Note: It does not reflect any retroactive amendment enacted after June 15, 2011.
To find out if an amendment is retroactive, see the coming-into-force provisions
at the end of the amending Act.
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:
DEFINITIONS
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 »)
"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 the acquisition of property, or
(ii) caused serious bodily harm to a person; or
(b) is likely to be used to engage in unlawful activity that, in turn, would be likely to, or is intended to,
(i) result in the acquisition of property, or
(ii) cause serious bodily harm to a person. (« instrument d'activité illégale »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"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 an application 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 an application under section 6 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 »)
PURPOSE
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.
APPLICATION PROCEDURE
Application for forfeiture order
If the director is satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity, the director may apply to the court for an order forfeiting that property to the government.
Application must identify property
The application must describe the property for which a forfeiture order is sought with sufficient detail to make it readily identifiable.
The following must be named as respondents to the application:
(a) the owner of the property;
(b) any person other than the owner, who is in possession of the property;
(c) a person with a prior registered interest in the property;
(d) any other person whom the director has reason to believe has an interest in the property.
The director must, after filing an application for forfeiture
(a) of real property, file notice of the application 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 application, in the prescribed form, against the property in the personal property registry.
When an application for forfeiture is dismissed or discontinued, the director must apply as soon as possible to have the notice filed under subsection (1) discharged.
On motion by the director, the court may make one or more of the following interim orders respecting property that is the subject of an application under this Act:
(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.
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.
An order under subsection (1) may be made on motion without notice for a period not exceeding 30 days.
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 application, 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.
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.
If an order under clause (1)(c.2) creates a lien in favour of the government on personal property,
(a) The Personal Property Security Act applies to the lien, with such changes as the circumstances require;
(b) the lien is deemed to be a security interest that has attached for the purposes of The Personal Property Security Act; and
(c) the director may perfect the security interest for the purposes of The Personal Property Security Act by registering a financing statement under that Act.
Assigning duties to asset manager
If requested by the director, the court may assign duties respecting property to the asset manager when making an order under subsection (1).
CONDUCT OF PROCEEDINGS
Application of Queen's Bench Rules
Except as otherwise provided in this Act, the Queen's Bench Rules apply to an application under this Act.
Director may refuse to disclose certain information
The director may refuse to disclose anything in an examination for discovery or an affidavit of documents, or at any step in an application under this Act, including the hearing of the application, if, in his or her opinion, the disclosure may
(a) reveal the identity of a confidential informant, or otherwise jeopardize the safety of a person; or
(b) negatively affect
(i) an ongoing investigation or operation conducted by a law enforcement agency, or
(ii) the utility of investigative or intelligence-gathering techniques used by a law enforcement agency.
Except as otherwise provided in this Act, a finding of fact or the discharge of a presumption under this Act is to be made on the balance of probabilities.
In an application under this Act,
(a) proof that a person
(i) was convicted,
(ii) was found guilty, or
(iii) was found not criminally responsible on account of mental disorder,
in respect of an offence is proof that the person committed the offence; and
(b) evidence that a person was charged with and acquitted of an offence under the Criminal Code (Canada), or that such a charge was withdrawn or stayed, is not relevant in making a finding of fact.
At the hearing of an application, the director must disclose to the court
(a) all prior registered interests in the property that is the subject of the application; and
(b) any other interest in the property that the director has reason to believe exists.
PRESUMPTIONS
Presumption for members of criminal organization
In an application for forfeiture of property that 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 for instruments of unlawful activity
In an application for forfeiture of property that is alleged to be an instrument of unlawful activity, proof that the property was used to engage in unlawful activity that, in turn, resulted in the acquisition of other property or in serious bodily harm to a person is proof, in the absence of evidence to the contrary, that the property is an instrument of unlawful activity.
Presumption re proceeds of unlawful activity
In an application where property is alleged to be proceeds of unlawful activity, proof that a person
(a) participated in unlawful activity that resulted in, or is likely to have resulted in, the person receiving a financial benefit; and
(b) subsequently did one or more of the following:
(i) acquired property that is the subject of the application,
(ii) caused an increase in the value of property that is the subject of the application,
(iii) caused a decrease in a debt obligation secured against property that is the subject of the application;
is proof, in the absence of evidence to the contrary, that the property is proceeds of unlawful activity.
