Criminal Property Forfeiture Regulation

Criminal Property Forfeiture Regulation, M.R. 183/2008 The Criminal Property Forfeiture Act , C.C.S.M. c. C306 Regulation 183/2008 Registered December 9, 2008 bilingual version (HTML) Table of Contents Section 1 Definitions 2 Notice of application re real property 3 Notice of application re personal property 4 Priority to claims of victims 5 Required notice 6 Notice of right to claim compensation 7 Filing claims 8 Request for additional information or documents 9 Extending deadline for filing claims 10 Adjudicator 11 Adjudicating claims 12 Determining the amount of compensation payable 13 Paying compensation 14 Deduction of costs 15 Reimbursement of director's expenses 15.1 Managing property forfeited under provincial Acts 15.2 Managing property forfeited under federal Acts 16 Repeal 17 Coming into force Schedule DEFINITIONS Definitions 1 The following definitions apply in this regulation. "Act" means The Criminal Property Forfeiture Act . («  Loi  ») "adjudicator" means the person appointed under section 10 to adjudicate claims for compensation by victims. (« arbitre ») "department" means the department of government over which the minister presides. (« ministère ») "notice to victims" means a notice provided under section 6. (« avis aux victimes ») "victim" means a person who suffered pecuniary or non-pecuniary losses as a direct result of unlawful activity that led to the forfeiture of the property. (« victime ») NOTICES OF APPLICATION Notice of application re real property 2 For the purposes of clause 6(1)⁠(a) of the Act, notice of an application for the forfeiture of real property must be in the form set out in the Schedule. Notice of application re personal property 3(1) For the purposes of clause 6(1)⁠(b) of the Act, notice of an application for the forfeiture of personal property must be given by submitting a financing statement for registration in the Personal Property Registry in accordance with The Personal Property Security Act . Application of Personal Property Security Act 3(2) Part 5 of The Personal Property Security Act applies, with any necessary changes, to the registration of a financing statement under subsection (1). Financing statement requirements 3(3) The financing statement must (a) name as the debtor the person who owns or is in possession of personal property that is the subject of the application; (b) name the Government of Manitoba as the secured party; and (c) specify as the collateral the personal property that is the subject of the application. PRIORITY OF PAYMENTS Priority to claims of victims 4(1) Subject to subsection (2), any proceeds from the forfeiture of property that is available for distribution under subsection 19(4) of the Act is to be paid first to victims of the unlawful activity who the adjudicator has determined are entitled to compensation under this regulation. When no payments may be made to victims 4(2) If the director concludes that the amount of compensation payable to each victim would be too small to justify the administrative costs of giving notice to victims and adjudicating their claims due to the number of potential claims and the amount of money available for distribution, the director may decide that no compensation will be paid to victims. Payment of balance in fund 4(3) If any money from the forfeiture of the property remains in the criminal property forfeiture fund after all victims who have claimed compensation have been paid, or if no compensation is claimed or paid to victims, then the money is to be paid out to benefit the purposes set out in clauses 19(4)⁠(b) to (d) of the Act as specified by the director. M.R. 24/2013 NOTICE TO VICTIMS Required notice 5(1) Subject to subsection (2), within three months after all property that was the subject of a forfeiture order has been sold or otherwise disposed of, the director must give notice to victims of their right to claim compensation in accordance with section 6. Exception 5(2) The director is not required to give notice if (a) there will be no proceeds in the criminal property forfeiture fund available for disbursement after reimbursement of all costs under subsection 19(3) of the Act has occurred; (b) the director determines under subsection 4(2) that no payments will be made to victims; or (c) the director determines that there are no victims eligible to claim compensation, given the nature of the unlawful activity in question. M.R. 24/2013 Notice of right to claim compensation 6(1) The director must (a) publish the notice in at least one newspaper having general circulation throughout Manitoba; and (b) give a copy of the notice to any person who the director knows is a victim. Additional publication and distribution of notice 