PART XII.2Proceeds of Crime (continued)
Search, Seizure and Detention of Proceeds of Crime (continued)
Marginal note: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
Marginal note: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.
Marginal note: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.
Marginal note:Order of restoration of property or revocation or variation of order
(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 relation to an undertaking or release order,
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.
(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.
(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).
Marginal note: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.
Marginal note: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 a designated 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 a designated 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.
Marginal note:Saving provision
(7) Sections 354, 355.2 and 355.4 do not apply to a person who comes into possession of any property that, by virtue of 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).
(8) [Repealed, 2019, c. 25, s. 182]
- R.S., 1985, c. 42 (4th Supp.), s. 2
- 1996, c. 19, ss. 69, 70
- 1997, c. 18, ss. 31, 140
- 2001, c. 32, s. 17
- 2010, c. 14, s. 8
- 2019, c. 25, s. 182
Marginal note: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, the Controlled Drugs and Substances Act or the Cannabis Act and in respect of which proceedings may be taken under subsection 462.37(1) or (2.01) or 462.38(2).
- 1997, c. 18, ss. 32, 140
- 1999, c. 5, s. 14
- 2005, c. 44, s. 5
- 2018, c. 16, s. 213
Marginal note: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.
Marginal note: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.
Marginal note: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
Marginal note: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 a designated 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
- 2001, c. 32, s. 18
- Date modified: