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The Criminal Property Forfeiture Amendment Act (Administrative Forfeiture and Miscellaneous Amendments)

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S.M. 2012, c. 13

Bill 11, 1st Session, 40th Legislature

The Criminal Property Forfeiture Amendment Act (Administrative Forfeiture and Miscellaneous Amendments)

(Assented to June 14, 2012)

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 centred heading before section 1 is replaced with the following:

PART 1

INTRODUCTORY PROVISIONS

3           Section 1 is amended

(a) in clause (a) of the definition "instrument of unlawful activity",

(i) in subclause (i), by adding "or was likely to result in" after "resulted in", and

(ii) in subclause (ii), by adding "or was likely to cause" after "caused";

(b) in the definition "prior registered interest",

(i) by striking out "an application" wherever it occurs and substituting "a proceeding", and

(ii) in clause (b), by adding "or notice of administrative forfeiture proceedings under subsection 17.2(3)" after "section 6"; and

(c) by adding the following definitions:

"department" means the department of government over which the minister presides and through which this Act is administered. (« ministère »)

"law enforcement agency" means

(a) a police service;

(b) a department, branch or agency of the Government of Manitoba or the Government of Canada; and

(c) a prescribed agency or organization. (« organisme chargé de l'application de la loi »)

"personal property registry" means the personal property registry continued under The Personal Property Security Act. (« Bureau d'enregistrement relatif aux biens personnels »)

"prescribed" means prescribed by regulation.

4           The centred heading before section 2 is struck out.

5           The centred heading before section 3 is replaced with the following:

PART 2

CIVIL FORFEITURE ORDERS

6           Section 3 is replaced with the following:

Proceedings for forfeiture order

3(1)        If the director is satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity, he or she may commence proceedings in court seeking an order forfeiting the property to the government.

How proceedings to be commenced

3(2)        Proceedings under this Part may be commenced by action or application.

Nature of proceedings

3(3)        All proceedings under this Part are in rem and not in personam, even though the proceedings have parties.

7           Section 4 is amended

(a) by replacing the section heading with "Identifying property"; and

(b) by striking out "application" and substituting "statement of claim or notice of application".

8           Section 5 is replaced with the following:

Parties

5           The following must be named as parties to a proceeding under this Part:

(a) the owner of the property;

(b) any person other than the owner who is in possession of the property, unless the property is in the possession of a law enforcement agency;

(c) a person with a prior registered interest in the property, unless the interest in question is a statutory easement as defined in The Real Property Act;

(d) any other person whom the director believes may have an interest in the property.

9(1)        Subsection 6(1) is amended

(a) in the part before clause (a), by striking out "filing an application for forfeiture" and substituting "commencing a proceeding in court seeking a forfeiture order";

(b) in clause (a), by striking out "application" and substituting "proceeding"; and

(c) in clause (b), by striking out "application, in the prescribed form," and substituting "proceeding".

9(2)        The following is added after subsection 6(1):

Exception

6(1.1)      The director is not required to file a notice under clause (1)(b) if a notice of administrative forfeiture proceedings was filed against the property in question under subsection 17.2(3).

9(3)        Subsection 6(2) is amended

(a) by striking out "an application for forfeiture" and substituting "a proceeding seeking a forfeiture order"; and

(b) by adding "or subsection 17.2(3)" after "subsection (1)".

10(1)       Subsection 7(1) is amended in the part before clause (a), by striking out "an application under this Act:" and substituting "a proceeding under this Part:".

10(2)       Subsection 7(4) is amended by striking out "application" and substituting "proceeding".

11          Sections 8 to 9.1 and the centred heading before section 8 are repealed.

12          Section 10 is amended

(a) in the part before clause (a), by striking out "an application" and substituting "a proceeding under this Part"; and

(b) in clause (a), by striking out "application" and substituting "proceeding".

13          Sections 11 to 13 and the centred heading before section 11 are repealed.

14(1)       Subsection 14(1.1) is repealed.

14(2)       Subsection 14(2) is replaced with the following:

Date of forfeiture

14(2)       When a forfeiture order is made, the property is forfeited

(a) as of the date the notice of administrative forfeiture proceedings was filed under subsection 17.2(3), if administrative forfeiture proceedings against the property had been commenced under Part 3; or

(b) as of the date the notice of proceedings under section 6 was filed, in all other cases.

15          Subclause 16(1)(a)(iii) is amended by striking out "the government" and substituting "the Government of Canada, the Government of Manitoba".

16          Subclause 17(1)(a)(i) and clause 17(2)(a) are amended by striking out "notice of the application under section 6" and substituting "a notice under section 6 or subsection 17.2(3)".

17          The following is added after section 17:

PART 3

ADMINISTRATIVE FORFEITURE

Definitions

17.1        The following definitions apply in this Part.

"deadline date" means the date specified in a notice of administrative forfeiture proceedings given under sections 17.3 and 17.4 by which persons are required to file a notice of dispute of forfeiture of subject property. (« date limite »)

"notice of dispute" means a notice of dispute under section 17.6. (« avis de contestation »)

"subject property" means property that is the subject of administrative forfeiture proceedings under this Part. (« bien visé »)

Property eligible for administrative forfeiture

17.2(1)     Property may be the subject of administrative forfeiture proceedings under this Part if

(a) it is cash or other personal property;

(b) it has been seized by a law enforcement agency and is being held by or on behalf of that agency;

(c) the director has reason to believe that the fair market value of the property is $75,000 or less;

(d) no person has a prior registered interest in the property; and

(e) the property is not the subject of proceedings seeking a forfeiture order under Part 2.

Grounds for seeking administrative forfeiture

17.2(2)     The director may commence administrative forfeiture proceedings against property if he or she is satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity.

Administrative forfeiture requirements

17.2(3)     In order to commence administrative forfeiture proceedings, the director must

(a) file notice of administrative forfeiture proceedings against the subject property in the personal property registry; and

(b) give notice of the administrative forfeiture proceedings in accordance with sections 17.3 and 17.4.

Notice to interested persons

17.3(1)     Subject to subsection (5), the director must give written notice of administrative forfeiture proceedings against the subject property to

(a) the person from whom the subject property was seized;

(b) the law enforcement agency that seized the subject property; and

(c) any other person whom the director believes may have an interest in the property.

Notice requirements

17.3(2)     A notice under this section must include the following:

(a) a description of the subject property;

(b) the date the subject property was seized and the place of seizure;

(c) the basis on which the director seeks forfeiture of the subject property;

(d) a statement that the subject property may be forfeited to the government;

(e) a statement that a person who wishes to oppose forfeiture of the subject property must submit a written notice of dispute to the director at an address set out in the notice by a deadline date specified in the notice;

(f) the deadline for submitting a notice of dispute to the director, which must be at least 30 days after the later of

(i) the date that notice of administrative forfeiture proceedings was received or deemed to have been received by all persons required to be given notice under subsection (1), and

(ii) the date that public notice of administrative forfeiture proceedings was first given under section 17.4.

How notice to be given

17.3(3)     A notice under this section may be given to a person by personally serving the person with the notice or by sending a copy of the notice by ordinary mail to the last known address of the person.

Deemed receipt

17.3(4)     A notice under this section sent by ordinary mail under subsection (3) is deemed to have been received by the person to whom it was addressed on the fifth day after it was mailed.

Exception

17.3(5)     The director is not required to give notice to a person referred to in subsection (1) if the director does not have any information respecting the person's address.

Public notice of administrative forfeiture proceedings

17.4(1)     Subject to subsection (3), the director must give public notice of administrative forfeiture proceedings against the subject property by publishing notice of the proceedings in a newspaper that has a general circulation throughout the province.

