490.02914

February 5, 2019 Dallas Mack

Appeal

490.02914 (1) The Attorney General or the person who applied for a termination order may appeal from a decision under subsection 490.02913(1) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, allow the appeal and order a new hearing, quash the termination order or make an order that may be made under that subsection.

Requirements relating to notice

(2) If the appeal court makes an order that may be made under subsection 490.02913(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.

490.02915

February 5, 2019 Dallas Mack

Notice before release

490.02915 (1) The person in charge of the place in which a person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act is serving the custodial portion of a sentence, or is detained in custody before their release or discharge, shall give the person a copy of the Form 1 referred to in subsection 490.02912(3) not earlier than 10 days before their release or discharge.

Notice on disposition by Review Board

(2) A Review Board shall cause a copy of the Form 1 to be given to the person when it directs

(a) under paragraph 672.54(a), that the person be discharged absolutely; or

(b) under paragraph 672.54(b), that the person be discharged subject to conditions unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.

490.03

February 5, 2019 Dallas Mack

Disclosure

490.03 (1) The Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall, on request, disclose information that is registered in the database or the fact that such information is registered in the database

(a) to the prosecutor if the disclosure is necessary for the purpose of a proceeding under section 490.012; or

(b) to the Attorney General if the disclosure is necessary for the purpose of a proceeding under subsection 490.016(1), 490.023(2), 490.027(1), 490.02905(2), 490.02909(1) or 490.02913(1) or for the purpose of an appeal from a decision made in any of those proceedings or in a proceeding under subsection 490.012(2).

Disclosure in connection with proceedings

(2) The Commissioner or that person shall, on request, disclose to the prosecutor or Attorney General the information that is registered in the database relating to a person if the person discloses, in connection with a proceeding or appeal other than one referred to in subsection (1), the fact that information relating to them is registered in the database.

Disclosure in proceedings

(3) The prosecutor or the Attorney General may, if the information is relevant to the proceeding, appeal or any subsequent appeal, disclose it to the presiding court.

(4) [Repealed, 2007, c. 5, s. 27]

490.031

February 5, 2019 Dallas Mack

Offence

490.031 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 or under section 227.01 of the National Defence Act or with an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or

(b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years less a day, or to both.

Reasonable excuse

(2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse if, at the time, the person is subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act.

Proof of certain facts by certificate

(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b) of the Sex Offender Information Registration Act stating that the sex offender failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

Attendance and cross-examination

(4) The sex offender named in the certificate may, with the leave of the court, require the attendance of the person who signed it for the purpose of cross-examination.

Notice of intention to produce

(5) A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the sex offender a copy of it and reasonable notice of their intention to produce it.

490.0311

February 5, 2019 Dallas Mack

Offence

490.0311 Every person who knowingly provides false or misleading information under subsection 5(1) or 6(1) of the Sex Offender Information Registration Act is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or

(b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years less a day, or to both.

490.0312

February 5, 2019 Dallas Mack

Offence

490.0312 Every person who, without reasonable excuse, fails to comply with an obligation under subsection 490.02911(1) or (2) is guilty of an offence punishable on summary conviction.

490.032

February 5, 2019 Dallas Mack

Regulations

490.032 The Governor in Council may make regulations

(a) requiring that additional information be contained in a notice under Form 53 or Form 54; and

(b) prescribing, for one or more provinces, the form and content of that information.

490.1

February 5, 2019 Dallas Mack

Order of forfeiture of property on conviction

490.1 (1) Subject to sections 490.3 to 490.41, if a person is convicted, or discharged under section 730, of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that offence-related property is related to the commission of the offence, the court shall

(a) if 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 to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purpose of this paragraph.

(1.1) [Repealed, 2001, c. 41, s. 130]

Property related to other offences

(2) Subject to sections 490.3 to 490.41, if the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) is related to the commission of the indictable offence under this Act or the Corruption of Foreign Public Officials Act of which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Appeal

(3) A person who has been convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, or the Attorney General, may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.

490.2

February 5, 2019 Dallas Mack

Application for in rem forfeiture

490.2 (1) If an information has been laid in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, 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 490.3 to 490.41, the judge to whom an application is made under subsection (1) shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) if the judge is satisfied

(a) beyond a reasonable doubt that the property is offence-related property;

(b) that proceedings in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to the property were commenced; and

(c) that the accused charged with the offence has died or absconded.

Accused deemed absconded

(3) For the purpose of subsection (2), an accused is deemed to have absconded in connection with the indictable offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused under the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused is deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property

(4) For the purpose of subsection (2), the judge shall

Property outside Canada

(4.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Definition of judge

(5) In this section and sections 490.5 and 490.8, judge means a judge as defined in section 552 or a judge of a superior court of criminal jurisdiction.

