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(a) the enforcement officer or other person
by whom the thing was seized, or
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(b) the person into whose custody the thing
was delivered in accordance with
subsection (1)
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may sell the cargo or the portion of it that is
perishable, as the case may be, and the
proceeds of the sale shall be paid to the
Receiver General or shall be deposited in a
bank to the credit of the Receiver General.
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| Order for
delivery of
cargo
|
(4) The owner of any cargo of anything
seized under section 220 may apply to the
Federal Court for an order requiring any
person who has custody of the cargo or the
proceeds of any sale thereof to deliver the
cargo or the proceeds of sale to the owner, and
the Court may make such an order where it is
satisfied that the applicant is the owner of the
cargo to which the application relates.
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| Redelivery on
deposit of
security
|
222. (1) Where a thing has been seized
under section 220, the Federal Court may,
with the consent of the Minister, order
redelivery of the thing or delivery of the
proceeds realized from a sale of any
perishable cargo under subsection 221(3) to
the person from whom the thing was seized if
security in the form of a bond in an amount and
form satisfactory to the Minister is given to the
Minister.
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| Seized ship,
etc., to be
returned
unless
proceedings
instituted
|
(2) Anything referred to in subsection (1)
that has been seized under section 220, or any
security given to the Minister under
subsection (1), shall be returned or paid to the
person from whom the thing was seized within
30 days after the seizure unless, before the
expiry of those 30 days, proceedings are
instituted in respect of an offence under
section 272 alleged to have been committed
by the owner of the thing.
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| Seizure
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223. (1) Whenever, during the course of an
inspection or a search, an enforcement officer
has reasonable grounds to believe that a
provision of this Act or the regulations has
been contravened, the enforcement officer
may seize and detain anything
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(a) by means of or in relation to which the
enforcement officer reasonably believes the
contravention occurred; or
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(b) that the enforcement officer reasonably
believes will afford evidence of the
contravention.
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| Limitation
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(2) An enforcement officer shall not seize
anything under subsection (1) unless the thing
is required as evidence or for purposes of
analysis or the enforcement officer is of the
opinion that the seizure is necessary in the
public interest.
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| Notice of
contravention
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(3) An enforcement officer who has seized
and detained a thing under subsection (1)
shall, as soon as is practicable, advise the
person in whose possession it was at the time
of the seizure of the provision of this Act or the
regulations that the enforcement officer
believes has been contravened.
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| Detention and
release
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(4) Anything seized under subsection (1) or
section 220, other than a ship, aircraft,
platform or other structure, shall not be
detained
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(a) after the owner of the thing or the person
in whose possession it was at the time of the
seizure applies to the enforcement officer or
to the Minister for its release and the
enforcement officer or the Minister is
satisfied that it is not necessary in the public
interest to continue to detain the thing or
that it is not required as evidence or for
purposes of analysis; or
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(b) after the expiry of 90 days after the day
of seizure, unless before that time
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(i) the thing has been forfeited under
section 229,
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(ii) proceedings have been instituted in
respect of the contravention in relation to
which the thing was seized, in which case
it may be detained until the proceedings
are finally concluded, or
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(iii) the Minister has served or made
reasonable efforts to serve notice of an
application for an order extending the
time during which the thing may be
detained in accordance with section 224.
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| Storage of
seized thing
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(5) A thing seized by an enforcement officer
under subsection (1) or section 220, other than
a ship, aircraft, platform or other structure,
shall be kept or stored in the place where it was
seized except if
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(a) in the opinion of the enforcement
officer,
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(i) it is not in the public interest to do so,
or
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(ii) the thing seized, or a sample of it, is
required as evidence and removal and
storage of the thing seized is necessary to
ensure that the thing or sample will be
available as evidence in any related
proceedings, or
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(b) the person in whose possession it was at
the time of the seizure or the person entitled
to possession of the place requests the
enforcement officer to have it removed to
some other place,
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in which case it may be removed to and stored
in any other place at the direction of or with the
concurrence of an enforcement officer and at
the expense of the person who requested that
it be so removed.
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| Interference
with seized
thing
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(6) Unless authorized by an enforcement
officer, no person shall remove, alter or
interfere in any way with anything seized and
detained by an enforcement officer under
subsection (1) or section 220, but an
enforcement officer shall, at the request of the
person from whom it was seized, allow that
person or any person authorized by that person
to examine it and, where practicable, furnish
a sample or copy of it to that person.
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| Application to
extend period
of detention
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224. (1) Where proceedings have not been
instituted in respect of the contravention in
relation to which a thing was seized under
section 220 or subsection 223(1), the Minister
may, before the expiry of 90 days after the day
of the seizure and on serving prior notice in
accordance with subsection (2) on the owner
of the thing or on the person who at the time
of the seizure was in possession of it, apply to
a provincial court judge, as defined in section
2 of the Criminal Code, within whose
territorial jurisdiction the seizure was made
for an order extending the time during which
it may be detained.
