DATE: May 20, 2008
SUBJECT: THE PROCEDURE GOVERNING APPLICATIONS FOR THE FORFEITURE, RESTRAINT AND
MANAGEMENT OF OFFENCE-RELATED PROPERTY
The purpose of this practice memorandum is to ensure, through the creation of an authorization process and set criterion, that there is a consistent approach taken as regards applications for the forfeiture or control of offence-related property.
Although enacted as part of a legislative package directed towards combating organized crime, the offence-related property provisions set out at sections 490.1 to 490.9 of the Criminal Code are of general application. Pursuant to this legislative scheme, the Crown is permitted to bring applications for the forfeiture, restraint and/or management of property that is alleged to be offence-related property. The phrase offence-related property has a very broad meaning. It is defined at section 2 of the Criminal Code to mean:
any property, within or outside Canada,
- by means or in respect of which an indictable offence under this Act is committed,
- that is used in any manner in connection with the commission of an indictable offence under this Act, or
- that is intended for use for the purpose of committing an indictable offence under this Act
Section 490.1 authorizes the making of applications for forfeiture (on notice to interested parties: s. 490.4(1), 490.41(1)).
- Section 490.1(1) allows the Crown to obtain an order that offence-related property be forfeited to the Crown if it has established on a balance of probabilities that the property is offence-related property and the indictable offence for which the respondent was convicted was committed in relation to that property. If these two conditions are met, a forfeiture order shall be made.
- Section 490.1(2) permits a court to also make a forfeiture order if it is satisfied beyond a reasonable doubt in respect of the first condition (i.e., that the property is offence-related property).
Section 490.2 authorizes in rem forfeiture (on notice to interested parties: s. 490.4(1), 490.41(1)) where the court is satisfied:
- beyond a reasonable doubt that the property is offence-related property;
- that proceedings in respect of an indictable offence in relation to the property were commenced; and
- that the accused has died or absconded.
Sections 490.41(3) and 490.41(4) define the issues to be decided by the court before a forfeiture order may be made under any of the empowering provisions. In particular, pursuant to these provisions, the court may refuse to make an order if its impact would be disproportionate to the enumerated factors.
Finally, sections 490.8-490.81 permit the Crown to bring applications for restraint orders and management orders in relations to offence-related property.
- Unlike the similar proceeds of crime provisions set out in Part XII.2 of the Criminal Code, application brought pursuant to ss. 490.1-490.9 will not be handled exclusively by the Special Prosecutions Branch; rather, any such applications will be handled by the Crown prosecutor assigned to the prosecution of the substantive charge.
- While the Crown prosecutor assigned to the prosecution of the substantive charge will be responsible for applications brought pursuant to ss. 490.1-490.9, the Special Prosecutions Branch will provide assistance as requested with respect to the procedures and precedent documentation applicable to the application.
- Crown prosecutors contemplating any of the applications described in ss. 490.1 to 490.9 must seek and receive the prior consent of the responsible Chief Crown Prosecutor. In seeking this consent, Crown prosecutors should prepare and submit a memorandum with the following information.
- The Indictment or Information
- The circumstances of the indictable offence alleged to have been committed
- The circumstances and background, including any criminal record, of the accused
- The nature and location of the property alleged to be offence-related property
- Any known third-party interest in the property
- The stage of the proceedings
- The recommendation of the Crown prosecutor
As these applications are often time-sensitive (in particular, in relation to restraint orders), the consent of the Chief Crown Prosecutor should be sought and the proceedings (if approved) commenced as soon as permitted and practicable.
 An Act to amend the Criminal Code (criminal organizations) and to amend other Acts in consequence, S.C. 1997, c. 23