Other methods of public notice

17.4(2)     The director may give public notice of administrative forfeiture proceedings against the subject property

(a) by posting notice of the proceedings on the department's website; and

(b) in any other manner that the director considers appropriate.

Exception to newspaper notice requirement

17.4(3)     The director is not required to give public notice of administrative forfeiture proceedings in a newspaper if the fair market value of the subject property is $2,500 or less. If the director decides not to give public notice of administrative forfeiture proceedings in a newspaper, the director must post the notice on the department's website.

Notice requirements

17.4(4)     A notice under this section must include the following:

(a) a general description of the subject property;

(b) the date the subject property was seized and the place of seizure;

(c) the basis on which the director seeks forfeiture of the subject property;

(d) a statement that the subject property may be forfeited to the government;

(e) a statement that a person who wishes to oppose forfeiture of the subject property must submit a written notice of dispute to the director at an address set out in the notice by a deadline specified in the notice;

(f) the deadline for submitting a notice of dispute with the director, which must be at least 30 days after the later of

(i) the date that notice of administrative forfeiture proceedings was received or deemed to have been received by all persons required to be given notice under subsection 17.3(1), and

(ii) the date public notice of administrative forfeiture proceedings was first given under this section.

Agency to maintain possession of subject property

17.5(1)     Subject to subsection (2), when a law enforcement agency receives a notice of administrative forfeiture from the director under clause 17.3(1)(b), it must maintain the subject property and ensure that the property is not released to any person, despite any other claim, interest or right of possession in the property, until it receives

(a) a notice from the director under subsection 17.7(2) indicating that administrative forfeiture proceedings against the subject property have been discontinued;

(b) a notice of forfeiture from the director under subsection 17.8(4) that confirms that the subject property has been forfeited to the government; or

(c) notice of an order made under Part 2 in relation to the subject property that forfeits the property to the government or otherwise deals with the possession of the property.

Exception

17.5(2)     A law enforcement agency may take any action in relation to the subject property if it has received prior authorization from the director.

Disputing administrative forfeiture

17.6(1)     A person who claims to have an interest in the subject property may oppose forfeiture of the property by submitting a written notice of dispute to the director in accordance with this section.

Notice of dispute requirements

17.6(2)     The notice of dispute must include a signed declaration made on oath before a person authorized to administer affidavits and statutory declarations under The Manitoba Evidence Act that includes the following:

(a) the name of the person claiming an interest in the subject property;

(b) particulars of the person's interest in the subject property;

(c) the basis on which the person disputes forfeiture of the subject property;

(d) the address for service of the person opposing forfeiture of the subject property.

Corporation and partnership requirements

17.6(3)     If a corporation or partnership submits a notice of dispute, the declaration under subsection (2) must be made by a person who is authorized to do so by the corporation or partnership.

Deadline

17.6(4)     The notice of dispute must be received by the director on or before the deadline date.

Director's response to notice of dispute

17.7(1)     If the director receives a notice of dispute on or before the deadline date, he or she must, within 60 days after the deadline date,

(a) commence forfeiture proceedings against the subject property under Part 2; or

(b) discontinue administrative forfeiture proceedings against the subject property.

Notice of decision

17.7(2)     The director must give notice of his or her decision in accordance with subsection 17.3(3) to each person who received notice of the administrative forfeiture proceedings under subsection 17.3(1) and to each person who submitted the notice of dispute.

Discharge of notice

17.7(3)     If the decision is made to discontinue administrative forfeiture proceedings, the director must apply as soon as possible to discharge the notice filed against the subject property under subsection 17.2(3).

Forfeiture

17.8(1)     If the director does not receive a notice of dispute by the deadline date, the subject property is forfeited to the government.

Date of forfeiture

17.8(2)     The subject property is forfeited as of the date the notice of administrative forfeiture proceedings was filed against the subject property under subsection 17.2(3).

Forfeiture notice

17.8(3)     When the subject property has been forfeited under this Part, the director must prepare a notice of forfeiture, in a form approved by the minister, that confirms that the property has been forfeited to the government.

