Canadian Criminal Sentencing/Offence-related Property

Restraint of Offence-related Property

Application for restraint order
490.8 (1) The Attorney General may make an application in accordance with this section for a restraint order under this section in respect of any offence-related property.
Procedure
(2) An application made under subsection (1) for a restraint order in respect of any offence-related 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:

(a) the indictable offence to which the offence-related property relates;

(b) the person who is believed to be in possession of the offence-related property; and

(c) a description of the offence-related property.

Restraint order
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order.
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.

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Under s. 490.8(1), the Attorney General may make an application for a restraint order against "offence-related property".

Under s. 490.8(2), the application can be made ex parte and consist of an affidavit which includes:

1. the indictable offence to which the offence-related property relates;
2. the person who is believed to be in possession of the offence-related property; and
3. a description of the offence-related property.

To make the order, the judge must be satisfied that "that there are reasonable grounds to believe that the property is offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order."(s. 490.8(4))

Forfeiture of Property on Conviction

Section 490.1(1) permits the forfeiture of "offence-related property" on application of the crown:

Order of forfeiture of property on conviction
490.1 (1) Subject to sections 490.3 to 490.41, if a person is convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) where 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 and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

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Under s. 290.1(2), for property to be forfeited, the court must be satisfied that the offence convicted was "committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property."

In Rem Forfeiture

Application for in rem forfeiture
490.2 (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).
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.

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The application can be made to a provincial court or superior court judge.

Considerations in Forfeiture of Dwelling-House

Where the matter sought to be forfeited is a dwelling-house, the court must take into consideration further factors:

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.

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Vehicles

The vehicle used to transport drugs that were the subject of a CDSA conviction is offence-related property and so can be seized.

Forfeiture of Offence-related Weapons

Section 491 requires the forfeiture of weapons:

Forfeiture of weapons and ammunition
491. (1) Subject to subsection (2), where it is determined by a court that

(a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or

(b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained,

the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.
Return to lawful owner
(2) If the court by which a determination referred to in subsection (1) is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
Application of proceeds
(3) Where any thing in respect of which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General or, where an order is made under subsection (2), to the person who was, immediately prior to the sale, the lawful owner of the thing.
R.S., 1985, c. C-46, s. 491; 1991, c. 40, s. 30; 1995, c. 39, s. 152.

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Under 491(1), the court shall order the forfeiture of weapons or ammunition where it is determined that:

1. a weapon was used in the commission of an offence and the weapon has been seized by police, or
2. an offence involved or the subject-matter is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and it has been seized

If so, the thing seized is to be "forfeited to Her Majesty and shall be disposed of as the Attorney General directs."

See R v Roberts 2005 SKPC 88; The Queen v. Montague, 2012 ONSC 2300