| Order of
forfeiture of
property on
conviction
|
16. (1) Subject to sections 18 to 19.1, 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
|
|
|
|
(2) Subsection 16(2) of the Act is replaced
by the following:
|
|
| Property
related to
other offences
|
(2) Subject to sections 18 to 19.1, 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.
|
|
| 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.
|
|
|
|
52. (1) The portion of subsection 17(2) of
the Act before paragraph (a) is replaced by
the following:
|
|
| Order of
forfeiture of
property
|
(2) Subject to sections 18 to 19.1, where an
application is made to a judge under
subsection (1) and the judge is satisfied
|
|
|
|
(2) Section 17 of the Act is amended by
adding the following after subsection (4):
|
|
| Property
outside
Canada
|
(5) An order may be issued under this
section in respect of property situated outside
Canada, with any modifications that the
circumstances require.
|
|
|
|
53. The Act is amended by adding the
following after section 19:
|
|
| Notice
|
19.1 (1) Where all or part of offence-related
property that would otherwise be forfeited
under subsection 16(1) or 17(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
|
|
|
|
(a) be given or served in the manner that the
court directs or that may be specified in the
rules of the court;
|
|
|
|
(b) be of any duration that the court
considers reasonable or that may be
specified in the rules of the court; and
|
|
|
|
(c) set out the offence charged and a
description of the property.
|
|
| Non-forfeitur
e of real
property
|
(3) Subject to an order made under
subsection 19(3), if a court is satisfied that the
impact of an order of forfeiture made under
subsection 16(1) or 17(2) in respect of real
property 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
16(1) or 17(2) is a dwelling-house, when
making a decision under subsection (3), the
court shall also consider
|
|
|
|
(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
|
|
|
|
(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.
|
|
|
|
54. Section 23 of the Act and the heading
before it are repealed.
|
|
|
|
55. Section 55 of the Act is amended by
adding the following after subsection (2):
|
|
| Regulations
pertaining to
law
enforcement
under other
Acts of
Parliament
|
(2.1) The Governor in Council, on the
recommendation of the Solicitor General of
Canada, may, for the purpose of an
investigation or other law enforcement
activity conducted under another Act of
Parliament, make regulations authorizing a
member of a police force or other person under
the direction and control of such a member to
commit an act or omission - or authorizing
a member of a police force to direct the
commission of an act or omission - that
would otherwise constitute an offence under
Part I or the regulations and, without
restricting the generality of the foregoing,
may make regulations
|
|
|
|
(a) authorizing the Solicitor General of
Canada, or the provincial minister
responsible for policing in a province, to
designate a police force within the Solicitor
General's jurisdiction or the minister's
jurisdiction, as the case may be, for the
purposes of this subsection;
|
|
|
|
(b) exempting, on such terms and
conditions as may be specified in the
regulations, a member of a police force that
has been designated pursuant to paragraph
(a) and other persons acting under the
direction and control of the member from
the application of any provision of Part I or
the regulations;
|
|
|
|
(c) respecting the issuance, suspension,
cancellation, duration and terms and
conditions of a certificate, other document
or, in exigent circumstances, an approval to
obtain a certificate or other document, that
is issued to a member of a police force that
has been designated pursuant to paragraph
(a) for the purpose of exempting the
member from the application of Part I or the
regulations;
|
|
|
|
(d) respecting the detention, storage,
disposal or other dealing with any
controlled substance or precursor;
|
|
|
|
(e) respecting records, reports, electronic
data or other documents in respect of a
controlled substance or precursor that are
required to be kept and provided by any
person or class of persons; and
|
|
|
|
(f) prescribing forms for the purposes of the
regulations.
|
|
|
|
56. Section 61 of the Act is replaced by the
following:
|
|
| References to
prior
enactments
|
61. Any reference in a designation by the
Solicitor General of Canada under Part VI
of the Criminal Code to an offence contrary
to the Narcotic Control Act or Part III or IV
of the Food and Drugs Act or any conspiracy
or attempt to commit or being an accessory
after the fact or any counselling in relation
to such an offence shall be deemed to be a
reference to an offence contrary to section
5 (trafficking), 6 (importing and exporting)
or 7 (production) of this Act, as the case may
be, or a conspiracy or attempt to commit or
being an accessory after the fact or any
counselling in relation to such an offence.
|
|
| 1992, c. 20
|
|
|
| 1996, c. 19,
s. 64
|
57. Paragraphs 3(d) and (e) of Schedule II
to the Corrections and Conditional Release
Act are repealed.
|
|
| 1998, c. 34
|
|
|
|
|
58. Sections 4 to 7 of the Corruption of
Foreign Public Officials Act are repealed.
