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The Criminal Property Forfeiture Act
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This version is current as of May 24, 2016.
It has been in effect since December 5, 2013.

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C.C.S.M. c. C306

The Criminal Property Forfeiture Act

(Assented to March 11, 2004)

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

PART 1

INTRODUCTORY PROVISIONS

Definitions

1           The following definitions apply in this Act.

"asset manager" means the person designated as asset manager under subsection 19.7(1). (« gestionnaire de biens »)

"court" means the Court of Queen's Bench. (« tribunal »)

"criminal organization" means a criminal organization as defined in section 2 of the Criminal Code (Canada). (« organisation criminelle »)

"criminal property forfeiture fund" means the fund established under subsection 18(1). (« Fonds de confiscation des biens obtenus ou utilisés criminellement »)

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

"director" means the person appointed under The Civil Service Act as the director for the purpose of this Act. (« directeur »)

"instrument of unlawful activity" means property that

(a) has been used to engage in unlawful activity that, in turn,

(i) resulted in or was likely to result in the acquisition of property, or

(ii) caused or was likely to cause 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 »)

"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 »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)

"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. (version anglaise seulement)

"prior 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 before notice of a proceeding under section 6 was filed; 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 before notice of a proceeding under section 6 or notice of administrative forfeiture proceedings under subsection 17.2(3) was filed. (« intérêt antérieur enregistré »)

"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 »)

"property" means real or personal property, and includes any interest in real or personal property, and, for greater certainty, includes cash. (« bien »)

"protection order" means an order made under subsection 15(1). (« ordonnance de protection »)

"unlawful activity" means an act or omission that is an offence under

(a) an Act of Canada, Manitoba or another Canadian province or territory; or

(b) an Act of a jurisdiction outside Canada, if a similar act or omission would be an offence under an Act of Canada or Manitoba if it were committed in Manitoba;

whether the act or omission occurred before or after the coming into force of this Act. (« activité illégale »)

S.M. 2008, c. 16, s. 2; S.M. 2012, c. 13, s. 3.

Purpose

2           The purpose of this Act is to provide civil remedies that will prevent

(a) people who engage in unlawful activities and others from keeping property that was acquired as a result of unlawful activities; and

(b) property from being used to engage in certain unlawful activities.

PART 2

CIVIL FORFEITURE ORDERS

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.

S.M. 2008, c. 16, s. 3; S.M. 2012, c. 13, s. 6.

Identifying property

4           The statement of claim or notice of application must describe the property for which a forfeiture order is sought with sufficient detail to make it readily identifiable.

S.M. 2012, c. 13, s. 7.

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.

S.M. 2008, c. 16, s. 4; S.M. 2012, c. 13, s. 8.

Filing notice in registries

6(1)        The director must, after commencing a proceeding in court seeking a forfeiture order

(a) of real property, file notice of the proceeding against the property, in the prescribed form, in the proper land titles office or registry office; or

(b) of personal property, file notice of the proceeding against the property in the personal property registry.

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).

Discharge of notice

6(2)        When a proceeding seeking a forfeiture order is dismissed or discontinued, the director must apply as soon as possible to have the notice filed under subsection (1) or subsection 17.2(3) discharged.

S.M. 2008, c. 16, s. 5; S.M. 2012, c. 13, s. 9.

Interim orders

7(1)        On motion by the director, the court may make one or more of the following interim orders respecting property that is the subject of a proceeding under this Part:

(a) an order restraining the disposition of the property;

(b) an order for the possession, delivery or safekeeping of the property;

(c) an order appointing a receiver or a receiver and manager for the property;

(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) any other order respecting the preservation, management or disposition of the property that the court considers just.

Grounds for order

7(2)        Unless it would clearly not be in the interests of justice, the court must make an order under subsection (1) if it is satisfied that there are reasonable grounds to believe that the property is proceeds of unlawful activity or an instrument of unlawful activity.

Motion made without notice

7(3)        An order under subsection (1) may be made on motion without notice for a period not exceeding 30 days.

Extension

7(4)        If an order under subsection (1) is made on a motion without notice, a motion to extend the order may be made only on notice to every party to the proceeding, unless the court is satisfied that because a party has been evading service or because there are other exceptional circumstances, the order ought to be extended without notice to that party.

Extension without notice

7(5)        Where an extension is granted on a motion without notice, it may be made for a further period not exceeding 10 days from the date the extension is granted.

