Revocation or Variation of a Proceeds Restraint Order

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• < Search and Seizure
• < Seizure of Property

General Principles

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 [search and seizure of proceeds of crime] or in respect of which a restraint order was made under subsection 462.33(3) [application for restraint order – requirements for granting order] may, at any time, apply to a judge

(a) for an order under subsection (4) [order for restoration of property or revocation or variation of order]; or

(b) for permission to examine the property.

Notice to Attorney General

(2) Where an application is made under paragraph (1)(a) [restraint orders – order to restore, revoke or vary],

(a) the application shall not, without the consent of the Attorney General, be heard by a judge unless the applicant has given to the Attorney General at least two clear days notice in writing of the application; and

(b) the judge may require notice of the application 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.

Terms of examination order

(3) A judge may, on an application made to the judge under paragraph (1)(b) [restraint orders – order to examine], 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.

Order of restoration of property or revocation or variation of order

(4) On an application made to a judge under paragraph (1)(a) [restraint orders – order to restore, revoke or vary] in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,

(a) if the applicant enters into a recognizance before the judge, with or without sureties, in such amount and with such conditions, if any, as the judge directs and, where the judge considers it appropriate, deposits with the judge such sum of money or other valuable security as the judge directs;

(b) if the conditions referred to in subsection (6) [conditions to be satisfied] are satisfied; or

(c) for the purpose of

(i) meeting the reasonable living expenses of the person who was in possession of the property at the time the warrant was executed or the order was made or any person who, in the opinion of the judge, has a valid interest in the property and of the dependants of that person,

(ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i), or

(iii) permitting the use of the property in relation to an undertaking or release order,

if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.

Hearing

(5) For the purpose of determining the reasonableness of legal expenses referred to in subparagraph (4)(c)(ii) [order for restoration of property or revocation or variation of order – release for legal expenses], a judge shall hold an in camera hearing, without the presence of the Attorney General, and shall take into account the legal aid tariff of the province.

Expenses

(5.1) For the purpose of determining the reasonableness of expenses referred to in paragraph (4)(c) [order for restoration of property or revocation or variation of order – release for use of assets], the Attorney General may

(a) at the hearing of the application, make representations as to what would constitute the reasonableness of the expenses, other than legal expenses; and

(b) before or after the hearing of the application held in camera pursuant to subsection (5) [taxing legal fees], make representations as to what would constitute reasonable legal expenses referred to in subparagraph (4)(c)(ii) [order for restoration of property or revocation or variation of order – release for legal expenses].

Taxing legal fees

(5.2) The judge who made an order under paragraph (4)(c) [order for restoration of property or revocation or variation of order – release for use of assets] may, and on the application of the Attorney General shall, tax the legal fees forming part of the legal expenses referred to in subparagraph (4)(c)(ii) and, in so doing, shall take into account

(a) the value of property in respect of which an order of forfeiture may be made;

(b) the complexity of the proceedings giving rise to those legal expenses;

(c) the importance of the issues involved in those proceedings;

(d) the duration of any hearings held in respect of those proceedings;

(e) whether any stage of those proceedings was improper or vexatious;

(f) any representations made by the Attorney General; and

(g) any other relevant matter.

Conditions to be satisfied

(6) An order under paragraph (4)(b) [order for restoration of property or revocation or variation of order – conditions to make order] in respect of property may be made by a judge if the judge is satisfied

(a) where the application is made by

(i) a person charged with a designated offence, or

(ii) any person who acquired title to or a right of possession of that property from a person referred to in subparagraph (i) 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,

that a warrant should not have been issued pursuant to section 462.32 [search and seizure of proceeds of crime] or a restraint order under subsection 462.33(3) [application for restraint order – requirements for granting order] should not have been made in respect of that property, or

(b) in any other case, that the applicant is the lawful owner of or lawfully entitled to possession of the property and appears innocent of any complicity in a designated offence or of any collusion in relation to such an offence, and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property,

and that the property will no longer be required for the purpose of any investigation or as evidence in any proceeding.

Saving provision

(7) Sections 354 [possession of stolen property], 355.2 and 355.4 do not apply to a person who comes into possession of any property that, by virtue of an order made under paragraph (4)(c) [order for restoration of property or revocation or variation of order – release for use of assets], was returned to any person after having been seized or was excluded from the application of a restraint order made under subsection 462.33(3) [application for restraint order – requirements for granting order].
[(8) repealed, 2019, c. 25, s. 182]
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; 2019, c. 25, s. 182.
[annotation(s) added]

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Return Funds to Pay for Defence Counsel

The accused may apply under s. 462.34(4) for the release of funds in order to pay counsel's legal fees.

There is some debate over whether the accused must exhaust the option of availing the use of Legal Aid before the Court can consider releasing funds for the purpose of funding the accused's defence.

Real Property

Application of property restitution provisions

462.341 Subsection 462.34(2) [restraint orders – notice to AG], paragraph 462.34(4)(c) [order for restoration of property or revocation or variation of order – release for use of assets] and subsections 462.34(5) [taxing legal fees], (5.1) [order for restoration of property or revocation or variation of order – expenses] and (5.2) [order for restoration of property or revocation or variation of order – taxing legal fees] apply, with any modifications that the circumstances require, to a person who has an interest in money or bank-notes that are seized under this Act, the Controlled Drugs and Substances Act or the Cannabis Act and in respect of which proceedings may be taken under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture].

1997, c. 18, ss. 32, 140; 1999, c. 5, s. 14; 2005, c. 44, s. 5; 2018, c. 16, s. 213.
[annotation(s) added]

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Misc

Return of Forfeiture of Copies on Order of Release of Records

Copies of documents returned or forfeited

462.46 (1) If any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) [terms of examination order] or (4) [order for restoration of property or revocation or variation of order], 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances], 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders], the Attorney General may, before returning the document or complying with the order, cause a copy of the document to be made and retained.

Probative force

(2) Every copy made under subsection (1) [copies of documents returned or forfeited] shall, if certified as a true copy by the Attorney General, be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the original document would have had if it had been proved in the ordinary way.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 11.
[annotation(s) added]

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Termination of Order

Under s. 462.33(10), an order for restraint of property will be terminated where:

• it is revoked under s. 462.34(4) or 462.43(a)
• it is expires under s. 462.35
• an order of forfeiture or restoration of property is made under s. 462.37(1),(2.01), 462.38(2), or 462.4(3)

An application under s. 462.43 can be made to revoke an order of restraint.