Any text in this node which is in italics is commentary by myself, and not necessarily part of the Criminal Code.

Previous
Index

Definitions
462.3 In this Part,

"designated drug offence" Repealed, 1996, c. 19, s. 68

"designated substance offence" « infraction désignée »
"designated substance offence" means

(a) an offence under Part I of the Controlled Drugs and Substances Act, except subsection 4(1) of that Act, 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);

"enterprise crime offence" «infraction de criminalité organisée»
"enterprise crime offence" means

(a) an offence against any of the following provisions, namely,

(i) subsection 99(1) (weapons trafficking),

(i.1) subsection 100(1) (possession for purpose of weapons trafficking),

(i.2) subsection 102(1) (making automatic firearm),

(i.3) subsection 103(1) (importing or exporting knowing it is unauthorized),

(i.4) subsection 104(1) (unauthorized importing or exporting),

(i.5) section 119 (bribery of judicial officers, etc.),

(ii) section 120 (bribery of officers),

(iii) section 121 (frauds on the government),

(iv) section 122 (breach of trust by public officer),

(iv.1) section 123 (municipal corruption),

(iv.2) section 124 (selling or purchasing office),

(iv.3) section 125 (influencing or negotiating appointments or dealing in offices),

(v) section 163 (corrupting morals),

(v.1) section 163.1 (child pornography),

(vi) subsection 201(1) (keeping gaming or betting house),

(vii) section 202 (betting, pool-selling, book-making, etc.),

(vii.1) paragraph 206(1)(e) (money increment schemes, etc.),

(viii) section 210 (keeping common bawdy-house),

(ix) section 212 (procuring),

(x) section 235 (punishment for murder),

(xi) section 334 (punishment for theft),

(xii) section 344 (punishment for robbery),

(xiii) section 346 (extortion),

(xiii.1) section 347 (criminal interest rate),

(xiv) section 367 (punishment for forgery),

(xv) section 368 (uttering forged document),

(xvi) section 380 (fraud),

(xvii) section 382 (fraudulentmanipulation of stock exchange transactions),

(xvii.1) section 394 (fraud in relation to valuable minerals),

(xvii.2) section 394.1 (possession of stolen or fraudulently obtained valuable minerals),

(xviii) section 426 (secret commissions),

(xix) section 433 (arson),

(xx) section 449 (making counterfeit money),

(xxi) section 450 (possession, etc., of counterfeit money),

(xxii) section 452 (uttering, etc., counterfeit money),

(xxiii) section 462.31 (laundering proceeds of crime), or

(xxiv) section 467.1 (participation in criminal organization),

(a.1) any indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with a criminal organization for which the maximum punishment is imprisonment for five years or more,

(b) an offence against subsection 96(1) (possession of weapon obtained by commission of offence) or section 354 (possession of property obtained by crime), committed in relation to any property, thing or proceeds obtained or derived directly or indirectly as a result of

(i) the commission in Canada of an offence referred to in paragraph (a) or (a.1) or a designated substance offence, or

(ii) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence referred to in paragraph (a) or (a.1) or a designated substance offence,

(b.1) an offence against section 126.1 or 126.2 or subsection 233(1) or 240(1) of the Excise Act, section 153, 159, 163.1 or 163.2 of the Customs Act or subsection 52.1(9) of the Competition Act, or

(c) 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), (a.1), (b) or (b.1);

"judge" «juge»
"judge" means a judge as defined in section 552 or a judge of a superior court of criminal jurisdiction;

"proceeds of crime" «produits de la criminalité»
Usually money.
"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 an enterprise crime offence or a designated substance offence, or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated substance offence.

(c) Repealed, 1993, c. 37, s. 32

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.

Offence

Laundering proceeds of crime
Turning dirty money into legitimate income.
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a) the commission in Canada of an enterprise crime offence or a designated substance offence; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated substance offence.

Punishment
(2) Every one who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

Exception
Undercover cops are allowed.
(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer's duties.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28.

Search, Seizure and Detention of Proceeds of Crime

Special search warrant
Gotta get yourself a piece of paper saying you’re allowed to, before you can just bust into a place and seize what ya want.
462.32 (1) Subject to subsection (3), where a judge, on application of the Attorney General, is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in any building, receptacle or place, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or 462.38(2), in respect of an enterprise crime offence alleged to have been committed within the province in which the judge has jurisdiction, the judge may issue a warrant authorizing a person named therein or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection.

Procedure
(2) An application for a warrant under subsection (1) may be made ex parte, shall be made in writing and shall include a statement as to whether any previous applications have been made under subsection (1) with respect to the property that is the subject of the application.

