Case information

Criminal law — Restraint and management orders — Should applications for third party restraint and management orders under the Criminal Code targeting persons and property outside of Canada be governed by the test established in British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5, or by the test established in Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, which was affirmed in Sharp v. Autorité des marchés financiers, 2023 SCC 29 — Can Sharp v. Autorité des marchés financiers and the question of extraterritorial effects be circumvented by the application of criminal law concepts of possession to a Canadian affiliate?

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The Attorney General for Ontario applied for orders of restraint and management of cryptocurrency held in cryptocurrency exchanges. Named respondents to the application allegedly fraudulently caused a victim in Canada to transfer Bitcoin worth approximately $65,000 to cryptocurrency wallets. Investigators allegedly traced the bitcoin to three accounts held by Nest Services Limited which has a head office in the Republic of Seychelles. A production order produced evidence that the accounts are in the names of three Nigerian citizens. It was conceded below that the cryptocurrency identified in the Attorney General’s application is “offence-related property” as that term is defined in the Criminal Code. Forestell J. of the Ontario Superior Court of Justice held that the jurisdictional test set out in British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5, applied. In subsequent reasons for judgment applying that test, Forestell J. held that some of the restraint and management orders sought by the Attorney General should be issued.