Restraint Orders

Application for restraint order

14. (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 offence against this Act 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

    (a) prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in such manner as may be specified in the order; and

    (b) at the request of the Attorney General, where the judge is of the opinion that the circumstances so require,

      (i) appointing a person to take control of and to manage or otherwise deal with all or part of that property in accordance with the directions of the judge, and

      (ii) requiring any person having possession of that property to give possession of the property to the person appointed under subparagraph (i).

Minister of Supply and Services

(4) Where the Attorney General so requests, a judge appointing a person under subparagraph (3)(b)(i) shall appoint the Minister of Supply and Services.

Conditions

(5) A restraint order made by a judge under this section may be subject to such reasonable conditions as the judge thinks fit.

Order in writing

(6) A restraint order made under this section shall be made in writing.

Service of order

(7) A copy of a restraint order made under this section shall be served on the person to whom the order is addressed in such manner as the judge making the order directs or in accordance with the rules of the court.

Registration of order

(8) A copy of a restraint order made under this section shall be registered against any property in accordance with the laws of the province in which the property is situated.

Order continues in force

(9) A restraint order made under this section remains in effect until

    (a) an order is made under subsection 490(9) or (11) of the Criminal Code in relation to the property; or

    (b) an order of forfeiture of the property is made under subsection 16(1) or 17(2) of this Act or section 490 of the Criminal Code.

Offence

(10) Any person on whom a restraint order made under this section 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.

Sections 489.1 and 490 of the Criminal Code applicable

15. (1) Subject to sections 16 to 22, sections 489.1 and 490 of the Criminal Code apply, with such modifications as the circumstances require, to any offence-related property that is the subject-matter of a restraint order made under section 14.

Recognizance

(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) of the Criminal Code for the return of any offence-related property that is the subject of a restraint order under section 14, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in such amount and with such conditions, if any, as the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice such sum of money or other valuable security as the judge or justice directs.

Forfeiture of Offence-related Property

Order of forfeiture of property on conviction

16. (1) Subject to sections 18 and 19, where a person is convicted of a designated substance offence 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) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

    (b) in the case of any other offence-related property,

      (i) 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

      (ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen's Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

Property related to other offences

(2) Where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been 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 that property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

Appeal

(3) A person who has been convicted of a designated substance offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.

Application for in rem forfeiture

17. (1) Where an information has been laid in respect of a designated substance offence, 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 18 and 19, where an application is made to a judge under subsection (1) and the judge is satisfied

    (a) beyond a reasonable doubt that any property is offence-related property,

    (b) that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (a) were commenced, and

    (c) that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

Accused deemed absconded

(3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

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

    (b) a warrant for the arrest of the accused has been issued in relation to that information, and

    (c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

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

Who may dispose of forfeited property

(4) For the purposes of subsection (2),

    (a) in the case of a substance included in Schedule VI, the judge shall order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

    (b) in the case of any other offence-related property,

      (i) where the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall 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

      (ii) in any other case, the judge shall order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen's Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

Voidable transfers

18. A court may, before ordering that offence-related property be forfeited under subsection 16(1) or 17(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

Notice

19. (1) Before making an order under subsection 16(1) or 17(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.

Manner of giving notice

(2) A notice given under subsection (1) shall

    (a) be given or served in such manner as the court directs or as may be specified in the rules of the court;

    (b) be of such duration as the court considers reasonable or as may be specified in the rules of the court; and

    (c) set out the designated substance offence charged and a description of the property.

Order of restoration of property

(3) Where a court is satisfied that any person, other than

    (a) a person who was charged with a designated substance offence, 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 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 of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(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 be returned to that person.

Application

20. (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 16(1) or 17(2), any person who claims an interest in the property, other than

    (a) in the case of property forfeited pursuant to an order made under subsection 16(1), a person who was convicted of the designated substance offence in relation to which the property was forfeited,

    (b) in the case of property forfeited pursuant to an order made under subsection 17(2), a person who was charged with the designated substance offence in relation to which the property was forfeited, or

    (c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) 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,

may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

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 the filing of the application for the hearing of the application.

Notice

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

Order declaring interest not affected by forfeiture

(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant

    (a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any designated substance offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and

    (b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver,

the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.

Appeal from order made under subsection (4)

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

Return of property

(6) The Minister shall, on application made to the Minister by any person in respect of whom a judge has made 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, direct that

    (a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or

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

Appeals from orders under subsection 17(2)

21. Any person who, in their opinion, is aggrieved by an order made under subsection 17(2) 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 of the Criminal Code, and that Part applies, with such modifications as the circumstances require, in respect of such an appeal.

Suspension of order pending appeal

22. Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 16(1), 17(2) or 20(4) 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 restoration or forfeiture of the property, or

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

and the property shall not be disposed of or otherwise dealt with until thirty days have expired after an order is made under any of those provisions.