First Session, Thirty-ninth Parliament,
55 Elizabeth II, 2006
STATUTES OF CANADA 2006CHAPTER 12
An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act
ASSENTED TO
14th DECEMBER, 2006
BILL C-25
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act”.
SUMMARY
This enactment amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to enhance the client identification, record-keeping and reporting measures applicable to financial institutions and intermediaries. It establishes a registration regime for money services businesses and foreign exchange dealers and creates a new offence for not registering.
It allows the Financial Transactions and Reports Analysis Centre of Canada to disclose additional information to law enforcement and intelligence agencies, and to make disclosures to additional agencies.
It permits the Centre to exchange compliance-related information with its foreign counterparts and permits the Canada Border Services Agency to share information about the application of the cross-border currency reporting regime with its foreign counterparts. It also includes a consequential amendment to the Canada Border Services Agency Act.
It creates an administrative monetary penalty regime.
It amends the Income Tax Act to allow the Canada Revenue Agency to disclose to the Centre, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service information about charities suspected of being involved in terrorist financing activities.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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55 ELIZABETH II
——————
CHAPTER 12
An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act
[Assented to 14th December, 2006]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2000, c. 17; 2001, c. 41, s. 48
AMENDMENTS TO THE PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT
2005, c. 38, s. 124(2) and par. 145(2)(h)
1. (1) The definition “Minister” in section 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is replaced by the following:
“Minister”« ministre »
“Minister” means, in relation to sections 24.1 to 39, the Minister of Public Safety and Emergency Preparedness and, in relation to any other provision of this Act, the Minister of Finance.
(2) Section 2 of the Act is amended by adding the following in alphabetical order:
“violation”« violation »
“violation” means a contravention of this Act or the regulations that is designated as a violation by regulations made under subsection 73.1(1).
2. The heading of Part 1 of the Act is replaced by the following:
RECORD KEEPING, VERIFYING IDENTITY, REPORTING OF SUSPICIOUS TRANSACTIONS AND REGISTRATION
2001, c. 41, s. 51(1)
3. (1) Paragraphs 5(g) and (h) of the Act are replaced by the following:
(g) persons and entities authorized under provincial legislation to engage in the business of dealing in securities or any other financial instruments, or to provide portfolio management or investment advising services;
(h) persons and entities engaged in the business of foreign exchange dealing, of remitting funds or transmitting funds by any means or through any person, entity or electronic funds transfer network, or of issuing or redeeming money orders, traveller’s cheques or other similar negotiable instruments except for cheques payable to a named person or entity;
(2) Paragraph 5(l) of the Act is replaced by the following:
(l) departments and agents of Her Majesty in right of Canada or of a province that are engaged in the business of accepting deposit liabilities, that sell money orders to the public or that sell prescribed precious metals, while carrying out the activities described in regulations made under paragraph 73(1)(c); and
4. Section 6 of the Act and the heading before it are replaced by the following:
Record Keeping and Verifying Identity
Record keeping
6. Every person or entity referred to in section 5 shall keep and retain prescribed records in accordance with the regulations.
Verifying identity
6.1 Every person or entity referred to in section 5 shall verify, in the prescribed circumstances and in accordance with the regulations, the identity of any person or entity.
2001, c. 41, s. 52
5. Section 7 of the Act and the heading before it are replaced by the following:
Reporting and Other Requirements
Transactions if reasonable grounds to suspect
7. Subject to section 10.1, every person or entity referred to in section 5 shall report to the Centre, in the prescribed form and manner, every financial transaction that occurs or that is attempted in the course of their activities and in respect of which there are reasonable grounds to suspect that
(a) the transaction is related to the commission or the attempted commission of a money laundering offence; or
(b) the transaction is related to the commission or the attempted commission of a terrorist activity financing offence.
2001, c. 41, s. 52
6. Subsection 7.1(1) of the Act is replaced by the following:
Disclosure
7.1 (1) Every person or entity referred to in section 5 that is required to make a disclosure under section 83.1 of the Criminal Code or under section 8 of the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism shall also make a report on it to the Centre, in the prescribed form and manner.
7. (1) Subsection 9(1) of the Act is replaced by the following:
Prescribed financial transactions
9. (1) Subject to section 10.1, every person or entity referred to in section 5 shall report to the Centre, in the prescribed form and manner, every prescribed financial transaction that occurs in the course of their activities.
(2) Subsection 9(3) of the Act is replaced by the following:
List of persons
(3) Every person or entity referred to in section 5 shall establish and maintain a list, in the prescribed form and manner, of their clients in respect of whom a report would have been required under subsection (1) were it not for subsection (2). However, a person or an entity may choose to report a client’s transactions under subsection (1) instead of maintaining the list in respect of that client.
8. The Act is amended by adding the following after section 9.1:
Inability to establish identity
9.2 No person or entity referred to in section 5 shall open an account for a client, in the prescribed circumstances, if it cannot establish the identity of the client in accordance with the prescribed measures.
Politically exposed foreign persons
9.3 (1) Every person or entity that is referred to in section 5 and that is prescribed shall determine, in the prescribed circumstances and in accordance with the regulations, whether it is dealing with a politically exposed foreign person.
Measures
(2) If the person or entity determines that it is dealing with a politically exposed foreign person, the person or entity shall obtain the approval of senior management in the prescribed circumstances and take prescribed measures.
Definition of “politically exposed foreign person”
(3) For the purposes of this section, “politically exposed foreign person” means a person who holds or has held one of the following offices or positions in or on behalf of a foreign state:
(a) head of state or head of government;
(b) member of the executive council of government or member of a legislature;
(c) deputy minister or equivalent rank;
(d) ambassador or attaché or counsellor of an ambassador;
(e) military officer with a rank of general or above;
(f) president of a state-owned company or a state-owned bank;
(g) head of a government agency;
(h) judge;
(i) leader or president of a political party represented in a legislature; or
(j) holder of any prescribed office or position.
It includes any prescribed family member of such a person.
Correspondent banking
9.4 (1) Every entity referred to in any of paragraphs 5(a), (b), (d) and (e) and every other entity that is referred to in section 5 and that is prescribed shall take the following measures before entering into a correspondent banking relationship with a prescribed foreign entity:
(a) obtain prescribed information about the foreign entity and its activities;
(b) ensure that the foreign entity is not a shell bank as defined in the regulations;
(c) obtain the approval of senior management;
(d) set out in writing their obligations and those of the foreign entity in respect of the correspondent banking services; and
(e) any prescribed measures.
Prohibition — shell bank
(2) No person or entity shall enter into a correspondent banking relationship with a shell bank as defined in the regulations.
Definition of “correspondent banking relationship”
(3) For the purposes of this section, “correspondent banking relationship” means a relationship created by an agreement or arrangement under which an entity referred to in any of paragraphs 5(a), (b), (d) and (e) or an entity that is referred to in section 5 and that is prescribed undertakes to provide to a prescribed foreign entity services such as international electronic funds transfers, cash management, cheque clearing and any prescribed services.
