure and restraint of assets re terrorism offences], at the request of the Attorney General, if a judge is of the opinion that the circumstances so require, the judge may

(a) appoint 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

(b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

Appointment of Minister of Public Works and Government Services

(3) When the Attorney General of Canada so requests, a judge appointing a person under subsection (2) [seizure and restraint of assets – appointment of manager] shall appoint the Minister of Public Works and Government Services.

Power to manage

(4) The power to manage or otherwise deal with property under subsection (2) [seizure and restraint of assets – appointment of manager] includes

(a) the power to make an interlocutory sale of perishable or rapidly depreciating property;

(b) the power to destroy, in accordance with subsections (5) to (8) [destruction of assets], property that has little or no value; and

(c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (8.1) [seizure and restraint of assets – forfeiture order].

[omitted (5) to (8)]

Forfeiture order

(8.1) On application by a person who is appointed to manage the property, a judge of the Federal Court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if

(a) a notice is given or published in the manner that the judge directs or that may be specified in the rules of the Federal Court;

(b) the notice specifies a period of 60 days during which a person may make an application to the judge asserting their interest in the property; and

(c) during that period, no one makes such an application.

When management order ceases to have effect

(9) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law, destroyed or forfeited to Her Majesty.

For greater certainty

(9.1) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.

Application to vary

(10) The Attorney General may at any time apply to a judge of the Federal Court to cancel or vary an order or warrant made under this section, other than an appointment made under subsection (3).

Procedure

(11) Subsections 462.32(4) [detention and record of things seized] and (6) [judge may impose undertakings], sections 462.34 to 462.35 [applications relating to special warrants and restraint orders] and 462.4 [voidable transfers], subsection 487(3) and section 488 [execution of territorial search or general warrant] apply, with any modifications that the circumstances require, to a warrant issued under paragraph (1)(a) [seizure and restraint of assets re terrorism offences – seizure order]. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.

Procedure

(12) Subsections 462.33(4) [application for restraint order – power to impose conditions] and (6) to (11) [application for restraint order – consequences of order] and sections 462.34 to 462.35 [applications relating to special warrants and restraint orders] and 462.4 [voidable transfers] apply, with such modifications as the circumstances require, to an order issued under paragraph (1)(b) [seizure and restraint of assets re terrorism offences – restraint order].

2001, c. 41, s. 4; 2017, c. 7, s. 54; 2019, c. 25, s. 19.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Destruction of Assets

83.13
[omitted (1), (1.1), (2), (3) and (4)]

Application for destruction order

(5) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a judge of the Federal Court for a destruction order.

Notice

(6) Before making a destruction order, a judge shall require notice in accordance with subsection (7) [seizure and restraint of assets – manner of giving notice] to be given to and may hear any person who, in the judge’s opinion, appears to have a valid interest in the property.

Manner of giving notice

(7) A notice shall

(a) be given in the manner that the judge directs or that may be specified in the rules of the Federal Court; and

(b) specify the effective period of the notice that the judge considers reasonable or that may be set out in the rules of the Federal Court.

Destruction order

(8) A judge shall order that the property be destroyed if they are satisfied that the property has little or no financial or other value.

[omitted (9), (9.1), (10), (11) and (12)]
2001, c. 41, s. 4; 2017, c. 7, s. 54; 2019, c. 25, s. 19.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Seizure of Property

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

Introduction

Property can be seized and then detain by police under the Code in several ways.

Detention can occur as:

• Restraint of Terrorism-related Property (83.08)
• Proceeds of Crime (462.33)
• Restraint of Offence-related Property (490.8)
• Subject of Search Warrant or Evidence of a Crime (490)
• Firearms (117.02, 117.03, 117.04, 117.05)

For any warrantless seizure of property, the burden is upon the Crown to prove that it did not violate s. 8 of the Charter. To put the burden on the accused "ignores the reality that the Crown is in the best position to know how and why the seizure took place"

Where the police do not seize property and merely make observations, they may still give evidence regarding the items and are not violating the "best evidence rule".

Topics

General Seizure Powers

• Warrantless Seizure Under Section 489
• Ancillary Powers Doctrine
• Procedure on Seizure of Property

Detention, Access, Disposal of Things Seized Under Section 489 or 487.11

• Detention Order for Things Seized Under Section 489 or 487.11
• Access to Things Detained Under Section 490
• Disposal of Things Detained Under Section 490
  • Forfeiture of Things Detained Under Section 490
  • Return of Things Seized to Lawful Owners

Other Seizure and Detention Powers

• Seizure and Detention of Property under CDSA
• Restraint of Terrorism-related Property
• Restraint of Offence-related Property
• Seizure of Firearms
• Seizure of Proceeds of Crime
• Seizure of Photographs and Fingerprints
• Seizure and Forfeiture of Obscene or Child Pornographic Materials
• Special Issues for Seizure of Property

See Also

• Forfeiture
• Lost Evidence (Disclosure)

Ancillary Powers Doctrine

This page was last substantively updated or reviewed January 2018. (Rev. # 79445)

• < Search and Seizure
• < Warrantless Searches

General Principles

While the law imposes "broad general duties" on police. There are only limited powers to execute these duties. Where conduct interferes with the liberty of an individual, the conduct must be "authorized by law."

The common law ancillary powers doctrine permits a police officer to interfere with a person's liberty or privacy during the lawful execution of their duty as long at the actions satisfy the following (The Waterfield test):

1. the police are acting in the execution of their duties under common law or statute; and
2. conduct constitutes a justifiable interference with individual liberty or privacy.

This doctrine has never been so expansive as to justify conduct in execution of policing duties.

The test is contextual and focuses on the degree to which there is a connection between the anticipated or actual crime and the individual whose rights are affected.

First Stage

Under the first stage, "police powers are recognized as deriving from the nature and scope of police duties", including, “the preservation of the peace, the prevention of crime, and the protection of life and property”. In other words, this stage asks "whether the action falls within the general scope of a police duty imposed by statute or recognized at common law”

Second Stage

The second stage balances "the competing interests of the police duty and of the liberty interests at stake". This aspect includes:

1. "whether an invasion of individual rights is necessary in order for the peace officers to perform their duty", and
2. "whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals."

The police action must be "reasonably necessary" for the carrying out of the duty "in light of all the circumstances." This will include consideration of:

1. the importance of the performance of the duty to the public good
2. the necessity of the interference with individual liberty for the performance of the duty; and
3. the extent of the interference with individual liberty

If these "factors, when weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute" an "unjustifiable use of... police powers."

Interpretation of Ancillary Powers

This common law test is to be interpreted with s. 31 of the Interpretation Act in mind.

31
[omitted (1)]

Ancillary powers

(2) Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given.

Powers to be exercised as required

(3) Where a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time as occasion requires.
[omitted (4)]
R.S., 1985, c. I-21, s. 31; R.S., 1985, c. 27 (1st Supp.), s. 203.

– IA

---

There is always a balance between police powers and individual liberties. There are no bright-line rules and each will turn on the facts.

Police Duties

Police have a common law duty to preserve peace, prevent crime, and protect life and property. There is also the power to "control access" to certain "areas" relevant to their duties. This includes "establishing a perimeter" around to protect:

• an officer affecting an arrest
• an officer questioning a witness or suspect
• protecting a crime scene to preserve evidence
• a hazardous area to preserve public safety, such as those created by fires, floods, or car crash sites.
• a potential target of violent crime in order to ensure the target’s protection

This perimeter authority may not be used against protestors' common law right to travel unimpeded on a public highway.

Provincially constituted police forces are created by an act of provincial legislatures. Within these Acts there will be some outline of basic duties as a peace officer.

Justifiable Interference

The justification of police conduct depends on factors such as:

• the duty being performed;
• the extent to which interference of liberty is necessary to perform duty;
• importance of the duty to the public good;
• the liberty interfered with; and
• nature and extent of the interference.

These considerations must be balanced in the context of all available information, "the existence of any less intrusive alternative, and the strength of the police belief relating to the exigency or danger said to justify an extraordinary intrusion and a necessitous departure from conventional investigative measures."

Police Conduct

A police officer is expected to act reasonably in the circumstances. The officer must evaluate the "totality of circumstances" when deciding to act. This includes changes in their circumstances which must be re-evaluated over time. New information cannot be ignored. The officer can only rely on objective and articulable circumstances, and not on "profile characteristics" that undermine the assessment of the circumstances.

Police are permitted to:

• draw inferences from their observations.
• rely on investigative training and experience

Police should be given "latitude" when exercising discretion and judgement in difficult or fluid circumstances.

Their conduct must be reasonable given what they "should reasonably have been known to them at the time." Police cannot rely upon ex post facto justification of their conduct.

Examples of Established Intrusions

There are several established situations that have warranted intrusions of police:

• Investigative detention
• Search incident to investigative detention
• Search incident to arrest;
• safety searches;
• emergency roadblocks;
• search incident to emergency roadblocks;
• random vehicle stops;
• roadside sobriety tests (e.g. RIDE programs);
• sniffer-dog searches;
• warrantless residential entry incident to 911 phone calls

An officer may seize a cell phone incident to detention the purpose of officer safety or the potential loss of evidence.

Inventory Searches

• Inventory Searches

Regulatory Laws

Regulatory and provincial laws can diminish or eliminate any reasonable expectation of privacy.

Provincial regulatory Acts that authorize police to inspect vehicles will reduce the expectation of privacy.

The police have a common law power to impound vehicles when enforcing the Ontario highway traffic act.

Criminal Code

Sobriety Tests

Section 254(2) authorizes police to demand that the accused participate in a field sobriety test.

See Also

• Seizure of Property, Warrantless Seizure Under Section 489

Warrantless Seizure Under Section 489

This page was last substantively updated or reviewed January 2021. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

General Principles

Section 489 authorizes police officers to seize certain property. Section 489(1) relates to the scenario where the officer is executing a search warrant. Section 489(2) relates to the scenario where the officer is simply in execution of their duties. It specifically addresses the situation where police seek to seize property other than what is specified in a warrant.

Seizure of things not specified

489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

Seizure without warrant

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

R.S., 1985, c. C-46, s. 489; R.S., 1985, c. 27 (1st Supp.), s. 72, c. 42 (4th Supp.), s. 3; 1993, c. 40, s. 16; 1997, c. 18, s. 48.

– CCC (CanLII), (DOJ)

---

Requirements for 489

Under s. 489, a peace officer in lawful execution of their duty may seize anything without a warrant that they have reasonable ground believe that it was:

1. obtained by crime;
2. used in a crime; or
3. affords evidence of a crime.

The provision permits an officer who is executing a warrant to make a warrantless seizure of anything he believes on reasonable grounds "has been used in the commission of an offence". The legal test for reasonable grounds to believe should be the same as that for Warrantless Arrests. It must involve "an objective basis for the belief which is based on compelling and credible information". It is "something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities".

Section 489(2)(c) is a "self-contained provision". To rely upon it, the Crown must prove that "that the officer be lawfully placed and in execution of his duty, with a belief on reasonable and probable grounds that the seized items are evidence."

Overseizure vs Plain view

This section does not codify or incorporate any part of the common law doctrine of "plain view". Not all the elements of the plainview doctrine need to be met to allow for seizure under s. 489(2).

Effect of Provision

Section 489(2) does not authorize any search but it does have the effect of expanding seizure powers pursuant to a search warrant to include other materials.

Section 489 permits the seizure of certain evidence, however, when dealing with evidence such as a cell phone, the phone may be seized but a warrant would be needed in order to search the contents of the phone.

The power should not be used as a "carte blanche to embark on a search for whatever [the police] wish" nor can they seize "everything within reach" while executing a warrant.

Purpose

The purpose of s. 489(2) is the preservation of evidence.

Section 489 allows for the collection of evidence for a separate crime while executing a search based on an initial believed crime. It does not require that the evidence discovered to be related to the initial investigation.

History of s. 489

Section 489 was enacted in 1955 as s. 431 of the Criminal Code S.C. 1953-1954, c. 51. It previously read:

Every person who executes a warrant issued under section 429 may seize, in addition to the things mentioned in the warrant, anything that on reasonable grounds he believes has been obtained by or has been used in the commission of an offence, and carry it before the justice who issued the warrant or some other justice for the same territorial division, to be dealt with in accordance with section 432.

–

See Also

• Procedure on Seizure of Property
• Detention Order for Things Seized Under Section 489 or 487.11
• Plain View Search and Seizure
• Seizure Under Exigent Circumstances (487.11)

Detention Order for Things Seized Under Section 489 or 487.11

This page was last substantively updated or reviewed January 2023. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

General Principles

Section 490 provides for a comprehensive scheme for the management, return or disposition of items that have been seized.

Where property seized under s.489.1 has been brought before a justice or a report has been made to justice, the court has an obligation under s. 490 to "supervise its detention."

Where there are privacy interests in the thing seized they remain in place throughout the duration of the seizure.

Making Copies

Records seized and detained under s. 490 may be copied. The police may keep the copies even if the originals are ordered to be returned under s. 490(15).

Specific Scenarios

Inventory Searches

Seizure of property will create an authority to perform a warrantless search the items seized for the purpose itemizing them and ensuring safe keeping. It cannot be searched for the purpose of advancing an investigation.

Seizure by Non-Peace Officers

489.1
[omitted (1)]

Person other than peace officer

(2) Subject to this or any other Act of Parliament, if a person other than a peace officer has seized anything under a warrant issued under this Act, under section 487.11 [where warrant not necessary] or 489 [seizure of things not specified with or without warrant], or otherwise in the execution of duties under this or any other Act of Parliament, that person shall, as soon as is practicable and so that the thing seized may be dealt with in accordance with subsection 490(1) [detention of things seized],

(a) bring the thing before a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued; or

(b) report to the justice referred to in paragraph (a) [duty to bring the thing seized before a justice] that the thing has been seized and is being detained.

[omitted (3)]
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49; 2022, c. 17, s. 26.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Initial Detention Order

Section 490 governs the procedure for detaining property seized under s. 489 or 489.1, including obtaining the approval of justice to detain the property for a period of time. An order can be made by a justice of the peace to allow the police to detain property under s.490(1):

Detention of things seized

490 (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) [report detained property to a justice] or subsection 489.1(2) [restitution of property or report by peace officer], anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

[omitted (2), (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Purpose

Section 489.1 and 490, together set out an administrative scheme for managing detained property in the course of a criminal investigation as well as returning property.

Making a return to the justice is "an integral and essential aspect of the legal execution of the warrant".

The purpose of s. 490(1) to (3) is to "enable police to effectively carry out criminal investigations while, at the same time, invoking the Court’s supervisory powers to ensure that there is a proper basis for detaining and continuing to detain items seized and protecting the privacy interests of citizens."

It is also to prevent potential laches or lack of good faith on the part of the police and to avoid the items being forgotten.

These provisions establish "a predictable, fair, efficient, and orderly procedure for the detention, retention, return, and forfeiture of seized items, consistent with the interests of justice." Non-compliance is not to be translated into "substantive trial remedies" such as a stay of proceedings. Failure to comply may result in the return of the property. However, a judge "may not make such an order if it is not in the interests of justice to do so."

These provisions "safeguard in the balance between the state’s jurisdiction to invade the privacy rights of citizens and the high value that Parliament and the courts have seen fit to ascribe to those rights."

Mandatory Obligations

The obligations imposed by s. 489.1 and 490 are mandatory.

Consequence of Failure to Comply

Some courts have suggested that a failure to comply with the provisions, in particular, make a filing under s.489.1, will render the search unlawful.

Still other courts have been reluctant to provide trial remedies.

The failure to file a report to justice has been described as a "continuing" breach that may taint the whole process.

Onus of Proof

The onus is on the applicant to prove on a balance of probabilities that the provisions were not complied with.

Effect of Order

Once the property has been detained under s. 490, it is considered "under the control of the court, not the Crown or anyone else." Thus, can only be disposed of pursuant to an order of the court.

Duration of Initial Detention

490
[omitted (1)]

Further detention

(2) Nothing shall be detained under the authority of paragraph (1)(b) [order thing detained] for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless

(a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or

(b) proceedings are instituted in which the thing detained may be required.

[omitted (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Section 490(2) provides no authority for the return of property seized from an unlawful seizure.

The reference to "justice" requires that the application be heard by a justice of the peace or a judge of the provincial court.