Notice to law enforcement agency

17.8(4)     The director must give a copy of the notice of forfeiture to the law enforcement agency that seized the subject property.

Delivering subject property

17.8(5)     When a law enforcement agency has received a notice of forfeiture, it must deliver the subject property to the asset manager.

Action for losses from administrative forfeiture

17.9(1)     A person who claims to have an interest in subject property that was forfeited under this Part but who failed to submit a notice of dispute in accordance with section 17.6 may commence an action in court against the government for losses arising from the forfeiture in accordance with this section.

Onus on plaintiff

17.9(2)     The plaintiff in an action commenced under this section must establish

(a) the nature of his or her interest in the subject property;

(b) that his or her failure to submit a notice of dispute in accordance with section 17.6 was not wilful or deliberate; and

(c) that he or she commenced an action under this section as soon as reasonably possible after learning of the forfeiture of the subject property.

Defence

17.9(3)     Subject to subsections (4) to (6), it is a defence to an action under this section if the government establishes that

(a) the subject property was proceeds of unlawful activity; or

(b) the subject property was an instrument of unlawful activity.

Exception — proceeds of unlawful activity

17.9(4)     A defence under clause (3)(a) fails if the plaintiff proves that

(a) he or she

(i) acquired the subject property or an interest in it before notice of administrative forfeiture proceedings was filed against the property under subsection 17.2(3), and

(ii) did not, directly or indirectly, acquire the subject property or an interest in it as a result of unlawful activity; and

(b) he or she

(i) co-owns the subject property with another person whose unlawful activity led to the finding that the property is proceeds of unlawful activity, but did not know and could not reasonably have known that his or her co-owner's interest in the property was acquired as a result of unlawful activity,

(ii) owned or had an interest in the subject property before the unlawful activity occurred, and was deprived of the property or the benefit of his or her interest as a result of the unlawful activity,

(iii) acquired the subject property or an interest in it for fair market 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

(iv) acquired the subject property or an interest in it from a person described in subclause (i), (ii) or (iii).

Exception — instrument of unlawful activity

17.9(5)     A defence under clause (3)(b) fails if the plaintiff proves that he or she

(a) acquired the subject property or an interest in it before notice of administrative forfeiture proceedings was filed against the property under subsection 17.2(3); and

(b) having regard to subsection 17(3), did all that he or she could reasonably have done in the circumstances to prevent the subject property from being used to engage in unlawful activity.

Exception

17.9(6)     A defence under subsection (3) fails if the court is satisfied that forfeiture of the subject property was clearly not in the interests of justice.

Order

17.9(7)     If an action under this section is successful, the court must order the government to pay to the plaintiff the lesser of the following:

(a) the value of the plaintiff's interest in the subject property at the time it was forfeited;

(b) the liquidated value of the subject property that was realized on the forfeiture or disposition of the property.

Payment

17.9(8)     The amount ordered to be paid under subsection (7) is to be paid from the criminal property forfeiture fund.

Limitation period

17.9(9)     An action under this section may not be commenced more than two years after the expiry of the deadline date for submitting a notice of dispute in relation to the subject property.

No other proceedings re administrative forfeiture

17.9(10)    Other than an amount ordered to be paid as the result of an action commenced under this section, no other compensation is payable to any person by the government, the director, a law enforcement agency or any other person acting under the authority of this Act and no other proceedings may be commenced seeking compensation as the result of the forfeiture of property under this Part.

PART 4

CONDUCT OF PROCEEDINGS AND PRESUMPTIONS

Application of Queen's Bench Rules

17.10(1)    Except as otherwise provided in this Act, the Queen's Bench Rules apply to all proceedings under this Act.

Director may refuse to disclose certain information

17.10(2)    The director may refuse to disclose anything in an examination for discovery or an affidavit of documents, or at any step in a proceeding under this Act, including at the hearing, 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.

