Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Management order

• 462.331 (1) With respect to property seized under section 462.32 or restrained under section 462.33, other than a controlled substance, within the meaning of the Controlled Drugs and Substances Act, or cannabis, as defined in subsection 2(1) of the Cannabis Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, if a judge is of the opinion that the circumstances so require, the judge may

  • (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; and

  • (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

• Marginal note:Appointment of Minister of Public Works and Government Services

  (2) When the Attorney General of Canada so requests, a judge appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.

• Marginal note:Power to manage

  (3) The power to manage or otherwise deal with property under subsection (1) includes

  • (a) the power to make an interlocutory sale of perishable or rapidly depreciating property;

  • (b) the power to destroy, in accordance with subsections (4) to (7), property that has little or no value; and

  • (c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (7.1).

• Marginal note:Application for destruction order

  (4) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a court for a destruction order.

• Marginal note:Notice

  (5) Before making a destruction order, a court shall require notice in accordance with subsection (6) to be given to and may hear any person who, in the court’s opinion, appears to have a valid interest in the property.

• Marginal note:Manner of giving notice

  (6) A notice shall

  • (a) be given in the manner that the court directs or that may be specified in the rules of the court; and

  • (b) specify the effective period of the notice that the court considers reasonable or that may be set out in the rules of the court.

• Marginal note:Destruction order

  (7) A court shall order that the property be destroyed if it is satisfied that the property has little or no financial or other value.

• Marginal note:Forfeiture order

  (7.1) On application by a person who is appointed to manage the property, a court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if

  • (a) a notice is given or published in the manner that the court directs or that may be specified in the rules of the court;

  • (b) the notice specifies a period of 60 days during which a person may make an application to the court asserting their interest in the property; and

  • (c) during that period, no one makes such an application.

• Marginal note:When management order ceases to have effect

  (8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law, destroyed or forfeited to Her Majesty.

• Marginal note:For greater certainty

  (8.1) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.

• Marginal note:Application to vary conditions

  (9) The Attorney General may at any time apply to the judge to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2).

Marginal note:Application for review of special warrants and restraint orders

• 462.34 (1) Any person who has an interest in property that was seized under a warrant issued pursuant to section 462.32 or in respect of which a restraint order was made under subsection 462.33(3) may, at any time, apply to a judge

  • (a) for an order under subsection (4); or

  • (b) for permission to examine the property.

• Marginal note:Notice to Attorney General

  (2) Where an application is made under paragraph (1)(a),

  • (a) the application shall not, without the consent of the Attorney General, be heard by a judge unless the applicant has given to the Attorney General at least two clear days notice in writing of the application; and

  • (b) the judge may require notice of the application to be given to and may hear any person who, in the opinion of the judge, appears to have a valid interest in the property.

• Marginal note:Terms of examination order

  (3) A judge may, on an application made to the judge under paragraph (1)(b), order that the applicant be permitted to examine property subject to such terms as appear to the judge to be necessary or desirable to ensure that the property is safeguarded and preserved for any purpose for which it may subsequently be required.

• Marginal note:Order of restoration of property or revocation or variation of order

  (4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,

  • (a) if the applicant enters into a recognizance before the judge, with or without sureties, in such amount and with such conditions, if any, as the judge directs and, where the judge considers it appropriate, deposits with the judge such sum of money or other valuable security as the judge directs;

  • (b) if the conditions referred to in subsection (6) are satisfied; or

  • (c) for the purpose of

    • (i) meeting the reasonable living expenses of the person who was in possession of the property at the time the warrant was executed or the order was made or any person who, in the opinion of the judge, has a valid interest in the property and of the dependants of that person,

    • (ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i), or

    • (iii) permitting the use of the property in relation to an undertaking or release order,

    if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.

• Marginal note:Hearing

  (5) For the purpose of determining the reasonableness of legal expenses referred to in subparagraph (4)(c)(ii), a judge shall hold an in camera hearing, without the presence of the Attorney General, and shall take into account the legal aid tariff of the province.