Lien on personal property

7(6)        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

7(7)        If requested by the director, the court may assign duties respecting property to the asset manager when making an order under subsection (1).

S.M. 2008, c. 16, s. 6; S.M. 2012, c. 13, s. 10.

8           [Repealed]

S.M. 2008, c. 16, s. 7; S.M. 2012, c. 13, s. 11.

9           [Repealed]

S.M. 2008, c. 16, s. 8; S.M. 2012, c. 13, s. 11.

9.1         [Repealed]

S.M. 2008, c. 16, s. 9; S.M. 2012, c. 13, s. 11.

Interests to be disclosed

10          At the hearing of a proceeding under this Part, the director must disclose to the court

(a) all prior registered interests in the property that is the subject of the proceeding; and

(b) any other interest in the property that the director has reason to believe exists.

S.M. 2008, c. 16, s. 10; S.M. 2012, c. 13, s. 12.

11 and 12   [Repealed]

S.M. 2012, c. 13, s. 13.

12.1        [Repealed]

S.M. 2008, c. 16, s. 11; S.M. 2012, c. 13, s. 13.

12.2        [Repealed]

S.M. 2011, c. 6, s. 10; S.M. 2012, c. 13, s. 13.

13          [Repealed]

S.M. 2008, c. 16, s. 12; S.M. 2012, c. 13, s. 13.

ORDERS

Forfeiture order

14(1)       Subject to section 15, and unless it would clearly not be in the interests of justice, the court must make an order forfeiting property to the government if it finds that the property is proceeds of unlawful activity or an instrument of unlawful activity.

14(1.1)     [Repealed] S.M. 2012, c. 13, s. 14.

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.

No assumption of mortgage or security interest

14(3)       The government does not assume any covenants or other obligations under a mortgage or other security interest on forfeited property.

S.M. 2008, c. 16, s. 13; S.M. 2012, c. 13, s. 14.

Protection order

15(1)       Subject to subsection (3), when property is found to be proceeds of unlawful activity or an instrument of unlawful activity, the court must make an order to protect, as much as reasonably possible, interests in the property held by persons entitled to such an order under section 16 or 17.

Possible orders

15(2)       Without limiting the generality of subsection (1), a protection order may

(a) sever or partition any interest in the property or require any interest in the property to be sold or otherwise disposed of by any person;

(b) subject to subsection 14(3), provide that the government takes the property subject to the interest of a person; or

(c) direct that the proceeds of the sale of the property be applied to any debt secured by a prior registered interest in the property.

Exception

15(3)       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.

S.M. 2008, c. 16, s. 14.

Protected holders of prior interests

16(1)       The following are entitled to a protection order in respect of property that is found to be proceeds of unlawful activity or an instrument of unlawful activity:

(a) any of the following holders of a prior registered interest in the property:

(i) a bank, a credit union, or a trust or loan corporation with a business authorization under Part XXIV of The Corporations Act,

(ii) an insurance company licensed under The Insurance Act,

(iii) the Government of Canada, the Government of Manitoba, a municipality or a local government district,

(iv) a member of a class of holders, prescribed by regulation, who are similar to the holders set out in subclause (i) or (ii);

(b) the holder of an interest in the property that is

(i) a prior registered interest that is referred to in section 141 of The Real Property Act,

(ii) not registered, but if it were registered, would be an interest referred to in section 141 of The Real Property Act, or

(iii) a prior registered interest that is prescribed by regulation.

Other persons entitled to protection order

16(2)       If property is found to be proceeds of unlawful activity or an instrument of unlawful activity, any person who acquired the property or an interest in the property from a person referred to in subsection (1) is entitled to a protection order.

S.M. 2012, c. 13, s. 15.

Protection order for proceeds of unlawful activity

17(1)       If property is found to be proceeds of unlawful activity, a person who owns or has an interest in the property is entitled to a protection order if the person proves

(a) that he or she

(i) acquired the property or an interest in it before a notice under section 6 or subsection 17.2(3) was filed against the property, and

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

(b) that he or she

(i) co-owns the 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 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 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 property or an interest in it from a person described in subclause (i), (ii) or (iii).

Protection order for instrument of unlawful activity

17(2)       If property is found to be an instrument of unlawful activity, a person who owns or has an interest in the property is entitled to a protection order if the person proves that he or she

(a) acquired the property or an interest in the property before a notice under section 6 or subsection 17.2(3) was filed against the property; and

(b) did all that he or she could reasonably have done in the circumstances to prevent the property from being used to engage in unlawful activity.