Order delaying proceedings

17.11(1)    On motion, the court may order that any step in a proceeding under this Act be delayed in order to permit a prosecution of an offence to be completed, if it is satisfied that

(a) the order is necessary to protect the victim of the unlawful activity in question; and

(b) the order is in the interests of justice.

Terms or conditions

17.11(2)    The court may impose any terms or conditions on an order made under this section that it considers appropriate.

Standard of proof

17.12       Except as otherwise provided in this Act, a finding of fact or the discharge of a presumption in any proceeding under this Act is to be made on a balance of probabilities.

Proof of offences

17.13       In a proceeding 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.

Failure to seek forfeiture in sentencing does not prevent forfeiture

17.14       The fact that forfeiture of property was not sought in any sentencing process does not prevent the director from seeking forfeiture of the property under this Act.

Presumption re proceeds of unlawful activity

17.15(1)    In a proceeding under this Act in which 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 proceeding,

(ii) caused an increase in the value of property that is the subject of the proceeding,

(iii) caused a decrease in a debt obligation secured against property that is the subject of the proceeding;

is proof, in the absence of evidence to the contrary, that the property is proceeds of unlawful activity.

No direct link to specific unlawful act needed

17.15(2)    In a proceeding under this Act in which property 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.

Presumption for members of criminal organization

17.15(3)    In a proceeding under this Act in which property is alleged to be proceeds of unlawful activity, proof that the property is owned or possessed by any of the following is proof, in the absence of evidence to the contrary, that the property is proceeds of unlawful activity:

(a) a member of a criminal organization;

(b) a corporation, if a member of a criminal organization is one of its officers or directors or has a significant ownership interest in it;

(c) a person to whom it was transferred for consideration that was significantly less than the fair market value at the time of transfer, if the transferor was a person or corporation described in clause (a) or (b).

Presumption re criminal organization offence

17.15(4)    In a proceeding 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).

Presumption re community safety order

17.16       In a proceeding under this Act in which property is alleged to be an instrument of unlawful activity, there is a rebuttable presumption that the property was used to engage in unlawful activity if a community safety order under The Safer Communities and Neighbourhoods Act had previously been made in respect of the property.

18          The centred heading before section 18 is replaced with the following:

PART 5

CRIMINAL PROPERTY FORFEITURE FUND AND ADMINISTRATIVE MATTERS

19          Section 18.1 is replaced with the following:

Payments into criminal property forfeiture fund

18.1        The asset manager must deposit all cash forfeited under this Act and all proceeds generated by the management, sale or other disposition of property referred to in subsections 19.7(2) and (3) into the criminal property forfeiture fund.

20(1)        Subsection 19(1) is amended by striking out "protection order" and substituting "court order".

20(2)       Subsection 19(3) replaced with the following:

Reimbursing director and asset manager

19(3)       Money paid into the fund as the result of the forfeiture or management of property is to be paid out first to reimburse

(a) the director for costs and expenses incurred in the proceeding that led to the forfeiture of the property, if the property was forfeited under this Act; and

(b) the asset manager for costs and expenses incurred in managing, selling or otherwise disposing of the property in question.

20(3)       Subsection 19(4) is amended

(a) in the part before clause (a) of the English version, by adding "or management" after "forfeiture"; and

(b) by adding the following after clause (c):

(c.1) to support programs and services that benefit victims of crime, by making payments to the Victims' Assistance Fund continued under The Victims' Bill of Rights;

21          Clause 19.1(1)(a) is amended by striking out everything after "unlawful activity" and substituting "that led to the forfeiture of the property."

22          The centred heading before section 19.2 is struck out.

23(1)       Clause 19.3(2)(b) is amended by adding ", including personal information," after "information".

23(2)       The section heading for subsection 19.3(4) is replaced with "Privilege".

23(3)       The definition "personal information" in subsection 19.3(5) is amended by striking out everything after "The Freedom of Information and Protection of Privacy Act".

