Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Definition of order

• 462.371 (1) In this section, order means an order made under section 462.37 or 462.38.

• Marginal note:Execution

  (2) An order may be executed anywhere in Canada.

• Marginal note:Filing of order from another province

  (3) Where the Attorney General of a province in which property that is the subject of an order made in another province is situated receives a certified copy of the order and files it with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

• Marginal note:Attorney General of Canada

  (4) Where the Attorney General of Canada receives a certified copy of an order made in a province in respect of property situated in another province and files the order with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

• Marginal note:Effect of registered order

  (5) An order has, from the date it is filed in a court of a province under subsection (3) or (4), the same effect as if it had been an order originally made by that court.

• Marginal note:Notice

  (6) Where an order has been filed in a court under subsection (3) or (4), it shall not be executed before notice in accordance with subsection 462.41(2) is given to every person who, in the opinion of the court, appears to have a valid interest in the property.

• Marginal note:Application of section 462.42

  (7) Section 462.42 applies, with such modifications as the circumstances require, in respect of a person who claims an interest in property that is the subject of an order filed under subsection (3) or (4).

• Marginal note:Application under section 462.42 to be made in one province

  (8) No person may make an application under section 462.42 in relation to property that is the subject of an order filed under subsection (3) or (4) if that person has previously made an application in respect of the same property in another province.

• Marginal note:Finding in one court binding

  (9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) or (4) as to whether or not an applicant referred to in subsection 462.42(4) is affected by the forfeiture referred to in that subsection or declaring the nature and extent of the interest of the applicant under that subsection is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment.

Marginal note:Application for forfeiture

• 462.38 (1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) in respect of any property.

• Marginal note:Order of forfeiture of property

  (2) Subject to sections 462.39 to 462.41, where an application is made to a judge under subsection (1), the judge shall, if the judge is satisfied that

  • (a) any property is, beyond a reasonable doubt, proceeds of crime,

  • (b) that property was obtained through the commission of a designated offence in respect of which proceedings were commenced, and

  • (c) the accused charged with the offence referred to in paragraph (b) has died or absconded,

  order that the property 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

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

• Marginal note:Person deemed absconded

  (3) For the purposes of this section, a person shall be deemed to have absconded in connection with a designated offence if

  • (a) an information has been laid alleging the commission of the offence by the person,

  • (b) a warrant for the arrest of the person or a summons in respect of an organization has been issued in relation to that information, and

  • (c) reasonable attempts to arrest the person pursuant to the warrant or to serve the summons have been unsuccessful during the period of six months commencing on the day the warrant or summons was issued, or, in the case of a person who is not or never was in Canada, the person cannot be brought within that period to the jurisdiction in which the warrant or summons was issued,

  and the person shall be deemed to have so absconded on the last day of that period of six months.

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 pursuant to special warrants or restraint orders

• 462.43 (1) Where property has been seized under a warrant issued pursuant to section 462.32, a restraint order has been made under section 462.33 in relation to any property or a recognizance has been entered into pursuant to 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 pursuant to section 462.32 or property under the control of a person appointed pursuant to 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.