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(b) the ground referred to in paragraph (a)
outweighs in importance the access to the
information.
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| Reasons
|
(2) For the purposes of paragraph (1)(a), an
order may be made under subsection (1) on the
ground that the ends of justice would be
subverted by the disclosure
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(a) if disclosure of the information would
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(i) compromise the identity of a
confidential informant,
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(ii) compromise the nature and extent of
an ongoing investigation,
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(iii) endanger a person engaged in
particular intelligence-gathering
techniques and thereby prejudice future
investigations in which similar
techniques would be used, or
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(iv) prejudice the interests of an innocent
person; and
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(b) for any other sufficient reason.
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| Procedure
|
(3) Where an order is made under
subsection (1), all documents relating to the
application shall, subject to any terms and
conditions that the justice or judge considers
desirable in the circumstances, including,
without limiting the generality of the
foregoing, any term or condition concerning
the duration of the prohibition, partial
disclosure of a document, deletion of any
information or the occurrence of a condition,
be placed in a packet and sealed by the justice
or judge immediately on determination of the
application, and that packet shall be kept in the
custody of the court in a place to which the
public has no access or in any other place that
the justice or judge may authorize and shall
not be dealt with except in accordance with the
terms and conditions specified in the order or
as varied under subsection (4).
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| Application
for variance
of order
|
(4) An application to terminate the order or
vary any of its terms and conditions may be
made to the justice or judge who made the
order or a judge of the court before which any
proceedings arising out of the investigation in
relation to which the warrant was obtained
may be held.
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15. The Act is amended by adding the
following after section 490:
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| Order of
forfeiture of
property on
conviction
|
490.1 (1) Subject to sections 490.3 and
490.4, where a person is convicted of a
criminal organization 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
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(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
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(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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| Property
related to
other offences
|
(2) Where the evidence does not establish to
the satisfaction of the court that the criminal
organization 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 the property
is offence-related property, the court may
make an order of forfeiture under subsection
(1) in relation to that property.
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| Appeal
|
(3) A person who has been convicted of a
criminal organization 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.
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| Application
for in rem
forfeiture
|
490.2 (1) Where an information has been
laid in respect of a criminal organization
offence, the Attorney General may make an
application to a judge for an order of forfeiture
under subsection (2).
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| Order of
forfeiture of
property
|
(2) Subject to sections 490.3 and 490.4,
where an application is made to a judge under
subsection (1) and the judge is satisfied
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(a) beyond a reasonable doubt that any
property is offence-related property,
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(b) that proceedings in respect of a criminal
organization offence in relation to the
property referred to in paragraph (a) were
commenced, and
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(c) that the accused charged with the
criminal organization offence has died or
absconded,
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the judge shall order that the property be
forfeited and disposed of in accordance with
subsection (4).
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| Accused
deemed
absconded
|
(3) For the purpose of subsection (2), an
accused is deemed to have absconded in
connection with a criminal organization
offence if
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(a) an information has been laid alleging the
commission of the offence by the accused,
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(b) a warrant for the arrest of the accused
has been issued in relation to that
information, and
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(c) reasonable attempts to arrest the accused
under the warrant have been unsuccessful
during a period of six months beginning on
the day on which the warrant was issued,
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and the accused is deemed to have so
absconded on the last day of that six month
period.
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| Who may
dispose of
forfeited
property
|
(4) For the purpose of subsection (2), the
judge shall
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(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
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(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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| Definition of
``judge''
|
(5) In this section and sections 490.5 and
490.8, ``judge'' means a judge as defined in
section 552 or a judge of a superior court of
criminal jurisdiction.
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| Voidable
transfers
|
490.3 A court may, before ordering that
offence-related property be forfeited under
subsection 490.1(1) or 490.2(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.
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| Notice
|
490.4 (1) Before making an order under
subsection 490.1(1) or 490.2(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.
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| Manner of
giving notice
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(2) A notice given under subsection (1)
shall
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(a) be given or served in the manner that the
court directs or that may be specified in the
rules of the court;
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(b) be of any duration that the court
considers reasonable or that may be
specified in the rules of the court; and
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(c) set out the criminal organization offence
charged and a description of the property.
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| Order of
restoration of
property
|
(3) Where a court is satisfied that a person,
other than
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(a) a person who was charged with a
criminal organization offence, or
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(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,
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is the lawful owner or is lawfully entitled to
possession of any property or a part of any
property that would otherwise be forfeited
pursuant to an order made under subsection
490.1(1) or 490.2(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 the person.
