Forfeiture of Offence-related Property: Difference between revisions
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Revision as of 02:49, 13 February 2019
General Principles
Section 2 of the Code defines "offence-related property" (ORP):
“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;
...
– CCC
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.[1]
ORP may include the proceeds obtained by the sale of offence-related property.[2]
Any reference to an "indictable offence" excludes those offences for which there prosecuted by way of summary conviction.[3]
- ↑
R v Trac, 2013 ONCA 246 (CanLII), per Doherty JA
- ↑
Maple Trust Co. v. Canada (Attorney General), 2007 BCCA 304 (CanLII), per Mackenzie JA, at para 17 ("...offence-related property extends to the proceeds of sale either by giving the CDSA definition a reasonable interpretation in the context of the scheme of the statute or by incorporating the expanded definition of property in the Criminal Code by reference with the assistance of the Interpretation Act.")
- ↑ s. 34(c) of the Interpretation Act
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) 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.
- 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) 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.
[annotations added]
– CCC
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.[1]
The standard of proof is on the balance of probabilities. [2]
Property includes cash and real property.[3]
- ↑ R v Faulkner, 2007 NBCA 47 (CanLII), per Drapeau JA
- ↑ Faulkner, ibid., at para 13
- ↑
R v Trac, 2013 ONCA 246 (CanLII), per Doherty JA, at para 78
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).
- Order of forfeiture of property
(2) Subject to sections 490.3 to 490.41, the judge to whom an application is made under subsection (1) shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) 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), 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), 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.
...
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.
– CCC
The application can be made to a provincial court or superior court judge.[1]
- "Judge"
490.2
...
- Definition of judge
(5) In this section and sections 490.5 and 490.8, judge means a judge as defined in section 552 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.
– CCC
- Corporation
A corporation will be considered "dead" where it is determined to be a "sham, or a front".[2] The standard of proof is on the balance of probabilities.[3]
- ↑ s. 490.2(5)
- ↑
R v 2744-5360 Quebec Inc., 1994 CanLII 4244 (NS SC), per Cacchione J
- ↑ 2744-5360 Quebec Inc, ibid.
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
...
- Factors in relation to dwelling-house
(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(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. 33; 2007, c. 13, s. 11.
– CCC
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.[1]
- ↑ R v Kopp, 2011 MBPC 74 (CanLII), per Martin J
Weapons
Notice
- Notice
490.4 (1) Before making an order under subsection 490.1(1) or 490.2(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 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) or 490.2(2) 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.
– CCC
- Notice
490.41 (1) If all or part of offence-related property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, before making an order of forfeiture, a court shall require that notice in accordance with subsection (2) 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), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) 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 490.1(1) or 490.2(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. 33; 2007, c. 13, s. 11.
– CCC
Voidable Transfers
- Voidable transfers
490.3 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) or 490.2(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.
1997, c. 23, s. 15.
– CCC
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) or 490.2(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 490.1(1), 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), 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).
- 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 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), and the provisions of Part XXI 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), 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.
1997, c. 23, s. 15; 2001, c. 32, s. 34.
– CCC
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) 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, and that Part applies, with any modifications that the circumstances require, in respect of such an appeal.
1997, c. 23, s. 15.
– CCC
- 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), 490.2(2) or 490.5(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.
1997, c. 23, s. 15.
– CCC