Second Session, Thirty-Ninth Legislature
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Bill 14
THE CRIMINAL PROPERTY FORFEITURE AMENDMENT ACT
| Explanatory Note |
(Assented to )
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Criminal Property Forfeiture Act is amended by this Act.
Section 1 is amended
(a) by replacing the definitions "instrument of unlawful activity" and "proceeds of unlawful activity" with the following:
"instrument of unlawful activity" means property that
(a) has been used to engage in unlawful activity that, in turn,
(i) resulted in the acquisition of property, or
(ii) caused serious bodily harm to a person; or
(b) is likely to be used to engage in unlawful activity that, in turn, would be likely to, or is intended to,
(i) result in the acquisition of property, or
(ii) cause serious bodily harm to a person. (« instrument d'activité illégale »)
"proceeds of unlawful activity" means
(a) property acquired directly or indirectly, in whole or in part, as a result of unlawful activity, whether the property was acquired before or after the coming into force of this Act; or
(b) an increase in the value of property or a decrease in a debt obligation secured against property, if the increase or decrease resulted directly or indirectly from unlawful activity;
but does not include consideration paid or payable under a contract for the recollection of a crime as that term is defined in The Profits of Criminal Notoriety Act. (« produit d'activité illégale »)
(b) by repealing the definition "police chief"; and
(c) by adding the following definitions:
"asset manager" means the person designated as asset manager under subsection 19.7(1). (« gestionnaire de biens »)
"criminal property forfeiture fund" means the fund established under subsection 18(1). (« Fonds de confiscation des biens obtenus ou utilisés criminellement »)
"director" means the person appointed under The Civil Service Act as the director for the purpose of this Act. (« directeur »)
Section 3 is replaced with the following:
Application for forfeiture order
If the director is satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity, the director may apply to the court for an order forfeiting that property to the government.
Clause 5(d) is amended by striking out "known to the police chief to have" and substituting "whom the director has reason to believe has".
Section 6 is amended
(a) by renumbering it as subsection 6(1); and
(b) in the part before clause (a), by striking out "police chief" and substituting "director".
The following is added after subsection 6(1):
When an application for forfeiture is dismissed or discontinued, the director must apply as soon as possible to have the notice filed under subsection (1) discharged.
Subsection 7(1) is amended
(a) by replacing the section heading with "Interim orders";
(b) in the part before clause (a),
(i) by striking out "police chief" and substituting "director", and
(ii) by striking out "to preserve" and substituting "respecting";
(c) by adding the following after clause (c):
(c.1) an order for the sale or other disposition of the property, if
(i) the property is perishable or of a rapidly depreciating nature,
(ii) the sale or disposition of the property would preserve the value of the property, or
(iii) the cost of managing or preserving the property would exceed its realizable value;
(c.2) an order creating a lien in favour of the government for an amount fixed by the court on the property, or on other property specified in the order, to secure the performance of an obligation imposed by an order made under this subsection;
(d) in clause (d), by striking out "for the preservation" and substituting "respecting the preservation, management or disposition".
Subsection 7(3) is amended by striking out "10 days" and substituting "30 days".
The following is added after subsection 7(5):
If an order under clause (1)(c.2) creates a lien in favour of the government on personal property,
(a) The Personal Property Security Act applies to the lien, with such changes as the circumstances require;
(b) the lien is deemed to be a security interest that has attached for the purposes of The Personal Property Security Act; and
(c) the director may perfect the security interest for the purposes of The Personal Property Security Act by registering a financing statement under that Act.
Assigning duties to asset manager
If requested by the director, the court may assign duties respecting property to the asset manager when making an order under subsection (1).
Section 8 is replaced with the following:
Application of Queen's Bench Rules
Except as otherwise provided in this Act, the Queen's Bench Rules apply to an application under this Act.
Director may refuse to disclose certain information
The director may refuse to disclose anything in an examination for discovery or an affidavit of documents, or at any step in an application under this Act, including the hearing of the application, if, in his or her opinion, the disclosure may
(a) reveal the identity of a confidential informant, or otherwise jeopardize the safety of a person; or
(b) negatively affect
(i) an ongoing investigation or operation conducted by a law enforcement agency, or
(ii) the utility of investigative or intelligence-gathering techniques used by a law enforcement agency.
Section 9 is amended by striking out "findings of fact in an application under this Act are" and substituting "a finding of fact or the discharge of a presumption under this Act is".
The following is added after section 9:
In an application under this Act,
(a) proof that a person
(i) was convicted,
(ii) was found guilty, or
(iii) was found not criminally responsible on account of mental disorder,
in respect of an offence is proof that the person committed the offence; and
(b) evidence that a person was charged with and acquitted of an offence under the Criminal Code (Canada), or that such a charge was withdrawn or stayed, is not relevant in making a finding of fact.