Electronic funds transfer
9.5 Every person or entity that is referred to in section 5 and that is prescribed shall, in respect of a prescribed electronic funds transfer that occurs in the course of their financial activities,
(a) include with the transfer the name, address, and account number or other reference number, if any, of the client who requested it, and any prescribed information;
(b) take reasonable measures to ensure that any transfer that the person or entity receives includes that information; and
(c) take any prescribed measures.
Compliance program
9.6 (1) Every person or entity referred to in section 5 shall establish and implement, in accordance with the regulations, a program intended to ensure their compliance with this Part.
Risk assessment
(2) The program shall include the development and application of policies and procedures for the person or entity to assess, in the course of their activities, the risk of a money laundering offence or a terrorist activity financing offence.
Special measures
(3) If the person or entity considers that the risk referred to in subsection (2) is high, the person or entity shall take prescribed special measures for identifying clients, keeping records and monitoring financial transactions in respect of the activities that pose the high risk.
Foreign subsidiaries
9.7 (1) Every person or entity referred to in any of paragraphs 5(a) to (g), except for authorized foreign banks within the meaning of section 2 of the Bank Act and for authorized foreign companies within the meaning of section 2 of the Insurance Companies Act, shall ensure that their wholly owned subsidiaries, that are located in a country that is not a member of the Financial Action Task Force and that carry out activities similar to those of persons and entities referred to in those paragraphs, develop and apply policies and procedures that are consistent with the requirements of sections 6, 6.1 and 9.6 when the laws of the country permit it.
Record keeping
(2) If the development or application by a subsidiary of a policy or procedure referred to in subsection (1) would contravene the laws of the country in which the subsidiary is located, the person or entity shall keep and retain a record of that fact in accordance with section 6.
Definition of “Financial Action Task Force”
(3) For the purposes of this section, “Financial Action Task Force” means the Financial Action Task Force on Money Laundering established in 1989.
Foreign branches
9.8 Every entity referred to in paragraphs 5(a) to (g), except for authorized foreign banks within the meaning of section 2 of the Bank Act and for authorized foreign companies within the meaning of section 2 of the Insurance Companies Act, shall ensure that their branches, that are located in a country that is not a member of the Financial Action Task Force and that carry out activities similar to those of persons and entities referred to in those paragraphs, develop and apply policies and procedures that are consistent with the requirements of sections 6, 6.1 and 9.6 when the laws of the country permit it.
9. The Act is amended by adding the following after section 10:
Non-application to legal counsel
10.1 Sections 7 and 9 do not apply to persons or entities referred to in paragraph 5(i) or (j) who are, as the case may be, legal counsel or legal firms, when they are providing legal services.
10. The Act is amended by adding the following after section 11:
Registration
Application and Revocation
Registration requirement
11.1 Except as otherwise provided in the regulations, every person or entity referred to in paragraph 5(h), those referred to in paragraph 5(l) that sell money orders to the public, and every other person or entity that is referred to in section 5 and that is prescribed must be registered with the Centre in accordance with this section and sections 11.11 to 11.2.
11. The Act is amended by adding the following before the heading “PART 2”:
Ineligible for registration
11.11 (1) The following persons or entities are not eligible for registration with the Centre:
(a) a listed person as defined in section 1 of the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism;
(b) a listed entity as defined in subsection 83.01(1) of the Criminal Code;
(c) a person or entity that has been convicted of any of the following:
(i) a money laundering offence,
(ii) a terrorist activity financing offence,
(iii) an offence under this Act when convicted on indictment,
(iv) an offence under any of sections 83.18 to 83.231, 354 or 467.11 to 467.13 of the Criminal Code, or
(v) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in subparagraphs (i) to (iv);
(d) a person or entity that has been convicted on indictment or convicted more than once for an offence under Part X of the Criminal Code or under the Controlled Drugs and Substances Act except for the offence under subsection 4(1) of that Act;
(e) an entity that is a corporation in respect of which a director, the chief executive officer, the president or the person who owns or controls, directly or indirectly, 20 per cent or more of the shares has been convicted on indictment of an offence under this Act; or
(f) any prescribed person or entity.
Revocation of registration
(2) If the Centre becomes aware that a person or entity referred to in subsection (1) is registered, the Centre shall revoke the registration and shall, without delay, inform the person or entity of the revocation.
Application for registration
11.12 (1) An application for registration shall be submitted to the Centre in the prescribed form and manner, shall include a list of the applicant’s agents, mandataries or branches that are engaged, on behalf of the applicant, in the activities referred to in paragraph 5(h), in selling money orders to the public if the applicant is a person or entity referred to in paragraph 5(l), or in any prescribed activities, and shall include any prescribed information.
Agents, mandataries and branches
(2) Any agent, mandatary or branch included on the list is not required to register with the Centre when they are acting in that capacity.
Changes to information
11.13 An applicant or a person or entity registered with the Centre shall notify the Centre, in the prescribed form and manner, of any change to the information provided in the application or of any newly obtained information that should have been included in the application within 30 days after the day on which the applicant or the registered person or entity becomes aware of the change or obtains the new information.
Clarifications — applicant
11.14 (1) An applicant shall provide the Centre, in the prescribed form and manner, with any clarifications that the Centre may request in respect of the prescribed information and the list referred to in subsection 11.12(1) within 30 days after the day on which the request is made.
Denial of application
(2) If the applicant does not provide the Centre with the clarifications within the 30 days, the Centre may deny the application and shall, without delay, inform the applicant of the denial.
Notice of registration
11.15 The applicant is registered with the Centre once the Centre adds the applicant to the registry referred to in subsection 54.1(1). The Centre shall, without delay, send the applicant notice of their registration.
Denial of application
11.16 The Centre shall deny the application of any person or entity referred to in subsection 11.11(1) and shall, without delay, inform the applicant of the denial.
Clarifications — registrant
11.17 (1) A registered person or entity shall provide the Centre, in the prescribed form and manner, with any clarifications that the Centre may request in respect of the prescribed information and the list referred to in subsection 11.12(1) within 30 days after the day on which the request is made.
Revocation of registration
(2) If the registered person or entity does not provide the Centre with the clarifications within the 30 days, the Centre may revoke the registration and shall, without delay, inform the person or entity of the revocation.
Written reasons
11.18 Any decision to deny an application or revoke a registration must be in writing with reasons.
Renewal of registration
11.19 A registered person or entity shall renew their registration in the prescribed form and manner every two years or within any longer prescribed period.
Cessation of activity
11.2 When a registered person or entity ceases an activity for which they are registered, they shall notify the Centre in the prescribed form and manner within 30 days after the day on which they cease the activity.