Execution of warrant
(2.1) Subject to subsection (2.2), a warrant issued pursuant to subsection (1) may be executed anywhere in Canada.

Execution in another province
(2.2) Where a warrant is issued under subsection (1) in one province but it may be reasonably expected that it is to be executed in another province and the execution of the warrant would require entry into or on the property of any person in the other province, a judge in the other province may, on ex parte application, confirm the warrant, and when the warrant is so confirmed it shall have full force and effect in that other province as though it had originally been issued in that province.

Execution of warrant in other territorial jurisdictions
(3) Subsections 487(2) to (4) and section 488 apply, with such modifications as the circumstances require, to a warrant issued under this section.

Detention and record of property seized
(4) Every person who executes a warrant issued by a judge under this section shall

(a) detain or cause to be detained the property seized, taking reasonable care to ensure that the property is preserved so that it may be dealt with in accordance with the law;

(b) as soon as practicable after the execution of the warrant but within a period not exceeding seven days thereafter, prepare a report in Form 5.3, identifying the property seized and the location where the property is being detained, and cause the report to be filed with the clerk of the court; and

(c) cause a copy of the report to be provided, on request, to the person from whom the property was seized and to any other person who, in the opinion of the judge, appears to have a valid interest in the property.

Notice
The judge might have to tell who owns the stuff before having it seized, unless he thinks it might disappear overnight.
(5) Before issuing a warrant under this section in relation to any property, a judge may require notice 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 unless the judge is of the opinion that giving such notice before the issuance of the warrant would result in the disappearance, dissipation or reduction in value of the property or otherwise affect the property so that all or a part thereof could not be seized pursuant to the warrant.

Undertakings by Attorney General
(6) Before issuing a warrant under this section, a judge shall require the Attorney General to give such undertakings as the judge considers appropriate with respect to the payment of damages or costs, or both, in relation to the issuance and execution of the warrant.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 29.

Application for restraint order
462.33 (1) The Attorney General may make an application in accordance with subsection (2) for a restraint order under subsection (3) in respect of any property.

Procedure
(2) An application made under subsection (1) for a restraint order under subsection (3) in respect of any property may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to the following matters, namely,

(a) the offence or matter under investigation;

(b) the person who is believed to be in possession of the property;

(c) the grounds for the belief that an order of forfeiture may be made under subsection 462.37(1) or 462.38(2) in respect of the property;

(d) a description of the property; and

(e) whether any previous applications have been made under this section with respect to the property.

Restraint order
If a Restraint order is issued on property, it means you can’t sell it, destroy it, give it away. It has to stick around.
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that there exists within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or 462.38(2), in respect of an enterprise crime offence alleged to have been committed within the province in which the judge has jurisdiction, make an order


(a) prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in such manner as may be specified in the order; and

(b) at the request of the Attorney General, where the judge is of the opinion that the circumstances so require,

(i) appointing a person to take control of and to manage or otherwise deal with all or part of that property in accordance with the directions of the judge, which power to manage or otherwise deal with all or part of that property includes, in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property, and

(ii) requiring any person having possession of that property to give possession of the property to the person appointed under subparagraph (i).

Execution in another province
(3.01) Subsections 462.32(2.1) and (2.2) apply, with such modifications as the circumstances require, in respect of a restraint order.

Appointment of Minister of Public Works and Government Services
(3.1) Where the Attorney General of Canada so requests, a judge appointing a person under subparagraph 462.33(3)(b)(i) shall appoint the Minister of Public Works and Government Services.

Idem
(4) An order made by a judge under subsection (3) may be subject to such reasonable conditions as the judge thinks fit.

Notice
(5) Before making an order under subsection (3) in relation to any property, a judge may require notice 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 unless the judge is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property or otherwise affect the property so that all or a part thereof could not be subject to an order of forfeiture under subsection 462.37(1) or 462.38(2).

Order in writing
(6) An order made under subsection (3) shall be made in writing.

Undertakings by Attorney General
(7) Before making an order under subsection (3), a judge shall require the Attorney General to give such undertakings as the judge considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and execution of the order.

Service of order
(8) A copy of an order made by a judge under subsection (3) shall be served on the person to whom the order is addressed in such manner as the judge directs or as may be prescribed by rules of court.

Registration of order
(9) A copy of an order made under subsection (3) shall be registered against any property in accordance with the laws of the province in which the property is situated.

Continues in force
(10) An order made under subsection (3) remains in effect until

(a) it is revoked or varied under subsection 462.34(4) or revoked under paragraph 462.43(a);

(b) it ceases to be in force under section 462.35; or

(c) an order of forfeiture or restoration of the property is made under subsection 462.37(1), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament.

