First Session, Thirty-eighth Parliament,
53-54 Elizabeth II, 2004-2005
STATUTES OF CANADA 2005CHAPTER 44
An Act to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another Act
ASSENTED TO
25th NOVEMBER, 2005
BILL C-53
SUMMARY
This enactment amends the Criminal Code, and makes consequential amendments to another Act, to provide a reverse onus of proof in proceeds of crime applications involving offenders who have been convicted of a criminal organization offence or certain offences under the Controlled Drugs and Substances Act. The enactment provides that a court shall make an order of forfeiture against any property of an offender that is identified in an application if the court is satisfied that the offender has engaged in a pattern of criminal activity or has an income unrelated to crime that cannot reasonably account for all of the offender’s property. A court may not, however, make an order of forfeiture against a property that the offender has shown, on a balance of probabilities, not to be proceeds of crime. A court may also decline to make an order of forfeiture against a property if the court considers it in the interests of justice.
The enactment also amends the Criminal Code to clarify the authority of the Attorney General of Canada in regards to proceeds of crime and to clarify the definition “designated offence” in regards to offences that may be prosecuted by indictment or on summary conviction. It also amends a provision of the Criminal Code to ensure the equivalency of the English and French versions.
The enactment also amends the Controlled Drugs and Substances Act to clarify the authority of a justice under that Act to issue warrants in respect of investigations of drug-related money laundering and the possession of property obtained by drug-related crime.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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53-54 ELIZABETH II
——————
CHAPTER 44
An Act to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another Act
[Assented to 25th November, 2005]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-46
CRIMINAL CODE
2001, ch. 32, s. 12(1), (5)(F) and (6)(E)
1. (1) The definition “designated offence” in subsection 462.3 (1) of the Criminal Code is replaced by the following:
“designated offence”« infraction désignée »
“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);
2001, c. 32, s. 12(7)
(2) Subsection 462.3(3) of the Act is replaced by the following:
Powers of Attorney General of Canada
(3) Despite the definition “Attorney General” in section 2, the Attorney General of Canada may
(a) exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act in respect of a designated offence if 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; and
(b) conduct proceedings and exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act in respect of
(i) an offence referred to in section 354 or 462.31 if 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, and
(ii) an offence under subsection 462.33(11) if the restraint order was made on application of the Attorney General of Canada.
1997, c. 18, s. 28(1)
2. The portion of subsection 462.31(1) of the French version of the Act before paragraph (a) is replaced by the following:
Recyclage des produits de la criminalité
462.31 (1) Est coupable d’une infraction quiconque — de quelque façon que ce soit — utilise, enlève, envoie, livre à une personne ou à un endroit, transporte ou modifie des biens ou leurs produits, en dispose, en transfère la possession ou prend part à toute autre forme d’opération à leur égard, dans l’intention de les cacher ou de les convertir sachant ou croyant qu’ils ont été obtenus ou proviennent, en totalité ou en partie, directement ou indirectement :
2001, c. 32, s. 14(1)
3. Subsection 462.32(1) of the Act is replaced by the following:
Special search warrant
462.32 (1) Subject to subsection (3), if a judge, on application of the Attorney General, is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in any building, receptacle or place, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2), in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction, the judge may issue a warrant authorizing a person named in the warrant or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection.
R.S., c. 42 (4th Supp.), s. 2
4. (1) Paragraph 462.33(2)(c) of the Act is replaced by the following:
(c) the grounds for the belief that an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2) in respect of the property;
2001, c. 32, s. 15(1)
(2) Subsection 462.33(3) of the Act is replaced by the following:
Restraint order
(3) A judge who hears an application for a restraint order made under subsection (1) may — if the judge is satisfied that there are reasonable grounds to believe that there exists, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or (2.01) or 462.38(2), in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction — make an order prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in the manner that may be specified in the order.
R.S., c. 42 (4th Supp.), s. 2
(3) Subsection 462.33(5) of the Act is replaced by the following:
Notice
(5) Before making an order under subsection (3) in relation to any property, a judge may require notice 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 unless the judge is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property or otherwise affect the property so that all or a part thereof could not be subject to an order of forfeiture under subsection 462.37(1) or (2.01) or 462.38(2).
R.S., c. 42 (4th Supp.), s. 2
(4) Paragraph 462.33(10)(c) of the Act is replaced by the following:
(c) an order of forfeiture or restoration of the property is made under subsection 462.37(1) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament.
