Confiscation des produits du crime

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• < Détermination de la peine
• < Ordonnances auxiliaires
• < Ordonnances de confiscation

• < Procédure et pratique
• < fouilles, perquisitions et saisies
• < Saisie de biens
• < Produits du crime

Principes généraux

Part XII.2 was enacted in Bill C61 to meet Canada's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Purpose

The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them." It is also intended to recognize "that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity."

Application for forfeiture

462.38 (1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) [conditions pour ordonner la confiscation] in respect of any property.

Order of forfeiture of property

(2) Subject to sections 462.39 to 462.41 , where an application is made to a judge under subsection (1) [autorité pour faire une demande de confiscation], the judge shall, if the judge is satisfied that

(a) any property is, beyond a reasonable doubt, proceeds of crime,

(b) proceedings in respect of a designated offence committed in relation to that property were commenced, and

(c) the accused charged with the offence referred to in paragraph (b) has died or absconded,

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.

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.

Person deemed absconded

(3) For the purposes of this section, a person shall be deemed to have absconded in connection with a designated offence if

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

(b) a warrant for the arrest of the person or a summons in respect of an organization has been issued in relation to that information, and

(c) reasonable attempts to arrest the person pursuant to the warrant or to serve the summons have been unsuccessful during the period of six months commencing on the day the warrant or summons was issued, or, in the case of a person who is not or never was in Canada, the person cannot be brought within that period to the jurisdiction in which the warrant or summons was issued,

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

R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 35; 2001, c. 32, s. 20; 2003, c. 21, s. 7.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Part XII.2 provides two manners of forfeiting property:

1. forfeiture of proceeds upon conviction or discharge
2. forfeiture of proceeds upon death or abscondment of accused

The proceeds of crime provision provide no discretion to the court on whether property falls within the definition.

Part XII.2 does not affect the interpretation of any other legislation relating to forfeiture of property.

Regulations

The Attorney General may make regulations relating to the disposal of proceeds of crime under s. 462.5

Judge

The reference to "judge" under Part XII.2 is defined in s. 462.3:

Definitions

462.3 (1) In this Part [Pt. XII.2 – Produits de la criminalité (art. 462.3 à 462.5)],
...
"judge " means a judge as defined in section 552 [definitions - judges] or a judge of a superior court of criminal jurisdiction;
...
[omis (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7; 2019, c. 25, s. 179.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Punishments

The forfeiture of proceeds of crime is not a form of punishment.

Evidence

The normal rules of trial evidence still apply in the forfeiture hearing, including rules relating to hearsay.

Inference

462.39 For the purpose of subsection 462.37(1) [ordonnance de confiscation des produits de la criminalité] or 462.38(2) [conditions pour ordonner la confiscation], the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s. 21.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Proceeds of Crime Defined

Section 462.3 defines Proceeds of Crime as:

462.3 (1) In this Part [Pt. XII.2 – Produits de la criminalité (art. 462.3 à 462.5)],
...
"proceeds of crime" means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of

(a) the commission in Canada of a designated offence, or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

[omis (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7; 2019, c. 25, s. 179.

– CCC (CanLII), (Jus.)

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Parliament has intended to "apply to the widest possible range of property."

Designated Offence Defined

Under Part XII.2 of the Code entitled Proceeds of Crime, s. 462.3 states:

462.3 (1) In this Part [Pt. XII.2 – Produits de la criminalité (art. 462.3 à 462.5)],

"designated drug offence"[Repealed, 1996, c. 19, s. 68]

"designated offence" means

(a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or

(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);

...
[omis (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7.

– CCC (CanLII), (Jus.)

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The list of offences excluded from the definition of "designated offence" are found in Regulations Excluding Certain Indictable Offences From the Definition of "Designated Offence", SOR/2002-63,

Notice of Application

Notice

462.41 (1) Before making an order under subsection 462.37(1) [ordonnance de confiscation des produits de la criminalité] or (2.01) [ordonnance de confiscation des produits de la criminalité – circonstances particulières] or 462.38(2) [conditions pour ordonner la confiscation] in relation to any property, a court shall require notice in accordance with subsection (2) [exigences de notification pour la confiscation des produits de la criminalité – manière] 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.