Review
Application for review by Director
11.3 (1) Within 30 days after the day on which the person or entity receives a decision to deny their application or revoke their registration, the person or entity may apply in writing to the Director of the Centre for a review of the decision and may provide any information in support of their application for review.
Review by Director
(2) The Director shall review the decision as soon as possible and shall take into consideration any information that the Director deems relevant.
Decision of Director
(3) The Director may either confirm the decision or substitute his or her own decision, and shall, without delay, serve notice of the decision with reasons on the person or entity, together with notice of the right of appeal under subsection 11.4(1).
Appeal to Federal Court
Appeal
11.4 (1) A person or entity that applied for a review under subsection 11.3(1) may appeal the Director’s decision to the Federal Court within 30 days after the day on which the decision is served, or within any longer period that the Court allows.
Appeal
(2) If the Director does not make a decision within 90 days after the day on which the Director received the application for review, the applicant may appeal to the Federal Court, within 30 days after the day on which the 90-day period expires, the decision to deny the application for registration or revoke the registration.
Precautions against disclosure
(3) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person or entity of information referred to in subsection 55(1).
2001, c. 41, s. 54(2)
12. Paragraph 12(3)(a) of the French version of the Act is replaced by the following:
a) la personne ayant en sa possession effective ou parmi ses bagages les espèces ou effets se trouvant à bord du moyen de transport par lequel elle arrive au Canada ou quitte le pays ou la personne qui, dans les circonstances réglementaires, est responsable du moyen de transport;
2001, c. 41, s. 56
13. Section 16 of the Act is replaced by the following:
Search of conveyance
16. (1) An officer may, in order to determine whether there are, on or about a conveyance, currency or monetary instruments of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, stop, board and search the conveyance, examine anything in or on it and open or cause to be opened any package or container in or on it and direct that the conveyance be moved to a customs office or other suitable place for the search, examination or opening.
Search of baggage
(2) An officer may, in order to determine whether there are, in baggage, currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, search the baggage, examine anything in it and open or cause to be opened any package or container in it and direct that the baggage be moved to a customs office or other suitable place for the search, examination or opening.
14. Section 24 of the Act is replaced with the following:
Review of forfeiture
24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 24.1 and 25.
Corrective measures
24.1 (1) The Minister, or any officer delegated by the President for the purposes of this section, may, within 30 days after a seizure made under subsection 18(1) or an assessment of a penalty referred to in subsection 18(2),
(a) cancel the seizure, or cancel or refund the penalty, if the Minister is satisfied that there was no contravention; or
(b) reduce the penalty or refund the excess amount of the penalty collected if there was a contravention but the Minister considers that there was an error with respect to the penalty assessed or collected, and that the penalty should be reduced.
Interest
(2) If an amount is refunded to a person or entity under paragraph (1)(a), the person or entity shall be given interest on that amount at the prescribed rate for the period beginning on the day after the day on which the amount was paid by that person or entity and ending on the day on which it was refunded.
15. The portion of subsection 29(1) of the Act before paragraph (a) is replaced by the following:
If there is a contravention
29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister may, subject to the terms and conditions that the Minister may determine,
16. Subsection 30(1) of the Act is replaced by the following:
Appeal to Federal Court
30. (1) A person who requests a decision of the Minister under section 27 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant.
2001, c. 41, s. 63
17. (1) Subsection 32(1) of the Act is replaced by the following:
Interest as owner
32. (1) If currency or monetary instruments have been seized as forfeit under this Part, any person or entity, other than the person or entity in whose possession the currency or monetary instruments were when seized, who claims in respect of the currency or monetary instruments an interest as owner or, in Quebec, a right as owner or trustee may, within 90 days after the seizure, apply by notice in writing to the court for an order under section 33.
2005, c. 38, par. 127(d)
(2) Subsection 32(3) of the Act is replaced by the following:
Notice to President
(3) The applicant shall serve notice of the application and of the hearing on the President, or an officer delegated by the President for the purpose of this section, not later than 15 days after a day is fixed under subsection (2) for the hearing of the application.
18. Section 33 of the Act is replaced by the following:
Order
33. If, on the hearing of an application made under subsection 32(1), the court is satisfied
(a) that the applicant acquired the interest or right in good faith before the contravention in respect of which the seizure was made,
(b) that the applicant is innocent of any complicity in the contravention of subsection 12(1) that resulted in the seizure and of any collusion in relation to that contravention, and
(c) that the applicant exercised all reasonable care to ensure that any person permitted to obtain possession of the currency or monetary instruments seized would report them in accordance with subsection 12(1),
the applicant is entitled to an order declaring that their interest or right is not affected by the seizure and declaring the nature and extent of their interest or right at the time of the contravention.
19. Subsection 34(1) of the English version of the Act is replaced by the following:
Appeal
34. (1) A person or entity that makes an application under section 32 or Her Majesty in right of Canada may appeal to the court of appeal from an order made under section 33 and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the court of appeal from orders or judgments of a court.
2005, c. 38, par. 127(e)
20. The portion of subsection 35(1) of the Act before paragraph (a) is replaced by the following:
Delivery after final order
35. (1) The Minister of Public Works and Government Services shall, after the forfeiture of currency or monetary instruments has become final and on being informed by the President that a person or entity has obtained a final order under section 33 or 34 in respect of the currency or monetary instruments, give to the person or entity
21. The heading before section 36 of the Act is replaced by the following:
Disclosure and Use of Information
22. (1) Section 36 of the Act is amended by adding the following after subsection (1):
Use of information
(1.1) An officer who has reasonable grounds to suspect that the information referred to in subsection (1) is relevant to determining whether a person is a person described in sections 34 to 42 of the Immigration and Refugee Protection Act or is relevant to an offence under any of sections 117 to 119, 126 or 127 of that Act may use that information.
(2) The portion of subsection 36(5) of the Act before paragraph (a) is replaced by the following:
Immunity from compulsory processes
(5) Subject to section 36 of the Access to Information Act and sections 34 and 37 of the Privacy Act, an official is required to comply with a subpoena, an order for production of documents, a summons or any other compulsory process only if it is issued in the course of
23. The Act is amended by adding the following after section 38:
Agreements with foreign states
38.1 The Minister, with the consent of the Minister designated for the purpose of section 42, may enter into an agreement or arrangement in writing with the government of a foreign state, or an institution or agency of that state, that has powers and duties similar to those of the Canada Border Services Agency, whereby the Canada Border Services Agency may, if it has reasonable grounds to suspect that the information would be relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing offence, provide information set out in a report made under section 20 to that government, institution or agency.
2001, c. 12, s. 1; 2004, c. 11, s. 42
24. Paragraphs 54(d) and (e) of the Act are replaced by the following:
(d) subject to section 6 of the Privacy Act, shall retain each report referred to in paragraph (a) and all information referred to in paragraph (a) or (b) for 10 years beginning on the day on which the report is received or the information is received or collected; and
(e) despite the Library and Archives of Canada Act, shall destroy, 15 years after the day on which a report referred to in paragraph (a) is received, any identifying information contained in the report if the report was not disclosed under subsection 55(3), 55.1(1) or 56.1(1) or (2).
