Law:Seized Property Management Act

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S.c. 1993, c. 37

Assented to 1993-06-23

An Act respecting the management of certain property seized or restrained in connection with certain offences, the disposition of certain property on the forfeiture thereof and the sharing of the proceeds of disposition therefrom in certain circumstances

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Seized Property Management Act.


Interpretation

Definitions

2. In this Act,

“Attorney General”

« procureur général »

“Attorney General” means the Attorney General of Canada and the lawful deputy of the Attorney General of Canada;

“designated drug offence”(Repealed, 1996, c. 19, s. 85)

“designated offence”

« infraction désignée »

“designated offence” has the same meaning as in subsection 462.3(1) of the Criminal Code;

“designated substance offence”(Repealed, 2001, c. 32, s. 73)

“enterprise crime offence”(Repealed, 2001, c. 32, s. 73)

“Her Majesty”

« Sa Majesté »

“Her Majesty”, in relation to property forfeited to Her Majesty, means Her Majesty in right of Canada;

“judge”

« juge »

“judge” means a judge within the meaning of section 552 of the Criminal Code;

“justice”

« juge de paix »

“justice” means a justice within the meaning of section 2 of the Criminal Code;

“management order”

« ordonnance de prise en charge »

“management order” means an order made under subsection 7(1);

“Minister”

« ministre »

“Minister” means the Minister of Public Works and Government Services;

“offence-related property”

« biens infractionnels »

“offence-related property” has the meaning given that expression by subsection 2(1) of the Controlled Drugs and Substances Act;

“prescribed”

Version anglaise seulement“prescribed” means prescribed by the regulations;

“Proceeds Account”

« compte des biens saisis »

“Proceeds Account” means the Seized Property Proceeds Account established by subsection 13(1);

“proceeds of crime”

« produits de la criminalité »

“proceeds of crime” has the same meaning as in subsection 462.3(1) of the Criminal Code;

“proceeds of disposition”

« produit de l’aliénation »

“proceeds of disposition” means, in the case of forfeited property other than money, the proceeds of sale on the disposition of the property, and in the case of forfeited property that is money, the amount of the forfeited money;

“restrained property”

« biens bloqués »

“restrained property” means any property that is the subject of a restraint order made under section 83.13, 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act;

“seized property”

« biens saisis »

“seized property” means any property seized under the authority of any Act of Parliament or pursuant to any warrant or any rule of law in connection with any designated offence;

“terrorism offence”

« infraction de terrorisme »

“terrorism offence” has the same meaning as in section 2 of the Criminal Code;

“Working Capital Account”

« fonds de roulement »

“Working Capital Account” means the Seized Property Working Capital Account established by subsection 12(1).

1993, c. 37, s. 2; 1996, c. 16, s. 60, c. 19, s. 85; 1997, c. 23, s. 22; 2001, c. 32, s. 73, c. 41, ss. 105, 135.


Purposes Of Act

Purposes of Act

3. The purposes of this Act are

(a) to authorize the Minister to provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of property in connection with designated offences, or property that is or may be proceeds of crime or offence-related property;

(b) to authorize the Minister to manage certain property

(i) seized in connection with designated offences,

(ii) seized pursuant to a warrant issued under section 83.13 or 462.32 of theCriminal Code,

(iii) restrained pursuant to a restraint order made under section 83.13, 462.33 or 490.8 of theCriminal Code or section 14 of theControlled Drugs and Substances Act, or

(iv) forfeited under subsection 14(5), seized under subsection 18(1) or paid under subsection 18(2) of theProceeds of Crime (Money Laundering) and Terrorist Financing Act;

(c) to authorize the Minister to manage and dispose of property referred to in paragraph (b), and property that is proceeds of crime or offence-related property, when such property is forfeited to Her Majesty; and

(d) where property referred to in paragraph (c) is forfeited to Her Majesty and disposed of, or where a fine is imposed pursuant to subsection 462.37(3) of the Criminal Code, to provide authority for the sharing, in certain circumstances, of the proceeds of disposition therefrom or the fine, as the case may be, with jurisdictions the law enforcement agencies of which participated in the investigations of the offences that led to the forfeiture or the imposition of the fine.

