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1st Session, 40th Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 204

THE CRIMINAL PROPERTY FORFEITURE AMENDMENT ACT


Explanatory Note Bilingual Version (PDF)

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C306 amended

1           The Criminal Property Forfeiture Act is amended by this Act.

2           The following is added after section 17 and before the centred heading that follows it:

ADMINISTRATIVE FORFEITURE OF SUBJECT PROPERTY

Definitions

17.1        The following definitions apply in this section and sections 17.2 to 17.11.

"dispute period" means, in relation to a subject property, a period that ends on the later of the following dates:

(a) 90 days after the date on which notice is published in a newspaper or the gazette under subsection 17.4(3);

(b) 90 days after notice is deemed to have been served on all known interest holders under section 17.6. (« période de contestation »)

"division" means sections 17.1 to 17.11. (« section »)

"known interest holder" means, in relation to a subject property, a person to whom the director is required to give notice of forfeiture of the subject property under subclause 17.4(1)(b)(i), (ii) or (iii). (« titulaire d'un intérêt connu »)

"notice of dispute" means a notice of dispute referred to in section 17.7. (« avis de contestation »)

"protected interest holder" means, in relation to a subject property, a person who

(a) owns a registered interest in the whole or a part of the subject property; and

(b) did not directly or indirectly engage in the unlawful activity that is the basis of forfeiture under this Act. (« titulaire d'un intérêt protégé »)

"public body" means any of the following:

(a) a public body as defined in subsection 19.3(5);

(b) a government with which the minister has entered into an agreement for the reciprocal exchange of information relating to the civil forfeiture of property under section 19.5. (« organisme public »)

"subject property" means property described in subsection 17.2(1) and to which this division applies. (« bien visé »)

Application

17.2(1)     This division applies if

(a) the director has reason to believe that

(i) the whole or a part of an interest in property, other than real property, is proceeds of unlawful activity, or

(ii) property, other than real property, is an instrument of unlawful activity;

(b) the director has reason to believe that the fair market value of the property referred to in subclause (a)(i) or (ii) is $80,000 or less;

(c) the property referred to in subclause (a)(i) or (ii) is in Manitoba and is in the possession of a public body; and

(d) the director has no reason to believe that there are any protected interest holders in relation to that property.

Non-application

17.2(2)     This division does not apply to property described in subsection (1) if, subject to subsection (3), an application under section 3 (forfeiture order) is brought in relation to the property.

Public body entitled to maintain possession

17.2(3)     If, under clause 17.8(a), the director brings an application under section 3 in relation to the subject property, the public body entitled to maintain possession of the subject property under section 17.5 continues to be entitled to maintain possession of that property until the expiry of the 30-day period described in clause 17.5(a).

Exception

17.2(4)     This division does not apply in relation to property if the property is the subject of a court order establishing a right of possession in that property with a person other than a public body or authorizing a person other than a public body to have or take possession of that property.

Subject property is forfeited to government

17.3        Subject to this division, subject property is forfeited to the government for disposal by the director without having to bring an application under section 3 (forfeiture order).

Notice of forfeiture — subject property

17.4(1)     The director must do the following to initiate forfeiture in relation to any subject property:

(a) file, in the personal property registry, notice of forfeiture under this division in relation to the subject property, unless the subject property is cash or is or would be refused registration in the personal property registry;

(b) subject to subsection 17.6(2), give written notice of forfeiture under this division to each of the following:

(i) the person from whom the subject property was seized,

(ii) any other person claiming to be lawfully entitled to possession of the subject property,

(iii) a person who the director has reason to believe may be a registered or unregistered owner of an interest in the subject property,

(iv) the public body in possession of the subject property;

(c) in accordance with subsections (2) and (3), publish notice of forfeiture under this division in relation to the subject property.

Requirements for notice in personal property registry

17.4(2)     Notice under clause (1)(a) must state

(a) that the property is subject to forfeiture under this division; and

(b) that the property and all interests in the property may be affected by forfeiture under this division.

Requirements for publication of notice

17.4(3)     Notice under clause (1)(c) must be

(a) published in a newspaper of general circulation in Manitoba and circulating in or near the area in which the subject property was seized; or

(b) published in the gazette.

Other requirements for notice

17.4(4)     Notice under clauses (1)(b) and (c) must

(a) describe the subject property;

(b) state that the property is subject to forfeiture under this division;

(c) indicate

(i) where the subject property was seized,

(ii) the time and date of the seizure, and

(iii) the basis for the seizure; and

(d) contain other information, if any, that may be prescribed under clause 24(c.0.1).

Public body entitled to possession

17.5        On receiving notice respecting a subject property under subclause 17.4(1)(b)(iv), a public body is entitled to maintain possession of the subject property — despite any other claim or interest or right of possession in the property — until the later of the following:

(a) 30 days after the director gives the public body notice of the direction taken under section 17.8;

(b) 30 days after the director notifies the public body under clause 17.9(2)(a).

How notice is given to known interest holders

17.6(1)     Notice to a known interest holder may be given by registered mail to the last known address of the known interest holder.

Notice requirement does not apply

17.6(2)     The notice requirement under clause 17.4(1)(b) does not apply if the address of a person referred to in that provision is unknown to the director.

Deemed to be served

17.6(3)     Notice sent by registered mail under this section is deemed to have been served on the person to whom it is addressed on the seventh day after deposit with Canada Post unless the person received actual notice before that day.

Notice of dispute by claimed interest holder

17.7(1)     A person who claims to have an interest in subject property may dispute forfeiture under this division by filing a notice of dispute with the director in accordance with this section.

