Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2018-10-03 and last amended on 2018-10-01. Previous Versions

PART XVSpecial Procedure and Powers (continued)

Forfeiture of Offence-related Property (continued)

Marginal note:Application for in rem forfeiture

  •  (1) If an information has been laid in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, 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 490.3 to 490.41, the judge to whom an application is made under subsection (1) shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) if the judge is satisfied

    • (a) beyond a reasonable doubt that the property is offence-related property;

    • (b) that proceedings in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to the property were commenced; and

    • (c) that the accused charged with the offence has died or absconded.

  • Marginal note:Accused deemed absconded

    (3) For the purpose of subsection (2), an accused is deemed to have absconded in connection with the indictable 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 under the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

    and the accused is 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 purpose of subsection (2), the judge 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 purpose of this paragraph.

  • Marginal note:Property outside Canada

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

  • Marginal note:Definition of judge

    (5) In this section and sections 490.5 and 490.8, judge means a judge as defined in section 552 or a judge of a superior court of criminal jurisdiction.

  • 1997, c. 23, s. 15;
  • 2001, c. 32, s. 31;
  • 2007, c. 13, s. 9;
  • 2017, c. 7, s. 65.

Marginal note:Voidable transfers

 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) or 490.2(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

  • 1997, c. 23, s. 15.

Marginal note:Notice

  •  (1) Before making an order under subsection 490.1(1) or 490.2(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 offence charged and a description of the property.

  • Marginal note:Order of restoration of property

    (3) A court may order that all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) be returned to a person — other than a person who was charged with an indictable offence under this Act or the Corruption of Foreign Public Officials Act or a person who acquired title to or a right of possession of the property from such a person 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 — if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of all or part of that property, and that the person appears innocent of any complicity in, or collusion in relation to, the offence.

  • 1997, c. 23, s. 15;
  • 2001, c. 32, s. 32;
  • 2007, c. 13, s. 10;
  • 2017, c. 7, s. 66.

Marginal note:Notice

  •  (1) If all or part of offence-related property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, before making an order of forfeiture, a court shall require that notice in accordance with subsection (2) 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 of the indictable offence under this Act or the Corruption of Foreign Public Officials 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 property

    (3) Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) 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 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 490.1(1) or 490.2(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 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. 33;
  • 2007, c. 13, s. 11;
  • 2017, c. 7, s. 67.

Marginal note:Application

  •  (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 490.1(1) or 490.2(2), any person who claims an interest in the property, other than

    • (a) in the case of property forfeited pursuant to an order made under subsection 490.1(1), a person who was convicted of the indictable offence in relation to which the property was forfeited,

    • (b) in the case of property forfeited pursuant to an order made under subsection 490.2(2), a person who was charged with the indictable offence in relation to which the property was forfeited, or

    • (c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) 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 the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

  • Marginal note: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 the filing of the application for the hearing of the application.

  • Marginal note:Notice

    (3) An applicant shall serve a notice of the application made under subsection (1) and of the hearing of it on the Attorney General at least fifteen days before the day fixed for the hearing.

  • Marginal note:Order declaring interest not affected by forfeiture

    (4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant

    • (a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and

    • (b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver,

    the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.

  • Marginal note:Appeal from order made under subsection (4)

    (5) An applicant or the Attorney General may appeal to the court of appeal from an order made under subsection (4), and the provisions of Part XXI with respect to procedure on appeals apply, with any modifications that the circumstances require, in respect of appeals under this subsection.

  • Marginal note:Return of property

    (6) The Attorney General shall, on application made to the Attorney General by any person in respect of whom a judge has made 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, direct that

    • (a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or

    • (b) an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

  • 1997, c. 23, s. 15;
  • 2001, c. 32, s. 34.
 
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