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Criminal Code (R.S.C., 1985, c. C-46)

Full Document:  

Act current to 2019-08-28 and last amended on 2019-08-15. Previous Versions

PART XII.2Proceeds of Crime (continued)

Search, Seizure and Detention of Proceeds of Crime (continued)

Marginal note:Application for restraint order

  •  (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.

  • Marginal note: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 (2.01) 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.

  • 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: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.

  • Marginal note:Property outside Canada

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

  • Marginal note:Idem

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

  • 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:Order in writing

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

  • Marginal note: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

    • (a) the making of an order in respect of property situated within or outside Canada; and

    • (b) the execution of an order in respect of property situated within Canada.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament.

  • Marginal note: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
  • 2001, c. 32, s. 15
  • 2005, c. 44, s. 4

Marginal note:Management order

  •  (1) With respect to property seized under section 462.32 or restrained under section 462.33, other than a controlled substance, within the meaning of the Controlled Drugs and Substances Act, or cannabis, as defined in subsection 2(1) of the Cannabis Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, if a judge is of the opinion that the circumstances so require, the judge may

    • (a) appoint a person to take control of and to manage or otherwise deal with all or part of the property in accordance with the directions of the judge; and

    • (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

  • Marginal note:Appointment of Minister of Public Works and Government Services

    (2) When the Attorney General of Canada so requests, a judge appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.

  • Marginal note:Power to manage

    (3) The power to manage or otherwise deal with property under subsection (1) includes

    • (a) the power to make an interlocutory sale of perishable or rapidly depreciating property;

    • (b) the power to destroy, in accordance with subsections (4) to (7), property that has little or no value; and

    • (c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (7.1).

  • Marginal note:Application for destruction order

    (4) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a court for a destruction order.

  • Marginal note:Notice

    (5) Before making a destruction order, a court shall require notice in accordance with subsection (6) to be given to and may hear any person who, in the court’s opinion, appears to have a valid interest in the property.

  • Marginal note:Manner of giving notice

    (6) A notice shall

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

    • (b) specify the effective period of the notice that the court considers reasonable or that may be set out in the rules of the court.

  • Marginal note:Destruction order

    (7) A court shall order that the property be destroyed if it is satisfied that the property has little or no financial or other value.

  • Marginal note:Forfeiture order

    (7.1) On application by a person who is appointed to manage the property, a court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if

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

    • (b) the notice specifies a period of 60 days during which a person may make an application to the court asserting their interest in the property; and

    • (c) during that period, no one makes such an application.

  • Marginal note:When management order ceases to have effect

    (8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law, destroyed or forfeited to Her Majesty.

  • Marginal note:For greater certainty

    (8.1) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.

  • Marginal note:Application to vary conditions

    (9) The Attorney General may at any time apply to the judge to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2).

  • 2001, c. 32, s. 16
  • 2017, c. 7, s. 58
  • 2018, c. 16, s. 212
 
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