25. The Act is amended by adding the following after section 54:
Registrar
54.1 (1) The Centre is responsible for establishing and maintaining a registry of the prescribed information submitted under sections 11.12 to 11.3.
Registry
(2) The registry shall be organized in any manner and kept in any form that the Centre may determine.
Public access
(3) The Centre shall make available to the public the part of the information referred to in subsection (1) that is identifying information as defined in the regulations.
Verification of information
(4) The Centre may verify the information contained in any application for registration or any other information submitted under sections 11.12 to 11.3.
Analysis of information
(5) The Centre may analyse and assess the information referred to in subsection (4) and, in that case, that analysis or assessment is deemed to be an analysis or assessment conducted under paragraph 54(c).
Retention of information
(6) Subject to section 6 of the Privacy Act, the Centre shall retain information referred to in subsection (4) for 10 years beginning on the day on which the Centre denies the registration of an applicant, on which a registered person or entity notifies the Centre that they have ceased their activities, or on which a person or entity is no longer registered with the Centre.
2001, c. 41, s. 67(1)
26. (1) The portion of subsection 55(1) of the Act before paragraph (a) is replaced by the following:
Disclosure by Centre prohibited
55. (1) Subject to subsection (3), sections 52, 55.1, 56.1 and 56.2, subsection 58(1) and sections 65 and 65.1 of this Act and to subsection 12(1) of the Privacy Act, the Centre shall not disclose the following:
(2) Subsection 55(1) of the Act is amended by adding the following after paragraph (b.1):
(b.2) information provided under sections 11.12 to 11.3 except for identifying information referred to in subsection 54.1(3);
2005, c. 38, s. 126(1)
(3) Paragraph 55(3)(b) of the Act is replaced by the following:
(b) the Canada Revenue Agency, if the Centre also determines that the information is relevant to an offence of obtaining or attempting to obtain a rebate, refund or credit to which a person or entity is not entitled, or of evading or attempting to evade paying taxes or duties imposed under an Act of Parliament administered by the Minister of National Revenue;
2005, c. 38, s. 126(2)
(4) Subsection 55(3) of the Act is amended by striking out the word “and” at the end of paragraph (b.1) and by replacing paragraph (d) with the following:
(c) the Canada Revenue Agency, if the Centre also has reasonable grounds to suspect that the information is relevant to determining
(i) whether a registered charity, as defined in subsection 248(1) of the Income Tax Act, has ceased to comply with the requirements of that Act for its registration as such, or
(ii) whether a person or entity that the Centre has reasonable grounds to suspect has applied to be a registered charity, as defined in subsection 248(1) of the Income Tax Act, is eligible to be registered as such;
(d) the Canada Border Services Agency, if the Centre also determines that the information is relevant to determining whether a person is a person described in sections 34 to 42 of the Immigration and Refugee Protection Act or is relevant to an offence under any of sections 117 to 119, 126 or 127 of that Act;
(e) the Canada Border Services Agency, if the Centre also determines that the information is relevant to investigating or prosecuting an offence of smuggling or attempting to smuggle goods subject to duties or an offence related to the importation of goods that are prohibited, controlled or regulated under the Customs Act or under any other Act of Parliament; and
(f) the Communications Security Establishment, if the Centre also determines that the information is relevant to the mandate of the Communications Security Establishment referred to in paragraph 273.64(1)(a) of the National Defence Act.
2001, c. 41, s. 67(8)
(5) The portion of subsection 55(7) of the Act before paragraph (b) is replaced by the following:
Definition of “designated information”
(7) For the purposes of subsection (3), “designated information” means, in respect of a financial transaction, an attempted financial transaction or an importation or exportation of currency or monetary instruments,
(a) the name of any person or entity that is involved in the transaction, attempted transaction, importation or exportation, or any person or entity acting on their behalf;
2001, c. 41, s. 67(9)
(6) Subsection 55(7) of the Act is amended by striking out the word “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:
(e) the name, address, electronic mail address and telephone number of each partner, director or officer of an entity referred to in paragraph (a), and the address and telephone number of its principal place of business;
(f) any other similar identifying information that may be prescribed for the purposes of this section;
(g) the details of the criminal record of a person or entity referred to in paragraph (a) and any criminal charges laid against them that the Centre considers relevant in the circumstances;
(h) the relationships suspected by the Centre on reasonable grounds to exist between any persons or entities referred to in paragraph (a) and any other persons or entities;
(i) the financial interest that a person or entity referred to in paragraph (a) has in the entity on whose behalf the transaction was made or attempted, or on whose behalf the importation or exportation was made;
(j) the name of the person or entity referred to in paragraph (a) suspected by the Centre on reasonable grounds to direct, either directly or indirectly, the transaction, attempted transaction, importation or exportation;
(k) the grounds on which a person or entity made a report under section 7 about the transaction or attempted transaction and that the Centre considers relevant in the circumstances;
(l) the number and types of reports on which a disclosure is based;
(m) the number and categories of persons or entities that made those reports; and
(n) indicators of a money laundering offence or a terrorist activity financing offence related to the transaction, attempted transaction, importation or exportation.
2001, c. 41, s. 68
27. (1) The portion of subsection 55.1(3) of the Act before paragraph (b) is replaced by the following:
Definition of “designated information”
(3) For the purposes of subsection (1), “designated information” means, in respect of a financial transaction, an attempted financial transaction or an importation or exportation of currency or monetary instruments,
(a) the name of any person or entity that is involved in the transaction, attempted transaction, importation or exportation, or any person or entity acting on their behalf;
2001, c. 41, s. 68
(2) Subsection 55.1(3) of the Act is amended by striking out the word “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:
(e) the name, address, electronic mail address and telephone number of each partner, director or officer of an entity referred to in paragraph (a), and the address and telephone number of its principal place of business;
(f) any other similar identifying information that may be prescribed for the purposes of this section;
(g) the details of the criminal record of a person or entity referred to in paragraph (a) and any criminal charges laid against them that the Centre considers relevant in the circumstances;
(h) the relationships suspected by the Centre on reasonable grounds to exist between any persons or entities referred to in paragraph (a) and any other persons or entities;
(i) the financial interest that a person or entity referred to in paragraph (a) has in the entity on whose behalf the transaction was made or attempted, or on whose behalf the importation or exportation was made;
(j) the name of the person or entity referred to in paragraph (a) suspected by the Centre on reasonable grounds to direct, either directly or indirectly, the transaction, attempted transaction, importation or exportation;
(k) the grounds on which a person or entity made a report under section 7 about the transaction or attempted transaction and that the Centre considers relevant in the circumstances;
(l) the number and types of reports on which a disclosure is based;
(m) the number and categories of persons or entities that made those reports; and
(n) indicators of a money laundering offence or a terrorist activity financing offence related to the transaction, attempted transaction, importation or exportation.
