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|
(b) frequently associates with any of the
persons who constitute the criminal
organization;
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|
|
|
(c) receives any benefit from the criminal
organization; or
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|
|
(d) repeatedly engages in activities at the
instruction of any of the persons who
constitute the criminal organization.
|
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| Commission
of offence for
criminal
organization
|
467.12 (1) Every person who commits an
indictable offence under this or any other Act
of Parliament for the benefit of, at the
direction of, or in association with, a criminal
organization is guilty of an indictable offence
and liable to imprisonment for a term not
exceeding fourteen years.
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|
| Prosecution
|
(2) In a prosecution for an offence under
subsection (1), it is not necessary for the
prosecutor to prove that the accused knew the
identity of any of the persons who constitute
the criminal organization.
|
|
| Instructing
commission
of offence for
criminal
organization
|
467.13 (1) Every person who is one of the
persons who constitute a criminal
organization and who knowingly instructs,
directly or indirectly, any person to commit an
offence under this or any other Act of
Parliament for the benefit of, at the direction
of, or in association with, the criminal
organization is guilty of an indictable offence
and liable to imprisonment for life.
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|
| Prosecution
|
(2) In a prosecution for an offence under
subsection (1), it is not necessary for the
prosecutor to prove that
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|
|
(a) an offence other than the offence under
subsection (1) was actually committed;
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|
|
(b) the accused instructed a particular
person to commit an offence; or
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|
|
(c) the accused knew the identity of all of
the persons who constitute the criminal
organization.
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| Sentences to
be served
consecutively
|
467.14 A sentence imposed on a person for
an offence under section 467.11, 467.12 or
467.13 shall be served consecutively to any
other punishment imposed on the person for
an offence arising out of the same event or
series of events and to any other sentence to
which the person is subject at the time the
sentence is imposed on the person for an
offence under any of those sections.
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|
| 1997, c. 23,
s. 11
|
28. Section 467.2 of the Act is replaced by
the following:
|
|
| Powers of the
Attorney
General of
Canada
|
467.2 (1) Notwithstanding the definition of
``Attorney General'' in section 2, the Attorney
General of Canada may conduct proceedings
in respect of
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|
(a) an offence under section 467.11; or
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|
|
(b) another criminal organization offence
where the alleged offence arises out of
conduct that in whole or in part is in relation
to an alleged contravention of an Act of
Parliament or a regulation made under such
an Act, other than this Act or a regulation
made under this Act.
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|
|
For those purposes, the Attorney General of
Canada may exercise all the powers and
perform all the duties and functions assigned
to the Attorney General by or under this Act.
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| Powers of the
Attorney
General of a
province
|
(2) Subsection (1) does not affect the
authority of the Attorney General of a
province to conduct proceedings in respect of
an offence referred to in section 467.11,
467.12 or 467.13 or to exercise any of the
powers or perform any of the duties and
functions assigned to the Attorney General by
or under this Act.
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|
|
|
29. (1) Section 486 of the Act is amended
by adding the following after subsection
(1.4):
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| Protection of
justice system
participants
|
(1.5) For the purposes of subsection (1) and
for greater certainty, the ``proper
administration of justice'' includes ensuring
the protection of justice system participants
who are involved in the proceedings.
|
|
| 1997, c. 16,
ss. 6(2) and
(3)
|
(2) Subsections 486(2.11) and (2.2) of the
Act are replaced by the following:
|
|
| Testimony
outside court
room
|
(2.101) Notwithstanding section 650,
where an accused is charged with an offence
under section 423.1, 467.11, 467.12 or 467.13,
or a serious offence committed for the benefit
of, at the direction of, or in association with,
a criminal organization, the presiding judge or
justice, as the case may be, may order that any
witness testify
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|
(a) outside the court room, if the judge or
justice is of the opinion that the order is
necessary to protect the safety of the
witness; and
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|
|
(b) outside the court room or behind a
screen or other device that would allow the
witness not to see the accused, if the judge
or justice is of the opinion that the order is
necessary to obtain a full and candid
account from the witness.