Notice

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16) and (17)]

Waiver of notice

(18) Any person to whom three days notice must be given under paragraph (2)(a) [justice satisfied further detention warranted] or (3)(a) or subsection (7) [application to return property to owner after expiration], (10) [application by lawful owner] or (15) [access anything seized] may agree that the application for which the notice is given be made before the expiration of the three days.
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Extending Initial Detention Order

• Extending an Initial Detention Order 490(3) and (3.1)

See Also

• Warrantless Seizure Under Section 489
• Access to Things Detained Under Section 490
• Access to Court-Filed Exhibits
• Return of Things Seized to Lawful Owners
• History of Detention Provisions (Sections 489, 489.1 and 490)

Procedure on Seizure of Property

This page was last substantively updated or reviewed September 2022. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

General Principles

Section 489 and 489.1 govern the handling of property that attracts ownership and privacy rights.

Upon seizing property under s. 489, the police are obliged to safeguard the items they have seized.

Section 489.1 governs the procedure to be followed by the police upon seizing property, whether under warrant, warrantless, or otherwise under an Act of Parliament including s. 489. This applies to seizure on search incident to arrest as well as seizure incidental to a search warrant.

The purpose of filing a report under s. 489.1 is to place the property under judicial oversight. It creates accountability and imposes a measure of protection upon the property.

Restitution of property or report by peace officer

489.1 (1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 [where warrant not necessary] or 489 [seizure of things not specified with or without warrant] or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a) [returned detained property seized], or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1) [detention of things seized], if the peace officer is not satisfied as described in subparagraphs (a)(i) [no dispute of entitled possession] and (ii) [property not needed for any proceedings].

[omitted (2)]

Form

(3) A report to a justice under this section shall be in Form 5.2 [forms], varied to suit the case.
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49; 2022, c. 17, s. 26.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Under s. 489.1(1)(b)(ii), where the police seize property either in execution of a warrant or otherwise in execution of their duties, they must file a Report to Justice that is filed with the justice of the peace.

This will permit the officer to hold onto the property for a period of 90 days without laying charges. Where further time is needed the officer must apply for a further detention order under s. 490.

Any property seized pursuant to a search warrant "must be carried before the justice who issued the warrant to be dealt with by him according to law".

Charter

Section 8 of the Charter can apply to the detention of items seized under s. 489 and 489.1. Unreasonable retention of property may give rise to a s. 8 violation.

A failure to report to the justice that the property was seized without a warrant is a violation of s. 8 of the Charter.

See Exclusion of Evidence Under Section 24(2) of the Charter

Report to Justice

Section 489.1 requires the seizing officer to file a Form 5.2 to the justice who authorized the search. This requirement applies to seizures under s. 487 and s. 11 CDSA.

A failure to file a Report to Justice under Form 5.2 does not render a valid search invalid, however, it will render detention of the items unreasonable and in breach of s. 8 of the Charter.

The filing of a report is considered the "gateway" to "important procedural protections under s. 489.1 and 490 and so must be timely. Courts should be "wary of any attempt to characterize the failure to meet the reporting requirements ... as trivial or insignificant".

Timing of Filing

The Report to Justice must be filed "as soon as practiable". Failure to do so may result in a violation of s. 8.

A late filing of Form 5.2 even by a few days will also violate s. 8 of the Charter.

Section 487 Warrants

Section 487 also contemplates a requirement for a Report to Justice being made:

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 [see forms] that there are reasonable grounds to believe that there is in a building, receptacle or place

[omitted (a), (b), (c), (c.1) and (d)]

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1 [restitution of property or report by peace officer].

[omitted (2), (2.1), (2.2), (3) and (4)]
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11; 2019, c. 25, s. 191; 2022, c. 17, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Detention Order for Things Seized Under Section 489 or 487.11 - Detention Orders
• Special Issues for Seizure of Property

Taking Photographs and Fingerprints of Accused Persons

This page was last substantively updated or reviewed December 2020. (Rev. # 79445)

• < Procedure and Practice
• < Arrest and Detention

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

General Principles

While going through the "booking" process a peace office may take the fingerprints and a photograph of the accused for identification purposes. Alternatively upon releasing an accused, an officer may give notice to attend for the purposes of identification under the Identification of Criminals Act, R.S.C., 1985, c. I-1.

Taking of Photographs or Fingerprints

Section 2 of the Identification of Criminals Act governs the taking of fingerprints and photographs:

Fingerprints and photographs

2 (1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council:

(a) any person who is in lawful custody charged with or convicted of

(i) an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, or

(ii) an offence under the Security of Information Act;

(b) any person who has been apprehended under the Extradition Act;

(c) any person alleged to have committed an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, who is required pursuant to subsection 501(3) [undertaking – additional conditions] or 509(5) [summons – attendance for purposes of Identification of Criminals Act] of the Criminal Code to appear for the purposes of this Act by an appearance notice, promise to appear, recognizance or summons; or

(d) any person who is in lawful custody pursuant to section 83.3 [terrorism recognizance] of the Criminal Code.

Use of force

(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described under subsection (1).

Publication

(3) The results of the measurements, processes and operations to which a person has been subjected pursuant to subsection (1) may be published for the purpose of affording information to officers and others engaged in the execution or administration of the law.

...

[annotation(s) added]

– ICA

Section 2(2) of the Act also authorizes taking weight and measurements of the accused, known as "Bertillonnage", this includes obtaining the information verbally from the accused. </ref> Information obtained from this Act before Accused's rights and caution, even when verbal, does not violate the right against self-incrimination.

The collection of fingerprints is considered an "integral part of the criminal justice system at every stage".

Common Law Powers

Where a detainee has not yet been charged at the time of fingerprinting of picture-taking, there is some uncertainty about whether it would constitute a violation of s. 8 of the Charter. This controversy surrounds the issue of whether there still exists a common law power to take pictures and fingerprints. Where such power exists, there will be no violation of the Charter.

Compelling Attendance

The accused can be compelled by way of an appearance notice under s. 500, an undertaking under s. 501 or a summons under s. 509.

Under s. 537(1)(b) a preliminary inquiry judge has the power to "remand the accused to custody for the purposes of the Identification of Criminals Act".

There is some suggestion that a judge may order a summons exclusively for the purpose of compelling attendance for fingerprinting under the ICA, without it being associated with issuance of undertaking, notice to appear or summons to attend court.

Types of Offences

Section 2(1) of the Identification of Criminals Act applies to persons charged with an indictable or hybrid offences.

Where the Crown elects to proceed by summary conviction it does not restroactively invalidate the making of a summons or other means of compelling the accused to attend for identification. However, once a summary election is made, no summons can be issued.

Manner of Obtaining Photos or Prints

There is no obligation that the location of the taking of the photo or print be at somewhere "convenient". It is only where it creates prejudice that it may amount to a violation of natural justice.

Failure to Attend

Where the accused fails to attend, a justice may issue an arrest warrant under s. 502 where it relates to a "appearance notice or promise to appear or by a recognizance" or s. 510 where it relates to a summons.

Charter Rights to Privacy

The taking of fingerprints constitutes a search and seizure under s. 8 of the Charter.

Where fingerprints are taken from a person in custody who is neither charged or convicted of an indictable offence section 8 of the Charter is violated.

The police practice of taking fingerprints of all detainees who are arrested and charged with a criminal offence was found to be constitutional.

Compelling Attendance Upon Release

Attendance — Identification of Criminals Act

515.01 When a release order is made under section 515, the judge or justice may also make an order, in Form 11.1, requiring the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act if the accused is charged with an offence referred to in paragraph 2(1)(c) of that Act.

2022, c. 17, s. 33

–

---

{{{4}}}

Failure to Appear

Failure to appear

510 Where an accused who is required by a summons to appear at a time and place stated in it for the purposes of the Identification of Criminals Act does not appear at that time and place and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act, a justice may issue a warrant for the arrest of the accused for the offence with which the accused is charged.
R.S., 1985, c. C-46, s. 510; 1992, c. 47, s. 72; 1996, c. 7, s. 38.
[Repealed on December 18, 2019, C. 2019, c. 25, s. 222]

– CCC (CanLII), (DOJ)

---

Retention of Lawfully Obtained Fingerprints

The lawfulness of retaining fingerprints will be determined by the normal analysis required for breaches of s. 8 of the Charter.

An accused who was acquitted or discharged will normally be entitled to have their fingerprints destroyed upon request.

Destruction of Records

Destruction of fingerprints and photographs

4 Where a person charged with an offence that is designated as a contravention under the Contraventions Act is fingerprinted or photographed and the Attorney General, within the meaning of that Act, makes an election under section 50 of that Act, the fingerprints or photographs shall be destroyed.
1992, c. 47, s. 76; 1996, c. 7, s. 40.

– ICA

Young Offenders

Identification of Criminals Act applies

113 (1) The Identification of Criminals Act applies in respect of young persons.

Limitation

(2) No fingerprint, palmprint or photograph or other measurement, process or operation referred to in the Identification of Criminals Act shall be taken of, or applied in respect of, a young person who is charged with having committed an offence except in the circumstances in which an adult may, under that Act, be subjected to the measurements, processes and operations.

– YCJA

---

See Also

• Effect of Criminal Records in Sentencing#Finger Prints and Photographs

Inventory Searches

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Search and Seizure
• < Warrantless Searches

General Principles

Certain provincial vehicle Acts permit an officer to conduct an inventory search of a vehicle that is being impounded. This also applies where a vehicle is being seized due to being parked in an unsafe location.

Rationale

The rationale for the power to do an inventory does not flow from the nature of the investigation but rather is based on the interests of:

• person who owns the property and wishes the police to safeguard the property while it is in police custody;
• public safety who are concerned contraband being held by police or in authorized storage facilities;
• police desire to protect against civil liability for loss or damage to property found in the vehicle.

Towing Vehicle

A decision on the part of police to have a vehicle towed does not necessarily always justify an inventory search. The police should turn their mind to other options besides impounding the vehicle.

Contents of Bags

The power to conduct inventory searches of vehicles may also permit the opening and examining of the contents of bags found within the vehicle.

Inventory searches do not extent to situations where an officer is assisting a sheriff's officer in executing an eviction order, such that bags are opened for examination.

Use of Evidence Discovered on Inventory Search

Where police are entitled to inventory the contents of a vehicle when impounded, the Crown may not be permitted to tender the fruits of the inventory search as it would not be "authorized by law." However, some authority suggests a statutory power to impound includes a power to tender the fruits of search.

See Also

• Detention Order for Things Seized Under Section 489 or 487.11

Seizure of Firearms

This page was last substantively updated or reviewed March 2017. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

General Principles

Firearms can be seized by one of several methods:

• general warrantless seizure powers under s. 489;
• warrant seizure powers under s. 487;
• exigent seizure powers when firearm believed to be involved in an offence under s. 117.02;
• seizure from a person without documentation under s. 117.03; and
• seizure on belief of danger to self or public (no warrant if exigent) under s. 117.04.

Exigent Circumstances Under s. 117.02

Under s.117.02, an officer believes that a firearm or related item "was used in the commission of an offence" or where there was, or is ongoing, an offence where the subject-matter is a firearm or related item and the officer believes the item "is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house", then the officer may search the premises or person without a warrant, so long as it under exigent circumstances where it "would not be practicable to obtain a warrant".

Section 117.02 can authorize the warrantless search of a bag that they are told contains a loaded handgun in exigent circumstances.

Section 117.02 states:

Search and seizure without warrant where offence committed

117.02 (1) Where a peace officer believes on reasonable grounds

(a) that 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, or

(b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,

and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.

Disposition of seized things

(2) Any thing seized pursuant to subsection (1) [search and seizure for firearms without warrant – power] shall be dealt with in accordance with sections 490 [detention, access and disposal of things seized] and 491 [forfeiture or return of weapons and ammo].
1995, c. 39, s. 139.

– CCC (CanLII), (DOJ)

---

Seizure on Failure to Produce Authorization

Seizure on failure to produce authorization

117.03 (1) Despite section 117.02 [search and seizure for firearms without warrant], a peace officer who finds

(a) a person in possession of a prohibited firearm, a restricted firearm or a non-restricted firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it, or

(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it,

may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.

Return of seized thing on production of authorization

(2) If a person from whom any thing is seized under subsection (1) [seizure on failure to produce authorization] claims the thing within 14 days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,

(a) a licence under which the person is lawfully entitled to possess it, and

(b) in the case of a prohibited firearm or a restricted firearm, an authorization and registration certificate for it,

the thing shall without delay be returned to that person.

Forfeiture of seized thing

(3) Where any thing seized pursuant to subsection (1) [seizure on failure to produce authorization] is not claimed and returned as and when provided by subsection (2) [return after seizure on failure to produce authorization], a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs.
1995, c. 39, s. 139; 2012, c. 6, s. 8; 2015, c. 27, s. 33.

– CCC (CanLII), (DOJ)

---

Failure to Produce Authorization

Under s. 117.03, where a person is found in possession of a firearm or related items and cannot produce the appropriate documents authorizing them to possess it, an officer may seize the items. If the proper documentation is produced within 14 days, the officer must return the items seized. If 14 days pass without producing the authorization, the officer may apply to the court to have the firearm forfeited.

Danger to Self or Public

• Seizure and Forfeiture of Firearms for Public Safety

See Also

• Forfeiture of Weapons and Firearms
• Weapons Prohibition Orders
• Judicial Authorization Chart

Seizure and Forfeiture of Obscene or Child Pornographic Materials

This page was last substantively updated or reviewed January 2019. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

General Principles

Jurisdiction

Only the superior court of the provinces are able to make an order of seizure or forfeiture under s. 164.

Warrant of Seizure

Warrant of seizure

164 (1) A judge may issue a warrant authorizing seizure of copies of a recording, a publication, a representation or any written material, if the judge is satisfied by information on oath that there are reasonable grounds to believe that

(a) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording;

(b) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is an intimate image;

(c) the publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene, within the meaning of subsection 163(8) [obscenity – obscene publication];

(d) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child pornography as defined in section 163.1 [child pornography];

(e) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is an advertisement of sexual services; or

(f) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is an advertisement for conversion therapy.

[omitted (2), (3), (4), (5), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12; 2021, c. 24, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

164
[omitted (1)]

Summons to occupier

(2) Within seven days of the issue of a warrant under subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials], the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty.

Owner and maker may appear

(3) The owner and the maker of the matter seized under subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials], and alleged to be obscene, child pornography, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, may appear and be represented in the proceedings to oppose the making of an order for the forfeiture of the matter.

[omitted (4), (5), (6)]

Consent

(7) If an order is made under this section by a judge in a province with respect to one or more copies of a publication, a representation, written material or a recording, no proceedings shall be instituted or continued in that province under section 162 [voyeurism], 162.1 [distribution of intimate images], 163 [obscenity], 163.1 [child pornography], 286.4 [advertising sexual services] or 320.103 [promoting or advertising conversion therapy] with respect to those or other copies of the same publication, representation, written material or recording without the consent of the Attorney General.

[omitted (8)]
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12; 2021, c. 24, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Forfeiture

164.
[omitted (1), (2) and (3)]

Order of forfeiture

(4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] is obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, it may make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.

Disposal of matter

(5) If the court is not satisfied that the publication, representation, written material or recording referred to in subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] is obscene, child pornography, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.

