Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Inference

462.39 For the purpose of subsection 462.37(1) or 462.38(2), the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.

Marginal note:Voidable transfers

462.4 A court may,

• (a) prior to ordering property to be forfeited under subsection 462.37(1) or (2.01) or 462.38(2), and

• (b) in the case of property in respect of which a restraint order was made under section 462.33, where the order was served in accordance with subsection 462.33(8),

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the order under section 462.33, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

Marginal note:Notice

• 462.41 (1) Before making an order under subsection 462.37(1) or (2.01) or 462.38(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 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 is charged with, or was convicted of, a designated offence, or

  • (b) a person who acquired title to or a right of possession of that 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 thereof that would otherwise be forfeited pursuant to subsection 462.37(1) or (2.01) or 462.38(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 thereof be returned to that person.

Marginal note:Application by person claiming interest for relief from forfeiture

• 462.42 (1) Any person who claims an interest in property that is forfeited to Her Majesty under subsection 462.37(1) or (2.01) or 462.38(2) may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4) unless the person is

  • (a) a person who is charged with, or was convicted of, a designated offence that resulted in the forfeiture; 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 from that person for the purpose of avoiding the forfeiture of the property.

• 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 filing of the application for the hearing thereof.

• Marginal note:Notice

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

• Marginal note:Order declaring interest not subject to forfeiture

  (4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant is not a person referred to in paragraph (1)(a) or (b) and appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest.

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

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

• Marginal note:Return of property

  (6) The Attorney General shall, on application made to the Attorney General by any person who has obtained 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,

  • (a) direct that the property or the part thereof to which the interest of the applicant relates be returned to the applicant; or

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

Marginal note:Residual disposal of property seized or dealt with under special warrants or restraint orders

• 462.43 (1) If property has been seized under a warrant issued under section 462.32 or 462.321, a restraint order has been made under section 462.33 in relation to any property or a recognizance has been entered into under paragraph 462.34(4)(a) in relation to any property and a judge, on application made to the judge by the Attorney General or any person having an interest in the property or on the judge’s own motion, after notice given to the Attorney General and any other person having an interest in the property, is satisfied that the property will no longer be required for the purpose of section 462.37, 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, the judge

  • (a) in the case of a restraint order, shall revoke the order;

  • (b) in the case of a recognizance, shall cancel the recognizance; and

  • (c) in the case of property seized under a warrant issued under section 462.32 or 462.321 or property under the control of a person appointed under paragraph 462.331(1)(a),

    • (i) if possession of it by the person from whom it was taken is lawful, shall order that it be returned to that person,

    • (ii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, shall order that it be returned to the lawful owner or the person who is lawfully entitled to its possession, or

    • (iii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is not known, may order that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

• Marginal note:Property outside Canada

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

Marginal note:Appeals from certain orders

462.44 Any person who considers that they are aggrieved by an order made under subsection 462.38(2) or 462.41(3) or section 462.43 may appeal from the order as if the order were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, under Part XXI, and that Part applies, with such modifications as the circumstances require, to such an appeal.

Marginal note:Suspension of forfeiture pending appeal

462.45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4), 462.37(1) or (2.01), 462.38(2) or 462.41(3) or section 462.43 is suspended pending

• (a) any application made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for the restoration or forfeiture of such property,

• (b) any appeal taken from an order of forfeiture or restoration in respect of the property, or

• (c) any other proceeding in which the right of seizure of the property is questioned,

and property shall not be disposed of within thirty days after an order of forfeiture is made under any of those provisions.

Marginal note:Copies of documents returned or forfeited

• 462.46 (1) If any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) or (4), 462.37(1) or (2.01), 462.38(2) or 462.41(3) or section 462.43, the Attorney General may, before returning the document or complying with the order, cause a copy of the document to be made and retained.

• Marginal note:Probative force

  (2) Every copy made under subsection (1) shall, if certified as a true copy by the Attorney General, be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the original document would have had if it had been proved in the ordinary way.

Disclosure Provisions

Marginal note:No civil or criminal liability incurred by informants

462.47 For greater certainty but subject to section 241 of the Income Tax Act, a person is justified in disclosing to a peace officer or the Attorney General any facts on the basis of which that person reasonably suspects that any property is proceeds of crime or that any person has committed or is about to commit a designated offence.

Marginal note:Definition of designated substance offence

• 462.48 (1) In this section, designated substance offence means

  • (a) an offence under Part I of the Controlled Drugs and Substances Act, except subsection 4(1) of that Act;

  • (a.1) an offence under Division 1 of Part 1 of the Cannabis Act, except subsection 8(1) of that Act; 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) or (a.1).