2001, c. 41, s. 68
28. (1) Subsection 56.1(3) of the English version of the Act is replaced by the following:
Other disclosure
(3) In order to perform its functions under paragraph 54(c), the Centre may direct queries to an institution or agency in respect of which an agreement or arrangement referred to in subsection (1) or (2) has been entered into, and in doing so it may disclose designated information.
2001, c. 41, s. 68
(2) The portion of subsection 56.1(5) of the Act before paragraph (b) is replaced by the following:
Definition of “designated information”
(5) For the purposes of this section, “designated information” means, in respect of a financial transaction, an attempted financial transaction or an importation or exportation of currency or monetary instruments,
(a) the name of any person or entity that is involved in the transaction, attempted transaction, importation or exportation, or any person or entity acting on their behalf;
2001, c. 41, s. 68
(3) Subsection 56.1(5) of the Act is amended by striking out the word “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:
(e) the name, address, electronic mail address and telephone number of each partner, director or officer of an entity referred to in paragraph (a), and the address and telephone number of its principal place of business;
(f) any other similar identifying information that may be prescribed for the purposes of this section;
(g) the details of the criminal record of a person or entity referred to in paragraph (a) and any criminal charges laid against them that the Centre considers relevant in the circumstances;
(h) the relationships suspected by the Centre on reasonable grounds to exist between any persons or entities referred to in paragraph (a) and any other persons or entities;
(i) the financial interest that a person or entity referred to in paragraph (a) has in the entity on whose behalf the transaction was made or attempted, or on whose behalf the importation or exportation was made;
(j) the name of the person or entity referred to in paragraph (a) suspected by the Centre on reasonable grounds to direct, either directly or indirectly, the transaction, attempted transaction, importation or exportation;
(k) the grounds on which a person or entity made a report under section 7 about the transaction or attempted transaction and that the Centre considers relevant in the circumstances;
(l) the number and types of reports on which a disclosure is based;
(m) the number and categories of persons or entities that made those reports; and
(n) indicators of a money laundering offence or a terrorist activity financing offence related to the transaction, attempted transaction, importation or exportation.
29. The Act is amended by adding the following after section 56.1:
Usefulness of information
56.2 When the Centre receives information from an institution or agency under an agreement or arrangement referred to in subsection 56(1) or (2), the Centre may provide it with an evaluation of whether the information is useful to the Centre.
2001, c. 41, s. 70
30. Subsection 59(1) of the Act is replaced by the following:
Immunity from compulsory processes
59. (1) Subject to section 36 of the Access to Information Act and sections 34 and 37 of the Privacy Act, the Centre, and any person who has obtained or who has or had access to any information or documents in the course of exercising powers or performing duties and functions under this Act, other than Part 2, is required to comply with a subpoena, a summons, an order for production of documents, or any other compulsory process only if it is issued in the course of court proceedings in respect of a money laundering offence, a terrorist activity financing offence or an offence under this Act in respect of which an information has been laid or an indictment preferred or, in the case of an order for production of documents, if it is issued under section 60, 60.1 or 60.3.
2001, c. 41, s. 71(1)
31. (1) Subsection 60(1) of the Act is replaced by the following:
Limitation on orders for disclosure of information
60. (1) Despite the provisions of any other Act, except sections 49 and 50 of the Access to Information Act and sections 48 and 49 of the Privacy Act, an order for disclosure of information may be issued in respect of the Centre only under subsection (4) or section 60.1 or 60.3.
(2) Paragraph 60(3)(b) of the Act is replaced by the following:
(b) the person or entity in relation to which the information or documents referred to in paragraph (c) are required;
2001, c. 41, s. 71(2)
(3) Paragraph 60(3)(d) of the Act is replaced by the following:
(d) the facts relied on to justify the belief, on reasonable grounds, that the person or entity referred to in paragraph (b) has committed or benefited from the commission of a money laundering offence or a terrorist activity financing offence and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to an investigation in respect of that offence;
(4) Paragraph 60(3)(f) of the Act is replaced by the following:
(f) information respecting all previous applications brought under this section in respect of any person or entity being investigated for the offence.
(5) Subsection 60(8) of the Act is amended by striking out the word “or” at the end of paragraph (c) and by adding the following after that paragraph:
(c.1) disclosure of the information or document would be injurious to national security; or
(6) Subsection 60(16) of the Act is replaced by the following:
Copies
(16) Where any information or document is examined or provided under subsection (4), the person by whom it is examined or to whom it is provided or any employee of the Centre may make, or cause to be made, one or more copies of it and any copy purporting to be certified by the Director to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.
32. (1) Subsection 60.1(7) of the Act is amended by striking out the word “or” at the end of paragraph (c) and by adding the following after that paragraph:
(c.1) disclosure of the information or document would be injurious to national security; or
2001, c. 41, s. 72
(2) Subsection 60.1(15) of the Act is replaced by the following:
Copies
(15) Where any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any employee of the Centre may make, or cause to be made, one or more copies of it and any copy purporting to be certified by the Director to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.
33. The Act is amended by adding the following after section 60.2:
Purpose of application
60.3 (1) If the Centre makes a disclosure under paragraph 55(3)(b), the Commissioner of Revenue, appointed under section 25 of the Canada Revenue Agency Act, may, for the purposes of an investigation in respect of an offence that is the subject of the disclosure, after having obtained the approval of the Minister of National Revenue, make an application for an order for disclosure of information.
Application
(2) An application shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Commissioner — or a person specially designated by the Commissioner for that purpose — deposing to the following matters:
(a) the offence under investigation;
(b) the person or entity in relation to which the information or documents referred to in paragraph (c) are required;
(c) the type of information or documents — whether in written form, in the form of a report or record or in any other form — obtained by or on behalf of the Director in respect of which disclosure is sought;
(d) the facts relied on to justify the belief, on reasonable grounds, that the person or entity referred to in paragraph (b) has committed or benefited from the commission of an offence referred to in subsection (1) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to an investigation in respect of that offence;
(e) a summary of any information already received from the Centre in respect of the offence; and
(f) information respecting all previous applications brought under this section in respect of any person or entity being investigated for the offence.
Order for disclosure of information
(3) Subject to the conditions that the judge considers advisable in the public interest, the judge to whom an application is made may order the Director — or any person specially designated in writing by the Director for the purposes of this section — to allow an employee of the Canada Revenue Agency named in the order to have access to and examine all information and documents to which the application relates or, if the judge considers it necessary in the circumstances, to produce the information and documents to the employee and allow the employee to remove them, if the judge is satisfied
(a) of the matters referred to in paragraph (2)(d); and
(b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents, having regard to the benefit likely to accrue to the investigation if the access is obtained.