Section 10 is replaced with the following:
At the hearing of an application, the director must disclose to the court
(a) all prior registered interests in the property that is the subject of the application; and
(b) any other interest in the property that the director has reason to believe exists.
The following is added after section 12:
Presumption re proceeds of unlawful activity
In an application where property is alleged to be proceeds of unlawful activity, proof that a person
(a) participated in unlawful activity that resulted in, or is likely to have resulted in, the person receiving a financial benefit; and
(b) subsequently did one or more of the following:
(i) acquired property that is the subject of the application,
(ii) caused an increase in the value of property that is the subject of the application,
(iii) caused a decrease in a debt obligation secured against property that is the subject of the application;
is proof, in the absence of evidence to the contrary, that the property is proceeds of unlawful activity.
Section 13 is replaced with the following:
Presumption re criminal organization offence
In an application under this Act, there is a rebuttable presumption that a person is a member of a criminal organization if he or she has been found guilty or convicted of a criminal organization offence as defined in section 2 of the Criminal Code (Canada).
The following is added after subsection 14(1):
No direct link to specific unlawful act needed
In order to make a forfeiture order in an application for forfeiture of property that is alleged to be proceeds of unlawful activity, the court
(a) is not required to be satisfied that the property was acquired in connection with a specific unlawful act; or
(b) is not required to be satisfied that an increase in the value of the property or a decrease in a debt obligation secured against the property arose as the result of a specific unlawful act.
Subsection 15(1) is amended by striking out "When property" and substituting "Subject to subsection (3), when property".
The following is added after subsection 15(2):
The court may refuse to issue a protection order if it considers that it would not be in the interests of justice to do so.
Section 18 and the centred heading before it are replaced with the following:
DISTRIBUTING THE PROCEEDS OF FORFEITED PROPERTY
Criminal property forfeiture fund established
The criminal property forfeiture fund is hereby established.
Control and supervision of fund
The fund is under the control and supervision of the minister, and is to be deposited with the Minister of Finance and held in trust for the purposes of this Act in a separate account in the Consolidated Fund.
If the balance to the credit of the fund is more than the amount that is required for the immediate purposes of this Act, the Minister of Finance may invest the excess. All earnings from the investment must be credited to the fund.
The following is added after section 18:
Cash and proceeds to be paid into fund
The asset manager must deposit all forfeited property that is cash and all proceeds from the sale or other disposition of forfeited property into the criminal property forfeiture fund.
Section 19 is replaced with the following:
Subject to the terms of a protection order, payments from the criminal property forfeiture fund are to be made in accordance with this section.
Payments from the fund are to be made by the Minister of Finance on the requisition of the director.
Reimbursing director and asset manager
Money paid into the fund as the result of the forfeiture of property is to be paid out first to reimburse
(a) the director for costs and expenses incurred in bringing the application that led to the forfeiture of the property; and
(b) the asset manager for costs and expenses incurred in managing and selling the forfeited property.
Distributing remainder of fund
If any proceeds from the forfeiture of property remains in the fund after the director and asset manager have been reimbursed under subsection (3), the remaining money is to be paid out of the fund for one or more of the following purposes:
(a) to compensate victims of the unlawful activity that led to the forfeiture of the property, in accordance with section 19.1;
(b) to remedy the effect of the unlawful activity that led to the forfeiture of the property;
(c) to promote safer communities through payments, at the direction of the director, to programs operated by law enforcement agencies that are intended to enhance the practices and training of law enforcement agencies or reduce or prevent crime;
(d) to benefit programs or purposes prescribed by regulation.
The following is added after section 19 and before the centred heading "GENERAL PROVISIONS":
Victims eligible for compensation
A person may receive compensation from the criminal property forfeiture fund if the person
(a) suffered a pecuniary or non-pecuniary loss as a direct result of unlawful activity that resulted in the forfeiture of property under this Act; and
(b) did not engage, directly or indirectly, in the commission of the unlawful activity.
An application for compensation must be made in writing to the director in accordance with the regulations.
The amount of compensation payable to an eligible victim is to be calculated or determined in accordance with the regulations.
Additional provisions re payment
The compensation payable to an eligible victim may
(a) be paid in one or more instalments; and
(b) be subject to such terms or conditions that the director considers appropriate.
ADMINISTRATION
Director's powers and responsibilities
The director is responsible for
(a) determining whether to commence proceedings under this Act;
(b) commencing and conducting proceedings under this Act; and
(c) requisitioning payments from the criminal property forfeiture fund.
Delegation of director's powers
The director may delegate any power or responsibility he or she has under this Act to any person on his or her staff.
Director may collect information
The director is authorized to collect information, including personal information, from a public body or other source for the following purposes:
(a) to determine whether proceedings should be commenced under this Act;
(b) to conduct proceedings under this Act;
(c) to identify victims of unlawful activity, in order to enable those victims to apply for compensation under section 19.1;
(d) to enforce or comply with an order made under this Act.