• Marginal note:Disclosure of income tax information

  (1.1) The Attorney General may make an application in accordance with subsection (2) for an order for disclosure of information under subsection (3), for the purposes of an investigation in relation to

  • (a) a designated substance offence;

  • (b) an offence against subsection 119(1), section 120, subsection 121(1) or (2), section 122 or subsection 123(1) or (2), or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

  • (b.1) an offence against subsection 279.01(1), 279.011(1) or 279.02(1) or (2) or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

  • (b.2) an offence against subsection 346(1) or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

  • (b.3) an offence against paragraph 380(1)(a) or subsection 380(2) or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

  • (c) an offence against section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13, or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

  • (d) a terrorism offence;

  • (e) an offence against subsection 3(1) of the Corruption of Foreign Public Officials Act, or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence; or

  • (f) an offence against section 354, 355.2, 355.4 or 462.31 — or a conspiracy or attempt to commit, or being an accessory after the fact in relation to such an offence — if the offence is alleged to have been committed in relation to any property, thing or proceeds obtained or derived directly or indirectly as a result of

    • (i) the commission in Canada of an offence referred to in any of paragraphs (a) to (e), or

    • (ii) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence referred to in any of those paragraphs.

• Marginal note:Application

  (2) An application under subsection (1.1) shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or a person specially designated by the Attorney General for that purpose deposing to the following matters, namely,

  • (a) the offence or matter under investigation;

  • (b) the person in relation to whom the information or documents referred to in paragraph (c) are required;

  • (c) the type of information or book, record, writing, return or other document obtained by or on behalf of the Minister of National Revenue for the purposes of Part IX of the Excise Tax Act, the Income Tax Act, the Excise Act, 2001, the Underused Housing Tax Act, the Select Luxury Items Tax Act, the Digital Services Tax Act or the Global Minimum Tax Act to which access is sought or that is proposed to be examined or communicated; and

  • (d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of any of the offences referred to in subsection (1.1) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to the investigation for the purposes of which the application is made.

• Marginal note:Order for disclosure of information

  (3) Where the judge to whom an application under subsection (1.1) is made is satisfied

  • (a) of the matters referred to in paragraph (2)(d), and

  • (b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents to which the application relates, having regard to the benefit likely to accrue to the investigation if the access is obtained,

  the judge may, subject to any conditions that the judge considers advisable in the public interest, order the Commissioner of Revenue or any person specially designated in writing by the Commissioner for the purposes of this section

  • (c) to allow a police officer named in the order access to all such information and documents and to examine them, or

  • (d) where the judge considers it necessary in the circumstances, to produce all such information and documents to the police officer and allow the police officer to remove the information and documents,

  within such period after the expiration of seven clear days following the service of the order pursuant to subsection (4) as the judge may specify.

• Marginal note:Service of order

  (4) 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:Extension of period for compliance with order

  (5) A judge who makes an order under subsection (3) may, on application of the Minister of National Revenue, extend the period within which the order is to be complied with.

• Marginal note:Objection to disclosure of information

  (6) The Minister of National Revenue or any person specially designated in writing by that Minister for the purposes of this section may object to the disclosure of any information or document in respect of which an order under subsection (3) has been made by certifying orally or in writing that the information or document should not be disclosed on the ground that

  • (a) the Minister of National Revenue is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement respecting taxation to which the Government of Canada is a signatory;

  • (b) a privilege is attached by law to the information or document;

  • (c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction; or

  • (d) disclosure of the information or document would not, for any other reason, be in the public interest.

• Marginal note:Determination of objection

  (7) Where an objection to the disclosure of information or a document is made under subsection (6), the objection may be determined, on application, in accordance with subsection (8), by the Chief Justice of the Federal Court, or by such other judge of that Court as the Chief Justice may designate to hear such applications.

• Marginal note:Judge may examine information

  (8) A judge who is to determine an objection pursuant to subsection (7) may, if the judge considers it necessary to determine the objection, examine the information or document in relation to which the objection is made and shall grant the objection and order that disclosure of the information or document be refused where the judge is satisfied of any of the grounds mentioned in subsection (6).

• Marginal note:Limitation period

  (9) An application under subsection (7) shall be made within ten days after the objection is made or within such greater or lesser period as the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications, considers appropriate.

• Marginal note:Appeal to Federal Court of Appeal

  (10) An appeal lies from a determination under subsection (7) to the Federal Court of Appeal.

• Marginal note:Limitation period for appeal

  (11) An appeal under subsection (10) shall be brought within ten days from the date of the determination appealed from or within such further time as the Federal Court of Appeal considers appropriate in the circumstances.

• Marginal note:Special rules for hearings

  (12) An application under subsection (7) or an appeal brought in respect of that application shall

  • (a) be heard in camera; and

  • (b) on the request of the person objecting to the disclosure of information, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

• Marginal note:Ex parte representations

  (13) During the hearing of an application under subsection (7) or an appeal brought in respect of that application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.

• Marginal note:Copies

  (14) When any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any officer of the Canada Revenue Agency may make, or cause to be made, one or more copies of it, and any copy purporting to be certified by the Minister of National Revenue or an authorized person to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.

• Marginal note:Further disclosure

  (15) No person to whom information or documents have been disclosed or provided pursuant to this subsection or pursuant to an order made under subsection (3) shall further disclose the information or documents except for the purposes of the investigation in relation to which the order was made.

• Marginal note:Form

  (16) An order made under subsection (3) may be in Form 47.

• Marginal note:Definition of police officer

  (17) In this section, police officer means any officer, constable or other person employed for the preservation and maintenance of the public peace.