Appeal

(6) An appeal lies from an order made under subsection (4) [warrant of forfeiture for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] or (5) [disposal or return of materials seized under s. 164] by any person who appeared in the proceedings

(a) on any ground of appeal that involves a question of law alone,

(b) on any ground of appeal that involves a question of fact alone, or

(c) on any ground of appeal that involves a question of mixed law and fact,

as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] and sections 673 to 696 [appeal of indictable offences, including to SCC] apply with such modifications as the circumstances require.
[omitted (7) and (8)]
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12; 2021, c. 24, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Definitions

Section 164(8) sets out definitions:

164
[omitted (1), (2), (3), (4), (5), (6) and (7)]

Definitions

(8) In this section,

"advertisement for conversion therapy" means any material — including a photographic, film, video, audio or other recording, made by any means, a visual representation or any written material — that is used to promote or advertise conversion therapy contrary to section 320.103 [promoting or advertising conversion therapy];

"advertisement of sexual services" means any material  —  including a photographic, film, video, audio or other recording, made by any means, a visual representation or any written material  —  that is used to advertise sexual services contrary to section 286.4 [advertising sexual services]; 

"court" means

(a) in the Province of Quebec, the Court of Quebec, the municipal court of Montreal and the municipal court of Quebec,

(a.1) in the Province of Ontario, the Superior Court of Justice,

(b) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench,

(c) in the Province of Newfoundland and Labrador, the Trial Division of the Supreme Court,

(c.1) [Repealed, 1992, c. 51, s. 34]

(d) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, in Yukon and in the Northwest Territories, the Supreme Court, and

(e) in Nunavut, the Nunavut Court of Justice; (tribunal)

"crime comic"'[Repealed, 2018, c. 29, s. 12]

"intimate image" has the same meaning as in subsection 162.1(2) [distribution of intimate images – definition of intimate image]; (image intime)

"judge" means a judge of a court; (juge)

"voyeuristic recording" means a visual recording within the meaning of subsection 162(2) [voyeurism – definition of "visual recording"] that is made as described in subsection 162(1) [voyeurism – forms of offence]. (enregistrement voyeuriste)

R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12; 2021, s. 24, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Copying, Deleting and Identifying Data From Computer System Custodians

• Copying, Deleting and Identifying Data From Computer System Custodians

Warrant to Seize Terrorist Propaganda Publications

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Search and Seizure
• < Warrant Searches

Legislation

Warrant of seizure

83.222 (1) A judge who is satisfied by information on oath that there are reasonable grounds to believe that any publication, copies of which are kept for sale or distribution in premises within the court’s jurisdiction, is terrorist propaganda may issue a warrant authorizing seizure of the copies.

Summons to occupier

(2) Within seven days after the day on which the warrant is issued, the judge shall issue a summons to the premises’ occupier requiring the occupier to appear before the court and to show cause why the matter seized should not be forfeited to Her Majesty.

Owner and author may appear

(3) The owner and the author of the matter seized and alleged to be terrorist propaganda may appear and be represented before the court in order to oppose the making of an order for the forfeiture of the matter.

Order of forfeiture

(4) If the court is satisfied, on a balance of probabilities, that the publication is terrorist propaganda, it may make an order declaring that the matter be forfeited to Her Majesty, for disposal as the Attorney General may direct.

Disposal of matter

(5) If the court is not satisfied that the publication is terrorist propaganda, it may order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.

Appeal

(6) An appeal lies from an order made under subsection (4) [counselling commission of terrorism offence – order of forfeiture] or (5) [counselling commission of terrorism offence – disposal of matter] by any person who appeared before the court, on any ground of appeal that involves a question of law or fact alone, or a question of mixed law and fact, as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], and sections 673 to 696 [appeal of indictable offences, including to SCC] apply with any modifications that the circumstances require.

Consent

(7) No proceeding under this section shall be instituted without the Attorney General’s consent.

Definitions

(8) The following definitions apply in this section.
"court" has the same meaning as in subsection 320(8) [warrant of seizure – definitions]. (tribunal)
"judge" has the same meaning as in subsection 320(8) [warrant of seizure – definitions]. (juge)
"terrorist propaganda" means any writing, sign, visible representation or audio recording that counsels the commission of a terrorism offence. (propagande terroriste)

2015, c. 20, s. 16; 2019, c. 13, s. 144.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Order to computer system’s custodian

83.223 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material — that is terrorist propaganda or computer data that makes terrorist propaganda available — stored on and made available to the public through a computer system that is within the court’s jurisdiction, the judge may order the computer system’s custodian to

(a) give an electronic copy of the material to the court;

(b) ensure that the material is no longer stored on and made available through the computer system; and

(c) provide the information that is necessary to identify and locate the person who posted the material.

Notice to person who posted material

(2) Within a reasonable time after receiving the information referred to in paragraph (1)(c) [order to computer system's custodian – identifying info], the judge shall cause notice to be given to the person who posted the material, giving that person the opportunity to appear and be represented before the court and to show cause why the material should not be deleted. If the person cannot be identified or located or does not reside in Canada, the judge may order the computer system’s custodian to post the text of the notice at the location where the material was previously stored and made available, until the time set for the appearance.

Person who posted material may appear

(3) The person who posted the material may appear and be represented before the court in order to oppose the making of an order under subsection (5) [order to computer system's custodian – order of deletion].

Non-appearance

(4) If the person who posted the material does not appear before the court, the court may proceed to hear and determine the proceedings in the absence of the person as fully and effectually as if the person had appeared.

Order of deletion

(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and is terrorist propaganda or computer data that makes terrorist propaganda available, it may order the computer system’s custodian to delete the material.

Destruction of electronic copy

(6) When the court makes the order for the deletion of the material, it may order the destruction of the electronic copy in the court’s possession.

Return of material

(7) If the court is not satisfied that the material is available to the public and is terrorist propaganda or computer data that makes terrorist propaganda available, the court shall order that the electronic copy be returned to the computer system’s custodian and terminate the order under paragraph (1)(b) [order to computer system's custodian – est. no longer stored].

Appeal

(8) An appeal lies from an order made under subsection (5) [order to computer system's custodian – order of deletion] or (6) [order to computer system's custodian – destruction of electronic copy] by any person who appeared before the court, on any ground of appeal that involves a question of law or fact alone, or a question of mixed law and fact, as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], and sections 673 to 696 [appeal of indictable offences, including to SCC] apply with any modifications that the circumstances require.

Consent

(9) No proceeding under this section shall be instituted without the Attorney General’s consent.

When order takes effect

(10) No order made under any of subsections (5) to (7) [order to computer system's custodian – destruction of copy] takes effect until the time for final appeal has expired.

Definitions

(11) The following definitions apply in this section.
"computer data" has the same meaning as in subsection 342.1(2) [unauthorized use of computer – definitions]. (données informatiques)
"computer system" has the same meaning as in subsection 342.1(2) [unauthorized use of computer – definitions]. (ordinateur)
"court" has the same meaning as in subsection 320(8) [warrant of seizure – definitions]. (tribunal)
data[Repealed, 2015, c. 20, s. 35]
"judge" has the same meaning as in subsection 320(8). (juge)
"terrorist propaganda" has the same meaning as in subsection 83.222(8) [counselling commission of terrorism offence – definitions]. (propagande terroriste)

2015, c. 20, ss. 16, 35.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Warrants to Seize Explosives

• < Search and Seizure
• < Warrant Searches

This page was last substantively updated or reviewed December 2022. (Rev. # 79445)

Legislation

Seizure of explosives

492 (1) Every person who executes a warrant issued under section 487 [territorial search warrants] may seize any explosive substance that they suspect is intended to be used for an unlawful purpose, and shall, as soon as possible, remove to a place of safety anything that they seize under this section and detain it until they are ordered by a judge of a superior court to deliver it to some other person or an order is made under subsection (2) [forfeiture of explosives while executing search warrant].

Forfeiture

(2) Where an accused is convicted of an offence in respect of anything seized by virtue of subsection (1) [seizure of explosives while executing search warrant], it is forfeited and shall be dealt with as the court that makes the conviction may direct.

Application of proceeds

(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; 2022, c. 17, s. 27.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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See Also

• Judicial Authorization Chart

Seizure of Bodily Samples

This page was last substantively updated or reviewed March 2021. (Rev. # 79445)

• < Search and Seizure
• < Warrant Searches

Introduction

Bodily samples cannot be taken without a warrant where the subject does not consent.

There are several methods of obtaining bodily samples:

• general warrant (s. 487);
• DNA Sample (s. 487.05);
• blood sample demand (s. 320.28);
• blood sample warrant (s. 320.29);
• bodily impressions (s. 487.092)

A bodily sample can also be obtained by consent.

General DNA Sample Seizure (s.487.05)

• Section 487.05 Seizure Warrant of DNA Samples

Blood Sample Seizure in Impaired Driving Investigations (320.28, 320.29)

• Proof of Impairment by Drugs or Alcohol (320.28)
• Blood Sample Warrants in Conveyance Investigations (320.29)

Body Print Impression Warrant (487.092)

• Body Print Impression Warrant

Obtaining Blood Samples by General Warrant (487)

Where a nurse takes a blood sample from a patient as part of her regular course of duties, it is available to the police to obtain a warrant to seize the sample as evidence.

Blood taken by a nurse as part of hospital procedure will still be protected by an expectation of privacy.

Where an officer directs the nurse to store a blood sample for a period beyond the time intended by the hospital, it will effectively enter into the custody of police.

See Also

• Judicial Authorization Chart

Seizure and Detention of Property under CDSA

This page was last substantively updated or reviewed December 2018. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

General Principles

Report of seizure, finding, etc.

12.1 Subject to the regulations, every peace officer, inspector or prescribed person who seizes, finds or otherwise acquires a controlled substance, precursor or chemical offence-related property shall, within 30 days,

(a) prepare a report setting out

(i) the substance, precursor or property,

(ii) the amount of it that was seized, found or acquired,

(iii) the place where it was seized, found or acquired,

(iv) the date on which it was seized, found or acquired,

(v) the name of the police force, agency or entity to which the peace officer, inspector or prescribed person belongs,

(vi) the number of the file or police report related to the seizure, finding or acquisition, and

(vii) any other prescribed information;

(b) cause the report to be sent to the Minister; and

(c) in the case of a seizure made under section 11 of this Act, the Criminal Code or a power of seizure at common law, cause a copy of the report to be filed with the justice who issued the warrant or another justice for the same territorial division or, if a warrant was not issued, a justice who would have had jurisdiction to issue a warrant.

2017, c. 7, s. 10.

– CDSA

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PART III

Disposition

Sections 489.1 and 490 of the Criminal Code applicable

13 (1) Subject to subsections (2) and (3), sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] of the Criminal Code apply to any thing seized under this Act.

Sections 489.1 and 490 of Criminal Code applicable

(2) If a thing seized under this Act is non-chemical offence-related property, sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] of the Criminal Code apply subject to sections 16 to 22 and subsections 31(6) to (9) of this Act.

Provisions of this Act applicable

(3) If a controlled substance, precursor or chemical offence-related property is seized under this Act, any other Act of Parliament or a power of seizure at common law, the provisions of this Act and the regulations apply in respect of that substance, precursor or property.

Recognizance

(4) If, under this section, an order is made in accordance with paragraph 490(9)(c) [disposal of things seized – return to lawful owner] of the Criminal Code for the return of any non-chemical offence-related property seized under this Act, 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 the amount and with any conditions that the judge or justice directs and, if the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice the sum of money or other valuable security that the judge or justice directs.
(5) and (6) [Repealed, 2017, c. 7, s. 11]
1996, c. 19, s. 13; 2017, c. 7, s. 11.
[annotation(s) added]

– CDSA

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Restraint of Non-Chemical Offence-related Property

DIVISION 1

Non-chemical Offence-related Property

Restraint Orders

Application for restraint order

14 (1) The Attorney General may make an application in accordance with this section for a restraint order in respect of any non-chemical offence-related property.

Procedure

(2) The application for a restraint order may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit of the Attorney General or any other person deposing to the following matters :

(a) the offence to which the property relates;

(b) the person who is believed to be in possession of the property; and

(c) a description of the property.

Restraint order

(3) The judge to whom the application is made may, if satisfied that there are reasonable grounds to believe that the property is non-chemical offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order other than in the manner that is specified in the order.

Property outside Canada

(4) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Conditions

(5) A restraint order made by a judge under this section may be subject to such reasonable conditions as the judge thinks fit.

Order in writing

(6) A restraint order made under this section shall be made in writing.

Service of order

(7) A copy of a restraint order made under this section shall be served on the person to whom the order is addressed in such manner as the judge making the order directs or in accordance with the rules of the court.

Registration of order

(8) 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.

Order continues in force

(9) A restraint order made under this section remains in effect until

(a) an order is made under subsection 19(3) or 19.1(3) of this Act or subsection 490(9) [disposal of things seized] or (11) [order of return or order to forfeit seized property] of the Criminal Code in relation to the property; or

(b) an order of forfeiture of the property is made under subsection 16(1) or 17(2) of this Act or section 490 of the Criminal Code.

Offence

(10) 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.
1996, c. 19, ss. 14, 93.2; 2001, c. 32, s. 49; 2017, c. 7, s. 13.

– CDSA

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Sections 489.1 and 490 of Criminal Code applicable

15 (1) Subject to sections 16 to 22, sections 489.1 and 490 of the Criminal Code apply, with any modifications that the circumstances require, to any property that is the subject of a restraint order made under section 14.

Recognizance

(2) If, under this section, an order is made in accordance with paragraph 490(9)(c) [disposal of things seized – return to lawful owner] of the Criminal Code for the return of any property that is the subject of a restraint order made under section 14, 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 the amount and with any conditions that the judge or justice directs and, if the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice the sum of money or other valuable security that the judge or justice directs.
1996, c. 19, s. 15; 2017, c. 7, s. 14.
[annotation(s) added]

– CDSA

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Management Orders

Management order

15.1 (1) On application of the Attorney General or of any other person with the written consent of the Attorney General, a justice in the case of non-chemical offence-related property seized under section 11 of this Act, the Criminal Code or a power of seizure at common law, or a judge in the case of property restrained under section 14, may, if they are of the opinion that the circumstances so require,

(a) appoint 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 or justice; and

(b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

Appointment of Minister of Public Works and Government Services

(2) If the Attorney General of Canada so requests, a judge or justice appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.

Power to manage

(3) The power to manage or otherwise deal with property under subsection (1) includes

(a) the power to make an interlocutory sale of perishable or rapidly depreciating property;

(b) the power to destroy, in accordance with subsections (4) to (7), property that has little or no value; and

(c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (8).

Application for destruction order

(4) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a court for a destruction order.

Notice required before destruction

(5) Before making a destruction order, a court shall require notice in accordance with subsection (6) to be given to and may hear any person who, in the court’s opinion, appears to have a valid interest in the property.

Manner of giving notice

(6) A notice shall

(a) be given in the manner that the court directs or that may be specified in the rules of the court; and

(b) specify the effective period of the notice that the court considers reasonable or that may be set out in the rules of the court.

Destruction order

(7) A court shall order that the property be destroyed if it is satisfied that the property has little or no financial or other value.

Application for forfeiture order

(8) On application by a person who is appointed to manage the property, a court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if

(a) a notice is given or published in the manner that the court directs or that may be specified in the rules of the court;

(b) the notice specifies a period of 60 days during which a person may make an application to the court asserting their interest in the property; and

(c) during that period, no one makes such an application.

When management order ceases to have effect

(9) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law, destroyed or forfeited to Her Majesty.

For greater certainty

(10) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.

Application to vary conditions

(11) The Attorney General may at any time apply to the judge or justice to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2).
2017, c. 7, s. 14.

– CDSA

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Forfeiture

Forfeiture of property

16 (1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under section 730 [order of discharge] of the Criminal Code, of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical offence-related property is related to the commission of the offence, the court shall

(a) if the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph.

Property related to other offences

(2) Subject to sections 18 to 19.1, if the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) is related to the commission of the designated substance offence of which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Appeal

(3) A person who has been convicted or discharged of a designated substance offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.
1996, c. 19, s. 16; 2001, c. 32, s. 51; 2017, c. 7, s. 16.

– CDSA

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Application for in rem forfeiture

17 (1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

Order of forfeiture of property

(2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

(a) beyond a reasonable doubt that any property is non-chemical offence-related property,

(b) that proceedings were commenced in respect of a designated substance offence to which the property referred to in paragraph (a) is related, and

(c) that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

Accused deemed absconded

(3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused shall be deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property

(4) For the purposes of subsection (2),

(a) if the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall order that the property be forfeited to Her Majesty in right of that province and disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and

(b) in any other case, the judge shall order that the property be forfeited to Her Majesty in right of Canada and disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph.

Property outside Canada

(5) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
1996, c. 19, s. 17; 2001, c. 32, s. 52; 2017, c. 7, s. 17.

– CDSA

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Voidable transfers

18 A court may, before ordering that property be forfeited under subsection 16(1) or 17(2), set aside any conveyance or transfer of the property that occurred after the property was seized or restrained, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
1996, c. 19, s. 18; 2017, c. 7, s. 18.

– CDSA

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Notice

19 (1) Before making an order under subsection 16(1) or 17(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.

