Canadian Criminal Sentencing/Offence-related Property

Restraint of Offence-related Property
Under s. 490.8(1), the Attorney General may make an application for a restraint order against "offence-related property".

Under s. 490.8(2), the application can be made ex parte and consist of an affidavit which includes:
 * 1) the indictable offence to which the offence-related property relates;
 * 2) the person who is believed to be in possession of the offence-related property; and
 * 3) a description of the offence-related property.

To make the order, the judge must be satisfied that "that there are reasonable grounds to believe that the property is offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order."(s. 490.8(4))

Forfeiture of Property on Conviction
Section 490.1(1) permits the forfeiture of "offence-related property" on application of the crown:

Under s. 290.1(2), for property to be forfeited, the court must be satisfied that the offence convicted was "committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property."

In Rem Forfeiture
The application can be made to a provincial court or superior court judge.

Considerations in Forfeiture of Dwelling-House
Where the matter sought to be forfeited is a dwelling-house, the court must take into consideration further factors:

Vehicles
The vehicle used to transport drugs that were the subject of a CDSA conviction is offence-related property and so can be seized.

Forfeiture of Offence-related Weapons
Section 491 requires the forfeiture of weapons:

Under 491(1), the court shall order the forfeiture of weapons or ammunition where it is determined that:
 * 1) a weapon was used in the commission of an offence and the weapon has been seized by police, or
 * 2) an offence involved or the subject-matter is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and it has been seized

If so, the thing seized is to be "forfeited to Her Majesty and shall be disposed of as the Attorney General directs."

See R v Roberts 2005 SKPC 88; The Queen v. Montague, 2012 ONSC 2300