Chapter 12 - The National Legislative Context

Part II: Enforcement

Sections 11 and 12 of the act concern search and seizure activities, which are discussed in greater detail in Chapter 14.

Section 13 incorporates certain Criminal Code provisions establishing a detailed plan for the return, reporting and detention of seized property. In the case of offence-related property, the Criminal Code provisions apply subject to sections 16 to 22 of the Act. Furthermore, a separate procedure is established under sections 24 to 29 to determine the disposal of controlled substances. It should be noted that section 14 provides for the issuing of a restraint order in respect of offence-related property.

Sections 16 and 17 concern the forfeiture of offence-related property. Offence-related property is defined as any property, within or outside Canada, by means of or in respect of which a designated substance offence is committed, that is used in any manner in connection with the commission of a designated substance offence, or that is intended for use for the purpose of committing a designated substance offence, but does not include a controlled substance or real property, other than real property built or significantly modified for the purpose of facilitating the commission of a designated substance offence. A court which convicts a person of a designated offence shall order the forfeiture of offence-related property where it is satisfied, on a balance of probabilities, that the property is offence-related property. Where the offence-related property cannot be related to the offence with which the person is charged, the court may nevertheless order its forfeiture. The court may make such order where it is satisfied, beyond a reasonable doubt, that it is offence-related property. Furthermore, offence-related property may be forfeited even if legal proceedings were never instituted. The court shall render an order of forfeiture of property if it is satisfied (1) beyond a reasonable doubt that any property is offence-related property, and (2) that proceedings in respect of a designated substance offence in relation to the property were commenced, and (3) that the accused charged with the offence has died or absconded.

Sections 18 to 22 are essentially a restatement of sections 462.4 to 462.45 of the Criminal Code. The purpose of these provisions is to protect the interests of innocent third parties and good-faith buyers. As a general rule, if the court is satisfied that the claim is lawful, it may order the return of the property (or payment of its value if restitution is impossible) to the person who is its legitimate owner or who is entitled to own it.

Section 23 merely incorporates the Criminal Code provisions on forfeiture of proceeds of crime. The same terms and conditions are thus established in the case of the forfeiture of the proceeds of designated offences.