Offence
(11) Any person on whom an order made under subsection (3) is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s. 60; 1997, c. 18, s. 30.

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 or in respect of which a restraint order was made under subsection 462.33(3) may, at any time, apply to a judge

(a) for an order under subsection (4); or

(b) for permission to examine the property.

Notice to Attorney General
(2) Where an application is made under paragraph (1)(a),

(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), 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
If something was seized that a person needs to cover living or legal expenses, and it actually belongs to the person, they can have it given back, if they suck up enough to a judge.
(4) On an application made to a judge under paragraph (1)(a) 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) 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 order to enter into a recognizance under Part XVI,

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), 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), 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), make representations as to what would constitute reasonable legal expenses referred to in subparagraph (4)(c)(ii).

Taxing legal fees
(5.2) The judge who made an order under paragraph (4)(c) 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) 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 an enterprise crime offence or a designated substance 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 or a restraint order under subsection 462.33(3) 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 an enterprise crime offence or designated substance 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) Section 354 of this Act and subsection 8(1) of the Controlled Drugs and Substances Act do not apply to a person who comes into possession of any property or thing that, pursuant to an order made under paragraph (4)(c), 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).

Form of recognizance
(8) A recognizance entered into pursuant to paragraph (4)(a) may be in Form 32.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, ss. 69, 70; 1997, c. 18, ss. 31, 140.

Application of property restitution provisions
462.341 Subsection 462.34(2), paragraph 462.34(4)(c) and subsections 462.34(5), (5.1) and (5.2) 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 or the Controlled Drugs and Substances Act and in respect of which proceedings may be taken under subsection 462.37(1) or 462.38(2).

1997, c. 18, ss. 32, 140; 1999, c. 5, s. 14.

Expiration of special warrants and restraint orders
462.35 (1) Subject to this section, where property has been seized under a warrant issued pursuant to section 462.32 or a restraint order has been made under section 462.33 in relation to property, the property may be detained or the order may continue in force, as the case may be, for a period not exceeding six months from the seizure or the making of the order, as the case may be.

Where proceedings instituted
(2) The property may continue to be detained, or the order may continue in force, for a period that exceeds six months if proceedings are instituted in respect of which the thing detained may be forfeited.

Where application made
(3) The property may continue to be detained or the order may continue in force for a period or periods that exceed six months if the continuation is, on application made by the Attorney General, ordered by a judge, where the judge is satisfied that the property is required, after the expiration of the period or periods, for the purpose of section 462.37 or 462.38 or any other provision of this or any other Act of Parliament respecting forfeiture or for the purpose of any investigation or as evidence in any proceeding.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 33.

Forwarding to clerk where accused to stand trial
462.36 Where a judge issues a warrant under section 462.32 or makes a restraint order under section 462.33 in respect of any property, the clerk of the court shall, when an accused is ordered to stand trial for an enterprise crime offence, cause to be forwarded to the clerk of the court to which the accused has been ordered to stand trial a copy of the report filed pursuant to paragraph 462.32(4)(b) or of the restraint order in respect of the property.

R.S., 1985, c. 42 (4th Supp.), s. 2.

Forfeiture of Proceeds of Crime

Order of forfeiture of property on conviction
And this is why the Queen is so rich! It’s all hers!
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of an enterprise crime offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the enterprise crime offence was committed in relation to that property, 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 derived from other offences
(2) Where the evidence does not establish to the satisfaction of the court that the enterprise crime offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.

Fine instead of forfeiture
If for some reason you can’t give whatever needs to be forfeited, you get fined.
(3) Where a court is satisfied that an order of forfeiture under subsection (1) should be made in respect of any property of an offender, but that that property or any part thereof or interest therein cannot be made subject to such an order and, in particular,

(a) cannot, on the exercise of due diligence, be located,

(b) has been transferred to a third party,

(c) is located outside Canada,

(d) has been substantially diminished in value or rendered worthless, or

(e) has been commingled with other property that cannot be divided without difficulty,

the court may, instead of ordering that property or part thereof or interest therein to be forfeited pursuant to subsection (1), order the offender to pay a fine in an amount equal to the value of that property, part or interest.

Imprisonment in default of payment of fine
If you can’t pay the fine, you’re going to jail mother fucker!
(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall

(a) impose, in default of payment of that fine, a term of imprisonment

(i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,

(ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,

(iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,

(iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,

(v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,

(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or

(vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and

(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

Fine option program not available to offender
(5) Section 736 does not apply to an offender against whom a fine is imposed pursuant to subsection (3).

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).

