R.S., c. C-46CRIMINAL CODE

Marginal note:2001, ch. 32, s. 12(1), (5)(F) and (6)(E)

• 1. (1) The definition “designated offence” in subsection 462.3 (1) of the Criminal Code is replaced by the following:

  “designated offence”

  « infraction désignée »

  “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);

• Marginal note:2001, c. 32, s. 12(7)

  (2) Subsection 462.3(3) of the Act is replaced by the following:

  • Marginal note:Powers of Attorney General of Canada

    (3) Despite the definition “Attorney General” in section 2, the Attorney General of Canada may

    • (a) exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act in respect of a designated offence if the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of Parliament or a regulation made under such an Act, other than this Act or a regulation made under this Act; and

    • (b) conduct proceedings and exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act in respect of

      • (i) an offence referred to in section 354 or 462.31 if the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of Parliament or a regulation made under such an Act, other than this Act or a regulation made under this Act, and

      • (ii) an offence under subsection 462.33(11) if the restraint order was made on application of the Attorney General of Canada.

Marginal note:1997, c. 18, s. 28(1)

2. The portion of subsection 462.31(1) of the French version of the Act before paragraph (a) is replaced by the following:

Marginal note:2001, c. 32, s. 14(1)

3. Subsection 462.32(1) of the Act is replaced by the following:

Marginal note:R.S., c. 42 (4th Supp.), s. 2

• 4. (1) Paragraph 462.33(2)(c) of the Act is replaced by the following:

  • (c) the grounds for the belief that an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2) in respect of the property;

• Marginal note:2001, c. 32, s. 15(1)

  (2) Subsection 462.33(3) of the Act is replaced by the following:

  • Marginal note:Restraint order

    (3) A judge who hears an application for a restraint order made under subsection (1) may — if the judge is 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 (2.01) or 462.38(2), in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction — make an order prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in the manner that may be specified in the order.

• Marginal note:R.S., c. 42 (4th Supp.), s. 2

  (3) Subsection 462.33(5) of the Act is replaced by the following:

  • Marginal note: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 (2.01) or 462.38(2).

• Marginal note:R.S., c. 42 (4th Supp.), s. 2

  (4) Paragraph 462.33(10)(c) of the Act is replaced by the following:

  • (c) an order of forfeiture or restoration of the property is made under subsection 462.37(1) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament.

Marginal note:1999, c. 5, s. 14

5. Section 462.341 of the Act is replaced by the following:

• 6. (1) Section 462.37 of the Act is amended by adding the following after subsection (2):

  • Marginal note:Order of forfeiture — particular circumstances

    (2.01) A court imposing sentence on an offender convicted of an offence described in subsection (2.02) shall, on application of the Attorney General and subject to this section and sections 462.4 and 462.41, 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.

  • Marginal note:Offences

    (2.02) The offences are the following:

    • (a) a criminal organization offence punishable by five or more years of imprisonment; and

    • (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.

  • Marginal note: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) in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime.

  • Marginal note: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), 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.

  • Marginal note: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),

    • (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.

  • Marginal note:Application under subsection (1) not prevented

    (2.06) Nothing in subsection (2.01) shall be interpreted as preventing the Attorney General from making an application under subsection (1) in respect of any property.

  • Marginal note: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). The court shall give reasons for its decision.

• Marginal note:R.S., c. 42 (4th Supp.), s. 2

  (2) Subsection 462.37(3) of the English version of the Act is replaced by the following:

  • Marginal note:Fine instead of forfeiture

    (3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

    • (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.