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| Notice
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(2) A notice shall be served by personal
service at least five clear days before the day
on which the application is to be made to the
provincial court judge or by registered mail at
least seven clear days before that day and shall
specify
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(a) the provincial court in which the
application is to be made;
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(b) the place where and the time when the
application is to be heard;
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(c) the thing seized in respect of which the
application is to be made; and
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(d) the grounds on which the Minister
intends to rely to show why there should be
an extension of the time during which the
thing seized may be detained.
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| Order of
extension
granted
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(3) Where, on the hearing of an application
made under subsection (1), the judge is
satisfied that the thing seized should continue
to be detained, the judge shall order
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(a) that the thing be detained for any
additional period and on any conditions
relating to the detention for that additional
period that the judge considers proper; and
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(b) on the expiry of the additional period,
that the thing be restored to the person from
whom it was seized or to any other person
entitled to its possession unless, before the
expiry of the additional period, an event
referred to in subparagraph 223(4)(b)(i), (ii)
or (iii) has occurred.
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| Order of
extension
refused
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(4) Where, on the hearing of an application
made under subsection (1), the judge is not
satisfied that the thing seized should continue
to be detained, the judge shall order that, on
the expiry of 90 days after the day of the
seizure, it be restored to the person from
whom it was seized or to any other person
entitled to its possession unless, before the
expiry of the 90 days, an event referred to in
subparagraph 223(4)(b)(i) or (ii) has occurred.
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| Detention of
ships
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225. (1) Where an enforcement officer has
reasonable grounds to believe that the owner
or master of a ship has committed an offence
under section 272 and that a ship was used in
connection with the commission of the
offence, the enforcement officer may make a
detention order in respect of the ship.
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| Order in
writing
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(2) A detention order made under
subsection (1) shall be in writing and be
addressed to all persons at any port in Canada
where the ship to which the order relates is or
will be who are empowered to give a clearance
in respect of the ship.
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| Notice of
detention
order
|
(3) Notice of a detention order made under
subsection (1) shall be served on the master of
the ship in respect of which the order is made.
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| Duty of owner
or master of
ship
|
(4) Where notice of a detention order made
under subsection (1) has been served on the
master of the ship, the owner or master of the
ship shall not give an order for the ship to go
into an area of the sea referred to in paragraph
122(2)(f) or (g) during the term of the
detention order.
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| Duty of
persons
empowered to
give clearance
|
(5) Subject to subsection (6), no person to
whom a detention order made under
subsection (1) is addressed shall, after notice
of the order is received by the person, give
clearance in respect of the ship to which the
order relates.
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| When
clearance
given
|
(6) A person to whom a detention order
made under subsection (1) is addressed and
who has received notice of the order may give
clearance in respect of the ship to which the
order relates where
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(a) the owner or master of the ship
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(i) has not, within 30 days after the order
was made, been charged with the offence
that gave rise to the making of the order,
or
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(ii) has, within 30 days after the order was
made, been charged with that offence and
appears in Canada to answer to the
charge;
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(b) security for payment of the maximum
fine that might be imposed as a result of a
conviction of the person charged with that
offence and of costs related to proceedings
in connection with the charge, or payment
of any lesser amount that is approved by the
Minister or a person designated by the
Minister for the purpose, is given to Her
Majesty in right of Canada; or
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(c) proceedings in respect of the alleged
offence that gave rise to the making of the
detention order are discontinued.
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| Right of
passage
|
226. An enforcement officer or analyst or
any other person may, while carrying out
powers, duties or functions under this Act,
enter on and pass through or over private
property without being liable for trespass or
without the owner of the property having the
right to object to that use of the property.
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| Assistance
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227. The owner or the person in charge of a
place entered by an enforcement officer or
analyst under section 218 or 220, and every
person found in the place, shall
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(a) give the enforcement officer or analyst
all reasonable assistance to enable them to
carry out duties and functions under this
Act; and
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(b) provide the enforcement officer or
analyst with any information with respect to
the administration of this Act and the
regulations that the enforcement officer or
analyst may reasonably require.
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| Obstruction
|
228. While an enforcement officer or
analyst is exercising powers or carrying out
duties and functions under this Act, no person
shall
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(a) knowingly make any false or misleading
statement, either orally or in writing, to
them; or
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(b) otherwise obstruct or hinder them.
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| Forfeiture on
consent
|
229. (1) Where an enforcement officer has
seized a thing under section 220 or subsection
223(1) and the owner or person who was in
lawful possession of it at the time of the
seizure consents in writing at the request of the
enforcement officer to its forfeiture, it is
thereupon forfeited to Her Majesty in right of
Canada.
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| Disposal or
destruction
|
(2) The Minister may dispose of or destroy
anything forfeited under subsection (1) and, if
the Minister so directs, the costs of the
disposal or destruction shall be paid by the
owner or the person who was in lawful
possession of it at the time it was seized.
