Canadian Criminal Sentencing/Ancillary Orders/Forfeiture
There are a number of scheme dealing with the detention and forfeiture of property in criminal law. There is a significant amount of overlap between many of them and so provide for several methods of forfeiting property.
- Canadian Criminal Sentencing/Proceeds of Crime
- Canadian Criminal Sentencing/Offence-related Property
- Canadian Criminal Sentencing/Offence-related Property Under the Controlled Drugs Substances Act
- Canadian Criminal Sentencing/Detention and Forfeiture Under Section 490
Forfeiture of Firearms
"Interests of the Safety"
Application for disposition
117.05 (1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.
Ex parte hearing
(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person from whom the thing or document was seized in the same circumstances as those in which a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant.
Hearing of application
(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.
Forfeiture and prohibition order on finding
(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall
- (a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and
- (b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order.
(5) Where a justice does not make an order under subsection (4), or where a justice does make such an order but does not prohibit the possession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice’s reasons.
Application of ss. 113 to 117
(6) Sections 113 to 117 apply in respect of every order made under subsection (4).
Appeal by person
(7) Where a justice makes an order under subsection (4) in respect of a person, or in respect of any thing that was seized from a person, the person may appeal to the superior court against the order.
Appeal by Attorney General
(8) Where a justice does not make a finding as described in subsection (4) following the hearing of an application under subsection (1), or makes the finding but does not make an order to the effect described in paragraph (4)(b), the Attorney General may appeal to the superior court against the failure to make the finding or to make an order to the effect so described.
Application of Part XXVII to appeals
(9) The provisions of Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (7) or (8) with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
1995, c. 39, s. 139.
In order to succeed in an application for a forfeiture order, the applicant must prove:
- the respondent is the owner of the item to be forfeited
- the respondent did not have reasonable grounds to believe that the item forfeited would or might be used in the commission of the offence.
Forfeiture after conviction
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing
- (a) was used in the commission of the offence; and
- (b) is the property of
- (i) the convicted person or another person who was a party to the offence, or
- (ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
Third party rights
(2) Before making an order under subsection (1), the court shall cause notice to be given to, and may hear, any person whom it considers to have an interest in the thing, and may declare the nature and extent of the person’s interest in it.
Right of appeal — third party
(3) A person who was heard in response to a notice given under subsection (2) may appeal to the court of appeal against an order made under subsection (1).
Right of appeal — Attorney General
(4) The Attorney General may appeal to the court of appeal against the refusal of a court to make an order under subsection (1).
Application of Part XXI
(5) Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) and (4).
2002, c. 13, s. 7; 2008, c. 18, s. 4; 2012, c. 1, s. 18.
- R. v. Robinson, 2011 CanLII 3758 (NL PC) at para 7