Cannabis Act (S.C. 2018, c. 16)

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.

Marginal note:Application of claimants

• 99 (1) If any property is forfeited to Her Majesty under an order made under subsection 94(1) or 95(2), any person that claims an interest in or right to the property, other than any of the following persons, may, within 30 days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4):

  • (a) in the case of property forfeited under an order made under subsection 94(1), a person that was convicted or discharged under section 730 of the Criminal Code of the designated offence in relation to which the property was forfeited;

  • (b) in the case of property forfeited under an order made under subsection 95(2), a person that was charged with the designated offence in relation to which the property was forfeited; or

  • (c) a person that acquired title to, ownership of 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.

• Marginal note:Fixing day for hearing

  (2) The judge to whom the application is made must fix a day that is not less than 30 days after the date of the filing of the application for the hearing of the application.

• Marginal note:Notice

  (3) The applicant must serve a notice of the application and of the hearing of it on the Attorney General at least 15 days before the day fixed for the hearing.

• Marginal note:Order declaring interest or right not affected by forfeiture

  (4) The judge to whom the application is made may make an order declaring that the interest or right of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest or right if 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 designated 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

    • (i) the person that was permitted by the applicant to obtain possession of the property or from which the applicant obtained possession,

    • (ii) the mortgagor or hypothecary debtor, if the applicant is a mortgagee or hypothecary creditor,

    • (iii) the person that is subject to the charge, if the applicant is a chargee,

    • (iv) the person that is subject to the prior claim, if the applicant is the holder of a prior claim,

    • (v) the person that is subject to the lien, if the applicant is a lienholder, or

    • (vi) the giver of a security interest, if the applicant is the creditor in relation to the security interest.

• Marginal note:Appeal — 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 of the Criminal Code with respect to procedure on appeals apply, with any necessary modifications, in respect of appeals under this subsection.

• Marginal note:Return of property

  (6) The Minister must, on application made to the Minister by any person in respect of which a judge has made an order under subsection (4), and if the periods with respect to the taking of appeals from that order have expired or 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 or right of the applicant relates, be returned to the applicant; or

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

Marginal note:Appeal — subsection 95(2)

100 Any person that, in their opinion, is aggrieved by an order made under subsection 95(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 of the Criminal Code, and that Part applies, with any necessary modifications, in respect of such an appeal.

Marginal note:Suspension of order pending appeal

101 Despite anything in this Act, the operation of an order made in respect of property under subsection 94(1), 95(2) or 99(4) is suspended pending

• (a) any application made in respect of the property under any of those provisions or any other provision of this Act 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.

The property must not be disposed of or otherwise dealt with until the expiry of the 30th day after the day an order is made under any of those provisions.

DIVISION 2Cannabis and Chemical Property

Marginal note:Return

• 102 (1) A peace officer, inspector or prescribed person that seizes, finds or otherwise acquires cannabis or chemical offence-related property in the course of the administration or enforcement of this Act or any other Act of Parliament — or that seizes, finds or otherwise acquires any chemical or thing that is referred to in paragraph (b) or (c) of the definition chemical property in subsection 2(1) in the course of the administration or enforcement of this Act — may return it to the person that is its owner or that is entitled to its possession if the peace officer, inspector or prescribed person is satisfied

  • (a) that there is no dispute as to who owns it or is entitled to its possession; and

  • (b) that its continued detention 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 cannabis or property is returned, the peace officer, inspector or prescribed person must obtain a receipt for it.

• Marginal note:Report

  (3) In the case of a seizure made under section 87 of this Act, the Criminal Code or a power of seizure at common law, the peace officer making the seizure must 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 order to return

• 103 (1) If cannabis or chemical 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

  (2) If, on the hearing of the application, a justice is satisfied that the applicant is the owner or is entitled to possession of the cannabis or the property and the Attorney General does not indicate that it or any part of it may be required for the purposes of a preliminary inquiry, trial or other proceeding under this or any other Act of Parliament, the justice must, subject to subsection (5), order that it, or the part that is not required, as the case may be, be returned as soon as feasible to the applicant.

• Marginal note:Order to return at specified time

  (3) If, on the hearing of the application, a justice is satisfied that the applicant is the owner or is entitled to possession of the cannabis or property but the Attorney General indicates that it or any part 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 must, subject to subsection (5), order that it, or the part that is required, as the case may be, 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 the cannabis or property has been commenced before that time; or

  • (b) on the final conclusion of the proceeding or any other proceeding in relation to the cannabis or property if the applicant is not found guilty in those proceedings of an offence committed in relation to it.

• Marginal note:Order of forfeiture

  (4) If, on the hearing of the application, a justice is not satisfied that the applicant is the owner or is entitled to possession of the cannabis or property, and it or a part 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 must order that it, or the part that is not required, as the case may be, 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 the application, a justice is satisfied that the applicant is the owner or is entitled to possession of the cannabis or property, but it was disposed of or otherwise dealt with under section 105, the justice must make an order that an amount equal to its value be paid to the applicant.

Marginal note:Forfeiture if no application

104 If no application for the return of the cannabis or the chemical property has been made under subsection 103(1) within 60 days after the date of its seizure, finding or acquisition by a peace officer, inspector or prescribed person and it or any part 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 cannabis or the property, or the part that is not required, as the case may be, 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.