Proceeds of Crime and Asset Forfeiture (Respondent) - Post-Stay Forfeiture Defence - R v Nguyen 2026 SCC 10

The Process at a Glance: Immediately upon the stay of criminal proceedings, counsel files to dismiss all pending forfeiture applications brought under trial-tied provisions. Counsel then determines whether the property at issue was physically seized (attracting s 490(9)) or merely restrained and never taken into possession (attracting s 462.43). For seized property, the respondent invokes the presumption of lawful possession and forces the Crown to satisfy the full 3-part Nguyen test - a high burden including proof of unlawful possession beyond a reasonable doubt. For restrained-only property, counsel applies under s 462.43 for a disposition order directing the return of the property.

Key Legislation and Case Law: R v Nguyen 2026 SCC 10 - trial-tied forfeiture provisions (ss 462.37, 491.1 Criminal Code; s 16 CDSA) lose jurisdiction the moment criminal proceedings are stayed; the Crown cannot proceed under these provisions after a stay; for seized property the Crown must use s 490(9); for restrained-only property the Crown must use s 462.43. Section 490(9) 3-part test: (1) the property is no longer required for any present or future proceedings, (2) the unlawfulness of the person's possession of the property is proved beyond a reasonable doubt, (3) there are no other known lawful claimants to the property. Nguyen also confirmed that a stay of proceedings is not tantamount to an acquittal for forfeiture purposes - property taint analysis is not precluded. Section 462.43 (disposition of restrained property post-stay) - the court may direct the property be returned to the person from whom it was seized or to any other person entitled to it. Criminal Code Part XII.2 - Justice Laws.

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