|
|
| Same
procedure for
opinion
|
(2.11) Where the judge or justice is of the
opinion that it is necessary for the complainant
or witness to testify in order to determine
whether an order under subsection (2.1) or
(2.101) should be made in respect of that
complainant or witness, the judge or justice
shall order that the complainant or witness
testify pursuant to that subsection.
|
|
| Condition of
exclusion
|
(2.2) A complainant or witness shall not
testify outside the court room pursuant to
subsection (2.1), (2.101) or (2.11) unless
arrangements are made for the accused, the
judge or justice and the jury to watch the
testimony of the complainant or witness by
means of closed-circuit television or
otherwise and the accused is permitted to
communicate with counsel while watching
the testimony.
|
|
| 1999, c. 25,
s. 2(3)
|
(3) Subsection 486(4.1) of the Act is
replaced by the following:
|
|
| Ban on
publication,
etc.
|
(4.1) A judge or justice may, in any
proceedings against an accused other than in
respect of an offence set out in subsection (3),
make an order directing that the identity of a
victim or witness - or, in the case of an
offence under section 423.1 or a criminal
organization offence , the identity of a justice
system participant who is involved in the
proceedings - or any information that could
disclose their identity, shall not be published
in any document or broadcast in any way, if the
judge or justice is satisfied that the order is
necessary for the proper administration of
justice.
|
|
| 1999, c. 25,
s. 2(3)
|
(4) Paragraphs 486(4.7)(b) to (e) of the
Act are replaced by the following:
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|
|
(b) whether there is a real and substantial
risk that the victim, witness or justice
system participant would suffer significant
harm if their identity were disclosed;
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|
(c) whether the victim, witness or justice
system participant needs the order for their
security or to protect them from
intimidation or retaliation;
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|
(d) society's interest in encouraging the
reporting of offences and the participation
of victims, witnesses and justice system
participants in the criminal justice process ;
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|
|
(e) whether effective alternatives are
available to protect the identity of the
victim, witness or justice system
participant ;
|
|
| 1999, c. 25,
s. 2(3)
|
(5) Paragraph 486(4.9)(c) of the Act is
replaced by the following:
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|
|
|
(c) any other information that could identify
the person to whom the application relates
as a victim, witness or justice system
participant in the proceedings.
|
|
| 1997, c. 23,
s. 15
|
30. (1) The portion of subsection 490.1(1)
of the Act before paragraph (a) is replaced
by the following:
|
|
| Order of
forfeiture of
property on
conviction
|
490.1 (1) Subject to sections 490.3 to
490.41 , where a person is convicted of an
indictable offence under this 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
|
|
| 1997, c. 23,
s. 15
|
(2) Subsections 490.1(2) and (3) of the Act
are replaced by the following:
|
|
| Property
related to
other offences
|
(2) Subject to sections 490.3 to 490.41 ,
where the evidence does not establish to the
satisfaction of the court that the indictable
offence under this Act 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.
|
|
| 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.
|
|
| Appeal
|
(3) A person who has been convicted of an
indictable offence under this Act 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.
|
|
| 1997, c. 23,
s. 15
|
31. (1) Subsections 490.2(1) and (2) of the
Act are replaced by the following:
|
|
| Application
for in rem
forfeiture
|
490.2 (1) Where an information has been
laid in respect of an indictable offence under
this 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 ,
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 an
indictable offence under this Act in relation
to the property referred to in paragraph (a)
were commenced, and
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|
|
(c) that the accused charged with the
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).
|
|
| 1997, c. 23,
s. 15
|
(2) The portion of subsection 490.2(3) of
the English version of the Act before
paragraph (a) is replaced by the following:
|
|
| Accused
deemed
absconded
|
(3) For the purpose of subsection (2), an
accused is deemed to have absconded in
connection with an offence if
|
|
| 1997, c. 23,
s. 15
|
(3) Paragraph 490.2(3)(a) of the French
version of the Act is replaced by the
following:
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|
|
|
a) elle a fait l'objet d'une dénonciation
l'accusant d'une infraction ;
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|
|
|
(4) Section 490.2 of the Act is amended by
adding the following after subsection (4):
|
|
| Property
outside
Canada
|
(4.1) An order may be issued under this
section in respect of property situated outside
Canada, with any modifications that the
circumstances require.