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| Forfeiture by
order of court
|
230. (1) Subject to sections 231 and 232,
where a person is convicted of an offence
under this Act and anything seized under
section 220 or subsection 223(1) is then being
detained,
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(a) the thing is, on the conviction and in
addition to any punishment imposed for the
offence, forfeited to Her Majesty in right of
Canada, if the court so directs, in which case
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(i) the Minister may dispose of or destroy
the thing, and
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(ii) the costs of the forfeiture and disposal
or destruction shall be paid by the
offender; or
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(b) the thing shall, on the expiry of the time
for taking an appeal from the conviction or
on the final conclusion of the proceedings,
as the case may be, be restored to the person
from whom it was seized or to any other
person entitled to its possession on any
conditions that may be imposed by order of
the court and that, in the opinion of the
court, are necessary to avoid the
commission of a further offence under this
Act.
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| Things
deemed not to
have been
seized
|
(2) For the purpose of subsection (1),
anything released from detention under
paragraph 223(4)(a) or (b) is deemed not to
have been seized under section 220 or
subsection 223(1).
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| Court may
order
forfeiture
|
231. Where the owner of any ship, aircraft,
platform or other structure has been convicted
of an offence under section 272, the
convicting court may, if the ship, aircraft,
platform or structure was seized under section
220 or subsection 223(1), in addition to any
other penalty imposed, order that the ship,
aircraft, platform or structure, or any security
given under subsection 222(1), be forfeited,
and on the making of such an order the ship,
aircraft, platform, structure or security is
forfeited to Her Majesty in right of Canada.
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| Disposal of
forfeited ship,
aircraft, etc.
|
232. (1) Where proceedings referred to in
subsection 222(2) are instituted within the
time provided in that subsection and, at the
final conclusion of those proceedings, any
ship, aircraft, platform or other structure or
any security given under subsection 222(1) is
ordered to be forfeited, it may be disposed of
as the Governor in Council directs.
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| Return of
seized ship,
etc., where no
forfeiture
ordered
|
(2) Where anything has been seized under
section 220 and proceedings referred to in
subsection 222(2) are instituted, but the thing
is not, at the final conclusion of the
proceedings, ordered to be forfeited, it shall be
returned, the proceeds of any sale of the cargo
under subsection 221(3) shall be paid or any
security given to the Minister under
subsection 222(1) shall be returned to the
person from whom the thing was seized.
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| Exception
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(3) Where, at the conclusion of proceedings
referred to in subsection (1), the person from
whom the thing was seized is convicted of an
offence arising out of a contravention of this
Part, the thing and any cargo or the proceeds
or security may be retained until the fine is
paid or the thing and any cargo may be sold
under execution in satisfaction of the fine, or
the proceeds realized from the sale of the
cargo or the security or any part thereof may
be applied in payment of the fine.
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| Application
by person
claiming
interest
|
233. (1) Where anything has been ordered
to be forfeited under this Act, any person,
other than a person who was a party to the
proceedings that resulted in the order, who
claims an interest in the thing as owner,
mortgagee, lien holder or holder of any other
claim under Canadian law may, within 30 days
after the thing is ordered to be forfeited, apply
by notice in writing to the Federal Court for an
order under subsection (5).
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| Date of
hearing
|
(2) The Federal Court shall fix a day for the
hearing of an application made under
subsection (1).
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| Notice
|
(3) An applicant for an order under
subsection (5) shall, at least 30 days before the
day fixed under subsection (2) for the hearing
of the application, serve a notice of the
application and of the hearing on the Minister
and on all other persons claiming an interest in
the thing that is the subject-matter of the
application as owner, mortgagee, lien holder
or holder of any other claim under Canadian
law of whom the applicant has knowledge.
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| Notice of
intervention
|
(4) Each person, other than the Minister,
who is served with a notice under subsection
(3) and who intends to appear at the hearing of
the application to which the notice relates
shall, at least 10 days before the day fixed for
the hearing, file a notice of intervention in the
Registry of the Federal Court and serve a copy
of the notice on the Minister and on the
applicant.
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| Order
declaring
nature and
extent of
interests
|
(5) Where, on the hearing of an application
under this section, the Federal Court is
satisfied that the applicant, or the intervenors,
if any, or any of them,
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(a) is innocent of any complicity in any
conduct that caused the thing to be subject
to forfeiture and of any collusion in relation
to any such conduct, and
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(b) exercised all reasonable care in respect
of the persons permitted to obtain
possession and use of the thing so as to be
satisfied that it was not likely to be used
contrary to the provisions of this Act or, in
the case of a mortgagee or lien holder, other
than the holder of a maritime lien or
statutory right in rem, that the applicant or
intervenor exercised such care with respect
to the mortgagor or the lien giver,
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those of the applicant and the intervenors in
respect of whom the Court is so satisfied are
entitled to an order declaring that their
interests are not affected by the forfeiture and
declaring the nature and extent of each of their
interests and the priorities among them.
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| Additional
order
|
(6) Where an order is made under
subsection (5), the Court may, in addition,
order that the thing to which the interests
relate be delivered to one or more of the
persons found to have an interest in it or that
an amount equal to the value of each of the
interests so declared be paid to the persons
found to have those interests.
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