D. 7: Criminal Asset Forfeiture
Type of document: Prosecution Directive
Effective date: November 14, 2017
Asset forfeiture plays an important role in deterring the commission of criminal offences. It is crucial that the profit motive from criminal offences is removed through the identification, restraint, seizure and forfeiture of proceeds of crime. It is equally important that property that is used to commit criminal offences be taken out of the hands of criminal organizations and individual offenders.
On occasion, police in the course of an investigation seize property used in the commission of an offence or obtained by proceeds of crime. This property may be tendered as evidence at a prosecution. The Criminal Code authorizes the return of property to its owner or the victim. It also authorizes the forfeiture of proceeds of crime and the forfeiture of property used to commit criminal offences (offence-related property).
The Criminal Code prioritizes the compensation of victims of crime over forfeiture. In determining whether an application for forfeiture should be made, Prosecutors must determine whether restitution to identified victims would be necessary in the circumstances of the offence.
Resolution discussions and sentencing
Seized property must be returned to its owner or the victim or be forfeited at the conclusion of the criminal case. The Prosecutor must ensure that an order is obtained to dispose of the property. The order sought must provide for forfeiture of the property or its return to its owner, or victim as appropriate. If forfeiture or return of property is not addressed at the conclusion of the proceedings by way of a forfeiture order or return order, the Prosecutor must bring an application to dispose of the property.
Prosecutors must ensure that notice is given to all parties who appear to have a valid interest in any proceeds of crime that the Prosecutor is seeking to have forfeited.
Other government bodies may have an interest in conducting legal proceedings to determine lawful entitlement to the property. Prosecutors must be mindful not to bind those interests during resolution discussions pertaining to the property.
Proceeds of crime
A Prosecutor is entitled to bring an application for forfeiture of proceeds of crime where it can be shown that the proceeds of crime derived from the commission of the offence that resulted in the conviction or discharge of the accused, or the property is nevertheless proceeds of crime from another offence.
Proceeds of crime is defined as:
- any property, benefit or advantage
- that is within or outside Canada
- that was derived directly or indirectly from the commission of an offence that may be prosecuted by indictment in Canada.
In the event that the property cannot be subject to forfeiture, for instance if it has been spent or hidden, the court may order a fine in lieu of forfeiture. The fine shall be of equal value to the property. In these circumstances, the court is obligated to impose a default consecutive jail sentence for failure to pay the fine in lieu of forfeiture.
Offence-related property
Where a prosecution has proceeded by way of indictment, a Prosecutor is entitled to apply for forfeiture of offence-related property where it can be shown that the property was used or intended to be used in the commission of an offence that resulted in the conviction of the accused, or in relation to some other offence.
Offence-related property is defined as:
- any property
- that is within or outside Canada
- that is used in any manner in connection with the commission of an offence prosecuted by indictment or that is intended to be used for committing an indictable offence.