Section 490.1 of the Criminal Code stipulates that when an offender is discharged or convicted of an indictable offence under the Criminal Code or the Corruption of Public Officials Act, and the court is satisfied that the offence related property is related to the commission of the offence, the court shall order that the property be forfeited to be disposed of by the Crown.
What is a Forfeiture Order?
There are three different categories of forfeiture orders:
This article will focus on forfeiture orders for offence related property.
A forfeiture order related to offence related property is a forfeiture order that is made by the sentencing court forcing an offender to forfeit property related to the indictable offence for which they have been convicted.
Law enforcement get a search warrant for person A’s home and electronic devices after an investigation leads them to believe person A is in possession of child pornography. After seizing person A’s electronic devices, they are searched by forensic law enforcement officials. Child pornography material is found on the devices. The devices are considered offence related property and will ordered forfeited by the sentencing court.
Person B owns a home in which they have been illegally producing methamphetamine. Law enforcement get a search warrant for the home and upon entering find person B along with an extensive meth lab set up in the main floor of the house. Upon conviction for manufacturing drugs, the offender will be ordered to forfeit the house as offence related property.
What is Offence Related Property?
Section 2 of the Criminal Code provides a definition for offence related property. It states that offence related property is any property, inside or outside of Canada, that is related to the commission of an indictable offence under the Criminal Code or the Corruption of Foreign Public Act, that is used in any manner for committing such an offence or that was intended to be used to commit such an offence.
What Types of Property can be named in a Forfeiture Order?
Virtually any type of property can be named in a forfeiture order. Anything from a house or building, to cash, to electronic devices or art.
What happens to Property that is Forfeited?
Where the property was seized as offence related property, section 490.4(1) of the Criminal Code stipulates that the Crown must provide notice to anyone who may have a legitimate legal interest in the property to allow them to come before the court and claim the property.
An individual who does have a legitimate legal interest in the property, may make an application to the court, proving their interest. If the court is satisfied, they will return the property to the rightful owner.
If no rightful third party claims the property, the property will become the property of the Crown and will be disposed of by the Attorney General. In some cases, the property is auctioned off. If the offence related property belonged solely to the offender, the property will be ordered forfeited.