1993, c. 37, s. 3; 1996, c. 19, s. 86; 2000, c. 17, s. 92; 2001, c. 32, s. 74, c. 41, ss. 83, 106, 135.

Previous Version

Management Of Property

Minister to be responsible for management of property

4. (1) On taking possession or control thereof, the Minister shall be responsible for the custody and management of all property that is

(a) seized under a warrant issued under section 83.13, 462.32 or 487 of theCriminal Code or section 11 of theControlled Drugs and Substances Act on the application of the Attorney General and that the Minister is appointed to manage under subsection 83.13(3), 462.331(2) or 490.81(2) of theCriminal Code or subsection 14.1(2) of theControlled Drugs and Substances Act, as the case may be;

(b) subject to a restraint order made under section 83.13, 462.33 or 490.8 of theCriminal Code or section 14 of theControlled Drugs and Substances Act on the application of the Attorney General and that the Minister is appointed to manage under subsection 83.13(3), 462.331(2) or 490.81(2) of theCriminal Code or subsection 14.1(2) of theControlled Drugs and Substances Act, as the case may be;

(b.1) forfeited under subsection 14(5), seized under subsection 18(1) or paid under subsection 18(2) of theProceeds of Crime (Money Laundering) and Terrorist Financing Act; or

(c) subject to a management order.

Responsibility continues after forfeiture

(2) Where property referred to in subsection (1) that is in the possession or under the control of the Minister is forfeited to Her Majesty, the Minister shall continue to be responsible for the custody and management thereof until the property is disposed of.

Additional responsibility

(3) In addition to being responsible for the custody and management of property referred to in subsections (1) and (2), the Minister shall be responsible, until the property is disposed of, for the custody and management of all proceeds of crime, offence-related property and property that was the subject of an application under section 83.14 of the Criminal Code, that were forfeited to Her Majesty as a result of proceedings conducted by the Attorney General and that were not in the possession or under the control of the Minister prior to their forfeiture.

Application of other Acts

(4) Nothing in this section precludes the operation of the Criminal Code, the Controlled Drugs and Substances Act or any other Act of Parliament in respect of any property that is in the possession or under the control of the Minister.

1993, c. 37, s. 4; 1996, c. 19, s. 87; 1997, c. 18, s. 135(F); 2000, c. 17, s. 93; 2001, c. 32, s. 75, c. 41, ss. 84, 107, 135.

Previous VersionTransfer of property

5. (1) Every person who has control of any property that is subject to a management order issued under subsection 83.13(2), 462.331(1) or 490.81(1) of the Criminal Code, subsection 14.1(1) of the Controlled Drugs and Substances Act or subsection 7(1) of this Act shall, as soon as practicable after the order is issued, transfer the control of the property to the Minister, except for any property or any part of the property that is needed as evidence or is necessary for the purposes of an investigation.

Minister to report location

(2) Where the Minister takes control of property pursuant to subsection (1) and detains the property in a location other than the location referred to in the report required to be filed pursuant to paragraph 462.32(4)(b) of the Criminal Code, the Minister shall prepare a report in the prescribed form identifying the location of the property and cause the report to be filed in the prescribed manner with the clerk of the court that issued the warrant.

Transfer of property

(3) Every person who has control of any property that is subject to a management order issued under subsection 83.13(2) of the Criminal Code shall, as soon as practicable after the order is issued, transfer the control of the property to the Minister, except for any property, or any part of the property, that is needed as evidence or is necessary for the purposes of an investigation.

1993, c. 37, s. 5; 2001, c. 32, s. 76, c. 41, ss. 108, 135.


Management Order

Application for management order

6. (1) The Attorney General, or any other person with the written consent of the Attorney General, may apply to any judge or justice for a management order in respect of any seized property, other than a controlled substance within the meaning of the Controlled Drugs and Substances Act.

Order under section 490 of the Criminal Code

(2) An application for a management order in respect of any seized property may be heard at the same time as an order is sought under paragraph 490(1)(b) of the Criminal Code in respect of the seized property.