Definition of "order"
462.371 (1) In this section, "order" means an order made under section 462.37 or 462.38.

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) or (4), 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) or (4), it shall not be executed before notice in accordance with subsection 462.41(2) 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 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) or (4).

Application under section 462.42 to be made in one province
(8) No person may make an application under section 462.42 in relation to property that is the subject of an order filed under subsection (3) or (4) 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) or (4) as to whether or not an applicant referred to in subsection 462.42(4) 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.

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

Order of forfeiture of property
(2) Subject to sections 462.39 to 462.41, where an application is made to a judge under subsection (1), 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 an enterprise crime 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.

Person deemed absconded
(3) For the purposes of this section, a person shall be deemed to have absconded in connection with an enterprise crime 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 a corporation 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.

Inference
462.39 For the purpose of subsection 462.37(1) or 462.38(2), the court may infer that property was obtained or derived as a result of the commission of an enterprise crime 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 enterprise crime offences or designated substance 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.

Voidable transfers
462.4 A court may,

(a) prior to ordering property to be forfeited under subsection 462.37(1) or 462.38(2), and

(b) in the case of property in respect of which a restraint order was made under section 462.33, where the order was served in accordance with subsection 462.33(8),

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, 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).

Notice
462.41 (1) Before making an order under subsection 462.37(1) or 462.38(2) in relation to any property, a court shall require notice in accordance with subsection (2) 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) 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 enterprise crime 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, an enterprise crime offence or a designated substance 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) or 462.38(2) 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.

Application by person claiming interest for relief from forfeiture
If you actually own the stuff, try and get it back.
462.42 (1) Where any property is forfeited to Her Majesty under subsection 462.37(1) or 462.38(2), any person who claims an interest in the property, other than

(a) a person who is charged with, or was convicted of, an enterprise crime offence or a designated substance offence that was committed in relation to the property forfeited, 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 from that person for the purpose of avoiding the forfeiture of the property,

may, within thirty days after that forfeiture, apply by notice in writing to a judge for an order under subsection (4).

Fixing day for hearing
(2) The judge to whom an application is made under subsection (1) 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) 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), 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 enterprise crime offence or designated substance 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) and the provisions of Part XXI 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) 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) 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.

Residual disposal of property seized or dealt with pursuant to special warrants or restraint orders
462.43 Where property has been seized under a warrant issued pursuant to section 462.32, a restraint order has been made under section 462.33 in relation to any property or a recognizance has been entered into pursuant to paragraph 462.34(4)(a) in relation to any property and a judge, on application made to the judge by the Attorney General or any person having an interest in the property or on the judge's own motion, after notice given to the Attorney General and any other person having an interest in the property, is satisfied that the property will no longer be required for the purpose of section 462.37, 462.38 or any other provision of this or any other Act of Parliament respecting forfeiture or for the purpose of any investigation or as evidence in any proceeding, the judge

(a) in the case of a restraint order, shall revoke the order;

(b) in the case of a recognizance, shall cancel the recognizance; and

(c) in the case of property seized under a warrant issued pursuant to section 462.32 or property under the control of a person appointed pursuant to subparagraph 462.33(3)(b)(i),

(i) if possession of it by the person from whom it was taken is lawful, shall order that it be returned to that person,

(ii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, shall order that it be returned to the lawful owner or the person who is lawfully entitled to its possession, or

(iii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is not known, may order that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

R.S., 1985, c. 42 (4th Supp.), s. 2.

Appeals from certain orders
462.44 Any person who considers that they are aggrieved by an order made under subsection 462.38(2) or 462.41(3) or section 462.43 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, 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.

Suspension of forfeiture pending appeal
462.45 Notwithstanding anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4), 462.37(1), 462.38(2) or 462.41(3) or section 462.43 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.

Copies of documents returned or forfeited
462.46 (1) Where any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) or (4), 462.37(1), 462.38(2) or 462.41(3) or section 462.43, 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) 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.

Disclosure Provisions

No civil or criminal liability incurred by informants
Snitching is allowed. Nay, encouraged.
462.47 For greater certainty but subject to section 241 of the Income Tax Act, a person is justified in disclosing to a peace officer or the Attorney General any facts on the basis of which that person reasonably suspects that any property is proceeds of crime or that any person has committed or is about to commit an enterprise crime offence or a designated substance offence.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70.

Disclosure of income tax information
They can check your tax records if they have reason to believe that you’ve been a bad bad boy.
462.48 (1) The Attorney General may, for the purposes of an investigation in relation to

(a) a designated substance offence,

(b) an offence against section 354 or 462.31 where the offence is alleged to have been committed in relation to any property, thing or proceeds obtained or derived directly or indirectly as a result of

(i) the commission in Canada of a designated substance offence, or

(ii) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated substance offence, or

(c) an offence against section 467.1 or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, such an offence,

make an application in accordance with subsection (2) for an order for disclosure of information under subsection (3).