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| Application
|
490.5 (1) Where any offence-related
property is forfeited to Her Majesty pursuant
to an order made under subsection 490.1(1) or
490.2(2), any person who claims an interest in
the property, other than
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(a) in the case of property forfeited pursuant
to an order made under subsection 490.1(1),
a person who was convicted of the criminal
organization offence in relation to which
the property was forfeited,
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(b) in the case of property forfeited pursuant
to an order made under subsection 490.2(2),
a person who was charged with the criminal
organization offence in relation to which
the property was forfeited, or
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(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,
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may, within thirty days after the forfeiture,
apply by notice in writing to a judge for an
order under subsection (4).
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| 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.
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| 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.
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| 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
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(a) is not a person referred to in paragraph
(1)(a), (b) or (c) and appears innocent of any
complicity in any criminal organization
offence that resulted in the forfeiture of the
property or of any collusion in relation to
such an offence, and
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(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,
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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.
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| 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 with respect to
procedure on appeals apply, with any
modifications that the circumstances require,
in respect of appeals under this subsection.
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| Return of
property
|
(6) The Attorney General shall, on
application made to the Attorney General 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
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(a) the property, or the part of it to which the
interest of the applicant relates, be returned
to the applicant; or
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(b) an amount equal to the value of the
interest of the applicant, as declared in the
order, be paid to the applicant.
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| Appeals from
orders under
subsection
490.2(2)
|
490.6 Any person who, in their opinion, is
aggrieved by an order made under subsection
490.2(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, and that Part
applies, with any modifications that the
circumstances require, in respect of such an
appeal.
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| Suspension of
order pending
appeal
|
490.7 Notwithstanding anything in this Act,
the operation of an order made in respect of
property under subsection 490.1(1), 490.2(2)
or 490.5(4) is suspended pending
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(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
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(b) any appeal taken from an order of
forfeiture or restoration in respect of the
property,
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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.
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|
| 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.
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| 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:
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(a) the criminal organization offence to
which the offence-related property relates;
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(b) the person who is believed to be in
possession of the offence-related property;
and
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(c) a description of the offence-related
property.
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| 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
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(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 the manner that may
be specified in the order; and
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(b) at the request of the Attorney General,
where the judge is of the opinion that the
circumstances so require,
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(i) appointing a person to take control of
and to manage or otherwise deal with all
or part of the property in accordance with
the directions of the judge, and
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(ii) requiring any person having
possession of the property to give
possession of it to the person appointed
under subparagraph (i).
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| Conditions
|
(4) A restraint order made by a judge under
this section may be subject to any reasonable
conditions that the judge thinks fit.
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| Order in
writing
|
(5) A restraint order made under this section
shall be made in writing.
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|
| Service of
order
|
(6) A copy of a restraint order made under
this section shall be served on the person to
whom the order is addressed in any manner
that the judge making the order directs or in
accordance with the rules of the court.
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| Registration
of order
|
(7) 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.
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|
| Order
continues in
force
|
(8) A restraint order made under this section
remains in effect until
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|
(a) an order is made under subsection
490(9) or (11) in relation to the property; or
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|
(b) an order of forfeiture of the property is
made under section 490 or subsection
490.1(1) or 490.2(2).
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|
| Offence
|
(9) 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.
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|
| Sections
489.1 and 490
applicable
|
490.9 (1) Subject to sections 490.1 to 490.7,
sections 489.1 and 490 apply, with any
modifications that the circumstances require,
to any offence-related property that is the
subject of a restraint order made under section
490.8.
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|
| Recognizance
|
(2) Where, pursuant to subsection (1), an
order is made under paragraph 490(9)(c) for
the return of any offence-related property that
is the subject of a restraint order under section
490.8, 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 any amount and
with any conditions that the judge or justice
directs and, where the judge or justice
considers it appropriate, require the applicant
to deposit with the judge or justice any sum of
money or other valuable security that the
judge or justice directs.
|
|
| R.S., c. 27 (1st
Supp.),
s. 83(3)
|
16. Paragraph 515(6)(a) of the Act is
replaced by the following:
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(a) with an indictable offence, other than an
offence listed in section 469,
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(i) that is alleged to have been committed
while at large after being released in
respect of another indictable offence
pursuant to the provisions of this Part or
section 679 or 680, or
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|
(ii) that is an offence under section 467.1
or an offence under this or any other Act
of Parliament alleged to have been
committed for the benefit of, at the
direction of or in association with a
criminal organization for which the
maximum punishment is imprisonment
for five years or more,
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