1999, c. 5, s. 14
5. Section 462.341 of the Act is replaced by the following:
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 or the Controlled Drugs and Substances Act and in respect of which proceedings may be taken under subsection 462.37(1) or (2.01) or 462.38(2).
6. (1) Section 462.37 of the Act is amended by adding the following after subsection (2):
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.
Offences
(2.02) The offences are the following:
(a) a criminal organization offence punishable by five or more years of imprisonment; and
(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 those sections — prosecuted by indictment.
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.
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.
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.
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.
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.
R.S., c. 42 (4th Supp.), s. 2
(2) Subsection 462.37(3) of the English version of the Act is replaced by the following:
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.
R.S., c. 42 (4th Supp.), s. 2
7. Paragraph 462.4(a) of the Act is replaced by the following:
(a) prior to ordering property to be forfeited under subsection 462.37(1) or (2.01) or 462.38(2), and
R.S., c. 42 (4th Supp.), s. 2
8. (1) Subsection 462.41(1) of the Act is replaced by the following:
Notice
462.41 (1) Before making an order under subsection 462.37(1) or (2.01) or 462.38(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.
(2) Subsection 462.41(3) of the Act is amended by replacing the reference to “subsection 462.37(1)” with a reference to “subsection 462.37(1) or (2.01)”.
R.S., c. 42 (4th Supp.), s. 2; 2001, c. 32, s. 23(1)
9. Subsection 462.42(1) of the Act is replaced by the following:
Application by person claiming interest for relief from forfeiture
462.42 (1) Any person who claims an interest in property that is forfeited to Her Majesty under subsection 462.37(1) or (2.01) or 462.38(2) may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4) unless the person is
(a) a person who is charged with, or was convicted of, a designated offence that resulted in the forfeiture; 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 from that person for the purpose of avoiding the forfeiture of the property.
R.S., c. 42 (4th Supp.), s. 2
10. The portion of section 462.45 of the Act before paragraph (a) is replaced by the following:
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), 462.37(1) or (2.01), 462.38(2) or 462.41(3) or section 462.43 is suspended pending
R.S., c. 42 (4th Supp.), s. 2
11. Subsection 462.46(1) of the Act is replaced by the following:
Copies of documents returned or forfeited
462.46 (1) If any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) or (4), 462.37(1) or (2.01), 462.38(2) or 462.41(3) or section 462.43, the Attorney General may, before returning the document or complying with the order, cause a copy of the document to be made and retained.
2002, c. 13, s. 69
12. The portion of subsection 689(1) of the Act before paragraph (a) is replaced by the following:
Restitution or forfeiture of property
689. (1) If the trial court makes an order for compensation or for the restitution of property under section 738 or 739 or an order of forfeiture of property under subsection 164.2(1) or 462.37(1) or (2.01), the operation of the order is suspended
1996, c. 19
CONTROLLED DRUGS AND SUBSTANCES ACT
13. Paragraph 11(1)(d) of the Controlled Drugs and Substances Act is replaced by the following:
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
CONSEQUENTIAL AMENDMENTS
1993, c. 37
Seized Property Management Act
2000, c. 17, s. 95; 2001, c. 41, s. 110
14. Paragraph 10(1)(a) of the Seized Property Management Act is replaced by the following:
(a) the forfeiture to Her Majesty of property pursuant to section 83.14, subsection 462.37(1), (2) or (2.01) or 462.38(2), subparagraph 462.43(c)(iii) or 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;
2001, c. 41, s. 137(4)
15. Subparagraph 11(a)(i) of the Act is replaced by the following:
(i) property forfeited to Her Majesty pursuant to section 83.14, subsection 462.37(1), (2) or (2.01) or 462.38(2), subparagraph 462.43(c)(iii) or 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, or
1997, c. 23, s. 25
16. Section 14 of the Act is replaced by the following:
If costs are greater than proceeds
14. If the proceeds of disposition available to Her Majesty from the forfeiture of any property pursuant to subsection 462.37(1), (2) or (2.01) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490(9) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act are insufficient to cover the outstanding amounts charged to the Working Capital Account pursuant to subsection 12(2), and any interest on it, in respect of the property, there shall be charged to the Proceeds Account and credited to the Working Capital Account, or to interest revenue, as the case may be, an amount equal to the amount of the shortfall.
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