24          The following is added after section 19.6:

Director may collect information from interest holder

19.6.1(1)   The director is authorized to collect information from a registered interest holder about the registered interest the holder has in a specific property for a purpose set out in clause 19.3(1)(a) or (b).

Disclosure by interest holder

19.6.1(2)    A registered interest holder is authorized to disclose information about his or her registered interest in a specific property to the director for a purpose set out in clause 19.3(1)(a) or (b).

Definitions

19.6.1(3)   The following definitions apply in this section.

"registered interest" means

(a) with respect to real property, an interest, lien or judgment that was filed or registered against the property in accordance with The Real Property Act or The Registry Act; and

(b) with respect to personal property, a security interest, lien, charge or other interest in respect of which a financing statement was registered against the property in the personal property registry in accordance with The Personal Property Security Act. (« intérêt enregistré »)

"registered interest holder" means a person who has a registered interest in a property. (« titulaire d'un intérêt enregistré »)

25           The following is added after subsection 19.7(2):

Asset manager may manage other property

19.7(3)     The asset manager may take possession of and manage

(a) property that is the subject of a management order under section 83.13, 462.331 or 490.81 of the Criminal Code (Canada);

(b) property that is the subject of a management order under section 14.1 of the Controlled Drugs and Substances Act (Canada);

(c) property forfeited to the government under section 83.14, 199, 462.37, 462.38, 462.43, 490, 490.01, 490.1, 490.2 or 491.1 of the Criminal Code (Canada);

(d) property forfeited to the government under a prescribed provision of the Criminal Code (Canada) or a prescribed provision of another federal Act; and

(e) property forfeited to the government under a prescribed provincial Act.

Additional duties

19.7(4)     The asset manager must perform any additional duties assigned by the minister.

26          Subsection 19.8(1) is amended

(a) by striking out "protection order" and substituting "court order"; and

(b) by striking out "property forfeited under this Act, other than cash," and substituting "forfeited property".

27          Section 19.9 is amended

(a) in the section heading, by striking out "interim order" and substituting "orders"; and

(b) by adding "or takes possession of property that is the subject of an order referred to in subsection 19.7(3)" after "section 7".

28          Subsection 19.10(1) is amended

(a) by adding "and the number of administrative forfeiture proceedings under Part 3 that resulted in the forfeiture of property within that period" at the end of clause (a);

(b) in clause (b), by striking out "forfeited property" and substituting "property forfeited under this Act"; and

(c) by adding the following after clause (b):

(b.1) the total amount realized from the management and disposition of property referred to in subsection 19.7(3);

29          The centred heading before section 20 is replaced with the following:

PART 6

MISCELLANEOUS PROVISIONS

30          Section 20 is amended by striking out "a person authorized to do so by regulation" and substituting "the director".

31          Section 21 is amended by striking out "an application" and substituting "any proceeding".

32          Section 22 is replaced with the following:

No limitation period

22          There is no limitation period to commence proceedings under Part 2 or administrative forfeiture proceedings under Part 3.

33          Section 22.2 is amended by striking out "an application" and substituting "a proceeding".

34          Section 23 is amended by renumbering it as subsection 23(1) and adding the following as subsection 23(2):

Exception

23(2)       Subsection (1) does not operate to prohibit an action commenced under section 17.9.

35          Section 24 is amended

(a) in clause (a), by adding "or subsection 17.2(3)" after "section 6";

(b) in clause (b), by striking out "rights or interests" and substituting "classes of holders";

(c) in clause (c), by striking out "classes of holders" and substituting "interests";

(d) by repealing clause (d); and

(e) by adding the following after clause (f):

(f.1) prescribing anything referred to in this Act as being prescribed;

Consequential amendment, C.C.S.M. c. V55

36          The following is added after clause 40(2)(d) of The Victims' Bill of Rights:

(d.1) money paid out of the criminal property forfeiture fund in accordance with clause 19(4)(c.1) of The Criminal Property Forfeiture Act;

Coming into force

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