490.3

February 5, 2019 Dallas Mack

Voidable transfers

490.3 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) or 490.2(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

490.4

February 5, 2019 Dallas Mack

Notice

490.4 (1) Before making an order under subsection 490.1(1) or 490.2(2) in relation to any property, a court shall require notice in accordance with subsection (2) 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) A notice shall

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

(b) specify the period that the court considers reasonable or that may be set out in the rules of the court during which a person may make an application to the court asserting their interest in the property; and

(c) set out the offence charged and a description of the property.

Order of restoration of property

(3) A court may order that all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) be returned to a person — other than a person who was charged with an indictable offence under this Act or the Corruption of Foreign Public Officials Act or a person who acquired title to or a right of possession of the property from such a person under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property — if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of all or part of that property, and that the person appears innocent of any complicity in, or collusion in relation to, the offence.

490.41

February 5, 2019 Dallas Mack

Notice

490.41 (1) If all or part of offence-related property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, before making an order of forfeiture, a court shall require that notice in accordance with subsection (2) be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to which the property would be forfeited.

Manner of giving notice

(2) A notice shall

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

(b) specify the period that the court considers reasonable or that may be set out in the rules of the court during which a member of the immediate family who resides in the dwelling-house may make themselves known to the court; and

(c) set out the offence charged and a description of the property.

Non-forfeiture of property

(3) Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

490.5

February 5, 2019 Dallas Mack

Application

490.5 (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 490.1(1) or 490.2(2), any person who claims an interest in the property, other than

(a) in the case of property forfeited pursuant to an order made under subsection 490.1(1), a person who was convicted of the indictable offence in relation to which the property was forfeited,

(b) in the case of property forfeited pursuant to an order made under subsection 490.2(2), a person who was charged with the indictable offence in relation to which the property was forfeited, or

(c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property,

may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

Fixing day for hearing

(2) The judge to whom an application is made under subsection (1) shall fix a day not less than thirty days after the date of the filing of the application for the hearing of the application.

Notice

(3) An applicant shall serve a notice of the application made under subsection (1) and of the hearing of it on the Attorney General at least fifteen days before the day fixed for the hearing.

Order declaring interest not affected by forfeiture

(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant

(a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and

(b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver,

the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.

Appeal from order made under subsection (4)

(5) An applicant or the Attorney General may appeal to the court of appeal from an order made under subsection (4), and the provisions of Part XXI with respect to procedure on appeals apply, with any modifications that the circumstances require, in respect of appeals under this subsection.

Return of property

(6) The Attorney General shall, on application made to the Attorney General by any person in respect of whom a judge has made an order under subsection (4), and where the periods with respect to the taking of appeals from that order have expired and any appeal from that order taken under subsection (5) has been determined, direct that

(a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or

(b) an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

490.6

February 5, 2019 Dallas Mack

Appeals from orders under subsection 490.2(2)

490.6 Any person who, in their opinion, is aggrieved by an order made under subsection 490.2(2) may appeal from the order as if the order were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, under Part XXI, and that Part applies, with any modifications that the circumstances require, in respect of such an appeal.

490.7

February 5, 2019 Dallas Mack

Suspension of order pending appeal

490.7 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 490.1(1), 490.2(2) or 490.5(4) is suspended pending

(a) any application made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for restoration or forfeiture of the property, or

(b) any appeal taken from an order of forfeiture or restoration in respect of the property,

and the property shall not be disposed of or otherwise dealt with until thirty days have expired after an order is made under any of those provisions.

490.8

February 5, 2019 Dallas Mack

Application for restraint order

490.8 (1) The Attorney General may make an application in accordance with this section for a restraint order under this section in respect of any offence-related property.

Procedure

(2) An application made under subsection (1) for a restraint order in respect of any offence-related property may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to the following matters:

(a) the indictable offence to which the offence-related property relates;

(b) the person who is believed to be in possession of the offence-related property; and

(c) a description of the offence-related property.

Restraint order

(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order.

Property outside Canada

(3.1) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Conditions

(4) A restraint order made by a judge under this section may be subject to any reasonable conditions that the judge thinks fit.

Order in writing

(5) A restraint order made under this section shall be made in writing.

Service of order

(6) A copy of a restraint order made under this section shall be served on the person to whom the order is addressed in any manner that the judge making the order directs or in accordance with the rules of the court.

Registration of order

(7) A copy of a restraint order made under this section shall be registered against any property in accordance with the laws of the province in which the property is situated.

