Confiscation de biens infractionnels en vertu de la LRCDAS

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Introduction

The purpose of the forfeiture of offence-related property under the Controlled Drugs and Substances Act (CDSA) is "to ensure that offence-related property is not returned to the offender and the interests of innocent third parties and persons with valid interests in the property are protected."

The intended effect is that it (1) "punishes the offender by taking away the property that was used in the commission of the designated substance offence", with the effect upon the profit of the trade; (2) provides deterrence through "“rais[ing] the stakes” by imposing a “very real cost” to those who either use, or permit their property to be used, in the commission of a designated substance offence"; and (3) ensures "that the property is no longer available for continued use in criminal activities", that is, to take it out of circulation

The Attorney General may apply at any time after conviction forfeiture of offence-related property.

They must show on a balance of probabilities that the property is "offence-related property" in relation to the offences convicted.(s. 16(1)) The AG may also obtain an order if they can prove beyond a reasonable doubt that the property is "offence-related property" but not in relation to any particular conviction. (s. 16(2))

Innocent persons with property interests in the goods may apply usually during a forfeiture hearing for the return of the items. (s. 19)

Constitution

The forfeiture provisions under the CDSA are within the constitutional competency of the federal legislature under its criminal law power.

Offence-related Property

Offence-related property is defined in s.2 of the CDSA:

2 (1)
...
"offence-related property" means, with the exception of a controlled substance, any property, within or outside Canada,

(a) by means of or in respect of which a designated substance offence is committed,

(b) that is used in any manner in connection with the commission of a designated substance offence, or

(c) that is intended for use for the purpose of committing a designated substance offence;

...
[omis (2) and (3)]
1996, c. 8, s. 35, c. 19, s. 2; 2001, c. 32, s. 47; 2017, c. 7, s. 1; 2018, c. 16, s. 194.

– CDSA

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Forfeiture on Conviction

Section 16 of the Controlled Drugs and Substances Act provides a power of forfeiture on conviction similar to s. 490.1 of the Criminal Code:

Forfeiture of Offence-related Property

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

(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b) in the case of any other offence-related property,

(i) 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

(ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

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.

Appeal

(3) A person who has been convicted of a designated substance 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.
1996, c. 19, s. 16; 2001, c. 32, s. 51.

– CDSA

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A respondent to a forfeiture application may make a motion for non-suit or directed verdict.

Appeals

Section 16(3) expressly limits the right of appeal to an order of forfeiture to "persons convicted". A third-party does not have a right of appeal.

Partial Forfeiture of Real Property

Under s. 19.1, the applicant must give notice to "any person who resides in the dwelling-house and is a member of the immediate family" of the accused or offender. Section 19.1(2) directs the manner of notice and what details must be given.

19.1
[omis (1) and (2)]

Non-forfeiture 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-house

(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.

2001, c. 32, s. 53; 2017, c. 7, s. 20.

– CDSA

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Section 19.1 permits the court to order partial forfeiture of real property. It allows for a spectrum of options that "reflect the relative gravity of the case".

Full forfeiture will often be ordered where the property is solely dedicated to commercial production and distribution of illegal substances.

Third Parties

Application

20 (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 16(1) or 17(2), any person who claims an interest in the property, other than

(a) in the case of property forfeited pursuant to an order made under subsection 16(1), a person who was convicted of the designated substance offence in relation to which the property was forfeited,

(b) in the case of property forfeited pursuant to an order made under subsection 17(2), a person who was charged with the designated substance offence in relation to which the property was forfeited, or

(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,

may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

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.

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.

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

(a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any designated substance offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and

(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,

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.

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 of the Criminal Code with respect to procedure on appeals apply, with such modifications as the circumstances require, in respect of appeals under this subsection.