• Marginal note:Expenses

  (5.1) For the purpose of determining the reasonableness of expenses referred to in paragraph (4)(c), the Attorney General may

  • (a) at the hearing of the application, make representations as to what would constitute the reasonableness of the expenses, other than legal expenses; and

  • (b) before or after the hearing of the application held in camera pursuant to subsection (5), make representations as to what would constitute reasonable legal expenses referred to in subparagraph (4)(c)(ii).

• Marginal note:Taxing legal fees

  (5.2) The judge who made an order under paragraph (4)(c) may, and on the application of the Attorney General shall, tax the legal fees forming part of the legal expenses referred to in subparagraph (4)(c)(ii) and, in so doing, shall take into account

  • (a) the value of property in respect of which an order of forfeiture may be made;

  • (b) the complexity of the proceedings giving rise to those legal expenses;

  • (c) the importance of the issues involved in those proceedings;

  • (d) the duration of any hearings held in respect of those proceedings;

  • (e) whether any stage of those proceedings was improper or vexatious;

  • (f) any representations made by the Attorney General; and

  • (g) any other relevant matter.

• Marginal note:Conditions to be satisfied

  (6) An order under paragraph (4)(b) in respect of property may be made by a judge if the judge is satisfied

  • (a) where the application is made by

    • (i) a person charged with a designated offence, or

    • (ii) any person who acquired title to or a right of possession of that property from a person referred to in subparagraph (i) 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,

    that a warrant should not have been issued pursuant to section 462.32 or a restraint order under subsection 462.33(3) should not have been made in respect of that property, or

  • (b) in any other case, that the applicant is the lawful owner of or lawfully entitled to possession of the property and appears innocent of any complicity in a designated offence or of any collusion in relation to such an offence, and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property,

  and that the property will no longer be required for the purpose of any investigation or as evidence in any proceeding.

• Marginal note:Saving provision

  (7) Sections 354, 355.2 and 355.4 do not apply to a person who comes into possession of any property that, by virtue of an order made under paragraph (4)(c), was returned to any person after having been seized or was excluded from the application of a restraint order made under subsection 462.33(3).

• (8) [Repealed, 2019, c. 25, s. 182]

Marginal note:Application of property restitution provisions

462.341 Subsection 462.34(2), paragraph 462.34(4)(c) and subsections 462.34(5), (5.1) and (5.2) apply, with any modifications that the circumstances require, to a person who has an interest in money or bank-notes that are seized under this Act, the Controlled Drugs and Substances Act or the Cannabis Act and in respect of which proceedings may be taken under subsection 462.37(1) or (2.01) or 462.38(2).

Marginal note:Expiration of special warrants and restraint orders

• 462.35 (1) Subject to this section, where property has been seized under a warrant issued pursuant to section 462.32 or a restraint order has been made under section 462.33 in relation to property, the property may be detained or the order may continue in force, as the case may be, for a period not exceeding six months from the seizure or the making of the order, as the case may be.

• Marginal note:Where proceedings instituted

  (2) The property may continue to be detained, or the order may continue in force, for a period that exceeds six months if proceedings are instituted in respect of which the thing detained may be forfeited.

• Marginal note:Where application made

  (3) The property may continue to be detained or the order may continue in force for a period or periods that exceed six months if the continuation is, on application made by the Attorney General, ordered by a judge, where the judge is satisfied that the property is required, after the expiration of the period or periods, for the purpose of section 462.37 or 462.38 or any other provision of this or any other Act of Parliament respecting forfeiture or for the purpose of any investigation or as evidence in any proceeding.

Marginal note:Forwarding to clerk where accused to stand trial

462.36 Where a judge issues a warrant under section 462.32 or makes a restraint order under section 462.33 in respect of any property, the clerk of the court shall, when an accused is ordered to stand trial for a designated offence, cause to be forwarded to the clerk of the court to which the accused has been ordered to stand trial a copy of the report filed pursuant to paragraph 462.32(4)(b) or of the restraint order in respect of the property.