Examples

17(3)       For the purpose of clause (2)(b), a person can prevent property from being used to engage in unlawful activity by actions such as

(a) promptly notifying appropriate law enforcement agencies whenever the person knows or ought to know that the property has been or is likely to be used to engage in unlawful activity; or

(b) refusing or withdrawing any permission that the person has authority to give and that the person knows or ought to know has facilitated or is likely to facilitate the property's being used to engage in unlawful activity.

S.M. 2012, c. 13, s. 16.

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 »)

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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).

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

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).

S.M. 2012, c. 13, s. 17.

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.

S.M. 2012, c. 13, s. 17.

PART 5

CRIMINAL PROPERTY FORFEITURE FUND AND ADMINISTRATIVE MATTERS

Criminal property forfeiture fund established

18(1)       The criminal property forfeiture fund is hereby established.

Control and supervision of fund

18(2)       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.

Investment of excess money

18(3)       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.

S.M. 2008, c. 16, s. 15.

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.

S.M. 2008, c. 16, s. 16; S.M. 2012, c. 13, s. 19.

Payments from fund

19(1)       Subject to the terms of a court order, payments from the criminal property forfeiture fund are to be made in accordance with this section.

Requisitions for payments

19(2)       Payments from the fund are to be made by the Minister of Finance on the requisition of the director.

Payments re property under Part 2

19(3)       Money paid into the fund from the forfeiture or management of property that was the subject of proceedings under Part 2 is to be paid out first

(a) to reimburse the director for costs and expenses incurred in the proceedings; and

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

Payments re property under Part 3

19(3.1)     Money paid into the fund from the forfeiture or management of property that was forfeited as the result of administrative forfeiture proceedings under Part 3 is to be paid out first to defray the costs of operating the administrative forfeiture program, by way of payment of a prescribed percentage of the value of the forfeited property.

Payments re other property

19(3.2)     Money paid into the fund as the result of the forfeiture or management of property referred to in subsection 19.7(3) is to be paid out first to reimburse the asset manager for costs and expenses incurred in managing, selling or otherwise disposing of the property in question.

Distributing remainder of fund

19(4)       If any proceeds from the forfeiture or management of property remain in the fund after payments have been made under subsection (3), (3.1) or (3.2), 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;

(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;

(d) to promote safer communities through payments, at the direction of the director, to benefit programs or activities designated in the regulations for this purpose.

S.M. 2004, c. 50, s. 18; S.M. 2008, c. 16, s. 17; S.M. 2012, c. 13, s. 20; S.M. 2013, c. 55, s. 5.

Victims eligible for compensation

19.1(1)     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 led to the forfeiture of the property; and

(b) did not engage, directly or indirectly, in the commission of the unlawful activity.

Applying for compensation

19.1(2)     An application for compensation must be made in writing to the director in accordance with the regulations.

Amount of compensation

19.1(3)     The amount of compensation payable to an eligible victim is to be calculated or determined in accordance with the regulations.

Additional provisions re payment

19.1(4)     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.

S.M. 2008, c. 16, s. 18; S.M. 2012, c. 13, s. 21; S.M. 2013, c. 54, s. 22.

Director's powers and responsibilities

19.2(1)     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

19.2(2)     The director may delegate any power or responsibility he or she has under this Act to any person on his or her staff.

S.M. 2008, c. 16, s. 18.

Director may collect information

19.3(1)     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

19.3(2)     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, including personal information, requested by the director for a purpose set out in subsection (1).

Protected information

19.3(3)     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.

Privilege

19.3(4)     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.

Definitions

19.3(5)     The following definitions apply in this section.

"personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act. (« renseignements personnels »)

"public body" means a public body as defined in The Freedom of Information and Protection of Privacy Act. (« organisme public »)

S.M. 2008, c. 16, s. 18; S.M. 2012, c. 13, s. 23.

Authorized disclosure

19.4        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.

S.M. 2008, c. 16, s. 18.

Reciprocal information exchange agreements

19.5        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.

S.M. 2008, c. 16, s. 18.

Agreement with law enforcement agencies

19.6        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.

S.M. 2008, c. 16, s. 18.

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 »)

S.M. 2012, c. 13, s. 24.

Asset manager

19.7(1)     The minister must designate a person employed by the government under The Civil Service Act as the asset manager.