The order must be complied with within the period following the service of the order that the judge may specify.
Execution in another province
(4) A judge may, if the information or documents in respect of which disclosure is sought are in a province other than the one in which the judge has jurisdiction, issue an order for disclosure and the order may be executed in the other province after it has been endorsed by a judge who has jurisdiction in that other province.
Service of order
(5) A copy of the order shall be served on the person to whom it is addressed in the manner that the judge directs or as may be prescribed by rules of court.
Extension of period for compliance with order
(6) A judge who makes an order under subsection (3) may, on application of the Director, extend the period within which it is to be complied with.
Objection to disclosure of information
(7) The Director — or any person specially designated in writing by the Director for the purposes of this section — may object to the disclosure of any information or document in respect of which an order under subsection (3) has been made by certifying orally or in writing that it should not be disclosed on the ground that
(a) the Director is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement to which the Government of Canada is a signatory respecting the sharing of information related to a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence;
(b) a privilege is attached by law to the information or document;
(c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction;
(d) disclosure of the information or document would be injurious to national security; or
(e) disclosure of the information or document would not, for any other reason, be in the public interest.
Determination of objection
(8) An objection made under subsection (7) may be determined, on application, in accord­ance with subsection (9), by the Chief Justice of the Federal Court, or by any other judge of that Court that the Chief Justice may designate to hear those applications.
Judge may examine information
(9) A judge who is to determine an objection may, if the judge considers it necessary to determine the objection, examine the information or document in relation to which the objection is made. The judge shall grant the objection and order that disclosure be refused if the judge is satisfied of any of the grounds mentioned in subsection (7).
Limitation period
(10) An application under subsection (8) shall be made within 10 days after the objection is made or within any greater or lesser period that the Chief Justice of the Federal Court, or any other judge of that Court that the Chief Justice may designate to hear those applications, considers appropriate in the circumstances.
Appeal to Federal Court of Appeal
(11) An appeal lies from a determination under subsection (8) to the Federal Court of Appeal.
Limitation period for appeal
(12) An appeal under subsection (11) shall be brought within 10 days after the date of the determination appealed from or within any further time that the Federal Court of Appeal considers appropriate in the circumstances.
Special rules for hearings
(13) An application under subsection (8) or an appeal brought in respect of that application shall be heard in private and, on the request of the person objecting to the disclosure of the information or documents, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.
Ex parte representations
(14) During the hearing of an application under subsection (8) or an appeal brought in respect of that application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on his or her request, be given the opportunity to make representations ex parte.
Copies
(15) Where any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any employee of the Centre may make, or cause to be made, one or more copies of it and any copy purporting to be certified by the Director to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.
Definition of “judge”
(16) For the purposes of this section, “judge” means a provincial court judge as defined in section 2 of the Criminal Code or a judge as defined in subsection 462.3(1) of that Act.
34. The Act is amended by adding the following after section 63:
Information demand
63.1 (1) For an examination under subsection 62(1), an authorized person may also serve notice to require that the person or entity provide, at the place and in accordance with the time and manner stipulated in the notice, any document or other information relevant to the administration of Part 1 in the form of electronic data, a printout or other intelligible output.
Obligation to provide information
(2) The person or entity on whom the notice is served shall provide, in accordance with the notice, the documents or other information with respect to the administration of Part 1 that the authorized person may reasonably require.
35. Subsection 64(2) of the English version of the Act is replaced by the following:
No examination or copying of certain documents when privilege claimed
(2) If an authorized person acting under section 62, 63 or 63.1 is about to examine or copy a document in the possession of a legal counsel who claims that a named client or former client of the legal counsel has a solicitor-client privilege in respect of the document, the authorized person shall not examine or make copies of the document.
2004, c. 15, s. 101
36. Subsection 65(1) of the Act is replaced by the following:
Disclosure to law enforcement agencies
65. (1) The Centre may disclose to the appropriate law enforcement agencies any information of which it becomes aware under section 62, 63 or 63.1 and that it suspects on reasonable grounds is evidence of a contravention of Part 1.
37. The Act is amended by adding the following after section 65:
Agreements and arrangements
65.1 (1) The Centre may enter into an agreement or arrangement, in writing, with an institution or agency of a foreign state that has powers and duties, similar to those of the Centre, with respect to verifying compliance with requirements to identify persons or entities, keep and retain records or make reports, or with an international organization made up of such institutions or agencies and established by the governments of states, that stipulates
(a) that the Centre and the institution, agency or organization may exchange information about the compliance of persons and entities with those requirements and about the assessment of risk related to their compliance;
(b) that the information may only be used for purposes relevant to ensuring compliance with the requirements and to assessing risk related to compliance; and
(c) that the information will be treated in a confidential manner and not be further disclosed without the express consent of the Centre.
Disclosure
(2) The Centre may, in accordance with the agreement or arrangement, provide the institution, agency or organization with information referred to in the agreement or arrangement.
Usefulness of information
(3) When the Centre receives information from an institution, agency or organization under an agreement or arrangement, the Centre may provide it with an evaluation of whether the information is useful to the Centre.
38. Section 72 of the Act is replaced by the following:
Review of Act by parliamentary committee
72. (1) Every five years beginning on the day on which this section comes into force, the administration and operation of this Act shall be reviewed by the committee of the House of Commons, of the Senate or of both Houses that is designated or established for that purpose.
Review by Privacy Commissioner
(2) Every two years beginning on the day on which this section comes into force, the Privacy Commissioner, appointed under section 53 of the Privacy Act, shall review the measures taken by the Centre to protect information it receives or collects under this Act and shall, within three months after the review, submit a report on those measures to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides without delay after receiving it or, if that House is not then sitting, on any of the first 15 days on which that House is sitting after the Speaker receives it.