Presumption re criminal organization offence
In an application under this Act, there is a rebuttable presumption that a person is a member of a criminal organization if he or she has been found guilty or convicted of a criminal organization offence as defined in section 2 of the Criminal Code (Canada).
ORDERS
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.
No direct link to specific unlawful act needed
In order to make a forfeiture order in an application for forfeiture of property that is alleged to be proceeds of unlawful activity, the court
(a) is not required to be satisfied that the property was acquired in connection with a specific unlawful act; or
(b) is not required to be satisfied that an increase in the value of the property or a decrease in a debt obligation secured against the property arose as the result of a specific unlawful act.
When a forfeiture order is made, the property is forfeited to the government as of the date the notice of the application under section 6 was filed.
No assumption of mortgage or security interest
The government does not assume any covenants or other obligations under a mortgage or other security interest on forfeited property.
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.
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.
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.
Protected holders of prior interests
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, 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
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.
Protection order for proceeds of unlawful activity
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 notice of the application under section 6 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
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 notice of the application under section 6 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.
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.
DISTRIBUTING THE PROCEEDS OF FORFEITED PROPERTY
Criminal property forfeiture fund established
The criminal property forfeiture fund is hereby established.
Control and supervision of fund
The fund is under the control and supervision of the minister, and is to be deposited with the Minister of Finance and held in trust for the purposes of this Act in a separate account in the Consolidated Fund.
If the balance to the credit of the fund is more than the amount that is required for the immediate purposes of this Act, the Minister of Finance may invest the excess. All earnings from the investment must be credited to the fund.
Cash and proceeds to be paid into fund
The asset manager must deposit all forfeited property that is cash and all proceeds from the sale or other disposition of forfeited property into the criminal property forfeiture fund.
Subject to the terms of a protection order, payments from the criminal property forfeiture fund are to be made in accordance with this section.
Payments from the fund are to be made by the Minister of Finance on the requisition of the director.
Reimbursing director and asset manager
Money paid into the fund as the result of the forfeiture of property is to be paid out first to reimburse
(a) the director for costs and expenses incurred in bringing the application that led to the forfeiture of the property; and
(b) the asset manager for costs and expenses incurred in managing and selling the forfeited property.
Distributing remainder of fund
If any proceeds from the forfeiture of property remains in the fund after the director and asset manager have been reimbursed under subsection (3), the remaining money is to be paid out of the fund for one or more of the following purposes:
(a) to compensate victims of the unlawful activity that led to the forfeiture of the property, in accordance with section 19.1;
(b) to remedy the effect of the unlawful activity that led to the forfeiture of the property;
(c) to promote safer communities through payments, at the direction of the director, to programs operated by law enforcement agencies that are intended to enhance the practices and training of law enforcement agencies or reduce or prevent crime;
(d) to 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.
Victims eligible for compensation
A person may receive compensation from the criminal property forfeiture fund if the person
(a) suffered a pecuniary or non-pecuniary loss as a direct result of unlawful activity that resulted in the forfeiture of property under this Act; and
(b) did not engage, directly or indirectly, in the commission of the unlawful activity.
An application for compensation must be made in writing to the director in accordance with the regulations.
The amount of compensation payable to an eligible victim is to be calculated or determined in accordance with the regulations.
Additional provisions re payment
The compensation payable to an eligible victim may
(a) be paid in one or more instalments; and
(b) be subject to such terms or conditions that the director considers appropriate.
ADMINISTRATION
Director's powers and responsibilities
The director is responsible for
(a) determining whether to commence proceedings under this Act;
(b) commencing and conducting proceedings under this Act; and
(c) requisitioning payments from the criminal property forfeiture fund.
Delegation of director's powers
The director may delegate any power or responsibility he or she has under this Act to any person on his or her staff.
Director may collect information
The director is authorized to collect information, including personal information, from a public body or other source for the following purposes:
(a) to determine whether proceedings should be commenced under this Act;
(b) to conduct proceedings under this Act;
(c) to identify victims of unlawful activity, in order to enable those victims to apply for compensation under section 19.1;
(d) to enforce or comply with an order made under this Act.
Public body authorized to give information
A public body
(a) is authorized to disclose information, including personal information, to the director for a purpose set out in subsection (1); and
(b) must provide the director with information requested by the director for a purpose set out in subsection (1).