Manner of giving notice

(2) A notice shall

(a) be given in the manner that the court directs or that may be specified in the rules of the court;

(b) specify the period that the court considers reasonable or that may be set out in the rules of the court during which a person may make an application to the court asserting their interest in the property; and

(c) set out the designated substance 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 was charged with a designated substance offence, or

(b) a person who acquired title to or a right of possession of the 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 of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(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 be returned to that person.
1996, c. 19, s. 19; 2017, c. 7, s. 19.

– CDSA

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Notice

19.1 (1) If all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to and may hear any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted, or discharged under section 730 of the Criminal Code, of the indictable offence under this Act in relation to which the property would be forfeited.

Manner of giving notice

(2) A notice shall

(a) be given in the manner that the court directs or that may be specified in the rules of the court;

(b) specify the period that the court considers reasonable or that may be set out in the rules of the court during which a member of the immediate family who resides in the dwelling-house may make themselves known to the court; and

(c) set out the offence charged and a description of the property.

Non-forfeiture of real property

(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted, or discharged under section 730 of the Criminal Code, of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted or discharged of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

2001, c. 32, s. 53; 2017, c. 7, s. 20.

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Application

20 (1) If any property is forfeited to Her Majesty under an order made under subsection 16(1) or 17(2), any person who claims an interest in the property, other than

(a) in the case of property forfeited under an order made under subsection 16(1), a person who was convicted, or discharged under section 730 [order of discharge] of the Criminal Code, of the designated substance offence in relation to which the property was forfeited,

(b) in the case of property forfeited pursuant to an order made under subsection 17(2), a person who was charged with the designated substance offence in relation to which the property was forfeited, or

(c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) 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 the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

Fixing day for hearing

(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.

Notice

(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 designated substance 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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] of the Criminal Code with respect to procedure on appeals apply, with such modifications as the circumstances require, in respect of appeals under this subsection.

Return of property

(6) The Minister shall, on application made to the Minister 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.

1996, c. 19, s. 20; 2017, c. 7, s. 21.

– CDSA

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Appeals from orders under subsection 17(2)

21 Any person who, in their opinion, is aggrieved by an order made under subsection 17(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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] of the Criminal Code, and that Part applies, with such modifications as the circumstances require, in respect of such an appeal.

– CDSA

---

Suspension of order pending appeal

22 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 16(1), 17(2) or 20(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.

– CDSA

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Restraint of Controlled Substances, Precursors and Chemical Offence-related Property

DIVISION 2

Controlled Substances, Precursors and Chemical Offence-related Property

Return

23 (1) A peace officer, inspector or prescribed person who seizes, finds or otherwise acquires a controlled substance, precursor or chemical offence-related property may return it to the person who is its lawful owner or who is lawfully entitled to its possession if the peace officer, inspector or prescribed person is satisfied

(a) that there is no dispute as to who is the lawful owner or is lawfully entitled to possession of the substance, precursor or property; and

(b) that the continued detention of the substance, precursor or property is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament.

Receipt

(2) When the substance, precursor or property is returned, the peace officer, inspector or prescribed person shall obtain a receipt for it.

Report by peace officer

(3) In the case of a seizure made under section 11 of this Act, the Criminal Code or a power of seizure at common law, the peace officer shall make a report about the return to the justice who issued the warrant or another justice for the same territorial division or, if a warrant was not issued, a justice who would have had jurisdiction to issue a warrant.
1996, c. 19, s. 23; 2001, c. 32, s. 54; 2017, c. 7, s. 22.

– CDSA

---

Application for return

24 (1) If a controlled substance, precursor or chemical offence-related property has been seized, found or otherwise acquired by a peace officer, inspector or prescribed person, any person may, within 60 days after the date of the seizure, finding or acquisition, on prior notification being given to the Attorney General in the prescribed manner, apply, by notice in writing to a justice in the jurisdiction in which it is being detained, for an order to return it to the person.

Order to return as soon as practicable

(2) If, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property and the Attorney General does not indicate that it or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the justice shall, subject to subsection (5), order that it or the portion be returned as soon as practicable to the applicant.

Order to return at specified time

(3) If, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property but the Attorney General indicates that it or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the justice shall, subject to subsection (5), order that it or the portion be returned to the applicant

(a) on the expiry of 180 days after the day on which the application was made, if no proceeding in relation to it has been commenced before that time; or

(b) on the final conclusion of the proceeding or any other proceeding in relation to it, if the applicant is not found guilty in those proceedings of an offence committed in relation to it.

Forfeiture order

(4) If, on the hearing of an application made under subsection (1), a justice is not satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property, and it or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the justice shall order that it or the portion be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.

Payment of compensation in lieu

(5) If, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property, but it was disposed of or otherwise dealt with under section 26, the justice shall order that an amount equal to its value be paid to the applicant.
1996, c. 19, s. 24; 2017, c. 7, s. 22.

– CDSA

---

Applications under s. 24 CDSA must be made to a court of inherent jurisdiction, which would not include a provincial court.

Forfeiture if no application

25 If no application for the return of a controlled substance, precursor or chemical offence-related property has been made under subsection 24(1) within 60 days after the date of the seizure, finding or acquisition by a peace officer, inspector or prescribed person and it or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, it or the portion is forfeited to Her Majesty and may be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
1996, c. 19, s. 25; 2017, c. 7, s. 22.

– CDSA

---

Expedited disposition

26 If a precursor or chemical offence-related property — whose storage or handling poses a risk to health or safety — or a controlled substance, or a portion of any of them, is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, it or the portion may be disposed of or otherwise dealt with by the Minister, a peace officer or a prescribed person in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
1996, c. 19, s. 26; 2017, c. 7, s. 22.

– CDSA

---

Disposition following proceedings

27 Subject to section 24, if, in a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the court before which the proceedings have been brought is satisfied that any controlled substance, precursor or chemical offence-related property that is the subject of proceedings before the court is no longer required by that court or any other court, the court

(a) shall

(i) if it is satisfied that the person from whom the substance, precursor or property was seized came into possession of it lawfully and continued to deal with it lawfully, order that it be returned to the person, or

(ii) if it is satisfied that possession of the substance, precursor or property by the person from whom it was seized is unlawful and the person who is the lawful owner or is lawfully entitled to its possession is known, order that it be returned to the person who is the lawful owner or is lawfully entitled to its possession; and

(b) may, if it is not satisfied that the substance, precursor or property should be returned under subparagraph (a)(i) or (ii) or if possession of it by the person from whom it was seized is unlawful and the person who is the lawful owner or is lawfully entitled to its possession is not known, order that it be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.

1996, c. 19, s. 27; 2017, c. 7, s. 23.

– CDSA

---

Disposition with consent

28 If a controlled substance, precursor or chemical offence-related property has been seized, found or otherwise acquired by a peace officer, inspector or prescribed person and it or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the person who is its lawful owner may consent to its disposition, and when that consent is given, it or the portion is forfeited to Her Majesty and may be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.

1996, c. 19, s. 28; 2017, c. 7, s. 24.

– CDSA

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Report of disposition

29 (1) Subject to the regulations, every peace officer, inspector or prescribed person who disposes of or otherwise deals with a controlled substance, precursor or chemical offence-related property under this Division shall, within 30 days, prepare a report setting out the following information and cause the report to be sent to the Minister :

(a) the substance, precursor or property;

(b) the amount of it that was disposed of or otherwise dealt with;

(c) the manner in which it was disposed of or otherwise dealt with;

(d) the date on which it was disposed of or otherwise dealt with;

(e) the name of the police force, agency or entity to which the peace officer, inspector or prescribed person belongs;

(f) the number of the file or police report related to the disposition of it or other dealing with it; and

(g) any other prescribed information.

Interpretation

(2) For the purposes of subsection (1), dealing with a controlled substance, precursor or chemical offence-related property by a peace officer includes using it to conduct an investigation or for training purposes.

1996, c. 19, s. 29; 2017, c. 7, s. 24.

– CDSA

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See Also

• CDSA Warrants

Proceeds of Crime Search Warrant

This page was last substantively updated or reviewed January 2023. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property
• < Proceeds of Crime

General Principles

Special search warrant

462.32 (1) Subject to subsection (3) [other search provisions to apply], if a judge, on application of the Attorney General, is satisfied by information on oath in Form 1 [forms] that there are reasonable grounds to believe that there is in any building, receptacle or place, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture], in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction, the judge may issue a warrant authorizing a person named in the warrant or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection.

Procedure

(2) An application for a warrant under subsection (1) [authorization re seizure of proceeds of crime] may be made ex parte, shall be made in writing and shall include a statement as to whether any previous applications have been made under subsection (1) [authorization re seizure of proceeds of crime] with respect to the property that is the subject of the application.

Execution in Canada

(2.1) A warrant issued under subsection (1) [authorization re seizure of proceeds of crime] may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.

(2.2) [Repealed, 2019, c. 25, s. 180]

Other provisions to apply

(3) Subsections 487(2.1) to (3) [territorial search warrants – assistance orders] and section 488 [execution of territorial search or general warrant] apply, with any modifications that the circumstances require, to a warrant issued under this section.

Detention and record of property seized

(4) Every person who executes a warrant issued by a judge under this section shall

(a) during that execution, give the following to any person who is present and ostensibly in control of the building, receptacle or place to be searched or, in the absence of any such person, affix the following in a prominent location within the building or place or on or next to the receptacle:

(i) a copy of the warrant, and

(ii) a notice in Form 5.1 [forms] setting out the address of the court from which a copy of the report on the property seized may be obtained;

(a.1) detain or cause to be detained the property seized, taking reasonable care to ensure that the property is preserved so that it may be dealt with in accordance with the law;

(b) as soon as practicable after the execution of the warrant but within a period not exceeding seven days thereafter, prepare a report in Form 5.3 [forms], identifying the property seized and the location where the property is being detained, and cause the report to be filed with the clerk of the court; and

(c) cause a copy of the report to be provided, on request, to the person from whom the property was seized and to any other person who, in the opinion of the judge, appears to have a valid interest in the property.

Return of proceeds

(4.1) Subject to this or any other Act of Parliament, a peace officer who has seized anything under a warrant issued by a judge under this section may, with the written consent of the Attorney General, on being issued a receipt for it, return the thing seized to the person lawfully entitled to its possession, if

(a) the peace officer is satisfied that there is no dispute as to who is lawfully entitled to possession of the thing seized;

(b) the peace officer is satisfied that the continued detention of the thing seized is not required for the purpose of forfeiture; and

(c) the thing seized is returned before a report is filed with the clerk of the court under paragraph (4)(b) [record of things seized – filing Form 5.3 w/in 7 days].

Notice

(5) Before issuing a warrant under this section 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 the issuance of the warrant 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 seized pursuant to the warrant.

Undertakings by Attorney General

(6) Before issuing a warrant under this section, 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 issuance and execution of the warrant.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 29; 2001, c. 32, s. 14; 2005, c. 44, s. 3; 2017, c. 7, s. 57(F); 2019, c. 25, s. 180; 2022, c. 17, s. 12.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Expiration of Orders

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 [search and seizure of proceeds of crime] or a restraint order has been made under section 462.33 [restraint orders against property] 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.

Where proceedings instituted

(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.

Where application made

(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 [order of forfeiture for proceeds of crime] or 462.38 [order of forfeiture for proceeds of crime] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The court retains discretion to refuse to order the continued detention of property despite the Crown complying with s. 462.32 and 462.35.

Forwarding to clerk where accused to stand trial

462.36 Where a judge issues a warrant under section 462.32 [search and seizure of proceeds of crime] or makes a restraint order under section 462.33 [restraint orders against property] in respect of any property, the clerk of the court shall, when an accused is ordered to stand trial for a designated 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) [record of things seized – filing Form 5.3 w/in 7 days] or of the restraint order in respect of the property.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2001, c. 32, s. 18.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Proceeds of Crime Disclosure Order

This page was last substantively updated or reviewed January 2019. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property
• < Proceeds of Crime

General Principles

462.48
[omitted (1)]

Disclosure of income tax information

(1.1) The Attorney General may make an application in accordance with subsection (2) [disclosure of income tax information – procedure] for an order for disclosure of information under subsection (3) [disclosure of income tax information – order for disclosure of information], for the purposes of an investigation in relation to

(a) a designated substance offence;

(b) an offence against section 354 [possession of stolen property], 355.2 [trafficking in property obtained by crime], 355.4 [possession of property obtained by crime — trafficking] or 462.31 [money laundering] if the offence is alleged to have been committed in relation to any property, thing or proceeds obtained or derived directly or indirectly as a result of

(i) the commission in Canada of a designated substance offence, or

(ii) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated substance offence;

(c) an offence against section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization], or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence; or

(d) a terrorism offence.

Application

(2) An application under subsection (1.1) [disclosure of income tax information] shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or a person specially designated by the Attorney General for that purpose deposing to the following matters, namely,

(a) the offence or matter under investigation;

(b) the person in relation to whom the information or documents referred to in paragraph (c) are required;

(c) the type of information or book, record, writing, return or other document obtained by or on behalf of the Minister of National Revenue for the purposes of Part IX of the Excise Tax Act, the Income Tax Act, the Excise Act, 2001, the Underused Housing Tax Act or the Select Luxury Items Tax Act to which access is sought or that is proposed to be examined or communicated; and

(d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of any of the offences referred to in subsection (1.1) [disclosure of income tax information] and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to the investigation for the purposes of which the application is made.

Order for disclosure of information

(3) Where the judge to whom an application under subsection (1.1) [disclosure of income tax information] is made is satisfied

(a) of the matters referred to in paragraph (2)(d) [disclosure of income tax information – procedure – reasonable grounds], and

(b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents to which the application relates, having regard to the benefit likely to accrue to the investigation if the access is obtained,

the judge may, subject to any conditions that the judge considers advisable in the public interest, order the Commissioner of Revenue or any person specially designated in writing by the Commissioner for the purposes of this section

(c) to allow a police officer named in the order access to all such information and documents and to examine them, or

(d) where the judge considers it necessary in the circumstances, to produce all such information and documents to the police officer and allow the police officer to remove the information and documents,

within such period after the expiration of seven clear days following the service of the order pursuant to subsection (4) as the judge may specify.

Service of order

(4) A copy of an order made by a judge under subsection (3) [disclosure of income tax information – order for disclosure of information] 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.

Extension of period for compliance with order

(5) A judge who makes an order under subsection (3) [disclosure of income tax information – order for disclosure of information] may, on application of the Minister of National Revenue, extend the period within which the order is to be complied with.

Objection to disclosure of information

(6) The Minister of National Revenue or any person specially designated in writing by that Minister for the purposes of this section may object to the disclosure of any information or document in respect of which an order under subsection (3) [disclosure of income tax information – order for disclosure of information] has been made by certifying orally or in writing that the information or document should not be disclosed on the ground that

(a) the Minister of National Revenue is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement respecting taxation to which the Government of Canada is a signatory;

(b) a privilege is attached by law to the information or document;

(c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction; or

(d) disclosure of the information or document would not, for any other reason, be in the public interest.

Determination of objection

(7) Where an objection to the disclosure of information or a document is made under subsection (6) [objection to disclosure of information], the objection may be determined, on application, in accordance with subsection (8), by the Chief Justice of the Federal Court, or by such other judge of that Court as the Chief Justice may designate to hear such applications.

Judge may examine information

(8) A judge who is to determine an objection pursuant to subsection (7) [disclosure of income tax information – determination of objection] may, if the judge considers it necessary to determine the objection, examine the information or document in relation to which the objection is made and shall grant the objection and order that disclosure of the information or document be refused where the judge is satisfied of any of the grounds mentioned in subsection (6) [objection to disclosure of information].

Limitation period

(9) An application under subsection (7) [disclosure of income tax information – determination of objection] shall be made within ten days after the objection is made or within such greater or lesser period as the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications, considers appropriate.

Appeal to Federal Court of Appeal

(10) An appeal lies from a determination under subsection (7) [disclosure of income tax information – determination of objection] to the Federal Court of Appeal.

Limitation period for appeal

(11) An appeal under subsection (10) [disclosure of income tax information – appeal to Fed Crt Appeal] shall be brought within ten days from the date of the determination appealed from or within such further time as the Federal Court of Appeal considers appropriate in the circumstances.

Special rules for hearings

(12) An application under subsection (7) [disclosure of income tax information – determination of objection] or an appeal brought in respect of that application shall

(a) be heard in camera; and

(b) on the request of the person objecting to the disclosure of information, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

Ex parte representations

(13) During the hearing of an application under subsection (7) [disclosure of income tax information – determination of objection] or an appeal brought in respect of that application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.

Copies

(14) When any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any officer of the Canada Revenue Agency may make, or cause to be made, one or more copies of it, and any copy purporting to be certified by the Minister of National Revenue or an authorized person to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.

Further disclosure

(15) No person to whom information or documents have been disclosed or provided pursuant to this subsection or pursuant to an order made under subsection (3) shall further disclose the information or documents except for the purposes of the investigation in relation to which the order was made.

Form

(16) An order made under subsection (3) [disclosure of income tax information – order for disclosure of information] may be in Form 47 [forms].

Definition of police officer

(17) In this section, "police officer" means any officer, constable or other person employed for the preservation and maintenance of the public peace.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1994, c. 13, s. 7; 1996, c. 19, s. 70; 1997, c. 23, s. 10; 1999, c. 17, s. 120; 2001, c. 32, s. 26, c. 41, ss. 15, 133; 2005, c. 38, ss. 138, 140; 2010, c. 14, s. 9; 2013, c. 9, s. 15; 2014, c. 17, s. 7; 2018, c. 16, s. 215, c. 27, s. 28. 2022, c. 5, s. 13; 2022, c. 10, s. 138; 2022, c. 10, s. 173.

[annotation(s) added]

– CCC (CanLII), (DOJ)

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Definition of "Designated Substance Offence"

Definition of designated substance offence

462.48 (1) In this section, "designated substance offence" means

(a) an offence under Part I of the Controlled Drugs and Substances Act, except subsection 4(1) of that Act;

(a.1) an offence under Division 1 of Part 1 of the Cannabis Act, except subsection 8(1) of that Act; 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) or (a.1).

[omitted (1.1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16) and (17)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1994, c. 13, s. 7; 1996, c. 19, s. 70; 1997, c. 23, s. 10; 1999, c. 17, s. 120; 2001, c. 32, s. 26, c. 41, ss. 15, 133; 2005, c. 38, ss. 138, 140; 2010, c. 14, s. 9; 2013, c. 9, s. 15; 2014, c. 17, s. 7; 2018, c. 16, s. 215, c. 27, s. 28; 2022, c. 5, s. 13; 2022, c. 10, s. 138; 2022, c. 10, s. 173.

– CCC (CanLII), (DOJ)

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Informer Protections for Proceeds of Crime

A person who informs the police about their reasonable suspicions about the existence of proceeds of crime or the commission of a proceeds of crime offence is protected from civil liability:

No civil or criminal liability incurred by informants

462.47 For greater certainty but subject to section 241 of the Income Tax Act, a person is justified in disclosing to a peace officer or the Attorney General any facts on the basis of which that person reasonably suspects that any property is proceeds of crime or that any person has committed or is about to commit a designated offence.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, ss. 25, 82; 2002, c. 13, s. 16(F); 2004, c. 12, s. 8(F).

– CCC (CanLII), (DOJ)

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Seizure of Proceeds of Crime

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property
• < Proceeds of Crime

General Principles

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.

Pursuant to section 462.33, on application by the Attorney General, the court may order that certain property be restrained.

Application for restraint order

462.33 (1) The Attorney General may make an application in accordance with subsection (2) [application for restraint order – procedure] for a restraint order under subsection (3) [application for restraint order – requirements for granting order] in respect of any property.

Procedure

(2) An application made under subsection (1) [application for restraint order] for a restraint order under subsection (3) [application for restraint order – requirements for granting order] in respect of any 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, namely,

(a) the offence or matter under investigation;

(b) the person who is believed to be in possession of the property;

(c) the grounds for the belief that an order of forfeiture may be made under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture] in respect of the property;

(d) a description of the property; and

(e) whether any previous applications have been made under this section with respect to the property.

Restraint order

(3) A judge who hears an application for a restraint order made under subsection (1) [application for restraint order] may — if the judge is satisfied that there are reasonable grounds to believe that there exists, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture], in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction — make an order prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in the manner that may be specified in the order.

Effect of order

(3.01) A restraint order issued under subsection (1) [application for restraint order] has effect throughout Canada.

Property outside Canada

(3.1) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Idem

(4) An order made by a judge under subsection (3) [application for restraint order – requirements for granting order] may be subject to such reasonable conditions as the judge thinks fit.

Notice

(5) Before making an order under subsection (3) [application for restraint order – requirements for granting order] 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) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture].

Order in writing

(6) An order made under subsection (3) [application for restraint order – requirements for granting order] shall be made in writing.

Undertakings by Attorney General

(7) Before making an order under subsection (3) [application for restraint order – requirements for granting order], 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

(a) the making of an order in respect of property situated within or outside Canada; and

(b) the execution of an order in respect of property situated within Canada.

Service of order

(8) A copy of an order made by a judge under subsection (3) [application for restraint order – requirements for granting order] 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.

Registration of order

(9) A copy of an order made under subsection (3) [application for restraint order – requirements for granting order] shall be registered against any property in accordance with the laws of the province in which the property is situated.

Continues in force

(10) An order made under subsection (3) [application for restraint order – requirements for granting order] remains in effect until

(a) it is revoked or varied under subsection 462.34(4) [order for restoration of property or revocation or variation of order] or revoked under paragraph 462.43(a) ;

(b) it ceases to be in force under section 462.35 [expiration of special warrants and restraint orders]; or

(c) an order of forfeiture or restoration of the property is made under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances], 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or any other provision of this or any other Act of Parliament.

[omitted (11)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s. 60; 1997, c. 18, s. 30; 2001, c. 32, s. 15; 2005, c. 44, s. 4; 2019, c. 25, s. 181.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The application can be made on an ex parte basis.

The court may make the order where it is satisfied that "there are reasonable grounds to believe that there exists" there is property for which an order of forfeiture may be made "in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction".

The order will have the effect of "prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in the manner that may be specified in the order."

Purpose of Legislation

The purpose of Part XII.2, which relates to proceeds of crime is to ensure that "crimes does not pay". It recognizes that in certain situations "crime is big business" and that "massive profits" can be made from criminal activity.

In order to "remove" profits from crime, there must be "severe" consequences for possessing proceeds of crime.

Procedure

The application must consist of:

1. a written application
2. affidavit outlining:
   1. the offender or matter under investigation
   2. person believed to be in possession
   3. grounds for this belief
   4. grounds for belief that the order may be made under s.462.37(1), (2.01) or 462.38(2)
   5. a description of the property, and
   6. whether any previous application has been made

"Property"

The meaning of property in this part includes any interest in the property short of full ownership.

Management Order

Management order

462.331 (1) With respect to property seized under section 462.32 [search and seizure of proceeds of crime] or restrained under section 462.33 [restraint orders against property], other than a controlled substance, within the meaning of the Controlled Drugs and Substances Act, or cannabis, as defined in subsection 2(1) of the Cannabis Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, if a judge is of the opinion that the circumstances so require, the judge may

(a) appoint 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

(b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

Appointment of Minister of Public Works and Government Services

(2) When the Attorney General of Canada so requests, a judge appointing a person under subsection (1) [authorizing a management order] shall appoint the Minister of Public Works and Government Services.

Power to manage

(3) The power to manage or otherwise deal with property under subsection (1) [authorizing a management order] includes

(a) the power to make an interlocutory sale of perishable or rapidly depreciating property;

(b) the power to destroy, in accordance with subsections (4) to (7) [management order – destruction of property], property that has little or no value; and

(c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (7.1) [management order – forfeiture order].

Application for destruction order

(4) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a court for a destruction order.

Notice

(5) Before making a destruction order, a court shall require notice in accordance with subsection (6) [manner of giving notice] to be given to and may hear any person who, in the court’s opinion, appears to have a valid interest in the property.

Manner of giving notice

(6) A notice shall

(a) be given in the manner that the court directs or that may be specified in the rules of the court; and

(b) specify the effective period of the notice that the court considers reasonable or that may be set out in the rules of the court.

Destruction order

(7) A court shall order that the property be destroyed if it is satisfied that the property has little or no financial or other value.

Forfeiture order

(7.1) On application by a person who is appointed to manage the property, a court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if

(a) a notice is given or published in the manner that the court directs or that may be specified in the rules of the court;

(b) the notice specifies a period of 60 days during which a person may make an application to the court asserting their interest in the property; and

(c) during that period, no one makes such an application.

When management order ceases to have effect

(8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law, destroyed or forfeited to Her Majesty.

For greater certainty

(8.1) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.

Application to vary conditions

(9) The Attorney General may at any time apply to the judge to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2) [appointment of Minister of Public Works and Govt Serv.].

2001, c. 32, s. 16; 2017, c. 7, s. 58; 2018, c. 16, s. 212.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Search Warrant

• Proceeds of Crime Search Warrant

Order to Access Property

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 [search and seizure of proceeds of crime] or in respect of which a restraint order was made under subsection 462.33(3) [application for restraint order – requirements for granting order] may, at any time, apply to a judge

(a) for an order under subsection (4) [order for restoration of property or revocation or variation of order]; or

(b) for permission to examine the property.

[omitted (2)]

Terms of examination order

(3) A judge may, on an application made to the judge under paragraph (1)(b) [restraint orders – order to examine], 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.
[omitted (4), (5), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, ss. 69, 70; 1997, c. 18, ss. 31, 140; 2001, c. 32, s. 17; 2010, c. 14, s. 8.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Revocation or Variation of a Proceeds Restraint Order

• Revocation or Variation of a Proceeds Restraint Order

Disclosure Order

• Proceeds of Crime Disclosure Order

Disposal of Seized Property

Residual disposal of property seized or dealt with pursuant to special warrants or restraint orders

462.43 (1) Where property has been seized under a warrant issued pursuant to section 462.32 [search and seizure of proceeds of crime], a restraint order has been made under section 462.33 [restraint orders against property] in relation to any property or a recognizance has been entered into pursuant to paragraph 462.34(4)(a) [order for restoration of property or revocation or variation of order – types of recogs] in relation to any property and a judge, on application made to the judge by the Attorney General or any person having an interest in the property or on the judge’s own motion, after notice given to the Attorney General and any other person having an interest in the property, is satisfied that the property will no longer be required for the purpose of section 462.37 [order of forfeiture for proceeds of crime], 462.38 [order of forfeiture for proceeds of crime] 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, the judge

(a) in the case of a restraint order, shall revoke the order;

(b) in the case of a recognizance, shall cancel the recognizance; and

(c) in the case of property seized under a warrant issued pursuant to section 462.32 or property under the control of a person appointed pursuant to paragraph 462.331(1)(a) [authorizing a management order – designate custodian],

(i) if possession of it by the person from whom it was taken is lawful, shall order that it be returned to that person,

(ii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, shall order that it be returned to the lawful owner or the person who is lawfully entitled to its possession, or

(iii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is not known, may order 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.

Property outside Canada

(2) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
R.S., 1985, c. 42 (4th Supp.), s. 2; 2001, c. 32, s. 24; 2004, c. 12, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Copies of documents returned or forfeited

462.46 (1) If any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) [terms of examination order] or (4) [order for restoration of property or revocation or variation of order], 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) , 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders], the Attorney General may, before returning the document or complying with the order, cause a copy of the document to be made and retained.

Probative force

(2) Every copy made under subsection (1) [copies of documents returned or forfeited] shall, if certified as a true copy by the Attorney General, be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the original document would have had if it had been proved in the ordinary way.
R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 11.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Definitions Relating to Proceeds of Crime

PART XII.2 Proceeds of Crime

Interpretation

Definitions

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],
"designated drug offence" [Repealed, 1996, c. 19, s. 68]

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); (infraction désignée)

designated substance offence [Repealed, 2001, c. 32, s. 12]

enterprise crime offence [Repealed, 2001, c. 32, s. 12]

judge means a judge as defined in section 552 or a judge of a superior court of criminal jurisdiction; (juge)

[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
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 (CanLII), (DOJ)

---

Procedure

Making of Regulations

462.3
[omitted (1)]

Regulations

(2) The Governor in Council may make regulations prescribing indictable offences that are excluded from the definition “designated offence” in subsection (1).
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Section 462.3(3) and (4) were repealed by 2019, c. 25, s. 179.

See Also

• Forfeiture of Proceeds of Crime

Special Issues for Seizure of Property

This page was last substantively updated or reviewed July 2021. (Rev. # 79445)

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

Seizure of Perishable Property

Perishable things

490.01 Where any thing seized pursuant to this Act is perishable or likely to depreciate rapidly, the person who seized the thing or any other person having custody of the thing

(a) may return it to its lawful owner or the person who is lawfully entitled to possession of it; or

(b) where, on ex parte application to a justice, the justice so authorizes, may

(i) dispose of it and give the proceeds of disposition to the lawful owner of the thing seized, if the lawful owner was not a party to an offence in relation to the thing or, if the identity of that lawful owner cannot be reasonably ascertained, the proceeds of disposition are forfeited to Her Majesty, or

(ii) destroy it.

1997, c. 18, s. 51; 1999, c. 5, s. 17.

– CCC (CanLII), (DOJ)

---

Appeals From Orders Under Section 490

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10) and (11)]

Detention pending appeal, etc.

(12) Notwithstanding anything in this section, nothing shall be returned, forfeited or disposed of under this section pending any application made, or appeal taken, thereunder in respect of the thing or proceeding in which the right of seizure thereof is questioned or within thirty days after an order in respect of the thing is made under this section.
[omitted (13), (14), (15) and (16)]

Appeal

(17) A person who feels aggrieved by an order made under subsection (8) [application to return property to owner before expiration], (9) [disposal of things seized], (9.1) [order continued detention – initial detention expired and proceedings not started] or (11) [order of return or order to forfeit seized property] may appeal from the order

(a) to the court of appeal as defined in section 673 [Pt. XXI — appeals — definitions] if the order was made by a judge of a superior court of criminal jurisdiction, in which case sections 678 to 689 [appeal of indictable offences] apply with any modifications that the circumstances require; or

(b) to the appeal court as defined in section 812 [definition of appeal court] in any other case, in which case sections 813 to 828 [summary trial appeal provisions] apply with any modifications that the circumstances require.

[omitted (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Appeal to Court of Appeal

The right to appeal through the summary conviction appeal process granted under s. 490(17)(b) does not extend a right of appeal to the court of appeal.

Return of Things Seized to Lawful Owners

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

This page was last substantively updated or reviewed December 2022. (Rev. # 79445)

Release and Return of Property

A Superior Court Justice has inherent jurisdiction under s. 24(1) to order the return of property seized by the police where the items are not needed for trial and otherwise not needed to be held by the police.

Return of Property Upon Quashing of Search Warrant

A court may order the return of items seized upon the quashing of a search warrant. This power arises from the court's incidental authority under s. 24(1) of the Charter. The Crown may prevent the return of the seized items by establishing that the property will still be necessary for a prosecution.

Return of Things Seized Under Section 490

The initial possessor of the items can apply under section 490(7) to have the items returned to them. Section 490(7) states:

490
[omitted (1), (2), (3), (4), (5), (6) and (7)]

Application for order of return

(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] and on three clear days notice to the Attorney General, apply summarily to

(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges], where a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or

(b) a justice, in any other case,

for an order under paragraph (9)(c) [disposal of things seized – return to lawful owner] that the thing seized be returned to the applicant.

Exception

(8) A judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges], where a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or a justice, in any other case, may allow an application to be made under subsection (7) [application to return property to owner after expiration] prior to the expiration of the periods referred to therein where he is satisfied that hardship will result unless the application is so allowed.
[omitted (9), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Only the provincial court has jurisdiction to hear applications under s. 490.

Third Parties

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9) and (9.1)]

Application for order of return

(10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7) [application to return property to owner after expiration], who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 [restitution of property or report by peace officer] may, at any time, on three clear days’ notice to the Attorney General and the person from whom the thing was seized, apply summarily to:

(a) a judge as defined in subsection (7) [application to return property to owner after expiration] when a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or

(b) a justice, in any other case, ordered that the thing seized be returned to the applicant.

[omitted (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.

– CCC (CanLII), (DOJ)

---

For a review of s. 490 see R v Raponi, 2004 SCC 50 (CanLII), [2004] 3 SCR 35, per McLachlin CJ.

Return of Property Seized Under Warrant That is Not Needed

Restitution of thing or report

489.1 (1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).