2001, c. 41, s. 73(1)
39. (1) Paragraph 73(1)(f) of the Act is replaced by the following:
(e.2) prescribing the form and manner in which persons or entities or classes of persons or entities shall report under section 7, 7.1, 9 or 9.1;
(f) specifying measures, and the periods within which those measures must be taken, that persons or entities are to take to identify any person or entity that requests the opening of an account or any person or entity in respect of which a record is required to be kept or a report made;
(2) Subsection 73(1) of the Act is amended by striking out the word “and” at the end of paragraph (h) and by replacing paragraph (i) with the following:
(i) prescribing the circumstances referred to in section 9.2;
(j) prescribing, for the purposes of subsection 9.3(1), the manner for determining whether a person is a politically exposed foreign person and the circumstances in which it is necessary to make that determination;
(k) prescribing, for the purposes of subsection 9.3(2), the circumstances in which it is necessary to obtain the approval of senior management and the measures to be taken when dealing with a politically exposed foreign person;
(l) prescribing the offices and positions whose holders are politically exposed foreign persons for the purposes of paragraph 9.3(3)(j), prescribing the family members that are included in the definition “politically exposed foreign person” in subsection 9.3(3) and defining “foreign state” for the purposes of that subsection;
(m) prescribing the foreign entities to which subsection 9.4(1) applies and, for the purposes of that subsection, prescribing the information to be obtained about those entities and prescribing the measures to be taken;
(n) defining the expression “shell bank” referred to in section 9.4;
(o) prescribing the services referred to in the definition “correspondent banking relationship” in subsection 9.4(3);
(p) prescribing the electronic funds transfers to which section 9.5 applies, the information to be included with those transfers and the measures to be taken under that section;
(q) specifying the manner for establishing and implementing the program referred to in subsection 9.6(1);
(r) prescribing the special measures to be taken under subsection 9.6(3);
(s) prescribing persons and entities that must be registered with the Centre under section 11.1;
(t) prescribing persons or entities or classes of persons or entities that are not subject to section 11.1;
(u) prescribing, for the purposes of paragraph 11.11(1)(f), persons or entities that are not eligible for registration;
(v) prescribing the form and manner of submitting an application for registration under subsection 11.12(1) and the information that must be included with the application;
(w) prescribing the form and manner of notifying the Centre of any information that must be provided under section 11.13;
(x) prescribing the form and manner of providing the Centre with any clarifications under subsection 11.14(1) and any clarifications under subsection 11.17(1);
(y) prescribing, for the purposes of section 11.19, the form and manner for renewing registration and any longer renewal period;
(z) defining “identifying information” for the purposes of subsection 54.1(3); and
(z.1) prescribing anything else that by this Act is to be prescribed.
40. The Act is amended by adding the following after section 73:
PART 4.1
NOTICES OF VIOLATION, COMPLIANCE AGREEMENTS AND PENALTIES
Violations
Regulations
73.1 (1) The Governor in Council may make regulations
(a) designating, as a violation that may be proceeded with under this Part, the contravention of a specified provision of this Act or the regulations;
(b) classifying each violation as a minor violation, a serious violation or a very serious violation, and classifying a series of minor violations as a serious violation or a very serious violation;
(c) having regard to subsection (2), fixing a penalty, or a range of penalties, in respect of any violation;
(d) prescribing the additional penalty to be paid for the purposes of subsection 73.18(1);
(e) respecting the service of documents under this Part, including the manner and proof of service and the circumstances under which documents are deemed to be served; and
(f) generally for carrying out the purposes and provisions of this Part.
Maximum penalties
(2) The maximum penalty for a violation is $100,000 if the violation is committed by a person and $500,000 if the violation is committed by an entity.
Criteria for penalty
73.11 Except if a penalty is fixed under paragraph 73.1(1)(c), the amount of a penalty shall, in each case, be determined taking into account that penalties have as their purpose to encourage compliance with this Act rather than to punish, the harm done by the violation and any other criteria that may be prescribed by regulation.
How contravention may be proceeded with
73.12 If a contravention that is designated under paragraph 73.1(1)(a) can be proceeded with either as a violation or as an offence under this Act, proceeding in one manner precludes proceeding in the other.
Commission of violation
73.13 (1) Every contravention that is designated under paragraph 73.1(1)(a) constitutes a violation and the person who commits the violation is liable to a penalty determined in accordance with sections 73.1 and 73.11.
Notice of violation or compliance agreement
(2) If the Centre believes on reasonable grounds that a person or entity has committed a violation, the Centre may
(a) issue and cause to be served on the person or entity a notice of violation; or
(b) issue and cause to be served on the person or entity a notice of violation with an offer to reduce by half the penalty proposed in the notice if the person or entity enters into a compliance agreement with the Centre in respect of the provision to which the violation relates.
Notices of Violation
Contents of notice
73.14 (1) When the Centre issues a notice of violation under subsection 73.13(2), the notice shall name the person or entity believed to have committed a violation, identify the violation and set out
(a) the penalty that the Centre proposes to impose;
(b) the right of the person or entity, within 30 days after the day on which the notice is served or within any longer period that the Centre specifies, to pay the penalty or to make representations to the Director with respect to the violation and the proposed penalty, and the manner for doing so; and
(c) the fact that, if the person or entity does not pay the penalty or make representations in accordance with the notice, the person or entity will be deemed to have committed the violation and the Centre will impose the penalty in respect of it.
Administrative corrections
(2) If a notice of violation contains any error or omission, the Centre may serve a corrected notice of violation on the person or entity at any time during the period referred to in paragraph (1)(b).
Payment of penalty
73.15 (1) If the person or entity pays the penalty proposed in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.
Representations to Director
(2) If the person or entity makes representations in accordance with the notice, the Director shall decide, on a balance of probabilities, whether the person or entity committed the violation and, if so, may, subject to any regulations made under paragraph 73.1(1)(c), impose the penalty proposed, a lesser penalty or no penalty.
Failure to pay or make representations
(3) A person or entity that neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Centre shall impose the penalty proposed in the notice.
Notice of decision and right of appeal
(4) The Director shall cause notice of any decision made under subsection (2) or the penalty imposed under subsection (3) to be issued and served on the person or entity together with, in the case of a decision made under subsection (2) in respect of a serious violation or very serious violation, notice of the right of appeal under subsection 73.21(1).
Compliance Agreements
Contents of compliance agreement
73.16 (1) When the Centre offers to enter into a compliance agreement under paragraph 73.13(2)(b), the agreement shall
(a) identify the violation and provide that the person or entity will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the agreement; and
(b) set out the amount that the person or entity will have to pay as the reduced penalty for the violation if the compliance agreement is entered into.
Refusal to enter into agreement
(2) The person or entity shall enter into the compliance agreement and pay the reduced penalty within 10 days after receiving the notice of violation and, if it does not do so, the person or entity is deemed to have refused to enter into the agreement, and the full penalty proposed in the notice of violation and section 73.15 apply.
Extension of period
(3) The Centre may extend the period referred to in paragraph (1)(a) if the Centre is satisfied that the person or entity with which the compliance agreement was entered into is unable to comply with it within that period for reasons beyond their control.
Compliance agreement complied with
73.17 If the Centre considers that a compliance agreement has been complied with, the Centre shall serve a notice to that effect on the person or entity and, on the service of the notice, no further proceedings may be taken against the person or entity with respect to the violation.
Compliance agreement not complied with
73.18 (1) If the Centre considers that a compliance agreement has not been complied with, the Centre may issue and serve a notice of default on the person or entity to the effect that the person or entity is liable to pay the remainder of the penalty set out in the notice of violation and a prescribed additional penalty.
Contents of notice
(2) A notice of default shall include the date, which shall be 30 days after the day on which the notice is served, on or before which an application for review may be filed and particulars of how the application may be filed.
No set-off or compensation
(3) On the service of a notice of default, the person or entity served has no right of set-off or compensation against any amount that they spent under the compliance agreement.
