Possession of the Proceeds of Crime and Forfeiture

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 313-333



Possession of

the Proceeds

of Crime and

Forfeiture

13

I. Introduction ............................................. 

II. The Proceeds of Crime Oence in Drug Cases ................. 

A. The Possession of the Proceeds of Crime Oence

in the Criminal Code ................................. 

B. Issues of Proof in Proceeds of Crime Oences ............ 

III. Forfeiture of the Proceeds of Crime .......................... 

A. Special Search Warrants .............................. 

B. Restraint and Management Orders ..................... 

C. Forfeiture of the Proceeds of Crime ..................... 

IV. Oence-Related Property Under the CDSA ..................... 

A. Restraint and Management Orders ..................... 

B. Forfeiture of Oence-Related Property ................... 

This chapter was authored by Aaron Shachter, counsel with the Public Prosecution Service

of Canada.

© 2024 Emond Montgomery Publications. All Rights Reserved.

 Prosecuting and Defending Drug Cases

I. Introduction

Drug tracking oences are “premeditated commercial crimes driven by the profit

motive.”1 It is therefore unsurprising that money or other proceeds of drug tracking

will often be found in the possession of those involved in the drug trade. As noted in

Chapter 6, Possession Oences, someone charged with drug tracking or possession

for the purpose of tracking is often also charged with being in possession of the

proceeds of crime.

In an eort to deprive a commercial drug tracker of the proceeds of their drug

tracking activities, a prosecutor may seek to obtain forfeiture of these “ill-gotten

gains” under the forfeiture of the proceeds of crime regime in the Criminal Code.

Similarly, a commercial drug tracker’s tools of the trade may be forfeited under the

oence-related property regime in the Controlled Drugs and Substances Act.2 The pur-

pose of this chapter is to review the law relating to possession of the proceeds of

crime and forfeiture and to provide practical advice regarding their application in

drug cases.

II. The Proceeds of Crime Oence in Drug Cases

A. The Possession of the Proceeds of Crime Oence

in the Criminal Code

The oence of possession of the proceeds of crime is found in section 354(1) of the

Criminal Code. That section defines the oence as “the possession of any property or

thing or any proceeds of any property or thing knowing that it was obtained by

orderived directly or indirectly from the commission in Canada of an oence punish-

able by indictment.” Section 354(1) also makes it an oence to possess the proceeds

of a crime committed outside Canada, as long as the crime would have constituted an

indictable oence in Canada.

B. Issues of Proof in Proceeds of Crime Oences

1. Possession

In order to prove possession of the proceeds of crime, the prosecution must first

prove possession—namely, that the person actually possessed the alleged proceeds

of crime in question. As in the case of drug possession, proof of possession of the

proceeds of crime requires that the person exercised some measure of control over

the object and was aware of the object’s presence. Possession of the proceeds of

crime uses the definition of possession in section 4(3) of the Criminal Code and

includes personal, constructive, and joint possession.

1 R v Graham, 2018 ONSC 6817 at para 46.

2 SC1996, c 19 [CDSA].

© 2024 Emond Montgomery Publications. All Rights Reserved.