Person other than peace officer

(2) Subject to this or any other Act of Parliament, if a person other than a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, that person shall, as soon as is practicable and so that the thing seized may be dealt with in accordance with subsection 490(1),

(a) bring the thing before a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued; or

(b) report to the justice referred to in paragraph (a) that the thing has been seized and is being detained.

[omitted (3)]

R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49; 2022, c. 17, s. 26.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The reference to "other proceeding" includes a forfeiture hearing following a trial.

Return of Property Upon Conclusion Proceedings

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7) and (8)]

Disposal of things seized

(9) Subject to this or any other Act of Parliament, if

(a) a judge referred to in subsection (7) [application to return property to owner after expiration], where a judge ordered the detention of anything seized under subsection (3) [further detention – exceeding 12 months], or

(b) a justice, in any other case,

is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial], he shall

(c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or

(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,

and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

Exception

(9.1) Notwithstanding subsection (9) [disposal of things seized], a judge or justice referred to in paragraph (9)(a) [disposal of things seized – judge] or (b) [disposal of things seized – justice] may, if the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied

(a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial]; and

(b) that it is in the interests of justice to do so.

[omitted (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Section 490(9) allows for the return of property where (1) "the time for detention has expired and proceedings have not been instituted", or where (2) "where the time has not expired but the item is not required for an investigation or proceeding"

Section (9.1) is known as the "slip rule" which permits application for further detention where the previous detention order has expired and charges have not been laid.

If however the period of detention has not expired, then s, 490(5) must be considered:

490
[omitted (1), (2), (3), (3.1) and (4)]

Where continued detention no longer required

(5) Where at any time before the expiration of the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized, the prosecutor, or the peace officer or other person having custody of the thing seized, determines that the continued detention of the thing seized is no longer required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial], the prosecutor, peace officer or other person shall apply to

(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges], where a judge ordered its detention under subsection (3) [further detention – exceeding 12 months], or

(b) a justice, in any other case,

who shall, after affording the person from whom the thing was seized or the person who claims to be the lawful owner thereof or person entitled to its possession, if known, an opportunity to establish that he is lawfully entitled to the possession thereof, make an order in respect of the property under subsection (9) [disposal of things seized].

Idem

(6) Where the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required, the prosecutor, peace officer or other person shall apply to a judge or justice referred to in paragraph (5)(a) [where continued detention no longer required – superior court] or (b) [where continued detention no longer required – provincial court] in the circumstances set out in that paragraph, for an order in respect of the property under subsection (9) [disposal of things seized] or (9.1) [order continued detention – initial detention expired and proceedings not started].

[omitted (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

This section only applies where the detention period has not expired and the property is no longer needed.

Continued Detention

The provincial court has jurisdiction under. s. 490(9.1) only where the seizure date was less than a year prior and where the prior detention order was not made by a superior court. Otherwise, only a superior court will have jurisdiction to make an order. This equally applies to orders under s.490(6).

A superior court judge may extend the detention to any amount of time. a provincial court cannot make any order that permits detention beyond a year from the date of seizure.

Return of Documents Seized Under Section 490

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12)]

Copies of documents returned

(13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1) [detention of things seized], (9) [disposal of things seized] or (11) [order of return or order to forfeit seized property], make or cause to be made, and may retain, a copy of the document.

Probative force

(14) Every copy made under subsection (13) [copies of documents returned] that is certified as a true copy by the Attorney General, the person who made the copy or the person in whose presence the copy was made is admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the original document would have if it had been proved in the ordinary way.
[omitted (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Application by Lawful Owner

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9) and (9.1)]

Application by lawful owner

(10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7) [application to return property to owner after expiration], who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily to

(a) a judge referred to in subsection (7) [application to return property to owner after expiration], where a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or

(b) a justice, in any other case,

for an order that the thing detained be returned to the applicant.

Order

(11) Subject to this or any other Act of Parliament, on an application under subsection (10) [application by lawful owner], where a judge or justice is satisfied that

(a) the applicant is the lawful owner or lawfully entitled to possession of the thing seized, and

(b) the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of the thing seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial],

the judge or justice shall order that

(c) the thing seized be returned to the applicant, or

(d) except as otherwise provided by law, where, pursuant to subsection (9) [disposal of things seized], the thing seized was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant be paid the proceeds of sale or the value of the thing seized.

[omitted (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Access to Things Detained Under Section 490
• Access to Court-Filed Exhibits
• Forfeiture Orders

Return of Property Obtained by Crime

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

General Principles

Section 491.1 of the Code provides that if during the course of a trial the judge determines that the property was obtained by crime and that the property will not be needed for any other proceedings, the property may be returned to the lawful owner.

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 [order of discharge] 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 [detention, access and disposal of things seized] does not apply in respect of the property and the court shall make an order under subsection (2) [order for restitution or forfeiture of property obtained by crime – order] in respect of the property.

Idem

(2) In the circumstances referred to in subsection (1) [order for restitution or forfeiture of property obtained by crime – grounds], 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) [order for restitution or forfeiture of property obtained by crime – order]

(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 [theft by person required to account], 331 [theft by person holding power of attorney], 332 [misappropriation of money held under direction] or 336 [breach of trust]; 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.

By whom order executed

(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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Acquittal

Section 491.1 is only engaged where the accused has been found guilty. If there is an acquittal the provision does not apply. Where property is before the court on an acquittal, the Court can only use its power of inherent jurisdiction under s. 24(1) of the Charter to dispose of the property.

Forfeiture Orders

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property

Introduction

There are a number of scheme dealing with the detention and forfeiture of property in criminal law. There is a significant amount of overlap between many of them and so provide for several methods of forfeiting property.

Forfeiture Orders arise from two scenarios, it is either post-conviction or where no conviction exists.

With Conviction

• Firearms Forfeiture Orders (491)
• Forfeiture or Return of Property Obtained by Crime (491.1)
• Forfeiture of Proceeds of Crime (462.37)
• Forfeiture of Things Detained Under Section 490 (490(9))
• Offence-related Property Under the Code (490.1, 490.2, 490.41)
• Offence-related Property Under the CDSA
• Computer-related Property for Online Child Exploitation (164.2)
• Forfeiture of Wiretap Devices (192)
• Forfeiture of Counterfeit Items (462)
• Forfeiture of Computer and Devices relating to Mischief and Services Theft (327, 342.2)
• Forfeiture of Valuable Minerals (394, 394.1)
• Forfeiture of Forgery Items (342.01, 412)
• Fine in Lieu of Forfeiture (462.37)

Without Conviction

• Terrorism Forfeiture Orders (83.14)
• Obscene Material Forfeiture Order (164(4))
• 490 Forfeiture for No Lawful Owner (490(9))
• Firearms (115, 117.03, 117.05, 491)
• In Rem forfeiture on pending charge (490.2)
• Civil Forfeiture
• Forfeiture of Hate Propaganda (319, 320)
• Forfeiture of Recognizance (s. 134, 135 YCJA)

Topics

• Forfeiture of Proceeds of Crime
• Forfeiture of Offence-related Property
• Forfeiture of Offence-related Property Under the CDSA
• Forfeiture of Things Detained Under Section 490
• Forfeiture of Weapons and Firearms
• Forfeiture of Computer-related Property
• Fine in Lieu of Forfeiture
• Civil Forfeiture

See Also

• Seizure of Property

Forfeiture of Things Detained Under Section 490

This page was last substantively updated or reviewed April 2021. (Rev. # 79445)

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

General Principles

Section 490 provides for a comprehensive scheme for the management, return or disposition of items that have been seized.

Where property seized under s.489.1 has been brought before a justice or a report has been made to justice, the court has an obligation under s. 490 to "supervise its detention."

Appeal of Decision

Forfeiture of Things Seized

The property seized under s. 489, such as counterfeit products or proceeds of crime, can be forfeited to the Attorney General by way on an application to a court of competent jurisdiction under s.490(9). Section 490(9) is found in Part XV of the Code titled "Special Procedure and Powers" which states:

s. 490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7) and (8)]

Disposal of things seized

(9) Subject to this or any other Act of Parliament, if

(a) a judge referred to in subsection (7) [application to return property to owner after expiration], where a judge ordered the detention of anything seized under subsection (3) [further detention – exceeding 12 months], or

(b) a justice, in any other case,

is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial], he shall

(c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or

(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,

and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

[omitted (9.1) and (10)]

Order

(11) Subject to this or any other Act of Parliament, on an application under subsection (10) [application by lawful owner], where a judge or justice is satisfied that

(a) the applicant is the lawful owner or lawfully entitled to possession of the thing seized, and

(b) the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of the thing seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial],

the judge or justice shall order that

(c) the thing seized be returned to the applicant, or

(d) except as otherwise provided by law, where, pursuant to subsection (9) [disposal of things seized], the thing seized was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant be paid the proceeds of sale or the value of the thing seized.

[omitted (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Jurisdiction

A s. 490(9) order may be considered by:

• a "justice" (see s. 490(9)(b)), which under s. 2 refers to "justice of the peace or a provincial court judge" or
• "a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3)" (see s. 490(7)(a) or 490(9)(a)). Section 490(3) applies to orders extending an initial detention order.

Return of Items

Section 490 permits the return of items where:

1. "the time for detention has expired and proceedings have not been instituted," or
2. "where the time has not expired but the item is not required for an investigation or proceeding".

Forfeiture

Section 490(9) permits forfeiture in two circumstances.

1) Expired Detention Order

If "periods of detention provided for or ordered ... have expired" then forfeiture may happen where:

1. "proceedings have not been instituted in which the thing detained may be required"
2. "possession of it by the person from whom it was seized is unlawful" or "if it was seized when it was not in the possession of any person" and
3. "the lawful owner or person who is lawfully entitled to its possession is not known"

2) Unexpired Detention Order

If periods of detention "have not expired" then forfeiture may happen where:

1. "continued detention of the thing seized will not be required" for a "purpose mentioned in subsection (1) or (4)," which consists of:
   1. Custody of Police: "the purposes of any investigation or a preliminary inquiry, trial or other proceeding" (s. 490(1)(a))
   2. Custody of Court: the accused has been ordered to stand trial and the property is to be "detained by the clerk of the court and disposed of as the court directs" (s. 490(4))
2. "possession of it by the person from whom it was seized is unlawful" or "if it was seized when it was not in the possession of any person" and
3. "the lawful owner or person who is lawfully entitled to its possession is not known"

The first branch (expired detention order) would expect that the initial three month detention has expired, any extension has expired or has not been made, and proceedings have not been instituted against the accused.

Section 490(9) in no way requires that there be a conviction before the application for forfeiture can be made.

For an application under s. 490(9) to succeed the applicant must establish;

1. items were ordered detained under s.490(1);
2. that the items seized is no longer required for a purpose set out in s. 490(1);
3. the period of detention ordered under s.489 has expired;
4. the item either does not have a lawful owner or the lawful owner is unknown, or the item is tainted by criminality and as such possession is unlawful.

To forfeit under s. 490 the crown should prove that the property "are proceeds of crime or sufficiently associated with criminality that they should be forfeited." Thus, the Crown can still have property forfeited even where there are underlying criminal charges where there was an acquittal.

Presumptions

The person in possession of the seized property is presumed to be in lawful possession unless the Crown proves otherwise. This applies even where the explanation of the source of property is disbelieved.

Burden of Proof

The burden is upon the applicant to establish the elements beyond a reasonable doubt. Hearsay is generally not admissible unless exception is made under the principled approach.

No Longer Required

The required purposes are listed under s. 490(1) to (4).

Owners

For all property seized under s. 490, there is a presumption of lawful entitlement based on possession. It is not for the possessor to prove that the property was not tainted by criminal activity. The crown must prove beyond a reasonable doubt that the possessor is not entitled to the property.

Inapplicability

Section 490(9) does not contemplate the situation where items have been entered in the court record or situations that arise once proceedings are instituted.

See Also

• Return of Things Seized to Lawful Owners
• Precedent - Forfeiture and Estreatment

Forfeiture of Proceeds of Crime

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

• < Procedure and Practice
• < Search and Seizure
• < Seizure of Property
• < Proceeds of Crime

General Principles

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.

Purpose

The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them." 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."

Application for forfeiture

462.38 (1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) [requirements to order forfeiture] in respect of any property.

Order of forfeiture of property

(2) Subject to sections 462.39 to 462.41 [inference re forfeiture of proceeds of crime], where an application is made to a judge under subsection (1) [authority to make application of forfeiture], 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 a designated 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.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Person deemed absconded

(3) For the purposes of this section, a person shall be deemed to have absconded in connection with a designated 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 an organization 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; 2001, c. 32, s. 20; 2003, c. 21, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Part XII.2 provides two manners of forfeiting property:

1. forfeiture of proceeds upon conviction or discharge
2. forfeiture of proceeds upon death or abscondment of accused

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

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

Regulations

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

Judge

The reference to "judge" under Part XII.2 is defined in s. 462.3:

Definitions

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],
...
"judge " means a judge as defined in section 552 [definitions - judges] or a judge of a superior court of criminal jurisdiction;
...
[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
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; 2019, c. 25, s. 179.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Punishments

The forfeiture of proceeds of crime is not a form of punishment.

Evidence

The normal rules of trial evidence still apply in the forfeiture hearing, including rules relating to hearsay.

Inference

462.39 For the purpose of subsection 462.37(1) [order of forfeiture of proceeds of crime] or 462.38(2) [requirements to order forfeiture], the court may infer that property was obtained or derived as a result of the commission of a designated 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 designated 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; 2001, c. 32, s. 21.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Proceeds of Crime Defined

Section 462.3 defines Proceeds of Crime as:

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],
...
"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.

[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
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; 2019, c. 25, s. 179.

– CCC (CanLII), (DOJ)

---

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

Designated Offence Defined

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

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],

"designated drug offence"[Repealed, 1996, c. 19, s. 68]

"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);

...
[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
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 (CanLII), (DOJ)

---

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,

Notice of Application

Notice

462.41 (1) Before making an order under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture] in relation to any property, a court shall require notice in accordance with subsection (2) [notice requirements for forfeiture of proceeds of crime – manner] 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) [notice requirements for forfeiture of proceeds of crime – requirement] 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 designated 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, a designated 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) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture] 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; 2001, c. 32, s. 22; 2005, c. 44, s. 8.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

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 [inference re forfeiture of proceeds of crime], if an offender is convicted, or discharged under section 730 [order of discharge], of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, 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 — other offences

(2) If the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) [order of forfeiture of proceeds of crime] was obtained through the commission of the designated offence of which the offender is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is proceeds of crime, the court may make an order of forfeiture under subsection (1) [order of forfeiture of proceeds of crime] in relation to that property.
[omitted (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1), (3), (4) and (5)]

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; 2015, c. 16, s. 4 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Purpose

The purpose of s. 462.37 is to "deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds ."

Where the offender never had control over the property there is no reason to order forfeiture against the offender.

Standard of Proof

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

Evidence

Inference

462.39 For the purpose of subsection 462.37(1) [order of forfeiture of proceeds of crime] or 462.38(2) [requirements to order forfeiture], the court may infer that property was obtained or derived as a result of the commission of a designated 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 designated 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; 2001, c. 32, s. 21.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Forfeiture of Proceeds of Crime (Organized Crime)

• Forfeiture of Proceeds of Crime (Organized Crime)

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 and so can be forfeited under those provisions.

Third Party Interests

When a third party attempts to claim interest to a forfeiture application, the process to follow should include the following steps:

1. The first step in a Crown’s forfeiture application is the Crown establishing the criteria for forfeiture under s. 462.37 on a balance of probabilities.
2. If the Crown meets its onus, notice is given to person(s) who appear to have an interest in the property. If anyone responds to the notice seeking the return of property, the judge may hear them and determine whether the disputed property should be returned to the person with an interest. At this stage there is an onus on the person claiming an interest to establish the criteria noted in s. 462.41 on a balance of probabilities.
3. If the person claiming an interest satisfies the judge with regard to the criteria, the judge has a discretion whether to return the property. In exercising his or her discretion, the sentencing judge must consider all the circumstances and determine whether all, part or none of the property should be returned considering the equities of the situation.
4. Where the judge orders property returned, the remainder of the property, if any, is forfeited to the Crown pursuant to s. 462.37(1).

