Canadian Criminal Sentencing/Proceeds of Crime

Introduction
Part XII.2 was enacted in Bill C61 to meet Canada's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them." It is also intended to recognize "that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity."

Proceeds of Crime Defined
Section 462.3 defines Proceeds of Crime as:

Restraint of Proceeds of Crime
Pursuant to section 462.33, on application by the Attorney General, the court may order that certain property be restrained.

The court may make the order where it is satisfied that "there are reasonable grounds to believe that there exists" there is property for which an order of forfeiture may be made "in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction".

The order will have the effect of "prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in the manner that may be specified in the order."

The application must consist of:
 * 1) a written application
 * 2) affidavit outlining:
 * 3) the offender or matter under investigation
 * 4) person believed to be in possession
 * 5) grounds for this belief
 * 6) grounds for belief that the order may be made under s.462.37(1), (2.01) or 462.38(2)
 * 7) a description of the property, and
 * 8) whether any previous application has been made

The application can be made ex parte.

Money
To seize money during a criminal proceedings, the Crown must prove on a balance of probabilities that:
 * 1) The seized monies are in relation to offences for which the defendant has been convicted;  and,
 * 2) The property is proceeds of crime.

"Property of an offender" under s. 462.37(3) can include stolen cash and so can be forfeited under those provisions.

Fine in Lieu of Forfeiture
Where the judge finds that property can be forfeited under s. 462.37(1) or (2.01), the court has the ability order that the offender pay a fine instead.

Default
Where the offender cannot pay the fine amount by the date required by the fine order, the offender will be in default. The judge will specify the penalty in default at the time of the making of the fine order.

Section 462.37(4) addresses default penalties: