Forfeiture of Proceeds of Crime (Organized Crime)
| This page was last substantively updated or reviewed January 2019. (Rev. # 92472) |
General Principles
462.37
[omitted (1) and (2)]
- Order of forfeiture — particular circumstances
(2.01) A court imposing sentence on an offender convicted of an offence described in subsection (2.02) [order of forfeiture of proceeds of crime – offences] shall, on application of the Attorney General and subject to this section and sections 462.4 [voidable transfers] and 462.41 [notice requirements for forfeiture of proceeds of crime], order that any property of the offender that is identified by the Attorney General in the application be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law if the court is satisfied, on a balance of probabilities, that
- (a) within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit; or
- (b) the income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all the property of the offender.
- Offences
(2.02) The offences are the following:
- (a) a criminal organization offence punishable by five or more years of imprisonment;
- (b) an offence under section 5, 6 or 7 of the Controlled Drugs and Substances Act — or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to an offence under those sections — prosecuted by indictment; and
- (c) an offence under subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act — or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to an offence under any of those subsections — prosecuted by indictment.
- Offender may establish that property is not proceeds of crime
(2.03) A court shall not make an order of forfeiture under subsection (2.01) [order of forfeiture of proceeds of crime – particular circumstances] in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime.
- Pattern of criminal activity
(2.04) In determining whether the offender has engaged in a pattern of criminal activity described in paragraph (2.01)(a) [order of forfeiture of proceeds of crime – particular circumstances – pattern of activity req], the court shall consider
- (a) the circumstances of the offence for which the offender is being sentenced;
- (b) any act or omission — other than an act or omission that constitutes the offence for which the offender is being sentenced — that the court is satisfied, on a balance of probabilities, was committed by the offender and constitutes an offence punishable by indictment under any Act of Parliament;
- (c) any act or omission that the court is satisfied, on a balance of probabilities, was committed by the offender and is an offence in the place where it was committed and, if committed in Canada, would constitute an offence punishable by indictment under any Act of Parliament; and
- (d) any other factor that the court considers relevant.
- Conditions — pattern of criminal activity
(2.05) A court shall not determine that an offender has engaged in a pattern of criminal activity unless the court is satisfied, on a balance of probabilities, that the offender committed, within the period referred to in paragraph (2.01)(a) [order of forfeiture of proceeds of crime – particular circumstances – pattern of activity req],
- (a) acts or omissions — other than an act or omission that constitutes the offence for which the offender is being sentenced — that constitute at least two serious offences or one criminal organization offence;
- (b) acts or omissions that are offences in the place where they were committed and, if committed in Canada, would constitute at least two serious offences or one criminal organization offence; or
- (c) an act or omission described in paragraph (a) that constitutes a serious offence and an act or omission described in paragraph (b) that, if committed in Canada, would constitute a serious offence.
- Application under subsection (1) not prevented
(2.06) Nothing in subsection (2.01) [order of forfeiture of proceeds of crime – particular circumstances] shall be interpreted as preventing the Attorney General from making an application under subsection (1) [order of forfeiture of proceeds of crime] in respect of any property.
- Exception
(2.07) A court may, if it considers it in the interests of justice, decline to make an order of forfeiture against any property that would otherwise be subject to forfeiture under subsection (2.01) [order of forfeiture of proceeds of crime – particular circumstances]. The court shall give reasons for its decision.
- 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.
[omitted (3), (4) and (5)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2017, c. 7, s. 59; 2018, c. 16, s. 214.
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