1993, c. 37, s. 6; 1996, c. 19, s. 88.

Management order

7. (1) Where an application for a management order is made, the judge or justice hearing the application shall make an order allowing the Minister to take possession and control of, and to manage or otherwise deal with, the seized property referred to in the order if the judge or justice is of the opinion that the seized property may be required for the purposes of any provision respecting forfeiture in any Act of Parliament.

Power to manage

(2) The power of the Minister in respect of any seized property that is the subject of a management order includes

(a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and

(b) in the case of property that has little or no value, the power to destroy that property.

Application for destruction order

(2.1) Before the Minister destroys property that has little or no value, he or she shall apply to a court for a destruction order.

Notice

(2.2) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (2.3) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

Manner of giving notice

(2.3) A notice shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.

Order

(2.4) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.

When order ceases to have effect

(3) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to an applicant therefor or forfeited to Her Majesty.

1993, c. 37, s. 7; 2001, c. 32, s. 77.

Conditions

8. (1) A management order may be subject to such conditions as the judge or justice making the order thinks fit.

Application to vary conditions

(2) The Minister may at any time apply to a judge or justice to cancel or vary any condition to which a management order is subject.


Powers Of Minister

Ministerial powers

9. In carrying out the purposes of this Act, the Minister may

(a) provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of any property in connection with designated offences, or any property that is or may be proceeds of crime or offence-related property;

(b) subject to the Criminal Code, the Controlled Drugs and Substances Act and any other Act of Parliament, manage any property referred to in any of subsections 4(1) to (3) in such manner as the Minister considers appropriate including, without restricting the generality of the foregoing, by advancing money at a commercial rate of interest to

(i) maintain the ongoing operation of the property,

(ii) satisfy the terms of any order concerning environmental, industrial, labour or property standards to which the property is subject, or

(iii) make improvements to the property to preserve the property and its economic worth;

(c) notwithstanding any other Act of Parliament, but subject to the regulations and to the provisions of the Financial Administration Act relating to public money, dispose of any property referred to in any of subsections 4(1) to (3) that is forfeited to Her Majesty;

(d) notwithstanding subsection 734.4(2) of the Criminal Code and sections 125 and 126 of the Excise Act, where property referred to in any of subsections 4(1) to (3) is forfeited to Her Majesty, share the proceeds of disposition therefrom in accordance with this Act, the regulations and any agreement entered into pursuant to section 11;

(e) notwithstanding subsection 734.4(2) of theCriminal Code and sections 125 and 126 of theExcise Act, if a fine, or any portion of a fine, imposed under subsection 462.37(3) of theCriminal Code in relation to proceedings commenced at the instance of the Government of Canada is paid or recovered or if a penalty is paid under subsection 18(2) of theProceeds of Crime (Money Laundering) and Terrorist Financing Act, share the amount of the fine or penalty in accordance with this Act, the regulations and any agreement entered into under section 11;

(f) at the request of the Attorney General, receive from foreign governments all moneys that are to be transferred to Canada pursuant to any agreement entered into pursuant to section 11 and share those moneys in accordance with the regulations;

(g) contract for the services of any person; and

(h) do any other thing that the Governor in Council may consider to be incidental to, or necessary or expedient for, carrying out the purposes of this Act.

1993, c. 37, s. 9; 1995, c. 22, s. 18; 1996, c. 19, s. 89; 2000, c. 17, s. 94; 2001, c. 32, s. 78, c. 41, ss. 85, 109.

Previous Version

Sharing Of Proceeds

Sharing within Canada

10. (1) Where a law enforcement agency in Canada has participated in the investigation of an offence that leads to

(a) the forfeiture to Her Majesty of property pursuant to section 83.14, subsection 462.37(1), (2) or (2.01) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act;

(b) the forfeiture to Her Majesty pursuant to subsection 490(9) of the Criminal Code of any property that is or was the subject of a management order, or

(c) the imposition of a fine pursuant to subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada,

the Minister shall, in accordance with the regulations, share the proceeds of disposition of that forfeited property, or any amount paid or recovered on account of the fine, as the case may be.

