Canadian Criminal Sentencing/Proceeds of Crime
Part XII.2 was enacted in Bill C61 to meet Canada's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them." It is also intended to recognize "that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity."
Proceeds of Crime Defined
Section 462.3 defines Proceeds of Crime as:
“proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of
(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
Restraint of Proceeds of Crime
Pursuant to section 462.33, on application by the Attorney General, the court may order that certain property be restrained.
The court may make the order where it is satisfied that "there are reasonable grounds to believe that there exists" there is property for which an order of forfeiture may be made "in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction".
The order will have the effect of "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."
The application must consist of:
- a written application
- affidavit outlining:
- the offender or matter under investigation
- person believed to be in possession
- grounds for this belief
- grounds for belief that the order may be made under s.462.37(1), (2.01) or 462.38(2)
- a description of the property, and
- whether any previous application has been made
The application can be made ex parte.
Forfeiture of Proceeds of Crime
To seize money during a criminal proceedings, the Crown must prove on a balance of probabilities that:
- The seized monies are in relation to offences for which the defendant has been convicted; and,
- The property is proceeds of crime.
"Property of an offender" under s. 462.37(3) can include stolen cash and so can be forfeited under those provisions.
Fine in Lieu of Forfeiture
Where the judge finds that property can be forfeited under s. 462.37(1) or (2.01), the court has the ability order that the offender pay a fine instead.
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.
Where the offender cannot pay the fine amount by the date required by the fine order, the offender will be in default. The judge will specify the penalty in default at the time of the making of the fine order.
Section 462.37(4) addresses default penalties:
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.