Return of property

(6) The Minister shall, on application made to the Minister 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

(a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or

(b) an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

– CDSA

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Requirements

For an application under s. 20 CDSA to succeed, the applicant must establish on a balance of probabilities that:

1. she has not been convicted of a designated substance offence linked to the forfeited property;
2. she did not acquire title from the person convicted of the designated substance offence in circumstances that give rise to a reasonable inference that the title was transferred for the purpose of avoiding forfeiture;
3. she claims an interest in the property;
4. she appears innocent of any complicity in the designated substance offence or any collusion in relation to such an offence; and
5. she has exercised all reasonable care to be satisfied that the property is 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.

To establish the third criterion of an "interest" in the property. There must be a "true and valid" interest.

Voidable Transfers

Voidable transfers

18 A court may, before ordering that offence-related property be forfeited under subsection 16(1) or 17(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.

– CDSA

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In Rem Forfeiture

Application for in rem forfeiture

17 (1) Where an information has been laid in respect of a designated substance offence, 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 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

(a) beyond a reasonable doubt that any property is offence-related property,

(b) that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (a) were commenced, and

(c) that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

Accused deemed absconded

(3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused shall be deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property

(4) For the purposes of subsection (2),

(a) in the case of a substance included in Schedule VI, the judge shall order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b) in the case of any other offence-related property,

(i) where the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall 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

(ii) in any other case, the judge shall order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

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.
1996, c. 19, s. 17; 2001, c. 32, s. 52.

– CDSA

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Appeals from orders under subsection 17(2)

21 Any person who, in their opinion, is aggrieved by an order made under subsection 17(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 of the Criminal Code, and that Part applies, with such modifications as the circumstances require, in respect of such an appeal.

– CDSA

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Procedure

Notice

Under s. 19, applications under s.16(1) or 17(2) requires notice to any persons who appear to have valid interests in the property.

Section 19 read:

Notice

19 (1) Before making an order under subsection 16(1) or 17(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.

Manner of giving notice

(2) A notice given under subsection (1) shall

(a) be given or served in such manner as the court directs or as may be specified in the rules of the court;

(b) be of such duration as the court considers reasonable or as may be specified in the rules of the court; and

(c) set out the designated substance offence charged and a description of the property.

[omis (3)]
1996, c. 19, s. 19; 2017, c. 7, s. 19.

– CDSA

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Return of Property

19
[omis (1) and (2)]

Order of restoration of property

(3) Where a court is satisfied that any person, other than

(a) a person who was charged with a designated substance offence, or

(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,

is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(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 that person. 1996, c. 19, s. 19; 2017, c. 7, s. 19.

– CDSA

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"Complicity or Collusion"

The principles to follow in relation to whether there is complicity or collusion:

1. The onus of proof is on the applicant to convince the judge that he or she appears innocent of any complicity or collusion.
2. This is to be established on the civil standard of proof, that is on the balance of probabilities.
3. Complicity is a well-known concept which is well-defined in the criminal law.
4. Collusion is a civil law concept that includes two components:
   1. An agreement, and
   2. An aim, which is that of misleading one or more persons.
5. The agreement for collusion may be established by direct proof or may be inferred by the behaviour of the parties.
6. The judicial discretion should be exercised in a judicial manner respecting the intent of the legislature, which is to prevent a delinquent from enjoying the fruits of his or her crimes.

Complicity requires something more than "mere passive acquiescence" or "failure to blow the whistle."

Complicity is a "partnership in wrongdoing" and collusion is a 'fraudulent secret undertaking or the act of secretly acting with another to achieve a fraudulent or illegal purpose."

Real Property

Notice

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.

[omis (3) and (4)]
2001, c. 32, s. 53; 2017, c. 7, s. 20.

– CDSA

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Return of Real Property

19.1
[omis (1) and (2)]

Non-forfeiture 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-house

(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.

2001, c. 32, s. 53; 2017, c. 7, s. 20.

– CDSA

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The fairness of the order can be adjusted by the availability of partial forfeiture.

Disposal of Controlled Substances

PART III

Disposal of Controlled Substances

Application for return of substance

24 (1) Where a controlled substance has been seized, found or otherwise acquired by a peace officer or an inspector, any person may, within sixty days after the date of the seizure, finding or acquisition, on prior notification being given to the Attorney General in the prescribed manner, apply, by notice in writing to a justice in the jurisdiction in which the substance is being detained, for an order to return that substance to the person.

