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Major Studies of Drugs and Drug Policy | ||||
Canadian Senate Special Committee on Illegal Drugs | ||||
Volume 2 - Policies and Practices In Canada |
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Chapter 12 - The National Legislative ContextPart 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. |