Application
(2) An application under subsection (1) shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or a person specially designated by the Attorney General for that purpose deposing to the following matters, namely,

(a) the offence or matter under investigation;

(b) the person in relation to whom the information or documents referred to in paragraph (c) are required;

(c) the type of information or book, record, writing, return or other document obtained by or on behalf of the Minister of National Revenue for the purposes of the Income Tax Act to which access is sought or that is proposed to be examined or communicated; and

(d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of an offence referred to in paragraph (1)(a), (b) or (c) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to the investigation for the purposes of which the application is made.

Order for disclosure of information
(3) Where the judge to whom an application under subsection (1) is made is satisfied

(a) of the matters referred to in paragraph (2)(d), and

(b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents to which the application relates, having regard to the benefit likely to accrue to the investigation if the access is obtained,

the judge may, subject to any conditions that the judge considers advisable in the public interest, order the Commissioner of Customs and Revenue or any person specially designated in writing by the Commissioner for the purposes of this section

(c) to allow a police officer named in the order access to all such information and documents and to examine them, or

(d) where the judge considers it necessary in the circumstances, to produce all such information and documents to the police officer and allow the police officer to remove the information and documents,

within such period after the expiration of seven clear days following the service of the order pursuant to subsection (4) as the judge may specify.

Service of order
(4) A copy of an order made by a judge under subsection (3) shall be served on the person to whom the order is addressed in such manner as the judge directs or as may be prescribed by rules of court.

Extension of period for compliance with order
(5) A judge who makes an order under subsection (3) may, on application of the Minister of National Revenue, extend the period within which the order is to be complied with.

Objection to disclosure of information
(6) The Minister of National Revenue or any person specially designated in writing by that Minister for the purposes of this section may object to the disclosure of any information or document in respect of which an order under subsection (3) has been made by certifying orally or in writing that the information or document should not be disclosed on the ground that

(a) the Minister of National Revenue is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement respecting taxation to which the Government of Canada is a signatory;

(b) a privilege is attached by law to the information or document;

(c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction; or

(d) disclosure of the information or document would not, for any other reason, be in the public interest.

Determination of objection
(7) Where an objection to the disclosure of information or a document is made under subsection (6), the objection may be determined, on application, in accordance with subsection (8), by the Chief Justice of the Federal Court, or by such other judge of that Court as the Chief Justice may designate to hear such applications.

Judge may examine information
(8) A judge who is to determine an objection pursuant to subsection (7) may, if the judge considers it necessary to determine the objection, examine the information or document in relation to which the objection is made and shall grant the objection and order that disclosure of the information or document be refused where the judge is satisfied of any of the grounds mentioned in subsection (6).

Limitation period
(9) An application under subsection (7) shall be made within ten days after the objection is made or within such greater or lesser period as the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications, considers appropriate.

Appeal to Federal Court of Appeal
(10) An appeal lies from a determination under subsection (7) to the Federal Court of Appeal.

Limitation period for appeal
(11) An appeal under subsection (10) shall be brought within ten days from the date of the determination appealed from or within such further time as the Federal Court of Appeal considers appropriate in the circumstances.

Special rules for hearings
(12) An application under subsection (7) or an appeal brought in respect of that application shall

(a) be heard in camera; and

(b) on the request of the person objecting to the disclosure of information, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

Ex parte representations
(13) During the hearing of an application under subsection (7) or an appeal brought in respect of that application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.

Copies
(14) When any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any officer of the Canada Customs and Revenue Agency may make, or cause to be made, one or more copies of it, and any copy purporting to be certified by the Minister of National Revenue or an authorized person to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.

Further disclosure
(15) No person to whom information or documents have been disclosed or provided pursuant to this subsection or pursuant to an order made under subsection (3) shall further disclose the information or documents except for the purposes of the investigation in relation to which the order was made.

Form
(16) An order made under subsection (3) may be in Form 47.

Definition of "police officer"
(17) In this section, "police officer" means any officer, constable or other person employed for the preservationand maintenance of the public peace.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1994, c. 13, s. 7; 1996, c. 19, s. 70; 1997, c. 23, s. 10; 1999, c. 17, s. 120.

Specific Rules of Forfeiture

Specific forfeiture provisions unaffected by this Part
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.

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.

Regulations

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.

Next
Part XIII
Attempts--Conspiracies-- Accessories

Log in or registerto write something here or to contact authors.