Forfeiture of Proceeds of Crime

Marginal note:Order of forfeiture of property

• 462.37 (1) Subject to this section and sections 462.39 to 462.41, if an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

• Marginal note:Proceeds of crime — other offences

  (2) If the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) was obtained through the commission of the designated offence of which the offender is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.

• Marginal note:Order of forfeiture — particular circumstances

  (2.01) A court imposing sentence on an offender convicted of an offence described in subsection (2.02) shall, on application of the Attorney General and subject to this section and sections 462.4 and 462.41, order that any property of the offender that is identified by the Attorney General in the application be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law if the court is satisfied, on a balance of probabilities, that

  • (a) within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit; or

  • (b) the income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all the property of the offender.

• Marginal note:Offences

  (2.02) The offences are the following:

  • (a) a criminal organization offence punishable by five or more years of imprisonment;

  • (b) an offence under section 5, 6 or 7 of the Controlled Drugs and Substances Act — or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to an offence under any of those sections — prosecuted by indictment;

  • (c) an offence under subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act — or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to an offence under any of those subsections — prosecuted by indictment; and

  • (d) an offence under any of sections 279.01 to 279.03.

• Marginal note:Offender may establish that property is not proceeds of crime

  (2.03) A court shall not make an order of forfeiture under subsection (2.01) in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime.

• Marginal note:Pattern of criminal activity

  (2.04) In determining whether the offender has engaged in a pattern of criminal activity described in paragraph (2.01)(a), the court shall consider

  • (a) the circumstances of the offence for which the offender is being sentenced;

  • (b) any act or omission — other than an act or omission that constitutes the offence for which the offender is being sentenced — that the court is satisfied, on a balance of probabilities, was committed by the offender and constitutes an offence punishable by indictment under any Act of Parliament;

  • (c) any act or omission that the court is satisfied, on a balance of probabilities, was committed by the offender and is an offence in the place where it was committed and, if committed in Canada, would constitute an offence punishable by indictment under any Act of Parliament; and

  • (d) any other factor that the court considers relevant.

• Marginal note:Conditions — pattern of criminal activity

  (2.05) A court shall not determine that an offender has engaged in a pattern of criminal activity unless the court is satisfied, on a balance of probabilities, that the offender committed, within the period referred to in paragraph (2.01)(a),

  • (a) acts or omissions — other than an act or omission that constitutes the offence for which the offender is being sentenced — that constitute at least two serious offences or one criminal organization offence;

  • (b) acts or omissions that are offences in the place where they were committed and, if committed in Canada, would constitute at least two serious offences or one criminal organization offence; or

  • (c) an act or omission described in paragraph (a) that constitutes a serious offence and an act or omission described in paragraph (b) that, if committed in Canada, would constitute a serious offence.

• Marginal note:Application under subsection (1) not prevented

  (2.06) Nothing in subsection (2.01) shall be interpreted as preventing the Attorney General from making an application under subsection (1) in respect of any property.

• Marginal note:Exception

  (2.07) A court may, if it considers it in the interests of justice, decline to make an order of forfeiture against any property that would otherwise be subject to forfeiture under subsection (2.01). The court shall give reasons for its decision.

• Marginal note: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.

• Marginal note:Fine instead of forfeiture

  (3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

  • (a) cannot, on the exercise of due diligence, be located;

  • (b) has been transferred to a third party;

  • (c) is located outside Canada;

  • (d) has been substantially diminished in value or rendered worthless; or

  • (e) has been commingled with other property that cannot be divided without difficulty.

• Marginal note:Imprisonment in default of payment of fine

  (4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall

  • (a) impose, in default of payment of that fine, a term of imprisonment

    • (i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,

    • (ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,

    • (iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,

    • (iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,

    • (v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,

    • (vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or

    • (vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and

  • (b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

• Marginal note:Fine option program not available to offender

  (5) Section 736 does not apply to an offender against whom a fine is imposed pursuant to subsection (3).