An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts (S.C. 2017, c. 7)
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Assented to 2017-05-18
15 The heading before section 16 of the Act is replaced by the following :
Forfeiture
Marginal note:2001, c. 32, s. 51
16 (1) Subsections 16(1) and (2) of the Act are replaced by the following :
Marginal note:Forfeiture of property
16 (1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under section 730 of the Criminal Code, of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical 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 purposes of this paragraph.
Marginal note:Property related to other offences
(2) Subject to sections 18 to 19.1, 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 designated substance offence of which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.
(2) Subsection 16(3) of the Act is replaced by the following :
Marginal note:Appeal
(3) A person who has been convicted or discharged of a designated substance offence 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.
17 (1) Paragraphs 17(2)(a) and (b) of the Act are replaced by the following :
(2) Subsection 17(4) of the Act is replaced by the following :
Marginal note:Who may dispose of forfeited property
(4) For the purposes of subsection (2),
(a) if the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall order that the property be forfeited to Her Majesty in right of that province and 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, the judge shall order that the property be forfeited to Her Majesty in right of Canada and 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 purposes of this paragraph.
18 Section 18 of the Act is replaced by the following :
Marginal note:Voidable transfers
18 A court may, before ordering that property be forfeited under subsection 16(1) or 17(2), set aside any conveyance or transfer of the property that occurred after the property was seized or restrained, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
19 The portion of subsection 19(2) of the Act before paragraph (c) is replaced by the following :
Marginal note: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
Marginal note:2001, c. 32, s. 53
20 (1) Subsection 19.1(1) of the Act is replaced by the following :
Marginal note:Notice
19.1 (1) If all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to 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, or discharged under section 730 of the Criminal Code, of the indictable offence under this Act in relation to which the property would be forfeited.
Marginal note:2001, c. 32, s. 53
(2) Paragraphs 19.1(2)(a) and (b) of the Act are replaced by the following :
(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
Marginal note:2001, c. 32, s. 53
(3) Subsection 19.1(3) of the Act is replaced by the following :
Marginal note:Non-forfeiture of real property
(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property 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, or discharged under section 730 of the Criminal Code, 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.
Marginal note:2001, c. 32, s. 53
(4) Paragraph 19.1(4)(a) of the Act is replaced by the following :
(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted or discharged 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
21 The portion of subsection 20(1) of the Act before paragraph (b) is replaced by the following :
Marginal note:Application
20 (1) If any property is forfeited to Her Majesty under an order made under subsection 16(1) or 17(2), any person who claims an interest in the property, other than
(a) in the case of property forfeited under an order made under subsection 16(1), a person who was convicted, or discharged under section 730 of the Criminal Code, of the designated substance offence in relation to which the property was forfeited,
22 The headings before section 24 and sections 24 to 26 of the Act are replaced by the following :
Division 2Controlled Substances, Precursors and Chemical Offence-related Property
Marginal note:Return
23 (1) A peace officer, inspector or prescribed person who seizes, finds or otherwise acquires a controlled substance, precursor or chemical offence-related property may return it to the person who is its lawful owner or who is lawfully entitled to its possession if the peace officer, inspector or prescribed person is satisfied
(a) that there is no dispute as to who is the lawful owner or is lawfully entitled to possession of the substance, precursor or property; and
(b) that the continued detention of the substance, precursor or property is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament.
Marginal note:Receipt
(2) When the substance, precursor or property is returned, the peace officer, inspector or prescribed person shall obtain a receipt for it.
Marginal note:Report by peace officer
(3) In the case of a seizure made under section 11 of this Act, the Criminal Code or a power of seizure at common law, the peace officer shall make a report about the return to the justice who issued the warrant or another justice for the same territorial division or, if a warrant was not issued, a justice who would have had jurisdiction to issue a warrant.
Marginal note:Application for return
24 (1) If a controlled substance, precursor or chemical offence-related property has been seized, found or otherwise acquired by a peace officer, inspector or prescribed person, any person may, within 60 days after the date of the seizure, finding or acquisition, on prior notification being given to the Attorney General in the prescribed manner, apply, by notice in writing to a justice in the jurisdiction in which it is being detained, for an order to return it to the person.
Marginal note:Order to return as soon as practicable
(2) If, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property and the Attorney General does not indicate that it or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the justice shall, subject to subsection (5), order that it or the portion be returned as soon as practicable to the applicant.
Marginal note:Order to return at specified time
(3) If, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property but the Attorney General indicates that it or a portion of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the justice shall, subject to subsection (5), order that it or the portion be returned to the applicant
(a) on the expiry of 180 days after the day on which the application was made, if no proceeding in relation to it has been commenced before that time; or
(b) on the final conclusion of the proceeding or any other proceeding in relation to it, if the applicant is not found guilty in those proceedings of an offence committed in relation to it.
Marginal note:Forfeiture order
(4) If, on the hearing of an application made under subsection (1), a justice is not satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property, and it or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, the justice shall order that it or the portion be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
Marginal note:Payment of compensation in lieu
(5) If, on the hearing of an application made under subsection (1), a justice is satisfied that an applicant is the lawful owner or is lawfully entitled to possession of the substance, precursor or property, but it was disposed of or otherwise dealt with under section 26, the justice shall order that an amount equal to its value be paid to the applicant.
Marginal note:Forfeiture if no application
25 If no application for the return of a controlled substance, precursor or chemical offence-related property has been made under subsection 24(1) within 60 days after the date of the seizure, finding or acquisition by a peace officer, inspector or prescribed person and it or a portion of it is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, it or the portion is forfeited to Her Majesty and may be disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
Marginal note:Expedited disposition
26 If a precursor or chemical offence-related property — whose storage or handling poses a risk to health or safety — or a controlled substance, or a portion of any of them, is not required for the purposes of a preliminary inquiry, trial or other proceeding under this Act or any other Act of Parliament, it or the portion may be disposed of or otherwise dealt with by the Minister, a peace officer or a prescribed person in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
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