Criminal Code (R.S.C., 1985, c. C-46)

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, bank-notes or virtual currency or other digital assets 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, if property has been seized under a warrant issued under section 462.32 or 462.321 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 If a judge issues a warrant under section 462.32 or 462.321 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 under paragraph 462.32(4)(b) or 462.321(4)(c) 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).

Marginal note:Definition of order

• 462.371 (1) In this section, order means an order made under section 462.37 or 462.38.

• Marginal note:Execution

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

• Marginal note: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.

• Marginal note: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.

• Marginal note:Effect of registered order

  (5) An order has, from the date it is filed in a court of a province under subsection (3) or (4), the same effect as if it had been an order originally made by that court.

• Marginal note:Notice

  (6) Where an order has been filed in a court under subsection (3) or (4), it shall not be executed before notice in accordance with subsection 462.41(2) is given to every person who, in the opinion of the court, appears to have a valid interest in the property.

• Marginal note:Application of section 462.42

  (7) Section 462.42 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) or (4).

• Marginal note:Application under section 462.42 to be made in one province

  (8) No person may make an application under section 462.42 in relation to property that is the subject of an order filed under subsection (3) or (4) if that person has previously made an application in respect of the same property in another province.

• Marginal note: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) or (4) as to whether or not an applicant referred to in subsection 462.42(4) 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.

Marginal note: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) in respect of any property.

• Marginal note: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), the judge shall, if the judge is satisfied that

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

  • (b) that property was obtained through the commission of a designated offence in respect of which proceedings 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.

• 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: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.