Seizure of Proceeds of Crime

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

Pursuant to section 462.33, on application by the Attorney General, the court may order that certain property be restrained.[1]

The application can be made on an ex parte basis.[2]

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".[3]

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."[4]

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.[5]

Procedure

The application must consist of:[6]

  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
  1. s.462.33(1)
  2. s. 462.33(2)
  3. s. 462.33(3)
  4. s. 462.33(3)
  5. R v Wilson, 1993 CanLII 8665 (ON CA), per Doherty JA
  6. s. 462.33(3)

Search Warrant

Special search warrant
462.32 (1) Subject to subsection (3), if a judge, on application of the Attorney General, is satisfied by information on oath in Form 1 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) or (2.01) or 462.38(2), 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) 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) with respect to the property that is the subject of the application.
Execution of warrant
(2.1) Subject to subsection (2.2), a warrant issued pursuant to subsection (1) may be executed anywhere in Canada.
Execution in another province
(2.2) Where a warrant is issued under subsection (1) in one province but it may be reasonably expected that it is to be executed in another province and the execution of the warrant would require entry into or on the property of any person in the other province, a judge in the other province may, on ex parte application, confirm the warrant, and when the warrant is so confirmed it shall have full force and effect in that other province as though it had originally been issued in that province.
Execution of warrant in other territorial jurisdictions
(3) Subsections 487(2) to (4) and section 488 apply, with such modifications as 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) 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, 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).

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.


CCC

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 or in respect of which a restraint order was made under subsection 462.33(3) may, at any time, apply to a judge

(a) for an order under subsection (4); or
(b) for permission to examine the property.

...
Terms of examination order
(3) A judge may, on an application made to the judge under paragraph (1)(b), order that the applicant be permitted to examine property subject to such terms as appear to the judge to be necessary or desirable to ensure that the property is safeguarded and preserved for any purpose for which it may subsequently be required.
...
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.


CCC

Revocation or Variation of a Proceeds Restraint Order

Disclosure Order

See Also