Despite subsection (2), a public body is not required to disclose to the director information that is subject to solicitor-client privilege or protected by evidentiary rules regarding informer identity.
Information subject to qualified privilege
Any information provided to the director under this Act is privileged in the same manner as if it were provided in a proceeding in a court.
The following definitions apply in this section.
"personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act, but does not include personal health information as defined in The Personal Health Information Act. (« renseignements personnels »)
"public body" means a public body as defined in The Freedom of Information and Protection of Privacy Act. (« organisme public »)
The director may disclose information obtained under subsection 19.3(1)
(a) in order to exercise any power or duty under this Act;
(b) for a purpose for which the information could be collected under that subsection; and
(c) to a person pursuant to an agreement entered into under section 19.5.
Reciprocal information exchange agreements
The director may disclose information obtained under this Act to a person employed by the Government of Canada, or the government of another province, territory, country or state, who is assigned duties and responsibilities under an Act that allows for the civil forfeiture of proceeds of unlawful activity or instruments of unlawful activity, but only if
(a) the minister has entered into an agreement with that government for the reciprocal exchange of information relating to the civil forfeiture of such property; and
(b) the minister is satisfied that the information will be used only for purposes related to the civil forfeiture of property in that jurisdiction.
Agreement with law enforcement agencies
The minister may enter into an agreement with a law enforcement agency to enable the agency to provide information to the director that will assist the director in exercising or performing his or her powers and duties under this Act.
The minister must designate a person employed by the government under The Civil Service Act as the asset manager.
Responsibilities of asset manager
The asset manager is responsible for taking possession of and managing
(a) property forfeited under this Act; and
(b) property that is the subject of an interim order under section 7 in which the court assigns duties to the asset manager.
Subject to the terms of a protection order, the asset manager may manage, sell or otherwise dispose of or deal with property forfeited under this Act, other than cash, in the manner that he or she considers proper.
Examples of asset manager's powers
Without limiting the generality of subsection (1), the asset manager may
(a) preserve or manage forfeited property for the length of time and on the terms that he or she considers proper;
(b) do anything that he or she considers proper for the ongoing management or operation of forfeited property before it is sold or otherwise disposed of, including making improvements to the property to maintain or increase its value;
(c) sell, assign or otherwise dispose of the forfeited property, or any interest in the property, at the price and on the terms that he or she considers proper; or
(d) donate or destroy the forfeited property, if
(i) the property is perishable, rapidly depreciating or requires so much repair or improvement that a sale is not commercially viable,
(ii) the property has little or no commercial value, or
(iii) the donation or destruction of the property is in the public interest.
Managing property subject to interim order
When the asset manager is assigned duties by the court in relation to property that is the subject of an interim order under section 7, the asset manager must manage the property in accordance with the requirements of the order.
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;
(b) the total amount realized within that period from the disposition of forfeited property;
(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 for costs and expenses under subsection 19(3),
(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
The minister must include the report under subsection (1) in the annual report of his or her department.
GENERAL PROVISIONS
When requested by a person authorized to do so by regulation, a peace officer must provide any assistance necessary to enforce an order made under this Act.
In an application 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.
There is no limitation period for an application under this Act.
The Escheats Act does not apply to property forfeited under this Act.
Director not compellable as witness
Except in an application under this Act, the director, and any person acting for or under the direction of the director, cannot be compelled, in court or in any other proceeding,
(a) to give evidence about information obtained by or on behalf of the director for the purposes of this Act; or
(b) to produce any document or other thing obtained by or on behalf of the director for the purposes of this Act.
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.
The Lieutenant Governor in Council may make regulations
(a) prescribing the form and content of notices filed under section 6;
(b) prescribing rights or interests for the purpose of subclause 16(1)(a)(iv);
(c) prescribing classes of holders 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) authorizing persons or members of a class of persons to request assistance from a peace officer for the purpose of section 20;
(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 subsection 19(3), including the manner in which those costs are to be calculated;
(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.
NOTE: This section contained consequential amendments to The Victims' Bill of Rights that are now included in that Act.
This Act may be referred to as chapter C306 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.
NOTE: S.M. 2004, c. 1, was proclaimed in force December 11, 2004.