Property Seizure, Forfeiture & Restoration
FAQ’s on Legal Procedures for Property Seized by Police in Canada
Criminal procedure relating to the seizure, forfeiture and restoration of property are regulated by various provisions of the Criminal Code. Issues relating to property may arise at various stages of the process, including early on in the disclosure phase, prior to preliminary hearing or trial dates, as well as right after sentencing.
Property forfeitures have a specific intended purpose in the criminal justice system; it is used by the Courts to prevent a convicted party from receiving a benefit from the crime. The next section will provide answers to commonly asked questions about property seized by police.
What happens to property that is seized by police after executing a search warrant?
A police officer who has seized anything under a search warrant, or throughout the course of his or her duties, and is not satisfied as to who is entitled to possession of the thing seized or as to whether it will be required for proceedings, must bring it before a justice or report to the justice that the thing is being detained
Pursuant to s. 489.1(b)(ii) the ‘Report to Justice‘, which is a document prepared by the police after executing a search warrant, must be filed with the justice of the peace and eventually provided to the accused as part of disclosure. The report to justice will include an itemized list of all the property that was seized by police.
How long can the police detain property seized pursuant to a search warrant?
According to the Criminal Code, police are permitted to keep seized property for a period of 90 days without laying charges. Nothing is to be detained for more than 90 days, unless:
(a) a justice is satisfied on application that, having regard to the nature of the investigation, its further detention for a specified period is warranted and he so orders; or
(b) proceedings are instituted in which the thing detained may be required.
What does the Crown have to prove to seize money?
In order to seize money during a criminal proceeding, the Crown must prove on a balance of probabilities that:
The seized monies are in relation to offences for which the defendant has been convicted; and,
The property is proceeds of crime.
“Proceeds of Crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of
(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
Police seized all my cash–can I use the money the police have seized to pay for my lawyer?
Yes, it may be possible. A lawyer would have to bring an application seeking an order for the return of seized funds for legal fees, pursuant to s. 462.34 of the Criminal Code. If the order is granted, the courts would direct that the seized funds be released directly to the accused person’s lawyer (to satisfy legal fees).
The legal basis for the application is based on constitutional rights granted to all accused persons pursuant to the Charter which recognize the need to uphold rights to counsel and an accused’s ability to make full answer and defence. Criminal matters are complex and almost always require the assistance of a criminal lawyer in order to protect the accused person’s interests and ensure a fair trial.
How do the Courts decide whether seized funds should be released to pay legal fees?
In order to obtain an order from a justice for the release of seized funds for legal fees, a lawyer will have to bring an application which must establish on a balance of probabilities that the accused person:
(i) does not have any other assets or means to obtain the necessary funds to meet their legal expenses;
(ii) has a possessary interest in the funds seized in the investigation;
(iii) that no other person is the lawful owner of the funds seized or is lawfully entitled to the possession of those funds; and
(iv) that the legal fees set out by the lawyer are reasonable
Can the police seize property that is not described in the search warrant?
Yes, under s. 489, a peace officer in lawful execution of their duty may seize anything without a warrant that they reasonably believe to be:
1. obtained by crime; 2. used in a crime, or; 3. affords evidence of a crime
Under what circumstances can seized property being forfeited?
The Criminal Code of Canada has three provisions relating to forfeiture under Part XII.2 and as such, an accused person is not entitled to the return of property seized by police where the trial judge or a judge to whom an application for restoration/forfeiture is made is satisfied of one of the following:
s. 462.37(1) requires the Court to forfeit property where an offender is convicted of an enterprise crime offence and the court is satisfied on a balance of probabilities that the property is proceeds of crime and the offence was committed in relation to the property
s. 462.37(2) allows courts to forfeit property where the property has been shown beyond a reasonable doubt to be proceeds of crime
s. 462.38 allows forfeiture of property where an accused has died or absconded
What happens with forfeited property?
The Crown Attorney is entitled to all unappropriated fines, property forfeitures or penalties as royalties. Once property is ordered to be forfeited by the courts, it belongs to the federal Crown Attorney, subject to the 30 day appeal period.
Note to readers: This article is solely for informational purposes and should not be considered legal advice. In order to ensure the protection of your rights and interests, please consult a criminal defence lawyer prior to acting or relying upon any information.
CONTACT FARJOUD LAW
If you or someone you care about has had property seized by the police in relation to a criminal investigation or charge, it is in your best interests to speak directly to a Toronto criminal lawyer. Call Farjoud Law at (647) 606-6776 to speak with a criminal lawyer to discuss your matter. We are available 24 hours a day, 7 days a week.
Farjoud Law is located at 4950 Yonge Street, Suite 2200 in the neighbourhood of North York in Toronto, Ontario. Click here for directions to the office