Once a third party is determined to be an interested party under s. 462.41, the considerations under 462.37 will include:

1. "purpose of the ...forfeiture (to ensure that crime does not pay for the offender that that illegally obtained property is returned to the victim of the designated offence)",
2. "the actions of the innocent parties (as ‘corollary victims’)," and
3. "the impact on the offender (what impact or benefit would the disposition have on the offender, since they are not meant to benefit from the disposition of proceeds of crime)"

Application For Relief From Forfeiture

• Application For Relief From Forfeiture

Priority in Forfeiture

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

462.49
[omitted (1)]

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.

– CCC (CanLII), (DOJ)

---

Voiding Conveyance on Forfeiture

Voidable transfers

462.4 A court may,

(a) prior to ordering property to be forfeited under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture], and

(b) in the case of property in respect of which a restraint order was made under section 462.33 [restraint orders against property], where the order was served in accordance with subsection 462.33(8) [service of order],

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 [restraint orders against property], 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); 2005, c. 44, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Fine in Lieu of Forfeiture

• Fine in Lieu of Forfeiture

Appeal of Forfeiture Orders

Appeals from certain orders

462.44 Any person who considers that they are aggrieved by an order made under subsection 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders] 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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], and that Part applies, with such modifications as the circumstances require, to such an appeal.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 39.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Suspension of forfeiture pending appeal

462.45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4) [order for restoration of property or revocation or variation of order], 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances], 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders] 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 the restoration or forfeiture of such property,

(b) any appeal taken from an order of forfeiture or restoration in respect of the property, or

(c) any other proceeding in which the right of seizure of the property is questioned,

and property shall not be disposed of within thirty days after an order of forfeiture is made under any of those provisions.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 10.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Misc Definitions

Definition of “order”

462.371 (1) In this section, "order" means an order made under section 462.37 [order of forfeiture for proceeds of crime] or 462.38 [order of forfeiture for proceeds of crime].

Execution

(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.

Attorney General of Canada

(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.

Effect of registered order

(5) An order has, from the date it is filed in a court of a province under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property], the same effect as if it had been an order originally made by that court.

Notice

(6) Where an order has been filed in a court under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property], it shall not be executed before notice in accordance with subsection 462.41(2) [notice requirements for forfeiture of proceeds of crime – manner] is given to every person who, in the opinion of the court, appears to have a valid interest in the property.

Application of section 462.42

(7) Section 462.42 [application by person claiming interest for relief from forfeiture] 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) [filing of order from another province] or (4) [filing of order from another province].

Application under section 462.42 to be made in one province

(8) No person may make an application under section 462.42 [application by person claiming interest for relief from forfeiture] in relation to property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property] if that person has previously made an application in respect of the same property in another province.

Finding in one court binding

(9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property] as to whether or not an applicant referred to in subsection 462.42(4) [order declaring interest not subject to forfeiture] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Order of Restraint for Proceeds of Crime
• Forfeiture of Offence-related Property Under the CDSA
• Forfeiture of Offence-related Property
• Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17

Forfeiture of Offence-related Property

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

General Principles

Where an accused is convicted of an indictable offence under the Criminal Code, the Crown is entitled to seek forfeiture of certain seized property as "offence-related property" under s. 490.1. Should the accused die or abscond, the Crown can apply under s. 490.2 for the forfeiture of the property.

Similarly, an accused convicted of an indictable offence under the CDSA permits forfeiture of offence-related property under s. 16 of the CDSA.

Definition of Offence-related Property

Section 2 of the Code defines "offence-related property" (ORP):

2
...
"offence-related property" means any property, within or outside Canada,

(a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed,

(b) that is used in any manner in connection with the commission of such an offence, or

(c) that is intended to be used for committing such an offence;

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

– CCC (CanLII), (DOJ)

---

The origin of the property is not relevant to determine whether the property fits the definition. The issue is the relationship the property has with the index offence.

ORP may include the proceeds obtained by the sale of offence-related property.

Any reference to an "indictable offence" excludes those offences for which there prosecuted by way of summary conviction.

Forfeiture of Offence-related Property on Conviction

Section 490.1(1) permits the forfeiture of "offence-related property" on application of the Crown:

Order of forfeiture of property on conviction

490.1 (1) Subject to sections 490.3 to 490.41 [various orders and procedures re ORP], if a person is convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

(1.1) [Repealed, 2001, c. 41, s. 130]

Property related to other offences

(2) Subject to sections 490.3 to 490.41 [various orders and procedures re ORP], if the evidence does not establish to the satisfaction of the court that the indictable offence under this Act or the Corruption of Foreign Public Officials Act of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) [order of forfeiture of property on conviction] but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) [order of forfeiture of property on conviction] in relation to that property.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Appeal

(3) A person who has been convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, or the Attorney General, may appeal to the court of appeal from an order or a failure to make an order under subsection (1) [order of forfeiture of property on conviction] as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 30, c. 41, ss. 18, 130; 2007, c. 13, s. 8.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Under s. 490.1(2), for property to be forfeited, the court must be satisfied that the offence convicted 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 the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property."

An application under s. 490.1 is not part of a sentencing hearing and so the normal rules of evidence apply, including the presumptive inadmissibility of hearsay evidence.

The standard of proof is on the balance of probabilities.

Property includes cash and real property.

Sentencing Provisions of s. 718

The general sentencing provisions of s. 718 and related have no application to proceedings under s. 490.41(3).

Forfeiture of Offence-related Property Under the Controlled Drugs and Substances Act

• Forfeiture of Offence-related Property Under the CDSA

In Rem Forfeiture

In rem forfeiture for offence-related property is available where the accused has either "died or absconded".

The charges must be laid before death as there is no means to lay an information against a deceased person.

Application for in rem forfeiture

490.2 (1) If an information has been laid in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) [application for in rem forfeiture – order of forfeiture].

Order of forfeiture of property

(2) Subject to sections 490.3 to 490.41 [various orders and procedures re ORP], the judge to whom an application is made under subsection (1) [application for in rem forfeiture] shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) [who may dispose of forfeited property] if the judge is satisfied

(a) beyond a reasonable doubt that the property is offence-related property;

(b) that proceedings in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to the property were commenced; and

(c) that the accused charged with the offence has died or absconded.

Accused deemed absconded

(3) For the purpose of subsection (2) [application for in rem forfeiture – order of forfeiture], an accused is deemed to have absconded in connection with the indictable offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused under the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused is deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property

(4) For the purpose of subsection (2) [application for in rem forfeiture – order of forfeiture], the judge shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

Property outside Canada

(4.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
[omitted (5)]
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The application can be made to a provincial court or superior court judge.

"Judge"

490.2
[omitted (1), (2), (3), (4) and (4.1)]

Definition of judge

(5) In this section and sections 490.5 [application by third-party to claim interest in forfeited property] and 490.8 [restraint orders for offence-related property], "judge" means a judge as defined in section 552 [definitions - judges] or a judge of a superior court of criminal jurisdiction.
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Corporation

A corporation will be considered "dead" where it is determined to be a "sham, or a front." The standard of proof is on the balance of probabilities.

Considerations in Forfeiture of Dwelling-House

Where the matter sought to be forfeited is a dwelling-house, the court must take into consideration further factors:

490.41
[omitted (1), (2) and (3)]

Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

2001, c. 32, s. 33; 2007, c. 13, s. 11.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Other Items

Vehicles

The vehicle used to transport drugs that were the subject of a CDSA conviction is offence-related property and so can be seized.

Weapons

• See Forfeiture of Weapons and Firearms#Forfeiture_of_Offence-related_Weapons

Notice

Notice

490.4 (1) Before making an order under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] 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.

Manner of giving notice

(2) A notice given under subsection (1) [notice to third parties before ordering forfeiture under ss. 490.1 and 490.2] shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and

(c) set out the offence charged and a description of the property.

Order of restoration of property

(3) A court may order that all or part of the property that would otherwise be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] be returned to a person — other than a person who was charged with an indictable offence under this Act or the Corruption of Foreign Public Officials Act or a person who acquired title to or a right of possession of the property from such a person 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 — if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of all or part of that property, and that the person appears innocent of any complicity in, or collusion in relation to, the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 32; 2007, c. 13, s. 10.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Notice

490.41 (1) If all or part of offence-related property that would otherwise be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] is a dwelling-house, before making an order of forfeiture, a court shall require that notice in accordance with subsection (2) [notice to residents – manner of notice] be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to which the property would be forfeited.

Manner of giving notice

(2) A notice shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and

(c) set out the offence charged and a description of the property.

Non-forfeiture of property

(3) Subject to an order made under subsection 490.4(3) [order of restoration of property], if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
[omitted (4)]
2001, c. 32, s. 33; 2007, c. 13, s. 11.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Voidable Transfers

Voidable transfers

490.3 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture], set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
1997, c. 23, s. 15.

– CCC (CanLII), (DOJ)

---

Third Party Applications

Application

490.5 (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture], any person who claims an interest in the property, other than

(a) in the case of property forfeited pursuant to an order made under subsection 490.1(1) [order of forfeiture of property on conviction], a person who was convicted of the indictable offence in relation to which the property was forfeited,

(b) in the case of property forfeited pursuant to an order made under subsection 490.2(2) [application for in rem forfeiture – order of forfeiture], a person who was charged with the indictable offence in relation to which the property was forfeited, or

(c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) 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 the forfeiture, apply by notice in writing to a judge for an order under subsection (4) [order declaring interest not affected by forfeiture].

Fixing day for hearing

(2) The judge to whom an application is made under subsection (1) [application by third-party to claim interest in forfeited property] shall fix a day not less than thirty days after the date of the filing of the application for the hearing of the application.

Notice

(3) An applicant shall serve a notice of the application made under subsection (1) [application by third-party to claim interest in forfeited property] 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) [application by third-party to claim interest in forfeited property], the judge is satisfied that the applicant

(a) is not a person referred to in paragraph (1)(a) [application by third-party to claim interest in forfeited property – forfeiture under s. 490.1(1)], (b) [application by third-party to claim interest in forfeited property – forfeiture under s. 490.2(2)] or (c) [application by third-party to claim interest in forfeited property – other persons] and appears innocent of any complicity in any indictable 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) [order declaring interest not affected by forfeiture], and the provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] with respect to procedure on appeals apply, with any modifications that the circumstances require, in respect of appeals under this subsection.

Return of property

(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) [order declaring interest not affected by forfeiture], 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) [application by third-party to claim interest in forfeited property – appeal from order] 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; 2001, c. 32, s. 34.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Appeals

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) [application for in rem forfeiture – order of forfeiture] 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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], and that Part applies, with any modifications that the circumstances require, in respect of such an appeal.
1997, c. 23, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

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) [order of forfeiture of property on conviction], 490.2(2) [application for in rem forfeiture – order of forfeiture] or 490.5(4) [order declaring interest not affected by forfeiture] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Restraint of Offence-related Property

Forfeiture of Offence-related Property Under the CDSA

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

Introduction

The purpose of the forfeiture of offence-related property under the Controlled Drugs and Substances Act (CDSA) is "to ensure that offence-related property is not returned to the offender and the interests of innocent third parties and persons with valid interests in the property are protected."

The intended effect is that it (1) "punishes the offender by taking away the property that was used in the commission of the designated substance offence", with the effect upon the profit of the trade; (2) provides deterrence through "“rais[ing] the stakes” by imposing a “very real cost” to those who either use, or permit their property to be used, in the commission of a designated substance offence"; and (3) ensures "that the property is no longer available for continued use in criminal activities", that is, to take it out of circulation

The Attorney General may apply at any time after conviction forfeiture of offence-related property.

They must show on a balance of probabilities that the property is "offence-related property" in relation to the offences convicted.(s. 16(1)) The AG may also obtain an order if they can prove beyond a reasonable doubt that the property is "offence-related property" but not in relation to any particular conviction. (s. 16(2))

Innocent persons with property interests in the goods may apply usually during a forfeiture hearing for the return of the items. (s. 19)

Constitution

The forfeiture provisions under the CDSA are within the constitutional competency of the federal legislature under its criminal law power.

Offence-related Property

Offence-related property is defined in s.2 of the CDSA:

2 (1)
...
"offence-related property" means, with the exception of a controlled substance, any property, within or outside Canada,

(a) by means of or in respect of which a designated substance offence is committed,

(b) that is used in any manner in connection with the commission of a designated substance offence, or

(c) that is intended for use for the purpose of committing a designated substance offence;

...
[omitted (2) and (3)]
1996, c. 8, s. 35, c. 19, s. 2; 2001, c. 32, s. 47; 2017, c. 7, s. 1; 2018, c. 16, s. 194.

– CDSA

---

Forfeiture on Conviction

Section 16 of the Controlled Drugs and Substances Act provides a power of forfeiture on conviction similar to s. 490.1 of the Criminal Code:

Forfeiture of Offence-related Property

Order of forfeiture of property on conviction

16 (1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b) in the case of any other offence-related property,

(i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and

(ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

Property related to other offences

(2) Subject to sections 18 to 19.1, where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been convicted 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 offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Appeal

(3) A person who has been convicted of a designated substance offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.
1996, c. 19, s. 16; 2001, c. 32, s. 51.

– CDSA

---

A respondent to a forfeiture application may make a motion for non-suit or directed verdict.

Appeals

Section 16(3) expressly limits the right of appeal to an order of forfeiture to "persons convicted". A third-party does not have a right of appeal.

Partial Forfeiture of Real Property

Under s. 19.1, the applicant must give notice to "any person who resides in the dwelling-house and is a member of the immediate family" of the accused or offender. Section 19.1(2) directs the manner of notice and what details must be given.

19.1
[omitted (1) and (2)]

Non-forfeiture of real property

(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

2001, c. 32, s. 53; 2017, c. 7, s. 20.

– CDSA

---

Section 19.1 permits the court to order partial forfeiture of real property. It allows for a spectrum of options that "reflect the relative gravity of the case".

Full forfeiture will often be ordered where the property is solely dedicated to commercial production and distribution of illegal substances.

Third Parties

Application

20 (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 16(1) or 17(2), any person who claims an interest in the property, other than

(a) in the case of property forfeited pursuant to an order made under subsection 16(1), a person who was convicted of the designated substance offence in relation to which the property was forfeited,

(b) in the case of property forfeited pursuant to an order made under subsection 17(2), a person who was charged with the designated substance offence in relation to which the property was forfeited, or

(c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) 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 the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

Fixing day for hearing

(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.

Notice

(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 designated substance 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 of the Criminal Code with respect to procedure on appeals apply, with such modifications as the circumstances require, in respect of appeals under this subsection.

Return of property

(6) The Minister shall, on application made to the Minister 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.

– CDSA

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Requirements

For an application under s. 20 CDSA to succeed, the applicant must establish on a balance of probabilities that:

1. she has not been convicted of a designated substance offence linked to the forfeited property;
2. she did not acquire title from the person convicted of the designated substance offence in circumstances that give rise to a reasonable inference that the title was transferred for the purpose of avoiding forfeiture;
3. she claims an interest in the property;
4. she appears innocent of any complicity in the designated substance offence or any collusion in relation to such an offence; and
5. she has exercised all reasonable care to be satisfied that the property is 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.

To establish the third criterion of an "interest" in the property. There must be a "true and valid" interest.

Voidable Transfers

Voidable transfers

18 A court may, before ordering that offence-related property be forfeited under subsection 16(1) or 17(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

– CDSA

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In Rem Forfeiture

Application for in rem forfeiture

17 (1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

Order of forfeiture of property

(2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

(a) beyond a reasonable doubt that any property is offence-related property,

(b) that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (a) were commenced, and

(c) that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

Accused deemed absconded

(3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused shall be deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property

(4) For the purposes of subsection (2),

(a) in the case of a substance included in Schedule VI, the judge shall order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b) in the case of any other offence-related property,

(i) where the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and

(ii) in any other case, the judge shall order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

Property outside Canada

(5) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
1996, c. 19, s. 17; 2001, c. 32, s. 52.

– CDSA

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Appeals from orders under subsection 17(2)

21 Any person who, in their opinion, is aggrieved by an order made under subsection 17(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 of the Criminal Code, and that Part applies, with such modifications as the circumstances require, in respect of such an appeal.

– CDSA

---

Procedure

Notice

Under s. 19, applications under s.16(1) or 17(2) requires notice to any persons who appear to have valid interests in the property.

Section 19 read:

Notice

19 (1) Before making an order under subsection 16(1) or 17(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.

