Criminal Law Notebook

Forfeiture of Proceeds of Crime

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This page was last substantively updated or reviewed January 2020. (Rev. # 82306)

General Principles

See also: Seizure of Proceeds of Crime

Part XII.2 was enacted in Bill C61 to meet Canada's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.[1]

Purpose

The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them."[2] It is also intended to recognize "that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity."[3]

Application for forfeiture

462.38 (1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) [requirements to order forfeiture] in respect of any property.

Order of forfeiture of property

(2) Subject to sections 462.39 to 462.41 [inference re forfeiture of proceeds of crime], where an application is made to a judge under subsection (1) [authority to make application of forfeiture], the judge shall, if the judge is satisfied that

(a) any property is, beyond a reasonable doubt, proceeds of crime,
(b) proceedings in respect of a designated offence committed in relation to that property were commenced, and
(c) the accused charged with the offence referred to in paragraph (b) has died or absconded,

order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

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.

Person deemed absconded

(3) For the purposes of this section, a person shall be deemed to have absconded in connection with a designated offence if

(a) an information has been laid alleging the commission of the offence by the person,
(b) a warrant for the arrest of the person or a summons in respect of an organization has been issued in relation to that information, and
(c) reasonable attempts to arrest the person pursuant to the warrant or to serve the summons have been unsuccessful during the period of six months commencing on the day the warrant or summons was issued, or, in the case of a person who is not or never was in Canada, the person cannot be brought within that period to the jurisdiction in which the warrant or summons was issued,

and the person shall be deemed to have so absconded on the last day of that period of six months.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 35; 2001, c. 32, s. 20; 2003, c. 21, s. 7.
[annotation(s) added]

– CCC

Note up: 462.38(1), (2), (2.1), and (3)

Part XII.2 provides two manners of forfeiting property:

  1. forfeiture of proceeds upon conviction or discharge[4]
  2. forfeiture of proceeds upon death or abscondment of accused[5]

The proceeds of crime provision provide no discretion to the court on whether property falls within the definition.[6]

Part XII.2 does not affect the interpretation of any other legislation relating to forfeiture of property.[7]

Regulations

The Attorney General may make regulations relating to the disposal of proceeds of crime under s. 462.5[8]

Judge

The reference to "judge" under Part XII.2 is defined in s. 462.3:

Definitions

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],
...
 "judge " means a judge as defined in section 552 [definitions - judges] or a judge of a superior court of criminal jurisdiction;
...
 [omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7; 2019, c. 25, s. 179.
[annotation(s) added]

– CCC

Note up: 462.3(1)

Punishments

The forfeiture of proceeds of crime is not a form of punishment.[9]

  1. ↑ Hubbard, Murphy, ODonnell, "Money Laundering & Proceeds of Crime" (Irwin Law 2004), at p. 79
  2. ↑ Quebec (AG) v Laroche, 2002 SCC 72 (CanLII), [2002] 3 SCR 708, per LeBel J
  3. ↑ R v Wilson, 1993 CanLII 8665 (ON CA), 86 CCC (3d) 464, per Doherty JA
  4. ↑ see 462.37
  5. ↑ see 462.38
  6. ↑ R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at para 15
  7. ↑ see s. 462.49(1) which states:
    462.49 (1) This Part does not affect the operation of any other provision of this or any other Act of Parliament respecting the forfeiture of property.
  8. ↑
    Regulations
    462.5 The Attorney General may make regulations governing the manner of disposing of or otherwise dealing with, in accordance with the law, property forfeited under this Part.
    R.S., 1985, c. 42 (4th Supp.), s. 2.
  9. ↑ Lavigne, supra, at paras 25 to 26

Evidence

The normal rules of trial evidence still apply in the forfeiture hearing, including rules relating to hearsay.[1]

Inference

462.39 For the purpose of subsection 462.37(1) [order of forfeiture of proceeds of crime] or 462.38(2) [requirements to order forfeiture], the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s. 21.
[annotation(s) added]

– CCC

Note up: 462.39

  1. ↑ R v West, 2005 CanLII 30052 (ON CA), 199 CCC (3d) 449, per Weiler JA, at para 28

Proceeds of Crime Defined

Section 462.3 defines Proceeds of Crime as:

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],
...
 "proceeds of crime" means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of

(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7; 2019, c. 25, s. 179.

– CCC

Note up: 462.3(1)

Parliament has intended to "apply to the widest possible range of property."[1]

  1. ↑ R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at para 15

Designated Offence Defined

Under Part XII.2 of the Code entitled Proceeds of Crime, s. 462.3 states:

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (ss. 462.3 to 462.5)],

"designated drug offence"[Repealed, 1996, c. 19, s. 68]

"designated offence" means

(a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);

...
 [omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7.

– CCC

Note up: 462.3(1)

The list of offences excluded from the definition of "designated offence" are found in Regulations Excluding Certain Indictable Offences From the Definition of "Designated Offence", SOR/2002-63,

Notice of Application

Notice

462.41 (1) Before making an order 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] in relation to any property, a court shall require notice in accordance with subsection (2) [notice requirements for forfeiture of proceeds of crime – manner] 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.