Service, duration and contents of notice

(2) A notice given under subsection (1) [exigences de notification pour la confiscation des produits de la criminalité – exigence] shall

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

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

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

Order of restoration of property

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

(a) a person who is charged with, or was convicted of, a designated offence, or

(b) a person who acquired title to or a right of possession of that 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 thereof that would otherwise be forfeited pursuant to subsection 462.37(1) [ordonnance de confiscation des produits de la criminalité] or (2.01) [ordonnance de confiscation des produits de la criminalité – circonstances particulières] or 462.38(2) [conditions pour ordonner la confiscation] 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 thereof be returned to that person.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss. 37, 140; 2001, c. 32, s. 22; 2005, c. 44, s. 8.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Forfeiture Upon Conviction or Discharge

Under s. 462.37, the Attorney General may apply to seek the forfeiture of proceeds of crime upon conviction or discharge of a particular offence.

Order of forfeiture of property on conviction

462.37 (1) Subject to this section and sections 462.39 to 462.41 , if an offender is convicted, or discharged under section 730 [ordonnance de libération], 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.

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) [ordonnance de confiscation des produits de la criminalité] 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) [ordonnance de confiscation des produits de la criminalité] in relation to that property.
[omis (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1), (3), (4) and (5)]

R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Purpose

The purpose of s. 462.37 is to "deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds ."

Where the offender never had control over the property there is no reason to order forfeiture against the offender.

Standard of Proof

The standard is on a balance of probabilities. If the requirements are satisfied forfeiture is mandatory.

Evidence

Inference

462.39 For the purpose of subsection 462.37(1) [ordonnance de confiscation des produits de la criminalité] or 462.38(2) [conditions pour ordonner la confiscation], the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s. 21.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Forfeiture of Proceeds of Crime (Organized Crime)

• Forfeiture of Proceeds of Crime (Organized Crime)

Forfeiture Upon Death or Flight

Under s. 462.38, the Attorney General may apply to seek the forfeiture of items seized where the accused is deceased or has absconded.

Forfeiture of Money

To seize money during a criminal proceedings, the Crown must prove on a balance of probabilities that:

1. The seized monies are in relation to offences for which the defendant has been convicted; and,
2. The property is proceeds of crime.

"Property of an offender" under s. 462.37(3) can include stolen cash and so can be forfeited under those provisions.

Third Party Interests

When a third party attempts to claim interest to a forfeiture application, the process to follow should include the following steps:

1. The first step in a Crown’s forfeiture application is the Crown establishing the criteria for forfeiture under s. 462.37 on a balance of probabilities.
2. If the Crown meets its onus, notice is given to person(s) who appear to have an interest in the property. If anyone responds to the notice seeking the return of property, the judge may hear them and determine whether the disputed property should be returned to the person with an interest. At this stage there is an onus on the person claiming an interest to establish the criteria noted in s. 462.41 on a balance of probabilities.
3. If the person claiming an interest satisfies the judge with regard to the criteria, the judge has a discretion whether to return the property. In exercising his or her discretion, the sentencing judge must consider all the circumstances and determine whether all, part or none of the property should be returned considering the equities of the situation.
4. Where the judge orders property returned, the remainder of the property, if any, is forfeited to the Crown pursuant to s. 462.37(1).

Once a third party is determined to be an interested party under s. 462.41, the considerations under 462.37 will include:

1. "purpose of the ...forfeiture (to ensure that crime does not pay for the offender that that illegally obtained property is returned to the victim of the designated offence)",
2. "the actions of the innocent parties (as ‘corollary victims’)," and
3. "the impact on the offender (what impact or benefit would the disposition have on the offender, since they are not meant to benefit from the disposition of proceeds of crime)"

Application For Relief From Forfeiture

• Application For Relief From Forfeiture

Priority in Forfeiture

Where proceeds are forfeited, the priority goes to victims who are owed restitution:

462.49
[omis (1)]

Priority for restitution to victims of crime

(2) The property of an offender may be used to satisfy the operation of a provision of this or any other Act of Parliament respecting the forfeiture of property only to the extent that it is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to or compensation of persons affected by the commission of offences.
R.S., 1985, c. 42 (4th Supp.), s. 2.

– CCC (CanLII), (Jus.)