Statutory declaration

17.7(2)     A notice of dispute must be accompanied by a statutory declaration by the person, or in the case of a corporation, by an individual authorized by the corporation to file a notice of dispute, that

(a) identifies the nature of the person's interest in the subject property; and

(b) includes the following:

(i) the name of the person disputing forfeiture under this division,

(ii) an address for service of documents on the person disputing the forfeiture,

(iii) the reasons for disputing that forfeiture.

Delivery

17.7(3)     A person wishing to dispute forfeiture under this division must deliver the notice of dispute to the director before the expiry of the dispute period.

Deemed delivery

17.7(4)     For the purpose of this section, a notice of dispute that is delivered by mail is deemed to have been delivered on the date on which it was mailed.

If director receives notice of dispute

17.8        Within 30 days of receiving a notice of dispute, the director must do the following:

(a) bring an application under section 3 (forfeiture order) or withdraw from an application under this Act in relation to the subject property;

(b) give notice to the public body and each known interest holder of the direction taken under clause (a).

Subject property forfeited to government

17.9(1)     If, by the seventh day after expiry of the dispute period, the director does not receive a notice of dispute to forfeiture of a subject property under this division, the subject property is forfeited to the government for disposal by the asset manager.

Duty of director

17.9(2)     For the purpose of subsection (1), the director must

(a) notify the public body in possession of the subject property of its forfeiture to the government under this division; and

(b) in the case of subject property that is a motor vehicle or trailer, direct the Registrar of Motor Vehicles appointed under The Drivers and Vehicles Act to transfer registration of the motor vehicle or trailer under that Act to the government.

Registrar of Motor Vehicles must comply

17.9(3)     The Registrar of Motor Vehicles must transfer registration of a motor vehicle or trailer in accordance with a direction received under clause (2)(b).

Effective date of forfeiture

17.10       Forfeiture of a subject property under section 17.9 is deemed to be effective immediately on expiry of the dispute period.

Innocent failure to deliver notice of dispute

17.11(1)    This section applies to a person who claims to have had an interest in the subject property at the time of its forfeiture under section 17.9 but who failed to deliver a notice of dispute in respect of the forfeiture in accordance with section 17.7.

Application to court

17.11(2)    Subject to this section and sections 8 to 13 and 22, a person referred to in subsection (1) may apply to the court for an order under this section.

Applicant must establish

17.11(3)    In an application under subsection (2), the applicant must establish that

(a) the applicant's failure to deliver a notice of dispute under and in accordance with section 17.7 was not wilful or deliberate; and

(b) the application was brought as soon as reasonably possible after the applicant learned of the forfeiture.

Defence

17.11(4)    It is a defence to an application under this section if the director establishes either of the following in relation to the subject property:

(a) the whole or part of an interest in the subject property would have been proceeds of unlawful activity if an application had been brought under section 3 in relation to the subject property before forfeiture under this division;

(b) the subject property would have been an instrument of unlawful activity if an application had been brought under section 3 in relation to the subject property before forfeiture under this division.

Defence under clause (4)(a) fails

17.11(5)    A defence under clause (4)(a) fails if the court finds that

(a) the applicant did not, directly or indirectly, acquire the subject property as a result of unlawful activity committed by the applicant; and

(b) the applicant

(i) was the rightful owner of the subject property before the unlawful activity occurred and was deprived of possession or control of the property by means of the unlawful activity,

(ii) acquired the subject property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity, or

(iii) acquired the subject property from

(A) a person who was the rightful owner of the subject property before the unlawful activity occurred and who was deprived of possession or control of the property by means of the unlawful activity, or

(B) a person who acquired the subject property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity.

Defence under clause (4)(b) fails

17.11(6)    A defence under clause (4)(b) fails if the court finds that the applicant did not directly or indirectly engage in the unlawful activity that would have been the basis of an application under section 3 had such an application been brought before forfeiture under this division.

Person who is included

17.11(7)    For the purpose of subsection (6), a person who indirectly engaged in the unlawful activity that would have been the basis of an application referred to in subsection (6) includes, without limitation, a person who had knowledge of the unlawful activity and received a financial benefit from the unlawful activity.

Order

17.11(8)    If the court finds the applicant to be successful in the application, the court must make an order requiring the government to pay the applicant an amount that is the lesser of the following:

(a) the value of the applicant's interest in the subject property at the time of the forfeiture;

(b) the liquidated value of the subject property that the government received on the subject property's disposition.

Director must make payment

17.11(9)    The amount of payment ordered under subsection (8) must be paid by the director out of the criminal property forfeiture fund in accordance with section 19 (payments from fund).

No other compensation payable

17.11(10)   Other than an amount a court may order to be paid under this section, no other compensation is payable to any person by the government, the director, a public body or an employee of a public body, and no other proceedings may be commenced or maintained to claim compensation from the government, the director, a public body or an employee of a public body as a result of forfeiture under this division.

3           Subsection 19(3) is amended by striking out "and" at the end of clause (a), adding "and" at the end of clause (b) and adding the following after clause (b):

(c) the director for costs and expenses related to compliance with a court order under subsection 17.11(8).

4           Subsection 19.10(1) is amended by adding the following after clause (a):

(a.1) the number of administrative forfeitures under section 17.4, and notices of disputes under section 17.7, initiated within that period, and the number of court orders made under section 17.11 within that period;

5           Section 22 is amended by renumbering it as subsection 22(1) and adding the following as subsection 22(2):

Exception

22(2)       Despite subsection (1), the limitation period for an application under section 17.11 is two years after the expiry of the dispute period.

6           Section 24 is amended by adding the following after clause (c):

(c.0.1) prescribing information for the purpose of clause 17.4(4)(d);

Coming into force

7           This Act comes into force on the day it receives royal assent.

Explanatory Note

This Bill establishes an administrative forfeiture mechanism for certain types of personal property where the property is believed to be proceeds of unlawful activity or an instrument of unlawful activity and no person claims an interest in the property.