Controlled Drugs and Substances Act (S.C. 1996, c. 19)

Act current to 2019-02-28 and last amended on 2018-10-17. Previous Versions

PART IIIDisposition (continued)

DIVISION 1Non-chemical Offence-related Property (continued)

Forfeiture

Marginal note:Forfeiture of property

  •  (1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under section 730 of the Criminal Code, of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical offence-related property is related to the commission of the offence, the court shall

    • (a) if the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and

    • (b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph.

  • Marginal note:Property related to other offences

    (2) Subject to sections 18 to 19.1, 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) is related to the commission of the designated substance offence of which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

  • Marginal note: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.

  • Marginal note:Appeal

    (3) A person who has been convicted or discharged of a designated substance offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.

  • 1996, c. 19, s. 16;
  • 2001, c. 32, s. 51;
  • 2017, c. 7, s. 16.

Marginal note:Application for in rem forfeiture

  •  (1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

  • Marginal note:Order of forfeiture of property

    (2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

    • (a) beyond a reasonable doubt that any property is non-chemical offence-related property,

    • (b) that proceedings were commenced in respect of a designated substance offence to which the property referred to in paragraph (a) is related, and

    • (c) that the accused charged with the designated substance offence has died or absconded,

    the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

  • Marginal note:Accused deemed absconded

    (3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

    • (a) an information has been laid alleging the commission of the offence by the accused,

    • (b) a warrant for the arrest of the accused has been issued in relation to that information, and

    • (c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

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

  • Marginal note:Who may dispose of forfeited property

    (4) For the purposes of subsection (2),

    • (a) if the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall order that the property be forfeited to Her Majesty in right of that province and disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and

    • (b) in any other case, the judge shall order that the property be forfeited to Her Majesty in right of Canada and disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph.

  • Marginal note:Property outside Canada

    (5) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

  • 1996, c. 19, s. 17;
  • 2001, c. 32, s. 52;
  • 2017, c. 7, s. 17.

Marginal note:Voidable transfers

 A court may, before ordering that property be forfeited under subsection 16(1) or 17(2), set aside any conveyance or transfer of the property that occurred after the property was seized or restrained, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

  • 1996, c. 19, s. 18;
  • 2017, c. 7, s. 18.

Marginal note:Notice

  •  (1) Before making an order under subsection 16(1) or 17(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.

  • Marginal note:Manner of giving notice

    (2) A notice shall

    • (a) be given in the manner that the court directs or that may be specified in the rules of the court;

    • (b) specify the period that the court considers reasonable or that may be set out in the rules of the court during which a person may make an application to the court asserting their interest in the property; and

    • (c) set out the designated substance offence charged and a description of the property.

  • Marginal note:Order of restoration of property

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

    • (a) a person who was charged with a designated substance offence, 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 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 of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(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 be returned to that person.

  • 1996, c. 19, s. 19;
  • 2017, c. 7, s. 19.

Marginal note:Notice

  •  (1) If all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to and may hear any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted, or discharged under section 730 of the Criminal Code, of the indictable offence under this Act in relation to which the property would be forfeited.

  • Marginal note:Manner of giving notice

    (2) A notice shall

    • (a) be given in the manner that the court directs or that may be specified in the rules of the court;

    • (b) specify the period that the court considers reasonable or that may be set out in the rules of the court during which a member of the immediate family who resides in the dwelling-house may make themselves known to the court; and

    • (c) set out the offence charged and a description of the property.

  • Marginal note:Non-forfeiture of real property

    (3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted, or discharged under section 730 of the Criminal Code, of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

  • Marginal note:Factors in relation to dwelling-house

    (4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

    • (a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted or discharged of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

    • (b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

  • 2001, c. 32, s. 53;
  • 2017, c. 7, s. 20.
 
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