Responsibilities of asset manager

19.7(2)     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.

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.

S.M. 2008, c. 16, s. 18; S.M. 2012, c. 13, s. 25.

Managing forfeited property

19.8(1)     Subject to the terms of a court order, the asset manager may manage, sell or otherwise dispose of or deal with forfeited property in the manner that he or she considers proper.

Examples of asset manager's powers

19.8(2)     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.

S.M. 2008, c. 16, s. 18; S.M. 2012, c. 13, s. 26.

Managing property subject to orders

19.9        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 or takes possession of property that is the subject of an order referred to in subsection 19.7(3), the asset manager must manage the property in accordance with the requirements of the order.

S.M. 2008, c. 16, s. 18; S.M. 2012, c. 13, s. 27.

Annual report to minister

19.10(1)    As soon as practicable after March 31 of each year, the director and the asset manager must jointly prepare and submit to the minister an annual report, for the 12-month period ending March 31, that includes the following:

(a) the number of forfeiture orders made within that period and the number of administrative forfeiture proceedings under Part 3 that resulted in the forfeiture of property within that period;

(b) the total amount realized within that period from the disposition of property forfeited under this Act;

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

(c) a statement respecting the operation of the criminal property forfeiture fund for that period that includes, without limitation, the following information:

(i) the total amount paid under subsections 19(3), (3.1) and (3.2),

(ii) the total amount paid to compensate victims of unlawful activity or to remedy the effect of unlawful activity, as permitted under clauses 19(4)(a) and (b),

(iii) the total amount paid to support programs operated by law enforcement agencies, as permitted under clause 19(4)(c),

(iv) the amounts paid to support programs or activities under clause 19(4)(d), showing the total amount paid for each program or activity;

(d) any other information requested by the minister.

Report to be included in department's annual report

19.10(2)    The minister must include the report under subsection (1) in the annual report of his or her department.

S.M. 2008, c. 16, s. 18; S.M. 2012, c. 13, s. 28; S.M. 2013, c. 55, s. 6.

PART 6

MISCELLANEOUS PROVISIONS

Assistance of peace officer

20          When requested by the director, a peace officer must provide any assistance necessary to enforce an order made under this Act.

S.M. 2012, c. 13, s. 30.

Where possession unlawful

21          In any proceeding under this Act, a person cannot claim to have an interest in property if it would be an offence under the law of Canada or Manitoba for the person to possess the property.

S.M. 2012, c. 13, s. 31.

No limitation period

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

S.M. 2012, c. 13, s. 32.

Escheats Act does not apply

22.1        The Escheats Act does not apply to property forfeited under this Act.

S.M. 2008, c. 16, s. 19.

Director not compellable as witness

22.2        Except in a proceeding 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.

S.M. 2008, c. 16, s. 19; S.M. 2012, c. 13, s. 33.

Protection from liability

23(1)       No action or proceeding may be brought against the director, the asset manager or any other person acting under the authority of this Act for anything done, or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act; or

(b) in the exercise or intended exercise of a power under this Act;

unless the person was acting in bad faith.

Exception

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

S.M. 2008, c. 16, s. 20; S.M. 2012, c. 13, s. 34.

Regulations

24          The Lieutenant Governor in Council may make regulations

(a) prescribing the form and content of notices filed under section 6 or subsection 17.2(3);

(b) prescribing classes of holders for the purpose of subclause 16(1)(a)(iv);

(c) prescribing interests for the purpose of subclause 16(1)(b)(iii);

(c.1) prescribing programs or activities 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;

(d) [repealed] S.M. 2012, c. 13, s. 35;

(e) [repealed] S.M. 2008, c. 16, s. 21;

(f) respecting the costs and expenses for which the director and asset manager may be reimbursed for under subsections 19(3) and (3.2), including the manner in which those costs and expenses are to be calculated;

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

(g) [repealed] S.M. 2008, c. 16, s. 21;

(h) respecting any other matter necessary or advisable to carry out the purposes of this Act.

S.M. 2008, c. 16, s. 21; S.M. 2012, c. 13, s. 35; S.M. 2013, c. 55, s. 7.

25          

NOTE: This section contained consequential amendments to The Victims' Bill of Rights that are now included in that Act.

C.C.S.M. reference

26          This Act may be referred to as chapter C306 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

27           This Act comes into force on a day to be fixed by proclamation.

NOTE: S.M. 2004, c. 1 came into force by proclamation on December 11, 2004.