Ordonnances de confiscation pour terrorisme
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General Principles
Section 38.14 authorizes a federal court judge to forfeit certain property associated with terrorism.
- Forfeiture of Property
- Application for order of forfeiture
83.14 (1) The Attorney General may make an application to a judge of the Federal Court for an order of forfeiture in respect of
- (a) property owned or controlled by or on behalf of a terrorist group; or
- (b) property that has been or will be used, in whole or in part, to facilitate or carry out a terrorist activity.
[omis (2), (3), (4), (5), (5.1), (5.2), (6), (7), (8), (9), (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Standard and Elements of Proof
83.14
[omis (1), (2), (3) and (4)]
- Granting of forfeiture order
(5) If a judge is satisfied on a balance of probabilities that property is property referred to in paragraph (1)(a) or (b) , the judge 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.
[omis (5.1), (5.2), (6), (7), (8), (9), (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Third Party Interests
83.14
[omis (1), (2), (3), (4), (5), (5.1), (5.2), (6) and (7)]
- Third party interests
(8) If a judge is satisfied that a person referred to in subsection (7) has an interest in property that is subject to an application, has exercised reasonable care to ensure that the property would not be used to facilitate or carry out a terrorist activity, and is not a member of a terrorist group, the judge shall order that the interest is not affected by the forfeiture. Such an order shall declare the nature and extent of the interest in question.
[omis (9) and (10)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Special Treatment of Dwelling Houses
83.14
[omis (1), (2), (3), (4), (5), (5.1), (5.2), (6), (7) and (8)]
- Dwelling-house
(9) Where all or part of property that is the subject of an application under subsection (1) is a dwelling-house, the judge shall also consider
- (a) the impact of an order of forfeiture on any member of the immediate family of the person who owns or controls the dwelling-house, if the dwelling-house was the member’s principal residence at the time the dwelling-house was ordered restrained or at the time the forfeiture application was made and continues to be the member’s principal residence; and
- (b) whether the member appears innocent of any complicity or collusion in the terrorist activity.
[omis (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Consequence of Rejecting Application
83.14
[omis (1), (2), (3), (4), (5), (5.1) and (5.2)]
- Order refusing forfeiture
(6) Where a judge refuses an application under subsection (1) in respect of any property, the judge shall make an order that describes the property and declares that it is not property referred to in that subsection.
[omis (7), (8), (9), (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Definitions
Section 2 defines "Attorney General".
Section 2 and 83.13 defines "terrorist group" and "terrorist activity".
Procedure
- Court Jurisdiction
Only the Federal Court of Canada has jurisdiction to make orders under s. 83.14.
- Form of Application
83.14
[omis (1)]
- Contents of application
(2) An affidavit in support of an application by the Attorney General under subsection (1) 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.
- Respondents
(3) The Attorney General is required to name as a respondent to an application under subsection (1) only those persons who are known to own or control the property that is the subject of the application.
[omis (4), (5), (5.1), (5.2), (6), (7), (8), (9), (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Notice
83.14
[omis (1), (2) and (3)]
- Notice
(4) The Attorney General shall give notice of an application under subsection (1) to named respondents in such a manner as the judge directs or as provided in the rules of the Federal Court.
[omis (5), (5.1), (5.2), (6)]
- Notice
(7) On an application under subsection (1) , a judge may require notice to be given to any person who, in the opinion of the Court, appears to have an interest in the property, and any such person shall be entitled to be added as a respondent to the application.
[omis (8), (9), (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Use of Forfeited Property
83.14
[omis (1), (2), (3), (4) and (5)]
- Use of proceeds
(5.1) Any proceeds that arise from the disposal of property under subsection (5) may be used to compensate victims of terrorist activities and to fund anti-terrorist initiatives in accordance with any regulations made by the Governor in Council under subsection (5.2) .
- Regulations
(5.2) The Governor in Council may make regulations for the purposes of specifying how the proceeds referred to in subsection (5.1) are to be distributed.
[omis (6), (7) and (8)]
[omis (9), (10) and (11)]
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Third Party Setting Aside Order
83.14
[omis (1), (2), (3), (4), (5), (5.1), (5.2), (6), (7), (8) and (9)]
- Motion to vary or set aside
(10) A person who claims an interest in property that was forfeited and who did not receive notice under subsection (7) may bring a motion to the Federal Court to vary or set aside an order made under subsection (5) not later than 60 days after the day on which the forfeiture order was made.
- No extension of time
(11) The Court may not extend the period set out in subsection (10) .
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
Disposition of Property
- Disposition of property
83.15 Subsection 462.42(6) [restitution des biens] and sections 462.43 [disposition résiduelle des biens saisis ou traités en vertu de mandats spéciaux ou d'ordonnances de blocage] and 462.46 [disposition résiduelle des biens saisis ou traités en vertu de mandats spéciaux ou d'ordonnances de blocage] apply, with such modifications as the circumstances require, to property subject to a warrant or restraint order issued under subsection 83.13(1) or ordered forfeited under subsection 83.14(5) .
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
- Interim preservation rights
83.16 (1) Pending any appeal of an order made under section 83.14 , property restrained under an order issued under section 83.13 shall continue to be restrained, property seized under a warrant issued under that section shall continue to be detained, and any person appointed to manage, control or otherwise deal with that property under that section shall continue in that capacity.
- Appeal of refusal to grant order
(2) Section 462.34 [examen des mandats spéciaux ou des ordonnances de blocage] applies, with such modifications as the circumstances require, to an appeal taken in respect of a refusal to grant an order under subsection 83.14(5) .
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]
Conseqence Upon Other Forfeiture Provisions
- Other forfeiture provisions unaffected
83.17 (1) This Part does not affect the operation of any other provision of this or any other Act of Parliament respecting the forfeiture of property.
- Priority for restitution to victims of crime
(2) Property is subject to forfeiture under subsection 83.14(5) 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.
2001, c. 41, s. 4.
[annotation(s) ajoutée(s)]