6(2) The director may also publish or distribute the notice to victims in whatever manner he or she believes will bring the right to make a claim for compensation to the attention of victims. Form of notice 6(3) The notice must (a) provide particulars of the application that led to the forfeiture of the property, including the name of the respondent and a general description of the forfeited property; (b) state that any person who suffered pecuniary or non-pecuniary losses as a direct result of the unlawful activity that led to the forfeiture of property may make a claim for compensation; (c) describe the steps to be taken to make a claim for compensation; (d) specify the deadline for filing a claim for compensation, which must not be earlier than one month after the day the first notice was published in a newspaper under clause (1)⁠(a); (e) give an address and telephone number to which inquiries about potential claims may be directed; (f) give an address where claims should be filed; and (g) include any other information that the director considers appropriate. M.R. 24/2013 Filing claims 7(1) A person claiming compensation must submit his or her claim to the director on a form provided by, or acceptable to, the director. Documentation of pecuniary losses 7(2) If the claim is for pecuniary losses, the claim must include a description of the claimant's pecuniary losses and documentary evidence of the losses, such as receipts and invoices. Documentation of non-pecuniary losses 7(3) If the claim is for non-pecuniary losses, it must include a description of the claimant's non-pecuniary losses and any available documentation in respect of those losses, such as a physician's report. Sources of compensation 7(4) The claim must identify any other sources from which compensation for the losses claimed by the claimant under this section have been paid or are payable to the claimant, and the amount of that compensation. Deadline 7(5) The claim must be filed on or before the final day for filing set out in the notice to victims, unless the director extends the deadline for filing for a claim under section 9. Notice to director 7(6) Once a claim has been filed, the claimant must advise the director as soon as possible of any new information that may affect the adjudication of his or her claim. Request for additional information or documents 8 The director may require a claimant to provide any additional information, documents or authorization for the release of information that the director considers necessary in order to adjudicate the claim. The director may deny a claim if the claimant fails to comply with such a request. Extending deadline for filing claims 9 Before or after the deadline for filing claims set out in the notice to victims, the director may extend the time for filing a claim for compensation if he or she considers it appropriate. Adjudicator 10(1) The minister may appoint one or more persons to evaluate and adjudicate claims for compensation. The director may be appointed as adjudicator. Assistance to adjudicator 10(2) The minister may appoint one or more employees of the department to assist the adjudicator in carrying out his or her duties under this regulation. Adjudicating claims 11(1) The adjudicator must review all claims for compensation and must determine (a) each claimant's eligibility for compensation; and (b) the amount of compensation payable to each eligible claimant. Eligibility criteria 11(2) A claimant is eligible for compensation if (a) the claimant suffered pecuniary or non-pecuniary losses as a direct result of the unlawful activity that led to the forfeiture order; and (b) full compensation for the losses has not been paid or is not payable to the claimant from other sources. Determining the amount of compensation payable 12(1) In determining the amount of compensation payable to an eligible claimant, the adjudicator must assess the losses suffered by the claimant as a result of the unlawful activity. Deductions 12(2) After calculating the claimant's losses, the adjudicator (a) must deduct from that amount any compensation paid or payable to the claimant from any other source; and (b) may deduct an amount to reflect any behaviour on the part of the claimant that may have directly or indirectly contributed to the claimant's losses. When no compensation is payable 12(3) The adjudicator may decline to award any compensation to a claimant if, in the adjudicator's opinion, (a) the amount of the compensation would be too small to justify the administrative costs of paying it; or (b) the losses suffered by the claimant are too remote from the unlawful activity. Paying compensation 13(1) No payments may be made to a victim from the criminal property forfeiture fund until every claim for compensation has been adjudicated. Rules respecting distribution 13(2) If the total amount of compensation that would otherwise be paid to all eligible claimants exceeds the amount available for distribution, compensation is to be paid according to the following rules: 1. Compensation for pecuniary losses of individual claimants must be paid first. 