Proceeds of Crime (Money Laundering) and Terrorist Financing Act

(2) If the participation of a law enforcement agency in Canada has led to the forfeiture to Her Majesty of property under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act or the payment of a penalty under subsection 18(2) of that Act, the Minister shall, in accordance with the regulations, share the proceeds of disposition of that forfeited property or the penalty, as the case may be.

1993, c. 37, s. 10; 1996, c. 19, s. 90; 1997, c. 23, s. 23; 2000, c. 17, s. 95; 2001, c. 41, ss. 86, 110; 2005, c. 44, s. 14.

Previous VersionSharing outside Canada

11. The Attorney General may, with the approval of the Governor in Council and in accordance with the regulations, enter into an agreement with the government of any foreign state respecting the reciprocal sharing of

(a) the proceeds of disposition of

(i) property forfeited to Her Majesty pursuant to section 83.14, subsection 462.37(1), (2) or (2.01) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act, or

(ii) property that is or was the subject of a management order and that was forfeited under subsection 490(9) of the Criminal Code

and the proceeds arising from the disposition of property by that foreign state, and

(b) amounts paid or recovered on account of fines imposed under subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada, penalties paid under subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and amounts paid or recovered on account of fines imposed in lieu of forfeiture under the laws of that foreign state,

 if law enforcement agencies of that foreign state, or of Canada, as the case may be, have participated in the investigation of the offence or offences that led to the forfeiture of the property or the imposition of the fine or if the law enforcement agencies' participation led to the forfeiture of the property or the payment of the penalty under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

1993, c. 37, s. 11; 1996, c. 19, s. 91; 1997, c. 23, s. 24; 2000, c. 17, s. 96; 2001, c. 32, s. 79, c. 41, ss. 111, 120, 137; 2005, c. 44, s. 15.

Previous Version

Financial

Seized Property Working Capital Account established

12. (1) There is hereby established in the accounts of Canada an account to be known as the Seized Property Working Capital Account.

Charges to Working Capital Account

(2) There may be paid out of the Consolidated Revenue Fund and charged to the Working Capital Account

(a) expenses incurred by the Minister in respect of any property referred to in any of subsections 4(1) to (3) that is in the possession or under the control of the Minister; and

(b) advances made by the Minister pursuant to paragraph 9(b).

Credits to Working Capital Account

(3) There shall be paid into the Consolidated Revenue Fund and credited to the Working Capital Account

(a) amounts recovered by the Minister as a result of expenses referred to in subsection (2); and

(b) amounts repaid or recovered as a result of advances made by the Minister pursuant to paragraph 9(b).

Appropriation

(4) There is hereby appropriated for the purposes of subsection (1) the amount of fifty million dollars.

Amount may be changed

(5) The amount referred to in subsection (4) may be amended by an appropriation Act.

Seized Property Proceeds Account established

13. (1) There is hereby established in the accounts of Canada an account to be known as the Seized Property Proceeds Account.

Credits to Proceeds Account

(2) There shall be paid into the Consolidated Revenue Fund and credited to the Proceeds Account

(a) the net proceeds, calculated in the prescribed manner, received from the disposition of any property referred to in any of subsections 4(1) to (3) that is forfeited to Her Majesty and disposed of by the Minister;

(b) amounts paid or recovered as a fine imposed pursuant to subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada; and

(c) subject to the regulations, amounts received from the governments of foreign states pursuant to agreements entered into pursuant to section 11.

Charges to Proceeds Account

(3) There shall be charged to the Proceeds Account

(a) such amounts as are approved by the Treasury Board and as are recovered by the Minister in respect of operating expenses incurred by the Minister in carrying out the purposes of this Act, other than expenses charged to the Working Capital Account pursuant to paragraph 12(2)(a);

(b) amounts paid as a result of claims arising from undertakings given by the Attorney General pursuant to subsections 462.32(6) and 462.33(7) of the Criminal Code; and

(c) amounts paid pursuant to sections 10 and 11.