Service, duration and contents of notice

(2) A notice given under subsection (1) [notice requirements for forfeiture of proceeds of crime – requirement] shall

(a) be given or served in such manner as the court directs or as may be prescribed by the rules of the court;
(b) be of such duration as the court considers reasonable or as may be prescribed by the rules of the court; and
(c) set out the designated offence charged and a description of the property.
Order of restoration of property

(3) Where a court is satisfied that any person, other than

(a) a person who is charged with, or was convicted of, a designated offence, or
(b) a person who acquired title to or a right of possession of that property from a person referred to in paragraph (a) 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,

is the lawful owner or is lawfully entitled to possession of any property or any part thereof that would otherwise be forfeited pursuant to 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] and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part thereof be returned to that person.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss. 37, 140; 2001, c. 32, s. 22; 2005, c. 44, s. 8.
[annotation(s) added]

– CCC

Note up: 462.41(1), (2) and (3)

Forfeiture Upon Conviction or Discharge

Under s. 462.37, the Attorney General may apply to seek the forfeiture of proceeds of crime upon conviction or discharge of a particular offence.

Order of forfeiture of property on conviction

462.37 (1) Subject to this section and sections 462.39 to 462.41 [inference re forfeiture of proceeds of crime], if an offender is convicted, or discharged under section 730 [order of discharge], of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

Proceeds of crime — other offences

(2) If the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) [order of forfeiture of proceeds of crime] was obtained through the commission of the designated offence of which the offender is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is proceeds of crime, the court may make an order of forfeiture under subsection (1) [order of forfeiture of proceeds of crime] in relation to that property.
[omitted (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1), (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; 2015, c. 16, s. 4 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

– CCC

Note up: 462.37(1) and (2)


Purpose

The purpose of s. 462.37 is to "deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds ."[1]

Where the offender never had control over the property there is no reason to order forfeiture against the offender.[2]

Standard of Proof

The standard is on a balance of probabilities. If the requirements are satisfied forfeiture is mandatory.

  1. ↑ R v Dwyer, 2013 ONCA 34 (CanLII), 296 CCC (3d) 193, per Rosenberg JA, at para 24
  2. ↑ Dwyer, ibid., at para 24

Evidence

Inference

462.39 For the purpose of subsection 462.37(1) [order of forfeiture of proceeds of crime] or 462.38(2) [requirements to order forfeiture], the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s. 21.
[annotation(s) added]

– CCC

Note up: 462.39

Forfeiture of Proceeds of Crime (Organized Crime)

Forfeiture Upon Death or Flight

Under s. 462.38, the Attorney General may apply to seek the forfeiture of items seized where the accused is deceased or has absconded.

Forfeiture of Money

To seize money during a criminal proceedings, the Crown must prove on a balance of probabilities that:

  1. The seized monies are in relation to offences for which the defendant has been convicted; and,
  2. The property is proceeds of crime.

"Property of an offender" under s. 462.37(3) can include stolen cash[1] and so can be forfeited under those provisions.

  1. ↑ R v Robichaud, 2011 NBCA 112 (CanLII), 381 NBR (2d) 315, per Deschênes JA

Application For Relief

Purpose

While the purpose behind s. 462.42 was to "deprive criminals of the fruits of their crimes" it was not intended to accomplish this at the "expense of innocent third parties".[1]

This section provides a mechanism for 3rd parties to claim an interest in forfeited property. It permits the return of property or payment of equal value of ownership.[2]

Provisions
Application by person claiming interest for relief from forfeiture

462.42 (1) Any person who claims an interest in property that is forfeited to Her Majesty 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] may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4) [order declaring interest not subject to forfeiture] unless the person is

(a) a person who is charged with, or was convicted of, a designated offence that resulted in the forfeiture; or
(b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) 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.
Fixing day for hearing

(2) The judge to whom an application is made under subsection (1) [application by person claiming interest for relief from forfeiture – requirements] shall fix a day not less than thirty days after the date of filing of the application for the hearing thereof.

Notice

(3) An applicant shall serve a notice of the application made under subsection (1) [application by person claiming interest for relief from forfeiture – requirements] and of the hearing thereof on the Attorney General at least fifteen days before the day fixed for the hearing.

Order declaring interest not subject to forfeiture

(4) Where, on the hearing of an application made under subsection (1) [application by person claiming interest for relief from forfeiture – requirements], the judge is satisfied that the applicant is not a person referred to in paragraph (1)(a) or (b) and appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest.

Appeal from order under subsection (4)

(5) An applicant or the Attorney General may appeal to the court of appeal from an order under subsection (4) [order declaring interest not subject to forfeiture] and the provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this subsection.