Manner of giving 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 specified in the rules of the court;

(b) be of such duration as the court considers reasonable or as may be specified in the rules of the court; and

(c) set out the designated substance offence charged and a description of the property.

[omitted (3)]
1996, c. 19, s. 19; 2017, c. 7, s. 19.

– CDSA

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Return of Property

19
[omitted (1) and (2)]

Order of restoration of property

(3) Where a court is satisfied that any person, other than

(a) a person who was charged with a designated substance offence, or

(b) a person who acquired title to or a right of possession of the 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 of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(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 be returned to that person. 1996, c. 19, s. 19; 2017, c. 7, s. 19.

– CDSA

---

"Complicity or Collusion"

The principles to follow in relation to whether there is complicity or collusion:

1. The onus of proof is on the applicant to convince the judge that he or she appears innocent of any complicity or collusion.
2. This is to be established on the civil standard of proof, that is on the balance of probabilities.
3. Complicity is a well-known concept which is well-defined in the criminal law.
4. Collusion is a civil law concept that includes two components:
   1. An agreement, and
   2. An aim, which is that of misleading one or more persons.
5. The agreement for collusion may be established by direct proof or may be inferred by the behaviour of the parties.
6. The judicial discretion should be exercised in a judicial manner respecting the intent of the legislature, which is to prevent a delinquent from enjoying the fruits of his or her crimes.

Complicity requires something more than "mere passive acquiescence" or "failure to blow the whistle."

Complicity is a "partnership in wrongdoing" and collusion is a 'fraudulent secret undertaking or the act of secretly acting with another to achieve a fraudulent or illegal purpose."

Real Property

Notice

Notice

19.1 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited.

Manner of giving notice

(2) A notice shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and

(c) set out the offence charged and a description of the property.

[omitted (3) and (4)]
2001, c. 32, s. 53; 2017, c. 7, s. 20.

– CDSA

---

Return of Real Property

19.1
[omitted (1) and (2)]

Non-forfeiture of real property

(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

2001, c. 32, s. 53; 2017, c. 7, s. 20.

– CDSA

---

The fairness of the order can be adjusted by the availability of partial forfeiture.

Disposal of Controlled Substances

PART III

Disposal of Controlled Substances

Application for return of substance

24 (1) Where a controlled substance has been seized, found or otherwise acquired by a peace officer or an inspector, any person may, within sixty days after the date of the seizure, finding or acquisition, on prior notification being given to the Attorney General in the prescribed manner, apply, by notice in writing to a justice in the jurisdiction in which the substance is being detained, for an order to return that substance to the person.

Order to return substance forthwith

(2) Where, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the controlled substance and the Attorney General does not indicate that the substance or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the justice shall, subject to subsection (5), order that the substance or the portion not required for the purposes of the proceeding be returned forthwith to the applicant.

Order to return substance at specified time

(3) Where, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the controlled substance but the Attorney General indicates that the substance or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the justice shall, subject to subsection (5), order that the substance or the portion required for the purposes of the proceeding be returned to the applicant

(a) on the expiration of one hundred and eighty days after the application was made, if no proceeding in relation to the substance has been commenced before that time; or

(b) on the final conclusion of the proceeding or any other proceeding in relation to the substance, where the applicant is not found guilty in those proceedings of an offence committed in relation to the substance.

Order to return substance refused

(4) Where, on the hearing of an application made under subsection (1), a justice is not satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the controlled substance, the justice shall order that the substance or the portion not required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

Payment of compensation in lieu

(5) Where, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of a controlled substance, but an order has been made under subsection 26(2) in respect of the substance, the justice shall make an order that an amount equal to the value of the substance be paid to the applicant.

– CDSA

---

Disposal by Minister where no application

25 Where no application for the return of a controlled substance has been made under subsection 24(1) within sixty days after the date of the seizure, finding or acquisition by a peace officer or inspector and the substance or a portion of it is not required for the purposes of any preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the substance or the portion not required for the purposes of the proceeding shall be delivered to the Minister to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

---

Security, health or safety hazard

26 (1) Where the Minister has reasonable grounds to believe that a controlled substance that has been seized, found or otherwise acquired by a peace officer or inspector constitutes a potential security, public health or safety hazard, the Minister may, on prior notification being given to the Attorney General in the prescribed manner, at any time, make an application, ex parte, to a justice for an order that the substance or a portion of it be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

Security, health or safety hazard

(2) Where, on the hearing of an application made under subsection (1), a justice is satisfied that there are reasonable grounds to believe that the controlled substance constitutes a potential security, public health or safety hazard, the justice shall order that the substance or any portion not required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

---

Disposal following proceedings

27 Subject to section 24, where, pursuant to a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the court before which the proceedings have been brought is satisfied that any controlled substance that is the subject of proceedings before the court is no longer required by that court or any other court, the court

(a) shall

(i) where it is satisfied that the person from whom the substance was seized came into possession of the substance in accordance with the regulations and continued to deal with it in accordance with the regulations, order that the substance be returned to the person, or

(ii) where it is satisfied that possession of the substance by the person from whom it was seized is unlawful and the person who is lawfully entitled to its possession is known, order that the substance be returned to the person who is the lawful owner or is lawfully entitled to its possession; and

(b) may, where it is not satisfied that the substance should be returned pursuant to subparagraph (i) or (ii) or where possession of the substance by the person from whom it was seized is unlawful and the person who is the lawful owner or is lawfully entitled to its possession is not known, order that the substance be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

---

Disposal with consent

28 Where a controlled substance has been seized, found or otherwise acquired by a peace officer or inspector under this Act or the regulations and the substance or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the person who is the lawful owner or is lawfully entitled to its possession may consent to its disposal, and on such consent being given the substance or portion is thereupon forfeited to Her Majesty and may be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

---

Destruction of plant

29 The Minister may, on prior notification being given to the Attorney General, cause to be destroyed any plant from which a substance included in Schedule I, II, III or IV may be extracted that is being produced otherwise than under the authority of and in accordance with a licence issued under the regulations.

– CDSA

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Appeals

Suspension of order pending appeal

22 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 16(1), 17(2) or 20(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.
23 [Repealed, 2001, c. 32, s. 54]

– CDSA

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See Also

• Restraint of Offence-related Property

Forfeiture of Weapons and Firearms

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

General Principles

Where a firearm is seized and detained under s. 490(1) to (3), then the forfeiture process would be pursuant to s. 490(9). Alternatively, it could be forfeited as offence related property.

Forfeiture of Offence-related Weapons

Section 491 requires the forfeiture of weapons:

Forfeiture of weapons and ammunition

491 (1) Subject to subsection (2) [return of weapons, etc. that were seized], 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.

Return to lawful owner

(2) If the court by which a determination referred to in subsection (1) [forfeiture of weapons, etc. that were seized] is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) [forfeiture of weapons, etc. that were seized] 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.

Application of proceeds

(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) [return of weapons, etc. that were seized], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Under 491(1), the court shall order the forfeiture of weapons or ammunition where it is determined that:

1. a weapon was used in the commission of an offence and the weapon has been seized by police, or
2. an offence involved or the subject-matter is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and it has been seized

If so, the thing seized is to be "forfeited to Her Majesty and shall be disposed of as the Attorney General directs."

Appellate Review

The making of an order under s. 491 is a form of "punishment" and so is subject to appeal with leave under s. 675(1)(b).

History

In December 1998, s. 491(1) was amended to expand the application of mandatory forfeiture order to include firearms that are the subject-matter of the offence regardless of whether they were used in the offence. The purpose was the address the problem of the circulation of illegal guns in the public as well as those who hold guns legally.

By changing the law, Parliament meant to expand the scope of mandatory forfiteure orders.

The Queen v Montague, 2012 ONSC 2300 (CanLII), 101 WCB (2d) 466, per J De Wright J

Forfeiture in the "Interests of the Safety" of Persons

• Seizure and Forfeiture of Firearms for Public Safety

See Also

• Seizure of Firearms
• Forfeiture under 115 for breach of a 109 or 110 Order
• Precedent - Forfeiture and Estreatment

Forfeiture of Computer-related Property

This page was last substantively updated or reviewed January 2015. (Rev. # 79445)

• < Sentencing
• < Ancillary Orders
• < Forfeiture Orders

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 [distribution of intimate images], 163.1 [child pornography], 172.1 [child luring] or 172.2 [agree or arrange sexual offence against child], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

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
[omitted (1)]

Third party rights

(2) Before making an order under subsection (1) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2], 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) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2 – third parties claim] may appeal to the court of appeal against an order made under subsection (1) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2].

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) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2].

Application of Part XXI

(5) Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2 – third parties right appeal] and (4) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2 – crown appeal].
2002, c. 13, s. 7; 2008, c. 18, s. 4; 2012, c. 1, s. 18; 2014, c. 31, s. 6.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Right of Relief From a 164.2 Forfeiture Order

Relief from forfeiture

164.3 (1) Within thirty days after an order under subsection 164.2(1) [forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2] is made, a person who claims an interest in the thing forfeited may apply in writing to a judge for an order under subsection (4).

Hearing of application

(2) The judge shall fix a day — not less than thirty days after the application is made — for its hearing.

Notice to Attorney General

(3) At least fifteen days before the hearing, the applicant shall cause notice of the application and of the hearing day to be served on the Attorney General.

Order

(4) The judge may make an order declaring that the applicant’s interest in the thing is not affected by the forfeiture and declaring the nature and extent of the interest if the judge is satisfied that the applicant

(a) was not a party to the offence; and

(b) did not acquire the thing from a person who was a party to the offence under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.

Appeal to court of appeal

(5) A person referred to in subsection (4) [order granting interest in item to be forfeited under s. 164.2] or the Attorney General may appeal to the court of appeal against an order made under that subsection. Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under this subsection.

Powers of Attorney General

(6) On application by a person who obtained an order under subsection (4) [order granting interest in item to be forfeited under s. 164.2], made after the expiration of the time allowed for an appeal against the order and, if an appeal is taken, after it has been finally disposed of, the Attorney General shall direct that

(a) the thing be returned to the person; or

(b) an amount equal to the value of the extent of the person’s interest, as declared in the order, be paid to the person.

2002, c. 13, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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See Also

• Child Luring (Offence)
• Seizure and Forfeiture of Obscene or Child Pornographic Materials (164(4))

Fine in Lieu of Forfeiture

This page was last substantively updated or reviewed January 2020. (Rev. # 79445)

• < Sentencing
• < Available Sentences

General Principles

Fines are a form of financial punishment available as a sentencing option for many offences.:

Power of court to impose fine

734 (1) Subject to subsection (2) [imposition of fine – ability to pay], a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1 [terms of order imposing fine]

(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or

(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

[omitted (2), (3), (4), (5), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38; 2019, c. 25, s. 299.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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A court may impose a fine order under s. 734.1 where the offence does not include a mandatory minimum. Before a fine can be imposed, the court must believe that the accused is "able to pay" the fine and where a pecuniary punishment is considered proportionate to the offence and offender. This focus on the ability to pay, found in s. 734(2), prevents "offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment."

The burden is upon the party seeking the fine to prove that the offender has the ability to pay on a balance of probabilities. The party does not need to identify or locate the specific assets available, rather "may rely on indirect evidence" to prove an ability to pay.

Absent evidence to the contrary, the court may infer an ability to pay where the offender has been in "receipt of illegally-obtained funds". This must take into account the "amount of funds acquired" and "the length of time that has passed between the acquisition of the funds and the imposition of sentence."

To issue a fine a judge must order:

1. an amount to be paid
2. the mode of payment
3. the time(s) that the fine should be paid

The judge may add further requirements as seen fit.

If the offender fails to pay, it is on the offender to show proof that they are unable to pay in the circumstances.

Any money found upon the accused that is not otherwise owned by someone else may be used to pay off the fine imposed.

Fine Defined

For the purposes of the sentencing provisions under Part XXIII of the Code "fine" is defined as follows:

Definitions

716 In this Part [Pt. XXIII – Sentencing (ss. 716 to 751.1)],
...
"fine" includes a pecuniary penalty or other sum of money, but does not include restitution. (amende)
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Ability to Pay

734
[omitted (1)]

Offender’s ability to pay

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736 [fine option program].
[omitted (3), (4), (5), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38; 2019, c. 25, s. 299.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

There is no common law duty on a judge to inquire about the offender's ability to pay. The inquiry required under s. 734(2) only applies to fines imposed under s. 734(1).

Form of Order

Terms of order imposing fine

734.1 A court that fines an offender under section 734 [fines] shall do so by making an order that clearly sets out

(a) the amount of the fine;

(b) the manner in which the fine is to be paid;

(c) the time or times by which the fine, or any portion thereof, must be paid; and

(d) such other terms respecting the payment of the fine as the court deems appropriate.

1995, c. 22, s. 6.

– CCC (CanLII), (DOJ)

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Procedure of Making the Order

Obligations of court

734.2 (1) A court that makes an order under section 734.1 [terms of order imposing fine] shall

(a) cause a copy of the order to be given to the offender;

(b) explain the substance of sections 734 to 734.8 [fine order] and 736 [fine option program] to the offender;

(c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 [change in terms of fine order] for a change to the optional conditions and of any available fine option programs referred to in section 736 [fine option program] as well as the procedure to apply for admission to them; and

(d) take reasonable measures to ensure that the offender understands the order and the explanations.

For greater certainty

(2) For greater certainty, a failure to comply with subsection (1) [fines – obligations of court in making order] does not affect the validity of the order.
1995, c. 22, s. 6; 2008, c. 18, s. 39.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Procedure for Payment of Fine

Proceeds to go to provincial treasurer

734.4 (1) If a fine or forfeiture is imposed or an amount set out in an undertaking, release order or recognizance is forfeited and no provision, other than this section, is made by law for the application of the proceeds, the proceeds belong to Her Majesty in right of the province in which the fine or forfeiture was imposed or the amount was forfeited, and shall be paid by the person who receives them to the treasurer of that province.

Proceeds to go to Receiver General for Canada

(2) The proceeds described in subsection (1) [when fine proceeds go to provincial treasurer] belong to Her Majesty in right of Canada and must be paid by the person who receives them to the Receiver General if, as the case may be,

(a) the fine or forfeiture is imposed

(i) in respect of a contravention of a revenue law of Canada,

(ii) in respect of a breach of duty or malfeasance in office by an officer or employee of the Government of Canada, or

(iii) in respect of any proceedings instituted at the instance of the Government of Canada in which that government bears the costs of prosecution; or

(b) an amount set out in an undertaking, release order or recognizance is forfeited in connection with proceedings mentioned in paragraph (a).

Direction for payment to municipality

(3) If a provincial, municipal or local authority bears, in whole or in part, the expense of administering the law under which a fine or forfeiture is imposed or under which proceedings are taken in which an amount set out in an undertaking, release order or recognizance is forfeited,

(a) the lieutenant governor in council of a province may direct that the proceeds that belong to Her Majesty in right of the province shall be paid to that authority; and

(b) the Governor in Council may direct that the proceeds that belong to Her Majesty in right of Canada shall be paid to that authority.

1995, c. 22, s. 6; 2019, c. 25, s. 300.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Variation of Order

Change in terms of order

734.3 A court that makes an order under section 734.1 [terms of order imposing fine], or a person designated either by name or by title of office by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules], change any term of the order except the amount of the fine, and any reference in this section and sections 734 [fines], 734.1 [terms of order imposing fine], 734.2 [fines – procedure for making an order] and 734.6 [civil enforcement of fines] to an order shall be read as including a reference to the order as changed under this section.
1995, c. 22, s. 6; 2002, c. 13, s. 74.

– CCC (CanLII), (DOJ)

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Fine and Imprisonment

718.3
[omitted (1) and (2)]

Imprisonment in default where term not specified

(3) Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of imprisonment in default of payment of the fine is not specified in the enactment that prescribes the punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed the term of imprisonment that is prescribed in respect of the offence.
[omitted (4), (5), (6), (7) and (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2019, c. 25, s. 294.

– CCC (CanLII), (DOJ)

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Default

Where an offender has a fine imposed by the court, the court may order that a period of jail time in default may be substituted for the fine:

734
[omitted (1) and (2)]

Meaning of default of payment

(3) For the purposes of this section and sections 734.1 to 737 [fines and forfeiture], a person is in default of payment of a fine if the fine has not been paid in full by the time set out in the order made under section 734.1 [terms of order imposing fine].
[omitted (4), (5), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.
[annotation(s) added]