|
|
| 2000, c. 24
|
|
|
|
|
59. Subsection 9(3) of the Crimes Against
Humanity and War Crimes Act is replaced
by the following:
|
|
| Personal
consent of
Attorney
General
|
(3) No proceedings for an offence under any
of sections 4 to 7 of this Act, or under section
354 or subsection 462.31(1) of the Criminal
Code in relation to property or proceeds
obtained or derived directly or indirectly as a
result of the commission of an offence under
this Act, may be commenced without the
personal consent in writing of the Attorney
General or Deputy Attorney General of
Canada, and those proceedings may be
conducted only by the Attorney General of
Canada or counsel acting on their behalf.
|
|
|
|
60. The heading before section 27 and
sections 27 to 29 of the Act are repealed.
|
|
|
|
61. Section 31 of the Act is replaced by the
following:
|
|
| Credits to
Fund
|
31. The Minister of Public Works and
Government Services shall pay into the
Crimes Against Humanity Fund
|
|
|
|
(a) the net amount received from the
disposition of any property referred to in
subsections 4(1) to (3) of the Seized
Property Management Act that is
|
|
|
|
(i) proceeds of crime within the meaning
of subsection 462.3(1) of the Criminal
Code, obtained or derived directly or
indirectly as a result of the commission of
an offence under this Act, and
|
|
|
|
(ii) forfeited to Her Majesty and disposed
of by that Minister; and
|
|
|
|
(b) any amount paid or recovered as a fine
imposed under subsection 462.37(3) of the
Criminal Code in substitution for the
property referred to in paragraph (a).
|
|
| R.S., c. 1 (2nd
Supp.)
|
|
|
| 1993, c. 25,
s. 89; 1997,
c. 18, ss. 119,
120
|
62. The heading before section 163.1 and
sections 163.1 to 163.3 of the Customs Act
are repealed.
|
|
| R.S., c. E-14
|
|
|
| 1993, c. 25,
s. 31
|
63. Section 2.1 of the Excise Act is
replaced by the following:
|
|
| Possession
|
2.1 For the purposes of subsections 225(1)
and (3) and 235(3), section 239.1 and
subsections 240(1) and (2), where one of two
or more persons, with the knowledge and
consent of the rest, has anything in the
person's possession, it shall be deemed to be
in the custody and possession of each and all
of them.
|
|
| 1993, c. 25,
s. 38; 1997,
c. 18, ss. 121,
122
|
64. The heading before section 126.1 and
sections 126.1 to 126.3 of the Act are
repealed.
|
|
| R.S., c. 30
(4th Supp.)
|
|
|
|
|
65. The Mutual Legal Assistance in
Criminal Matters Act is amended by adding
the following after section 9.2:
|
|
|
|
|
|
| Orders for
restraint or
seizure
|
9.3 (1) When a written request is presented
to the Minister by a state or entity, other than
the International Criminal Court referred to in
section 9.1, for the enforcement of an order for
the restraint or seizure of property situated in
Canada issued by a court of criminal
jurisdiction of the state or entity, the Minister
may authorize the Attorney General of
Canada or an attorney general of a province to
make arrangements for the enforcement of the
order.
|
|
| Filing of order
|
(2) On receipt of an authorization, the
Attorney General of Canada or an attorney
general of a province may file a copy of the
order with the superior court of criminal
jurisdiction of the province in which the
property that is the subject of the order is
believed to be located. On being filed, the
order shall be entered as a judgment of that
court and may be executed anywhere in
Canada.
|
|
| Conditions
|
(3) Before filing an order, the Attorney
General of Canada or an attorney general of a
province must be satisfied that
|
|
|
|
(a) the person has been charged with an
offence within the jurisdiction of the state or
entity; and
|
|
|
|
(b) the offence would be an indictable
offence if it were committed in Canada.
|
|
| Effect of
registered
order
|
(4) On being filed,
|
|
|
|
(a) an order for the seizure of proceeds of
crime may be enforced as if it were a
warrant issued under subsection 462.32(1)
of the Criminal Code;
|
|
|
|
(b) an order for the restraint of proceeds of
crime may be enforced as if it were an order
made under subsection 462.33(3) of the
Criminal Code;
|
|
|
|
(c) an order for the seizure of
offence-related property may be enforced
as if it were a warrant issued under
subsection 487(1) of the Criminal Code or
subsection 11(1) of the Controlled Drugs
and Substances Act, as the case may be; and
|
|
|
|
(d) an order for the restraint of
offence-related property may be enforced
as if it were an order made under subsection
490.8(3) of the Criminal Code or subsection
14(3) of the Controlled Drugs and
Substances Act, as the case may be.
