Precedent - Forfeiture of Property Under Section 490(9)

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Notice

NOTICE OF APPLICATION

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]

IN THE MATTER OF an Application by the Attorney General of [province] for an Order pursuant to sections 490(9) of the Criminal Code, ordering that property seized by [police] from [accused], on [date] at [location], be forfeited to Her Majesty the Queen in Right of [province]

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

NOTICE OF FORFEITURE APPLICATION
(Section 490(9) Criminal Code)

WHEREAS the accused, [accused name], has been charged that on or about [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code;

AND WHEREAS the accused has pleaded or been found guilty of one or more charges that include offences contrary to section(s) [list sections] of the Criminal Code;

AND WHEREAS the following items ("the Property") were seized by [police force] from [location or person] on [date] at [address]:

1. [list items of property]

2. ...

THE APPLICANT RELIES ON THE FOLLOWING GROUNDS

[grounds consisting of reasons for granting the relief and alleged facts, including the circumstances of seizure of the property, the original ownership, and description of the item to establish that it is tainted by criminality]
...
Where property is subject to a detention order under s. 490(1) to (3), the Crown is permitted under s. 490(9) to apply for an order for property "to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law"
Before making an order under s. 490(9), the judge must be satisfied that:
1. the periods of detention ordered has expired, or if not expired, the "continued detention of the thing seized will not be required";
2. the possession of the item by the owner is not lawful or the lawful owner is not known
the item seized is no longer needed for the purpose for which it was seized;
The evidence supports a finding that there are no persons who can lawfully possess the item;
identify the other property that is no longer required for the investigation or prosecution.
...
Any additional grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:

[SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence]
Affidavit of Cst. [name]
Copy of the Detention Order, including list of items seized
Copy of Information
Any additional evidence as counsel may advise and this Honourable Court may permit.

THE APPLICANT SEEKS THE FOLLOWING RELIEF:

An Order allowing the Application and granting an order under s. 490(9) forfeiting the property seized.

FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:

In accordance with the appropriate Rules of Court,

[party name]
[party title]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: [email protected]

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_________________________________
[Counsel's name]
[Counsel's title]

TO:	[parties requiring notice] [contact info]
AND TO:	[other necessary parties] [contact info]
cc.	[other party where notice not legally required such as co-counsel, etc.]

[Internal File Coding]

Affidavit

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]

IN THE MATTER OF an Application by the Attorney General of [province] for an Order pursuant to sections 490(9) of the Criminal Code, ordering that property seized by [police] from [accused], on [date] at [location], be forfeited to Her Majesty the Queen in Right of [province]

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

AFFIDAVIT OF [NAME]
(Application Under Section 490(9) Criminal Code)

I, [Affiant name], of [City], in the [Community] and Province of [Province], make oath and say as follows that:

I am the [relationship to case] herein and have personal knowledge of the matters and facts herein deposed to, except where stated to be based on information and belief, in which case I do verily believe the same to be true.
...
[circumstances of the seizure]
[other evidence of ownership, including 3rd party interests]
[procedural history of proceedings]
[description of item to establish that it is tainted by criminality]
[state whether the item is still needed for any purpose for which it was detained]
[state whether there are any owners who are able to lawfully possess the item]
...

SWORN/AFFIRMED TO at [city], in the region of
[region], Province of
[province], this [day]
day of [month], 20____, before me:

________________________________

Commissioner of Oaths/Barrister of
the [level] Court of [province]

)
)
)
)
)
) _____________________________
) [Affiant Name]
) [Affiant title]
)

[Internal File Coding]

Draft Order

Order

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]

IN THE MATTER OF an Application by the Attorney General of [province] for an Order pursuant to sections 490(9) of the Criminal Code, ordering that property seized by [police] from [accused], on [date] at [location], be forfeited to Her Majesty the Queen in Right of [province]

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

FORFEITURE ORDER
(Section [section for forfeiture])

BEFORE THE HONOURABLE Justice [name of judge] at [city], [province].

WHEREAS the accused, [accused name], has been charged that on or about [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code;

AND WHEREAS the accused has pleaded or been found guilty of one or more charges that include offences contrary to section(s) [list sections] of the Criminal Code;

AND WHEREAS the following items ("the Property") were seized by [police force] from [location or person] on [date] at [address]:

1. [list items of property]

2. ...

AND WHEREAS the Property, in addition to other things, were the subject of a lawful Detention Order pursuant to s. 489 of the Criminal Code dated [DATE].

AND WHEREAS all other things seized and detained pursuant to the Detention Order are not required for any purpose connected to the Detention Order.

AND WHEREAS the ownership of all other things seized and detained pursuant to the Detention Order are not in dispute.

UPON the Application of Crown counsel for an order pursuant to section 490(9) of the Criminal Code;

AND UPON HEARING from Crown counsel and counsel for the accused;

AND UPON BEING SATISFIED THAT the accused was the lawful owner of the property at the time of seizure and there are no other persons who are lawfully entitled to the Property;

AND UPON BEING SATISFIED THAT the Property is tainted by criminality;

IT IS HEREBY ORDERED THAT the Property is hereby forfeited to Her Majesty the Queen in Right of [Province] pursuant to section 490(9) of the Criminal Code to be disposed of as the Attorney General of [province] directs or otherwise dealt with in accordance with the law.

AND IT IS HEREBY ORDERED THAT all other items detained pursuant to the Detention Order dated [DATE] should be ordered returned to the lawful owner(s).

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_____________________________
[name of title and justice]

________________________________

Counsel for the Accused/Property Owner

(Should the Accused/Property Owner Consent to the Order)

TO:	[parties requiring notice] [contact info]
AND TO:	[other necessary parties] [contact info]
cc.	[other party where notice not legally required such as co-counsel, etc.]

[Internal File Coding]