Order continues in force

(8) A restraint order made under this section remains in effect until

(a) an order is made under subsection 490(9) or (11), 490.4(3) or 490.41(3) in relation to the property; or

(b) an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2).

Offence

(9) Any person on whom a restraint order made under this section is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

490.81

February 5, 2019 Dallas Mack

Management order

490.81 (1) With respect to offence-related property other than a controlled substance within the meaning of the Controlled Drugs and Substances Act or cannabis as defined in subsection 2(1) of the Cannabis Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, a judge or justice in the case of offence-related property seized under section 487, or a judge in the case of offence-related property restrained under section 490.8, may, if he or she is of the opinion that the circumstances so require,

(a) appoint a person to take control of and to manage or otherwise deal with all or part of the property in accordance with the directions of the judge or justice; and

(b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).

Appointment of Minister of Public Works and Government Services

(2) When the Attorney General of Canada so requests, a judge or justice appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.

Power to manage

(3) The power to manage or otherwise deal with property under subsection (1) includes

(a) the power to make an interlocutory sale of perishable or rapidly depreciating property;

(b) the power to destroy, in accordance with subsections (4) to (7), property that has little or no value; and

(c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (7.1).

Application for destruction order

(4) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a court for a destruction order.

Notice

(5) Before making a destruction order, a court shall require notice in accordance with subsection (6) to be given to and may hear any person who, in the court’s opinion, appears to have a valid interest in the property.

Manner of giving notice

(6) A notice shall

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

(b) specify the effective period of the notice that the court considers reasonable or that may be set out in the rules of the court.

Destruction order

(7) A court shall order that the property be destroyed if it is satisfied that the property has little or no financial or other value.

Forfeiture order

(7.1) On application by a person who is appointed to manage the property, a court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if

(a) a notice is given or published in the manner that the court directs or that may be specified in the rules of the court;

(b) the notice specifies a period of 60 days during which a person may make an application to the court asserting their interest in the property; and

(c) during that period, no one makes such an application.

When management order ceases to have effect

(8) 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, destroyed or forfeited to Her Majesty.

For greater certainty

(8.1) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.

Application to vary conditions

(9) The Attorney General may at any time apply to the judge or justice to cancel or vary any condition to which a management order is subject, but may not apply to vary an appointment made under subsection (2).

490.9

February 5, 2019 Dallas Mack

Sections 489.1 and 490 applicable

490.9 (1) Subject to sections 490.1 to 490.7, sections 489.1 and 490 apply, with any modifications that the circumstances require, to any offence-related property that is the subject of a restraint order made under section 490.8.

Recognizance

(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) for the return of any offence-related property that is the subject of a restraint order under section 490.8, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in any amount and with any conditions that the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice any sum of money or other valuable security that the judge or justice directs.

491

February 5, 2019 Dallas Mack

Forfeiture of weapons and ammunition

491 (1) Subject to subsection (2), where it is determined by a court that

(a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or

(b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained,

the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.

Return to lawful owner

(2) If the court by which a determination referred to in subsection (1) is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

Application of proceeds

(3) Where any thing in respect of which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General or, where an order is made under subsection (2), to the person who was, immediately prior to the sale, the lawful owner of the thing.

491.1

February 5, 2019 Dallas Mack

Order for restitution or forfeiture of property obtained by crime

491.1 (1) Where an accused or defendant is tried for an offence and the court determines that an offence has been committed, whether or not the accused has been convicted or discharged under section 730 of the offence, and at the time of the trial any property obtained by the commission of the offence

(a) is before the court or has been detained so that it can be immediately dealt with, and

(b) will not be required as evidence in any other proceedings,

section 490 does not apply in respect of the property and the court shall make an order under subsection (2) in respect of the property.

Idem

(2) In the circumstances referred to in subsection (1), the court shall order, in respect of any property,

(a) if the lawful owner or person lawfully entitled to possession of the property is known, that it be returned to that person; and

(b) if the lawful owner or person lawfully entitled to possession of the property is not known, that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

When certain orders not to be made

(3) An order shall not be made under subsection (2)

(a) in the case of proceedings against a trustee, banker, merchant, attorney, factor, broker or other agent entrusted with the possession of goods or documents of title to goods, for an offence under section 330, 331, 332 or 336; or

(b) in respect of

(i) property to which a person acting in good faith and without notice has acquired lawful title for valuable consideration,

(ii) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it,

(iii) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed, or

(iv) property in respect of which there is a dispute as to ownership or right of possession by claimants other than the accused or defendant.

By whom order executed

(4) An order made under this section shall, on the direction of the court, be executed by the peace officers by whom the process of the court is ordinarily executed.