|
|
| Filing of
amendments
|
(5) When an order is filed under subsection
(2), a copy of any amendments made to the
order may be filed in the same way as the
order, and the amendments do not, for the
purpose of this Act, have effect until they are
registered.
|
|
| Orders of
forfeiture
|
9.4 (1) When a written request is presented
to the Minister by a state or entity, other than
the International Criminal Court referred to in
section 9.1, for the enforcement of an order of
forfeiture of property situated in Canada
issued by a court of criminal jurisdiction of the
state or entity, the Minister may authorize the
Attorney General of Canada or an attorney
general of a province to make arrangements
for the enforcement of the order.
|
|
| Grounds for
refusal of
request
|
(2) The Minister shall refuse the request if
he or she
|
|
|
|
(a) has reasonable grounds to believe that
the request has been made for the purpose
of punishing a person by reason of their
race, sex, sexual orientation, religion,
nationality, ethnic origin, language, colour,
age, mental or physical disability or
political opinion;
|
|
|
|
(b) is of the opinion that enforcement of the
order would prejudice an ongoing
proceeding or investigation;
|
|
|
|
(c) is of the opinion that enforcement of the
order would impose an excessive burden on
the resources of federal, provincial or
territorial authorities;
|
|
|
|
(d) is of the opinion that enforcement of the
order might prejudice Canada's security,
national interest or sovereignty; or
|
|
|
|
(e) is of the opinion that refusal of the
request is in the public interest.
|
|
| Filing of order
|
(3) On receipt of an authorization, the
Attorney General of Canada or an attorney
general of a province may file a copy of the
order with the superior court of criminal
jurisdiction of the province in which all or part
of the property that is the subject of the order
is believed to be located. On being filed, the
order shall be entered as a judgment of that
court and may be executed anywhere in
Canada.
|
|
| Deemed filing
|
(4) An order that is filed under subsection
(3) by an attorney general of a province is
deemed to be filed by the Attorney General of
Canada.
|
|
| Conditions
|
(5) Before filing an order, the Attorney
General of Canada or an attorney general of a
province must be satisfied that
|
|
|
|
(a) the person has been convicted of an
offence within the jurisdiction of the state or
entity;
|
|
|
|
(b) the offence would be an indictable
offence if it were committed in Canada; and
|
|
|
|
(c) the conviction and the order are not
subject to further appeal.
|
|
| Effect of
registered
order
|
(6) From the date it is filed under subsection
(3), subject to subsection (4),
|
|
|
|
(a) an order of forfeiture of proceeds of
crime has the same effect as if it were an
order under subsection 462.37(1) or
462.38(2) of the Criminal Code; and
|
|
|
|
(b) an order for the forfeiture of
offence-related property has the same effect
as if it were an order under subsection
490.1(1) or 490.2(2) of the Criminal Code
or subsection 16(1) or 17(2) of the
Controlled Drugs and Substances Act, as
the case may be.
|
|
| Filing of
amendments
|
(7) When an order is filed under subsection
(3), a copy of any amendments made to the
order may be filed in the same way as the
order, and the amendments do not, for the
purpose of this Act, have effect until they are
registered.
|
|
| Notice
|
(8) When an order has been filed under
subsection (3),
|
|
|
|
(a) an order of forfeiture of proceeds of
crime shall not be executed before notice in
accordance with subsection 462.41(2) of
the Criminal Code has been given to any
person who, in the opinion of the court,
appears to have a valid interest in the
property; and
|
|
|
|
(b) an order of forfeiture of offence-related
property shall not be executed before
|
|
|
|
(i) notice in accordance with subsection
490.41(2) of the Criminal Code or
section 19.1(2) of the Controlled Drugs
and Substances Act has been given to any
person who resides in a dwelling-house
that is offence-related property and who
is a member of the immediate family of
the person charged with or convicted of
the offence in relation to which property
would be forfeited, and
|
|
|
|
(ii) notice in accordance with subsection
490.4(2) of the Criminal Code or
subsection 19(2) of the Controlled Drugs
and Substances Act has been given to any
person who, in the opinion of the court,
appears to have a valid interest in the
property.
|
|
| Application of
Criminal
Code
|
(9) Subsection 462.41(3) and section
462.42 of the Criminal Code apply, with any
modifications that the circumstances require,
to a person who claims an interest in proceeds
of crime, and subsections 490.4(3) and
490.41(3) and section 490.5 of the Criminal
Code and subsections 19(3) and 20(4) of the
Controlled Drugs and Substances Act apply,
with any modifications that the circumstances
require, to a person who claims an interest in
offence-related property.
|
|