Cannabis Act (S.C. 2018, c. 16)

DIVISION 1Non-chemical Offence-related Property

Restraint Orders

Marginal note:Application for restraint order

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

• Marginal note:Procedure

  (2) The application may be made ex parte and it must 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 offence to which the property relates;

  • (b) the person that is believed to be in possession of the property; and

  • (c) a description of the property.

• Marginal note:Restraint order

  (3) The judge to whom the application is made may, if satisfied that there are reasonable grounds to believe that the property is non-chemical offence-related property, make a restraint order prohibiting any person from disposing of or otherwise dealing with any interest in or right to the property specified in the order, other than in the manner that is specified in the order.

• Marginal note:Property outside Canada

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

• Marginal note:Conditions

  (5) The restraint order may be subject to any reasonable conditions that the judge thinks fit.

• Marginal note:Order in writing

  (6) The restraint order must be in writing.

• Marginal note:Service

  (7) A copy of the restraint order must be served on the person to which the order is addressed in the manner that the judge making it directs or in accordance with the rules of the court.

• Marginal note:Registration

  (8) A copy of the restraint order must be registered against any property in accordance with the laws of the province in which the property is situated.

• Marginal note:Order continues in force

  (9) The restraint order remains in effect until

  • (a) an order is made under subsection 97(3) or 98(3) of this Act or subsection 490(9) or (11) of the Criminal Code in relation to the property; or

  • (b) an order of forfeiture of the property is made under subsection 94(1) or 95(2) of this Act or section 490 of the Criminal Code.

• Marginal note:Offence

  (10) Any person on which a restraint order is served in accordance with this section and that, while the order is in force, fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction.

Marginal note:Sections 489.1 and 490 of Criminal Code applicable

• 92 (1) Subject to sections 94 to 101 of this Act, sections 489.1 and 490 of the Criminal Code apply, with any necessary modifications, to any property that is the subject-matter of a restraint order made under section 91.

• Marginal note:Recognizance

  (2) If, under this section, an order is made under paragraph 490(9)(c) of the Criminal Code for the return of any property that is the subject-matter of a restraint order made under section 91, 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 the amount and with the conditions, if any, that the judge or justice directs and, if the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice the sum of money or other valuable security that the judge or justice directs.

Management Orders

Marginal note:Management order

• 93 (1) On application of the Attorney General or of any other person with the written consent of the Attorney General, a justice in the case of non-chemical offence-related property seized under section 87 of this Act, the Criminal Code or a power of seizure at common law, or a judge in the case of property restrained under section 91, 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).

• Marginal note:Appointment of Minister of Public Works and Government Services

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

• Marginal note: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 immovables or a conveyance — forfeited to Her Majesty in accordance with subsection (8).

• Marginal note:Application for destruction order

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

• Marginal note:Notice

  (5) Before making a destruction order, a court must require notice in accordance with subsection (6) to be given to, and may hear, any person that, in the opinion of the court, appears to have a valid interest in or right to the property.

• Marginal note:Manner of giving notice

  (6) The notice must

  • (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.

• Marginal note:Destruction order

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

• Marginal note:Forfeiture order

  (8) On application by a person that is appointed to manage the property, a court must order that the property — other than real property or immovables 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 or right to the property; and

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

• Marginal note:For greater certainty

  (9) 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.

• Marginal note:Application to vary conditions

  (10) 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).

• Marginal note:When management order ceases to have effect

  (11) 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.

Forfeiture

Marginal note:Forfeiture order

• 94 (1) Subject to sections 96 to 98, if a person is convicted or discharged under section 730 of the Criminal Code of a designated 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 must

  • (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 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, 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 who is designated by the Governor in Council for the purposes of this paragraph.

• Marginal note:Property related to other offences

  (2) Subject to sections 96 to 98, 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 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.

• Marginal note:Property outside Canada

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

• Marginal note:Appeal

  (4) A person that has been convicted or discharged of a designated 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.

Marginal note:Application for in rem forfeiture

• 95 (1) If an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

• Marginal note:Order of forfeiture

  (2) Subject to sections 96 to 98, the judge to whom the application is made must order the property to be forfeited and disposed of in accordance with subsection (4)

  • (a) if the judge is satisfied beyond a reasonable doubt that any property is non-chemical offence-related property;

  • (b) if the judge is satisfied that proceedings were commenced in respect of a designated offence to which the property referred to in paragraph (a) is related; and

  • (c) if the judge is satisfied that the accused charged with the designated offence has died or absconded.

• Marginal note:Accused deemed absconded

  (3) For the purposes of subsection (2), an accused is deemed to have absconded in connection with a designated 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.

  An accused who is deemed under this subsection to have absconded in connection with a designated offence is deemed to have done so on the last day of the six-month period referred to in paragraph (c).

• Marginal note:Who may dispose of forfeited property

  (4) For the purposes of subsection (2), the judge must

  • (a) if the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, 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, 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 who is designated by the Governor in Council for the purposes of this paragraph.

• Marginal note:Property outside Canada

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

Marginal note:Power to set aside transfers

96 A court may, before ordering that property be forfeited under subsection 94(1) or 95(2), set aside any 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 transfer was for valuable consideration to a person acting in good faith.

Marginal note:Notice

• 97 (1) Before making an order under subsection 94(1) or 95(2) in relation to any property, a court must require a notice in accordance with subsection (2) to be given to, and may hear, any person that, in the opinion of the court, appears to have a valid interest in or right to the property.

• Marginal note:Manner of giving notice

  (2) The notice must

  • (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 or right to the property; and

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

• Marginal note:Order of restoration

  (3) If a court is satisfied that any person, other than one referred to in paragraph (a) or (b), is the owner of, or is entitled to possession of, any property or any part of any property that would otherwise be forfeited under an order made under subsection 94(1) or 95(2) and that the person appears innocent of any complicity in a designated offence or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person:

  • (a) a person that was charged with a designated offence; or

  • (b) a person that acquired title to, ownership of or a right of possession of the property from a person referred to in paragraph (a) 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.

Marginal note:Notice

• 98 (1) If all or part of the property that would otherwise be forfeited under subsection 94(1) or 95(2) is a dwelling-house, before making an order of forfeiture, a court must require notice in accordance with subsection (2) to be given to, and may hear, any individual 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:Manner of giving notice

  (2) The notice must

  • (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.

• Marginal note:Non-forfeiture of real property or immovables

  (3) Subject to an order made under subsection 97(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 94(1) or 95(2) in respect of real property or immovables 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, 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:Factors in relation to dwelling-house

  (4) If all or part of the property that would otherwise be forfeited under subsection 94(1) or 95(2) is a dwelling-house, when making a decision under subsection (3), the court must also consider

  • (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 family member’s principal residence at the time the charge was laid and continues to be the family member’s principal residence; and

  • (b) whether the family member appears innocent of any complicity in the offence or of any collusion in relation to the offence.