Public body authorized to give information
A public body
(a) is authorized to disclose information, including personal information, to the director for a purpose set out in subsection (1); and
(b) must provide the director with information requested by the director for a purpose set out in subsection (1).
Despite subsection (2), a public body is not required to disclose to the director information that is subject to solicitor-client privilege or protected by evidentiary rules regarding informer identity.
Information subject to qualified privilege
Any information provided to the director under this Act is privileged in the same manner as if it were provided in a proceeding in a court.
The following definitions apply in this section.
"personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act, but does not include personal health information as defined in The Personal Health Information Act. (« renseignements personnels »)
"public body" means a public body as defined in The Freedom of Information and Protection of Privacy Act. (« organisme public »)
The director may disclose information obtained under subsection 19.3(1)
(a) in order to exercise any power or duty under this Act;
(b) for a purpose for which the information could be collected under that subsection; and
(c) to a person pursuant to an agreement entered into under section 19.5.
Reciprocal information exchange agreements
The director may disclose information obtained under this Act to a person employed by the Government of Canada, or the government of another province, territory, country or state, who is assigned duties and responsibilities under an Act that allows for the civil forfeiture of proceeds of unlawful activity or instruments of unlawful activity, but only if
(a) the minister has entered into an agreement with that government for the reciprocal exchange of information relating to the civil forfeiture of such property; and
(b) the minister is satisfied that the information will be used only for purposes related to the civil forfeiture of property in that jurisdiction.
Agreement with law enforcement agencies
The minister may enter into an agreement with a law enforcement agency to enable the agency to provide information to the director that will assist the director in exercising or performing his or her powers and duties under this Act.
The minister must designate a person employed by the government under The Civil Service Act as the asset manager.
Responsibilities of asset manager
The asset manager is responsible for taking possession of and managing
(a) property forfeited under this Act; and
(b) property that is the subject of an interim order under section 7 in which the court assigns duties to the asset manager.
Subject to the terms of a protection order, the asset manager may manage, sell or otherwise dispose of or deal with property forfeited under this Act, other than cash, in the manner that he or she considers proper.
Examples of asset manager's powers
Without limiting the generality of subsection (1), the asset manager may
(a) preserve or manage forfeited property for the length of time and on the terms that he or she considers proper;
(b) do anything that he or she considers proper for the ongoing management or operation of forfeited property before it is sold or otherwise disposed of, including making improvements to the property to maintain or increase its value;
(c) sell, assign or otherwise dispose of the forfeited property, or any interest in the property, at the price and on the terms that he or she considers proper; or
(d) donate or destroy the forfeited property, if
(i) the property is perishable, rapidly depreciating or requires so much repair or improvement that a sale is not commercially viable,
(ii) the property has little or no commercial value, or
(iii) the donation or destruction of the property is in the public interest.
Managing property subject to interim order
When the asset manager is assigned duties by the court in relation to property that is the subject of an interim order under section 7, the asset manager must manage the property in accordance with the requirements of the order.
The following is added after section 22:
The Escheats Act does not apply to property forfeited under this Act.
Director not compellable as witness
Except in an application under this Act, the director, and any person acting for or under the direction of the director, cannot be compelled, in court or in any other proceeding,
(a) to give evidence about information obtained by or on behalf of the director for the purposes of this Act; or
(b) to produce any document or other thing obtained by or on behalf of the director for the purposes of this Act.
Section 23 is amended in the part before clause (a) by striking out "a police chief" and substituting "the director, the asset manager".
Clause 24(a) is amended by striking out everything after "section 6".
The following is added after clause 24(c):
(c.1) prescribing programs to which or purposes for which payments may be made from the criminal property forfeiture fund;
(c.2) respecting payments from the criminal property forfeiture fund, including
(i) prescribing the circumstances in which payments may be made, and
(ii) establishing the procedure for determining when payments for one or more of the purposes set out in subsection 19(4) may be made;
(c.3) respecting compensation payable to eligible victims of unlawful activities under section 19.1, including
(i) prescribing the content or form of applications for compensation and the information to be provided in support of an application,
(ii) respecting the designation of persons or bodies to act as adjudicators of claims for compensation,
(iii) respecting the process of adjudicating an application and the factors to be considered in determining whether a payment is to be made to an eligible victim, and if so, the amount, and
(iv) prescribing the circumstances in which
(A) no payment is to be made to an eligible victim or a category of eligible victims,
(B) payments are to be prorated among eligible victims or a class of eligible victims, and
(C) an amount is required to be deducted or set off from a payment to an eligible victim;
Clause 24(f) is replaced with the following:
(f) respecting the costs and expenses for which the director and asset manager may be reimbursed for under subsection 19(3), including the manner in which those costs are to be calculated;
Clause 24(g) is repealed.
The Victims' Bill of Rights is amended by this section.
Clause 40(2)(c.2) is repealed.
Section 43.2 is repealed.
This Act comes into force on a day to be fixed by proclamation.