Return of property

(6) The Attorney General shall, on application made to the Attorney General by any person who has obtained an order under subsection (4) [order declaring interest not subject to forfeiture] 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) [appeal from an order declaring interest not subject to forfeiture] has been determined,

(a) direct that the property or the part thereof to which the interest of the applicant relates be returned to the applicant; or
(b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss. 38, 140; 2001, c. 32, s. 23; 2005, c. 44, s. 9.
[annotation(s) added]

– CCC

Note up: 462.42(1), (2), (3), (4), (5), and (6)

There are additional criteria that must be established beyond those set out in s. 462.42. The person claiming an interest must also show:[3]

  1. that he or she had a valid interest in the property that went beyond the interest of a general creditor; and
  2. the nature and extent of the claim. Accordingly, the last component the person claiming an interest must establish was that it is appropriate for his or her interest to take priority over the forfeiture order.
  1. ↑ 1431633 Ontario Inc v Canada (Attorney general), 2010 ONSC 266 (CanLII), 250 CCC (3d) 354, per Molloy J, at para 30 ("Although Parliament intended to deprive criminals of the fruits of their crimes, it clearly did not intend to do so at the expense of innocent third parties who may have a legitimate interest in that same property. That is the purpose of the provisions permitting relief from forfeiture (such as s. 462.42) and that purpose must be kept in mind when considering whether a particular applicant is entitled to the relief sought.")
    Canada (Attorney General) v Dew, 2016 MBCA 95 (CanLII), per Monnin JA, at para 24 re CDSA provisions
  2. ↑ R v Connolly, 2004 NLTD 228 (CanLII), 191 CCC (3d) 357, per LeBlanc J, at para 50 ("s. 462.42 provides a mechanism for third parties who claim an interest in property ordered forfeited to apply for relief from forfeiture. If successful, that application does not mean that the earlier order is rescinded retroactively. It merely means that the third party will be entitled to a return of the property for which a valid claim is made or the payment of an amount equal to the value of the applicant’s interest.")
    R v 170888 Canada ltée, 1999 CanLII 13794 (QC CA), 135 CCC (3d) 367, per Fish JA
  3. ↑ 1431633 Ontario Inc v Canada (Attorney general), ibid.

Priority in Forfeiture

Where proceeds are forfeited, the priority goes to victims who are owed restitution:

462.49
[omitted (1)]

Priority for restitution to victims of crime

(2) The property of an offender may be used to satisfy the operation of a provision of this or any other Act of Parliament respecting the forfeiture of property only to the extent that it is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to or compensation of persons affected by the commission of offences.
R.S., 1985, c. 42 (4th Supp.), s. 2.

– CCC

Note up: 462.249(2)

Voiding Conveyance on Forfeiture

Voidable transfers

462.4 A court may,

(a) prior to ordering property to be forfeited 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], and
(b) in the case of property in respect of which a restraint order was made under section 462.33 [restraint orders against property], where the order was served in accordance with subsection 462.33(8) [service of order],

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the order under section 462.33 [restraint orders against property], unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 36(E); 2005, c. 44, s. 7.
[annotation(s) added]

– CCC

Note up: 462.4

Fine in Lieu of Forfeiture

Appeal of Forfeiture Orders

Appeals from certain orders

462.44 Any person who considers that they are aggrieved by an order made under subsection 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] 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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], and that Part applies, with such modifications as the circumstances require, to such an appeal.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 39.
[annotation(s) added]

– CCC

Note up: 462.44

Suspension of forfeiture pending appeal

462.45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(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] 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 the restoration or forfeiture of such property,
(b) any appeal taken from an order of forfeiture or restoration in respect of the property, or
(c) any other proceeding in which the right of seizure of the property is questioned,

and property shall not be disposed of within thirty days after an order of forfeiture is made under any of those provisions.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 10.
[annotation(s) added]

– CCC

Note up: 462.45

Misc Definitions

Definition of “order”

462.371 (1) In this section, "order" means an order made under section 462.37 [order of forfeiture for proceeds of crime] or 462.38 [order of forfeiture for proceeds of crime].

Execution

(2) An order may be executed anywhere in Canada.

Filing of order from another province

(3) Where the Attorney General of a province in which property that is the subject of an order made in another province is situated receives a certified copy of the order and files it with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

Attorney General of Canada

(4) Where the Attorney General of Canada receives a certified copy of an order made in a province in respect of property situated in another province and files the order with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

Effect of registered order

(5) An order has, from the date it is filed in a court of a province under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property], the same effect as if it had been an order originally made by that court.

Notice

(6) Where an order has been filed in a court under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property], it shall not be executed before notice in accordance with subsection 462.41(2) [notice requirements for forfeiture of proceeds of crime – manner] is given to every person who, in the opinion of the court, appears to have a valid interest in the property.

Application of section 462.42

(7) Section 462.42 [application by person claiming interest for relief from forfeiture] applies, with such modifications as the circumstances require, in respect of a person who claims an interest in property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [filing of order from another province].

Application under section 462.42 to be made in one province

(8) No person may make an application under section 462.42 [application by person claiming interest for relief from forfeiture] in relation to property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property] if that person has previously made an application in respect of the same property in another province.

Finding in one court binding

(9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property] as to whether or not an applicant referred to in subsection 462.42(4) [order declaring interest not subject to forfeiture] is affected by the forfeiture referred to in that subsection or declaring the nature and extent of the interest of the applicant under that subsection is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment.
1997, c. 18, s. 34.
[annotation(s) added]

– CCC

Note up: 462.371(1), (2), (3), (4), (5), (6), (7), (8), and (9)

See Also

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