2. If the total amount that would otherwise be paid to all eligible individual claimants for pecuniary losses exceeds the amount available for distribution, the amount that would otherwise be paid to each claimant must be reduced pro rata in the proportion that the balance of the amount available for distribution bears to the total amount that would otherwise be paid to all the eligible claimants for pecuniary losses. 3. If any amount remains available for distribution after payments to individual claimants for pecuniary losses have been made, compensation for non-pecuniary losses of individuals are to be paid. 4. If the total amount that would otherwise be paid to all eligible individual claimants for non-pecuniary losses exceeds the amount available for distribution, the amounts payable to such claimants must be reduced using the method set out in paragraph 2. 5. If any amount remains available for distribution after payments to individual claimants have been made, compensation for pecuniary losses of claimants who are not individuals are to be paid. 6. If the total amount that would otherwise be paid to all claimants who are not individuals exceeds the amount available for distribution, the amounts payable to such claimants must be reduced using the method set out in paragraph 2. DEDUCTION AND REIMBURSEMENT OF EXPENSES Deduction of costs 14 The following costs may be deducted before any amount is paid to victims: (a) documented costs incurred by the director to give notice to victims under section 5; (b) fees and expenses relating to the adjudication of claims. Reimbursement of director's expenses 15(1) The director may be reimbursed for the following expenses under subsection 19(3) of the Act: (a) legal fees and costs arising out of the application that resulted in the forfeiture of property, whether the fees and costs are payable to government counsel or any other counsel; (b) documented fees paid to third parties for services that were required for the application, such as accountants and other expert witnesses; (c) documented fees paid to third parties arising out of any interim order made under the Act. Reimbursement asset manager's expenses 15(2) The asset manager may be reimbursed for the following expenses under subsection 19(3) or (3.1) of the Act: (a) documented expenses relating to the storage or management of forfeited property prior to its sale; (b) documented expenses incurred to repair or improve property in order to make the sale of the property commercially viable; (c) documented expenses to advertise the sale of the forfeited property; (d) commissions or other payments to an agent or other person selling the property on behalf of the government; (e) legal fees and costs incurred in selling the forfeited property, whether the fees and costs are paid to government or non-government counsel. 15(3) For the purpose of subsection 19(3.1) of the Act, the prescribed percentage of the value of the forfeited property is 20%. M.R. 102/2014 MANAGEMENT OF PROPERTY FORFEITED UNDER OTHER ACTS Managing property forfeited under provincial Acts 15.1 For the purpose of clause 19.7(3)⁠(e) of the Act, the asset manager is authorized to take possession of and manage property forfeited under the following provincial Acts: (a) The Crown Lands Act ; (b) The Endangered Species Act; (c) The Environment Act ; (d) The Fisheries Act ; (e) The Forest Act ; (f) The Provincial Parks Act ; (g) The Resource Tourism Operators Act ; (h) The Wildlife Act ; (i) The Liquor and Gaming Control Act . M.R. 102/2014 Managing property forfeited under federal Acts 15.2 For the purpose of clause 19.7(3)⁠(d) of the Act, the asset manager is authorized to take possession of and manage property forfeited under authority of the following: (a) section 72 of the Fisheries Act (Canada); (b) section 27 of the Freshwater Fish Marketing Act (Canada); (c) section 9 or 14 of the Migratory Birds Convention Act, 1994 (Canada); (d) section 19 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (Canada). M.R. 102/2014 MISCELLANEOUS PROVISIONS Repeal 16 The Criminal Property Forfeiture Regulation , Manitoba Regulation 212/2004, is repealed. Coming into force 17 This regulation comes into force on the same day that The Criminal Property Forfeiture Amendment Act , S.M. 2008, c. 16, comes into force. SCHEDULE Notice of Application under The Criminal Property Forfeiture Act