Canadian Criminal Sentencing/Offence-related Property Under the Controlled Drugs Substances Act

From Wikibooks, open books for an open world
Jump to: navigation, search

Introduction[edit]

The purpose of the forfeiture of offence-related property under the CDSA is "to ensure that offence-related property is not returned to the offender and the interests of innocent third parties and persons with valid interests in the property are protected".[1]

The purposes are to (1) "punishes the offender by taking away the property that was used in the commission of the designated substance offence", with the effect upon the profit of the trade; (2) provide deterrence through "“rais[ing] the stakes” by imposing a “very real cost” to those who either use, or permit their property to be used, in the commission of a designated substance offence"; (3) ensure "that the property is no longer available for continued use in criminal activities", that is, to take it out of circulation[2]

The Attorney General may apply at any time after conviction forfeiture of offence-related property. They must show on a balance of probabilities that the property is "offence-related property" in relation to the offences convicted.(s. 16(1)) The AG may also obtain an order if they can prove beyond a reasonable doubt that the property is "offence-related property" but not in relation to any particular conviction. (s. 16(2))

Innocent persons with property interests in the goods may apply usually during a forfeiture hearing for the return of the items. (s. 19)

  1. Scotia Mortgage Corp. v. Leung, 2006 BCSC 846 (CanLII) at para. 18
  2. Scotia Mortgage Corp. v. Leung at para. 18 citing Canada (Attorney General) v. Huynh, 2005 BCPC 431 (CanLII), [2005] B.C.J. No. 2168
    See also R. v. Cook, [2010] O.J. No. 4413,at paras.39-45

Offence-related Property[edit]

Offence-related property is defined in s.2 of the CDSA:

“offence-related property” means, with the exception of a controlled substance, any property, within or outside Canada,

(a) by means of or in respect of which a designated substance offence is committed,
(b) that is used in any manner in connection with the commission of a designated substance offence, or
(c) that is intended for use for the purpose of committing a designated substance offence;


Forfeiture on Conviction[edit]

Section 16 of the Controlled Drugs and Substances Act provides a power of forfeiture on conviction similar to s. 490.1 of the Criminal Code:

Order of forfeiture of property on conviction
16. (1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and
(b) in the case of any other offence-related property,
(i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and
(ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

Property related to other offences
(2) Subject to sections 18 to 19.1, where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

CDSA

In Rem Forfeiture[edit]

Application for in rem forfeiture
17. (1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

Order of forfeiture of property
(2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

(a) beyond a reasonable doubt that any property is offence-related property,
(b) that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (a) were commenced, and
(c) that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

CDSA

Procedure[edit]

Notice[edit]

Under s. 19, applications under s.16(1) or 17(2) requires notice to any persons who appear to have valid interests in the property.<rfe> see s.19 CDSA</ref>