Order to return substance forthwith

(2) Where, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the controlled substance and the Attorney General does not indicate that the substance or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the justice shall, subject to subsection (5), order that the substance or the portion not required for the purposes of the proceeding be returned forthwith to the applicant.

Order to return substance at specified time

(3) Where, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the controlled substance but the Attorney General indicates that the substance or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the justice shall, subject to subsection (5), order that the substance or the portion required for the purposes of the proceeding be returned to the applicant

(a) on the expiration of one hundred and eighty days after the application was made, if no proceeding in relation to the substance has been commenced before that time; or

(b) on the final conclusion of the proceeding or any other proceeding in relation to the substance, where the applicant is not found guilty in those proceedings of an offence committed in relation to the substance.

Order to return substance refused

(4) Where, on the hearing of an application made under subsection (1), a justice is not satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the controlled substance, the justice shall order that the substance or the portion not required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

Payment of compensation in lieu

(5) Where, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of a controlled substance, but an order has been made under subsection 26(2) in respect of the substance, the justice shall make an order that an amount equal to the value of the substance be paid to the applicant.

– CDSA

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Disposal by Minister where no application

25 Where no application for the return of a controlled substance has been made under subsection 24(1) within sixty days after the date of the seizure, finding or acquisition by a peace officer or inspector and the substance or a portion of it is not required for the purposes of any preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the substance or the portion not required for the purposes of the proceeding shall be delivered to the Minister to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

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Security, health or safety hazard

26 (1) Where the Minister has reasonable grounds to believe that a controlled substance that has been seized, found or otherwise acquired by a peace officer or inspector constitutes a potential security, public health or safety hazard, the Minister may, on prior notification being given to the Attorney General in the prescribed manner, at any time, make an application, ex parte, to a justice for an order that the substance or a portion of it be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

Security, health or safety hazard

(2) Where, on the hearing of an application made under subsection (1), a justice is satisfied that there are reasonable grounds to believe that the controlled substance constitutes a potential security, public health or safety hazard, the justice shall order that the substance or any portion not required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

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Disposal following proceedings

27 Subject to section 24, where, pursuant to a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the court before which the proceedings have been brought is satisfied that any controlled substance that is the subject of proceedings before the court is no longer required by that court or any other court, the court

(a) shall

(i) where it is satisfied that the person from whom the substance was seized came into possession of the substance in accordance with the regulations and continued to deal with it in accordance with the regulations, order that the substance be returned to the person, or

(ii) where it is satisfied that possession of the substance by the person from whom it was seized is unlawful and the person who is lawfully entitled to its possession is known, order that the substance be returned to the person who is the lawful owner or is lawfully entitled to its possession; and

(b) may, where it is not satisfied that the substance should be returned pursuant to subparagraph (i) or (ii) or where possession of the substance by the person from whom it was seized is unlawful and the person who is the lawful owner or is lawfully entitled to its possession is not known, order that the substance be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

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Disposal with consent

28 Where a controlled substance has been seized, found or otherwise acquired by a peace officer or inspector under this Act or the regulations and the substance or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the person who is the lawful owner or is lawfully entitled to its possession may consent to its disposal, and on such consent being given the substance or portion is thereupon forfeited to Her Majesty and may be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in such manner as the Minister directs.

– CDSA

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Destruction of plant

29 The Minister may, on prior notification being given to the Attorney General, cause to be destroyed any plant from which a substance included in Schedule I, II, III or IV may be extracted that is being produced otherwise than under the authority of and in accordance with a licence issued under the regulations.

– CDSA

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Appeals

Suspension of order pending appeal

22 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 16(1), 17(2) or 20(4) is suspended pending

(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

(b) any appeal taken from an order of forfeiture or restoration in respect of the property,

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.
23 [Repealed, 2001, c. 32, s. 54]

– CDSA

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See Also

• Restraint of Offence-related Property