Criminal Law Notebook

Proceeds of Crime Search Warrant: Difference between revisions

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{{Currency|January 2023}}
[[Fr:Mandat_de_perquisition_des_produits_de_la_criminalité]]
{{Currency2|January|2023}}
{{LevelZero}}{{HeaderProceeds}}
{{LevelZero}}{{HeaderProceeds}}
==General Principles==
==General Principles==
{{seealso|Seizure of Proceeds of Crime}}
{{seealso|Seizure of Proceeds of Crime}}
{{quotation2|
{{quotation2|
; 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 any property that is proceeds of crime, the judge may issue a warrant authorizing a person named in the warrant or a peace officer to
462.32 (1) Subject to subsection (3) {{AnnSec4|462.32(3)}}, if a judge, on application of the Attorney General, is satisfied by information on oath in Form 1 {{AnnSec|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) {{AnnSec4|462.37(1)}} or (2.01) {{AnnSec4|462.37(2.01)}} or 462.38(2) {{AnnSec4|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
(a) search the building, receptacle or place for that property; and
(2) An application for a warrant under subsection (1) {{AnnSec4|462.32(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) {{AnnSec4|462.32(1)}} with respect to the property that is the subject of the application.


; Execution in Canada
(b) seize that property and any other property that that person or peace officer believes, on reasonable grounds, is proceeds of crime.
(2.1) A warrant issued under subsection (1) {{AnnSec4|462.32(1)}} 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, {{LegHistory10s|2019, c. 25}}, s. 180]


; Other provisions to apply
Procedure
(3) Subsections 487(2.1) to (3) {{AnnSec4|487(2.1) to (3)}} and section 488 {{AnnSec4|488}} apply, with any modifications that the circumstances require, to a warrant issued under this section.
 
(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.
 
Marginal note:Conditions
 
(2.01) A warrant issued under subsection (1) may be subject to any reasonable conditions that the judge thinks fit.
 
Marginal note:Execution in Canada
 
(2.1) A warrant issued under subsection (1) 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]
 
Marginal note:Other provisions to apply
 
(3) Subsections 487(2.1) to (3) and section 488 apply, with any modifications that the circumstances require, to a warrant issued under this section.
 
Marginal note:Detention and record of property seized


; Detention and record of property seized
(4) Every person who executes a warrant issued by a judge under this section shall
(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 {{AnnSec|Form 5.1}} 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 {{AnnSec|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
(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 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, 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.
 
Marginal note: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
(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) {{AnnSec4|462.32(4)(b)}}.


; Notice
(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).
 
Marginal note: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.
(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) [Repealed, 2024, c. 15, s. 309]
(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;
R.S., 1985, c. 42 (4th Supp.), s. 2;
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{{LegHistory10s|2017, c. 7}}, s. 57(F);
{{LegHistory10s|2017, c. 7}}, s. 57(F);
{{LegHistory10s|2019, c. 25}}, s. 180;
{{LegHistory10s|2019, c. 25}}, s. 180;
{{LegHistory20s|2022, c. 17}}, s. 12.
{{LegHistory20s|2022, c. 17}}, s. 12;
{{LegHistory20s|2023, c. 26}}, s. 211(F);
{{LegHistory20s|2024, c. 15}}, s. 309.
{{annotations}}
{{annotations}}
|{{CCCSec2|462.32}}
|{{CCCSec2|462.32}}
|{{NoteUp|462.32|1|2|2.1|3|4|4.1|5|6}}
|{{NoteUp|462.32|1|2|2.1|3|4|4.1|5|6}}
}}
==Digital Assets==
{{quotation2|
; Special warrant — digital assets
462.321 (1) If, on an application of the Attorney General, a judge is satisfied by information on oath in Form 1, varied to suit the case, that there are reasonable grounds to believe that any digital assets, including virtual currency, are proceeds of crime, the judge may issue a warrant authorizing a person named in the warrant or a peace officer to
:(a) search for the digital assets by using a computer program, as defined in subsection 342.1(2); and
(b) seize — including by taking control of the right to access — the digital assets, as well as any other digital assets found during that search that the person or peace officer believes, on reasonable grounds, are proceeds of crime.
Marginal note:Conditions
(2) A warrant issued under subsection (1) may be subject to any reasonable conditions that the judge thinks fit.
Marginal note:Procedure
(3) 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.
Marginal note:Execution in Canada
(3.1) A warrant issued under subsection (1) 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.
Marginal note: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 any seized property, taking reasonable care to ensure that it 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, cause the following to be sent to the usual place of residence of any person from whom the property is seized if that usual place of residence is in Canada and is known to the person executing the warrant:
(i) a copy of the warrant, and
(ii) a notice in Form 5.1, varied to suit the case, setting out the address of the court from which a copy of a report on the seized property may be obtained;
(c) as soon as practicable after the execution of the warrant but within a period of not more than seven days, prepare a report in Form 5.3, varied to suit the case, identifying the seized property and the manner in which it is being detained, and cause the report to be filed with the clerk of the court; and
(d) 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 seized property.
Marginal note:Return
(5) Subject to this or any other Act of Parliament, a peace officer or a person acting on their behalf may, with the written consent of the Attorney General, on being issued a receipt for it, cause the seized property to be returned 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 seized property;
(b) the peace officer is satisfied that the continued detention of the seized property is not required for the purpose of forfeiture; and
(c) the seized property is returned before a report is filed with the clerk of the court under paragraph (4)(c).
Marginal note:Notice
(6) 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 of it could not be seized under the warrant.
(7) [Repealed, 2024, c. 15, s. 310]
2023, c. 26, s. 2122024, c. 15, s. 310
|
}}
}}


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{{quotation2|
{{quotation2|
; Expiration of special warrants and restraint 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 {{AnnSec4|462.32}} or a restraint order has been made under section 462.33 {{AnnSec4|462.33}} 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.
462.35 (1) Subject to this section, if property has been seized under a warrant issued under section 462.32 or 462.321 or a restraint order has been made under section 462.33 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.
<br>
 
; Where proceedings instituted
; 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.
(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.
<br>
 
; Where application made
; 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 {{AnnSec4|462.37}} or 462.38 {{AnnSec4|462.38}} 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.
(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 or 462.38 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.
<br>
 
R.S., 1985, c. 42 (4th Supp.), s. 2;  
R.S., 1985, c. 42 (4th Supp.), s. 21997, c. 18, s. 33;
{{LegHistory90s|1997, c. 18}}, s. 33.
{{LegHistory20s|2023, c. 26}}, s. 216.
{{Annotation}}
{{Annotation}}
|{{CCCSec2|462.35}}
|{{CCCSec2|462.35}}
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{{CanLIIRP|Derksen|1ntxr|1998 CanLII 13837 (SK QB)|126 CCC (3d) 554}}{{perSKQB|Barclay J}}{{affd}} {{CanLIIP|1l79q|1999 CanLII 12316 (SK CA)|140 CCC (3d) 184}}{{perSKCA|Jackson JA}}
{{CanLIIRP|Derksen|1ntxr|1998 CanLII 13837 (SK QB)|126 CCC (3d) 554}}{{perSKQB|Barclay J}}{{affd}} {{CanLIIP|1l79q|1999 CanLII 12316 (SK CA)|140 CCC (3d) 184}}{{perSKCA|Jackson JA}}
</ref>
</ref>




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