If costs are greater than proceeds

14. If the proceeds of disposition available to Her Majesty from the forfeiture of any property pursuant to subsection 462.37(1), (2) or (2.01) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490(9) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act are insufficient to cover the outstanding amounts charged to the Working Capital Account pursuant to subsection 12(2), and any interest on it, in respect of the property, there shall be charged to the Proceeds Account and credited to the Working Capital Account, or to interest revenue, as the case may be, an amount equal to the amount of the shortfall.

1993, c. 37, s. 14; 1996, c. 19, s. 92; 1997, c. 23, s. 25; 2005, c. 44, s. 16.

Previous VersionAdvances to Proceeds Account

15. (1) Where the amount standing to the credit of the Proceeds Account is not sufficient for the payment of any amount required to be charged to the Proceeds Account pursuant to section 13, the Minister of Finance may, on a request therefor by the Minister, authorize the making of an advance to the Proceeds Account in an amount sufficient to meet the payment.

Repayment of advance

(2) An advance made pursuant to subsection (1) shall be credited to the Proceeds Account and repaid in such manner and on such terms and conditions, including the payment of interest, as the Minister of Finance may fix.

Idem

(3) The repayment of an amount advanced pursuant to subsection (1) shall be charged to the Proceeds Account.

Credit of excess to account

16. At the prescribed times, all amounts credited to the Proceeds Account that are not shared pursuant to sections 10 and 11, less such amounts as are reserved

(a) for future losses,

(b) to pay claims arising from undertakings given by the Attorney General pursuant to subsections 462.32(6) and 462.33(7) of the Criminal Code, and

(c) for ongoing expenses,

shall be credited to such account in the accounts of Canada as is prescribed.


General

Advances are debts owing

17. Advances made pursuant to paragraph 9(b) and any interest thereon are debts owing to Her Majesty and may be recovered as such in any court of competent jurisdiction or in any manner provided for by law.

Indemnity

18. Subject to the regulations, the Minister may indemnify any person referred to in paragraph 9(g) against any claim made against the person in respect of anything done, or omitted to be done, in good faith by the person in relation to any property referred to in any of subsections 4(1) to (3) that is in the possession or under the control of the Minister.

1993, c. 37, s. 18; 1997, c. 18, s. 136(F).


Regulations

Regulations

19. The Governor in Council may make regulations

(a) respecting the disposal by the Minister of any property referred to in any of subsections 4(1) to (3) on the forfeiture thereof;

(b) respecting, for the purposes of sections 10 and 11, the sharing of

(i) the proceeds of disposition of any property referred to in any of subsections 4(1) to (3) that is forfeited to Her Majesty, and

(ii) amounts paid or recovered on account of fines imposed under subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada,

including, without restricting the generality of the foregoing, regulations respecting the amounts to be shared, or the manner of determining those amounts, and the times at which and the manner in which those amounts shall be shared;

(c) determining, for the purposes of paragraph 13(2)(a), the amounts that may be deducted from the proceeds of disposition of property for the purpose of calculating the net proceeds thereof, and the manner of determining those amounts;

(d) respecting the indemnity that may be granted pursuant to section 18 and the terms and conditions under which that indemnity may be granted;

(e) prescribing anything that by this Act is to be prescribed; and

(f) generally, for carrying out the purposes of this Act.

1993, c. 37, s. 19; 1997, c. 18, s. 137(F).


Review

Review after three years

20. (1) On the expiration of three years after the coming into force of this Act, the provisions contained herein shall be referred to such committee of the House of Commons, of the Senate, or of both Houses of Parliament as may be designated or established by Parliament for that purpose.

Report to Parliament

(2) The committee designated or established by Parliament for the purpose of subsection (1) shall, as soon as practicable, undertake a comprehensive review of the provisions and operation of this Act and shall, within one year after the review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon including such recommendations pertaining to the continuation of those sections and changes required therein as the committee may wish to make.


Consequential And Related Amendments

21. to 30. (Amendments)


Conditional Amendments

31. (Repealed, 1996, c. 19, s. 93)

32. (Amendments)


Coming Into Force

Coming into force


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