|
|
| 1997, c. 23,
s. 15
|
32. (1) Paragraph 490.4(2)(c) of the Act is
replaced by the following:
|
|
|
|
(c) set out the offence charged and a
description of the property.
|
|
| 1997, c. 23,
s. .15
|
(2) Paragraph 490.4(3)(a) of the Act is
replaced by the following:
|
|
|
|
(a) a person who was charged with an
indictable offence under this Act , or
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|
|
|
33. The Act is amended by adding the
following after section 490.4:
|
|
| Notice
|
490.41 (1) Where all or part of
offence-related property that would otherwise
be forfeited under subsection 490.1(1) or
490.2(2) is a dwelling-house, before making
an order of forfeiture, a court shall require
notice in accordance with subsection (2) to be
given to, and may hear, any person who
resides in the dwelling-house and is a member
of the immediate family of the person charged
with or convicted of the indictable offence
under this Act in relation to which the property
would be forfeited.
|
|
| Manner of
giving notice
|
(2) A notice 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 offence charged and a
description of the property.
|
|
| Non-forfeitur
e of property
|
(3) Subject to an order made under
subsection 490.4(3), if a court is satisfied that
the impact of an order of forfeiture made
under subsection 490.1(1) or 490.2(2) would
be disproportionate to the nature and gravity
of the offence, the circumstances surrounding
the commission of the offence and the
criminal record, if any, of the person charged
with or convicted of the offence, as the case
may be, it may decide not to order the
forfeiture of the property or part of the
property and may revoke any restraint order
made in respect of that property or part.
|
|
| Factors in
relation to
dwelling-hous
e
|
(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
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|
|
|
(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
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|
|
|
(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.
|
|
| 1997, c. 23,
s. 15
|
34. (1) Paragraphs 490.5(1)(a) and (b) of
the Act are replaced by the following:
|
|
|
|
(a) in the case of property forfeited pursuant
to an order made under subsection 490.1(1),
a person who was convicted of the
indictable offence in relation to which the
property was forfeited,
|
|
|
|
(b) in the case of property forfeited pursuant
to an order made under subsection 490.2(2),
a person who was charged with the
indictable offence in relation to which the
property was forfeited, or
|
|
| 1997, c. 23,
s. 15
|
(2) Paragraph 490.5(4)(a) of the Act is
replaced by the following:
|
|
|
|
(a) is not a person referred to in paragraph
(1)(a), (b) or (c) and appears innocent of any
complicity in any indictable offence that
resulted in the forfeiture of the property or
of any collusion in relation to such an
offence, and
|
|
| 1997, c. 23,
s. 15
|
35. (1) Paragraph 490.8(2)(a) of the Act is
replaced by the following:
|
|
|
|
(a) the indictable offence to which the
offence-related property relates;
|
|
| 1997, c. 23,
s. 15
|
(2) Subsection 490.8(3) of the Act is
replaced by the following:
|
|
| 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.
|
|
| 1997, c. 23,
s. 15
|
(3) Paragraph 490.8(8)(a) of the Act is
replaced by the following:
|
|
|
|
(a) an order is made under subsection
490(9) or (11), 490.4(3) or 490.41(3) in
relation to the property; or
|
|
|
|
36. The Act is amended by adding the
following after section 490.8:
|
|
| Management
order
|
490.81 (1) With respect to offence-related
property other than a controlled substance
within the meaning of the Controlled Drugs
and Substances Act, on application of the
Attorney General or of any other person with
the written consent of the Attorney General, a
judge or justice in the case of offence-related
property seized under section 487, or a judge
in the case of offence-related property
restrained under section 490.8, may, where he
or she is of the opinion that the circumstances
so require,
|
|
|
|
(a) appoint 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 or justice; and
|
|
|
|
(b) require any person having possession of
that property to give possession of the
property to the person appointed under
paragraph (a).
|
|
| Appointment
of Minister of
Public Works
and
Government
Services
|
(2) When the Attorney General of Canada
so requests, a judge or justice appointing a
person under subsection (1) shall appoint the
Minister of Public Works and Government
Services.
|
|
| Power to
manage
|
(3) The power to manage or otherwise deal
with property under subsection (1) includes
|
|