Forfeiture of Computer-related Property
General Principles
Section 164.2 allows for the Crown to seek forfeiture of computer equipment on conviction for distribution of intimate images (162.1), child pornography (s. 163.1), child luring (172.1), or agree or arrange an offence against a child (172.2).
Forfeiture after conviction
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 162.1, 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing
- (a) was used in the commission of the offence; and
- (b) is the property of
- (i) the convicted person or another person who was a party to the offence, or
- (ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
[(2) to (5)]
2002, c. 13, s. 7; 2008, c. 18, s. 4; 2012, c. 1, s. 18; 2014, c. 31, s. 6.
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Section 164.2 requires that the attorney general prove on the balance of probabilities that:
- the thing was not real property;
- the thing was "used in the commission of the offence";
- the thing was the property of:
- "the convicted person";
- "a party to the offence"; or
- a "person who acquired the thing from" the convicted person or party to the offence "under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture".
Third Party Rights
164.2
(1)...
Third party rights
(2) Before making an order under subsection (1), the court shall cause notice to be given to, and may hear, any person whom it considers to have an interest in the thing, and may declare the nature and extent of the person’s interest in it.
Right of appeal — third party
(3) A person who was heard in response to a notice given under subsection (2) may appeal to the court of appeal against an order made under subsection (1).
Right of appeal — Attorney General
(4) The Attorney General may appeal to the court of appeal against the refusal of a court to make an order under subsection (1).
Application of Part XXI
(5) Part XXI [Appeals — Indictable Offences] applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) and (4).
2002, c. 13, s. 7; 2008, c. 18, s. 4; 2012, c. 1, s. 18; 2014, c. 31, s. 6.
[annotation added]
– CCC
Right of Relief From a 164.2 Forfeiture Order
Relief from forfeiture
164.3 (1) Within thirty days after an order under subsection 164.2(1) is made, a person who claims an interest in the thing forfeited may apply in writing to a judge for an order under subsection (4).
Hearing of application
(2) The judge shall fix a day — not less than thirty days after the application is made — for its hearing.
Notice to Attorney General
(3) At least fifteen days before the hearing, the applicant shall cause notice of the application and of the hearing day to be served on the Attorney General.
Order
(4) The judge may make an order declaring that the applicant’s interest in the thing is not affected by the forfeiture and declaring the nature and extent of the interest if the judge is satisfied that the applicant
- (a) was not a party to the offence; and
- (b) did not acquire the thing from a person who was a party to the offence under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
Appeal to court of appeal
(5) A person referred to in subsection (4) or the Attorney General may appeal to the court of appeal against an order made under that subsection. Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under this subsection.
Powers of Attorney General
(6) On application by a person who obtained an order under subsection (4), made after the expiration of the time allowed for an appeal against the order and, if an appeal is taken, after it has been finally disposed of, the Attorney General shall direct that
- (a) the thing be returned to the person; or
- (b) an amount equal to the value of the extent of the person’s interest, as declared in the order, be paid to the person.
2002, c. 13, s. 7.