Restraint of Offence-related Property: Difference between revisions

Revision as of 17:21, 22 February 2018

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) 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), 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) or (11), 490.4(3) or 490.41(3) in relation to the property; or

(b) an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2).

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 an indictable offence or an offence punishable on summary conviction.
1997, c. 23, s. 15; 2001, c. 32, s. 35.

– CCC

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:

the indictable offence to which the offence-related property relates;
the person who is believed to be in possession of the offence-related property; and
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, sections 489.1 and 490 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.
Recognizance
(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) for the return of any offence-related property that is the subject of a restraint order under section 490.8, 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.

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, 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, or a judge in the case of offence-related property restrained under section 490.8, 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. 36.

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) or (11) 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.

– CDSA

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

Sections 489.1 and 490 of the Criminal Code applicable
15 (1) Subject to sections 16 to 22, sections 489.1 and 490 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