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Voiding Conveyance on Forfeiture

Voidable transfers

462.4 A court may,

(a) prior to ordering property to be forfeited under subsection 462.37(1) [ordonnance de confiscation des produits de la criminalité] or (2.01) [ordonnance de confiscation des produits de la criminalité – circonstances particulières] or 462.38(2) [conditions pour ordonner la confiscation], and

(b) in the case of property in respect of which a restraint order was made under section 462.33 [ordonnances de blocage de biens], where the order was served in accordance with subsection 462.33(8) [signification de l'ordonnance],

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the order under section 462.33 [ordonnances de blocage de biens], unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 36(E); 2005, c. 44, s. 7.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Fine in Lieu of Forfeiture

• Fine in Lieu of Forfeiture

Appeal of Forfeiture Orders

Appeals from certain orders

462.44 Any person who considers that they are aggrieved by an order made under subsection 462.38(2) [conditions pour ordonner la confiscation] or 462.41(3) [exigences de notification pour la confiscation des produits de la criminalité – ordonnance de restitution des biens] or section 462.43 [disposition résiduelle des biens saisis ou traités en vertu de mandats spéciaux ou d'ordonnances de blocage] 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 [Pt. XXI – Appels – actes criminels (art. 673 à 696)], and that Part applies, with such modifications as the circumstances require, to such an appeal.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 39.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Suspension of forfeiture pending appeal

462.45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4) [ordonnance de restitution de biens ou révocation ou modification d'ordonnance], 462.37(1) [ordonnance de confiscation des produits de la criminalité] or (2.01) [ordonnance de confiscation des produits de la criminalité – circonstances particulières], 462.38(2) [conditions pour ordonner la confiscation] or 462.41(3) [exigences de notification pour la confiscation des produits de la criminalité – ordonnance de restitution des biens] or section 462.43 [disposition résiduelle des biens saisis ou traités en vertu de mandats spéciaux ou d'ordonnances de blocage] 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 the restoration or forfeiture of such property,

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

(c) any other proceeding in which the right of seizure of the property is questioned,

and property shall not be disposed of within thirty days after an order of forfeiture is made under any of those provisions.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 10.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Misc Definitions

Definition of “order”

462.371 (1) In this section, "order" means an order made under section 462.37 [ordonnance de confiscation des produits de la criminalité] or 462.38 [ordonnance de confiscation des produits du crime].

Execution

(2) An order may be executed anywhere in Canada.

Filing of order from another province

(3) Where the Attorney General of a province in which property that is the subject of an order made in another province is situated receives a certified copy of the order and files it with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

Attorney General of Canada

(4) Where the Attorney General of Canada receives a certified copy of an order made in a province in respect of property situated in another province and files the order with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

Effect of registered order

(5) An order has, from the date it is filed in a court of a province under subsection (3) [dépôt d'une ordonnance d'une autre province] or (4) [réception par le procureur général d'une ordonnance concernant un bien], the same effect as if it had been an order originally made by that court.

Notice

(6) Where an order has been filed in a court under subsection (3) [dépôt d'une ordonnance d'une autre province] or (4) [réception par le procureur général d'une ordonnance concernant un bien], it shall not be executed before notice in accordance with subsection 462.41(2) [exigences de notification pour la confiscation des produits de la criminalité – manière] is given to every person who, in the opinion of the court, appears to have a valid interest in the property.

Application of section 462.42

(7) Section 462.42 [demande de la personne réclamant des intérêts pour obtenir une dispense de confiscation] applies, with such modifications as the circumstances require, in respect of a person who claims an interest in property that is the subject of an order filed under subsection (3) [dépôt d'une ordonnance d'une autre province] or (4) [dépôt d'une ordonnance d'une autre province].

Application under section 462.42 to be made in one province

(8) No person may make an application under section 462.42 [demande de la personne réclamant des intérêts pour obtenir une dispense de confiscation] in relation to property that is the subject of an order filed under subsection (3) [dépôt d'une ordonnance d'une autre province] or (4) [réception par le procureur général d'une ordonnance concernant un bien] if that person has previously made an application in respect of the same property in another province.

Finding in one court binding

(9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) [dépôt d'une ordonnance d'une autre province] or (4) [réception par le procureur général d'une ordonnance concernant un bien] as to whether or not an applicant referred to in subsection 462.42(4) [ordonnance déclarant les intérêts non sujets à confiscation] is affected by the forfeiture referred to in that subsection or declaring the nature and extent of the interest of the applicant under that subsection is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment.
1997, c. 18, s. 34.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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See Also

• Order of Restraint for Proceeds of Crime
• Forfeiture of Offence-related Property Under the CDSA
• Forfeiture of Offence-related Property
• Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17