Got caught? You are innocent until proven guilty.
The Crown Prosecutor increasingly utilizes “proceeds of crime” to further bear down upon convicted criminals. If you’re convicted, only a knowledgeable attorney’s knowledge and guidance can offset or prevent these ongoing property seizures.
Within the scope of the law, the Crown may seize “proceeds of crime” that can be proven to be benefits or advantages either inside Canada or elsewhere that have been directly or indirectly obtained from a criminal act.
This weapon of the Crown can generate lengthier fallout from your conviction than you might first suppose. The trial lawyers of the Saggi Law Firm seek first and foremost to uphold your rights and defend your freedom. However, should you be convicted, we will keep fighting the extended seizure of your assets.
s. 462.3 defines “proceeds of crime” as any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of;
a. the commission in Canada of a designated offence, or
b. an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
“Designated Offence” means
a. any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or
b. a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counseling in relation to, an offence referred to in paragraph (a).
The definition of designated offence covers virtually everything imaginable.
S. 462.37 deals with the forfeiture of proceeds of crime after an accused person has been convicted of a designated offence.
Note: the order can encompass properties outside of Canada
The relevant sections are:
462.37 (1) R.S.C. 1985, c. C-46
PROCEEDS OF CRIME
Forfeiture of Proceeds of Crime
Order of forfeiture of property on conviction
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
Proceeds of crime derived from other offences
The Trial Judge shall order forfeiture where the crown has proven on a balance of probabilities that any property is the proceeds of crime, and that the designated offence that was the subject of the trial was committed in relation to such property.
(2) Where the evidence does not establish to the satisfaction of the court that the designated offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.
Order of forfeiture – particular circumstances
Where there is no connection between the property and the crime, but the judge is satisfied beyond reasonable doubt that the property is proceeds of crime, the judge may order forfeiture.
(2.01) A court imposing sentence on an offender convicted of an offence described in subsection (2.02) shall, on application of the Attorney General and subject to this section and sections 462.4 and 462.41, order that any property of the offender that is identified by the Attorney General in the application be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law if the court is satisfied, on a balance of probabilities, that
a. within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit; or
b. the income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all the property of the offender.
(2.02) The offences are the following:
a. a criminal organization offence punishable by five or more years of imprisonment; and
b. an offence under section 5, 6 or 7 of the Controlled Drugs and Substances Act – or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to an offence under those sections – prosecuted by indictment.
Offender may establish that property is not proceeds of crime
(2.03) A court shall not make an order of forfeiture under subsection (2.01) in respect of any property that the offender establishes, on a balance of probabilities, is not proceeds of crime.
(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
Fine instead of forfeiture
(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property
a. cannot, on the exercise of due diligence, be located;
b. has been transferred to a third party;
c. is located outside Canada;
d. has been substantially diminished in value or rendered worthless; or
e. has been commingled with other property that cannot be divided without difficulty.
Imprisonment in default of payment of fine
(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall
a. impose, in default of payment of that fine, a term of imprisonment
a.i. not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,
a.ii. of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,
a.iii. of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,
a.iv. of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,
a.v. of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,
a.vi. of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or
a.vii. of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and
b. direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.
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