Application for review
73.19 (1) A person or entity served with a notice of default under subsection 73.18(1) may, on or before the date specified in the notice or within any further time that the Centre allows, file an application for review by the Director.
Review
(2) The Director may confirm the Centre’s decision or decide that the person or entity has complied with the compliance agreement.
Failure to pay or apply for review
(3) A person or entity that neither pays the amounts set out in the notice of default nor files an application for review in accordance with the notice is deemed to have not complied with the compliance agreement and shall pay the amounts without delay.
Notice of decision and right of appeal
(4) The Director shall cause notice of the decision to be issued and served on the person or entity together with, in the case of a serious violation or very serious violation, notice of the right of appeal under subsection 73.21(1).
Deemed violation
73.2 A person or entity that enters into a compliance agreement is deemed to have committed the violation in respect of which the agreement was entered into.
Appeal to Federal Court
Right of appeal
73.21 (1) A person or entity on which a notice of a decision made under subsection 73.15(2) or 73.19(2) is served, in respect of a serious violation or very serious violation, may, within 30 days after the day on which the notice is served, or within any longer period that the Court allows, appeal the decision to the Federal Court.
Appeal — no notice of decision
(2) If the Director does not cause notice of a decision to be issued and served under subsection 73.15(4) within 90 days after the completion of representations made under subsection 73.15(2), the person or entity that made the representations may appeal the penalty proposed in the notice of violation to the Federal Court, within 30 days after the day on which the 90-day period expires.
Appeal — no notice of decision
(3) If the Director does not cause notice of a decision to be issued and served under subsection 73.19(4) within 90 days after the day on which the Director received the application for review under subsection 73.19(1), the person or entity that filed the application may appeal to the Federal Court the amounts set out in the notice of default referred to in subsection 73.18(1), within 30 days after the day on which the 90-day period expires.
Precautions against disclosure
(4) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person or entity of information referred to in subsection 55(1).
Powers of Court
(5) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 73.1(1)(c), vary the decision of the Director.
Publication
Publication
73.22 When proceedings in respect of a violation are ended, the Centre may make public the nature of the violation, the name of the person or entity that committed it, and the amount of the penalty imposed.
Rules about Violations
Violations not offences
73.23 (1) For greater certainty, a violation is not an offence.
Non-application of section 126 of the Criminal Code
(2) Section 126 of the Criminal Code does not apply in respect of any obligation or prohibition under this Act whose contravention is a violation under this Act.
Due diligence available
73.24 (1) Due diligence is a defence in a proceeding in relation to a violation.
Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.
Collection of Penalties
Debts to Her Majesty
73.25 (1) A penalty and any interest due in respect of the penalty constitute a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court.
Time limit
(2) No proceedings to recover a debt referred to in subsection (1) may be commenced after the period of five years that begins on the day on which the debt became payable.
Proceeds payable to Receiver General
(3) A penalty paid or recovered under this Part is payable to and shall be remitted to the Receiver General.
Certificate
73.26 (1) The unpaid amount of any debt referred to in subsection 73.25(1) may be certified by the Director.
Registration in Federal Court
(2) Registration in the Federal Court of a certificate made under subsection (1) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
Collecting penalties
73.27 (1) The Centre may, for the purpose of collecting penalties proposed in a notice of violation issued under subsection 73.13(2) or imposed under this Part, enter into a contract, memorandum of understanding or other agreement with a department or an agency of the Government of Canada or the government of a province and with any other person or organization, inside Canada, in its own name or in the name of Her Majesty in right of Canada.
Disclosure of information
(2) The Centre may disclose to the other party of the contract, memorandum or agreement any information required to collect the penalties.
Use of information
(3) The other party shall not use the information referred to in subsection (2) for any purpose other than collecting the penalties.
Interest
73.28 If a person or entity fails to remit a penalty payable under this Part to the Receiver General, the person or entity shall pay to the Receiver General interest on the amount of the penalty. The interest shall be calculated at the prescribed rate for the period beginning on the first day after the day on which the amount was required to be paid and ending on the day on which the amount is paid.
Garnishment
73.29 (1) If the Director is of the opinion that a person or entity is or is about to become liable to make a payment to a person or entity liable to pay a penalty or interest under this Part, the Director may, by written notice, require the first person or entity to pay without delay to the Receiver General, on account of the second person’s or entity’s liability, all or part of the money otherwise payable to the second person or entity.
Applicability to future payments
(2) If the Director requires an employer to pay to the Receiver General money otherwise payable to an employee as remuneration,
(a) the requirement is applicable to all future payments of remuneration until the liability is satisfied; and
(b) the employer shall pay to the Receiver General out of each payment of remuneration the amount that the Director stipulates in the notice.
Discharge of liability
(3) The receipt of the Director is a good and sufficient discharge of the original liability to the extent of the payment.
Write-off
73.3 (1) The Director may write off in whole or in part a penalty or interest payable by a person or entity under this Part.
Effect of write-off
(2) The writing off of a penalty or interest under this section does not affect any right of Her Majesty to collect or recover the penalty or interest.
General Provisions
Evidence
73.4 In a proceeding in respect of a violation or a prosecution for an offence, a notice of violation purporting to be issued under subsection 73.13(2), a notice of decision purporting to be issued under subsection 73.15(4) or 73.19(4), a notice of default purporting to be issued under subsection 73.18(1) or a certificate purporting to be made under subsection 73.26(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Time limit
73.5 (1) No proceedings in respect of a violation may be commenced later than two years after the subject-matter of the proceedings became known to the Centre.
Certificate of Centre
(2) A document appearing to have been issued by the Centre, certifying the day on which the subject-matter of any proceedings became known to the Centre, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
41. The portion of section 74 of the Act before paragraph (a) is replaced by the following:
General offences
74. Every person or entity that knowingly contravenes any of sections 6, 6.1 or 9.1 to 9.3, subsection 9.4(2), sections 9.5 to 9.7 or 11.1, subsection 12(1) or (4) or 36(1), section 37, subsection 55(1) or (2), section 57 or subsection 62(2), 63.1(2) or 64(3) or the regulations is guilty of an offence and liable
42. The Act is amended by adding the following after section 77:
Registry
77.1 Every person or entity that provides information to the Centre under section 11.12, 11.13, 11.14 or 11.3 and that knowingly makes any false or misleading statement or knowingly provides false or misleading information to a person responsible for carrying out functions under this Act is guilty of an offence and liable
(a) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months, or to both; or
(b) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years, or to both.
43. The portion of section 79 of the Act before paragraph (b) is replaced by the following:
Offence by employee, agent or mandatary
79. In a prosecution for an offence under section 75, 77 or 77.1,
(a) it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence; and
44. Section 81 of the Act is replaced by the following:
Time limitation
81. Proceedings under paragraph 74(a), 75(1)(a) or 76(a), subsection 77(1) or paragraph 77.1(a) may be instituted within, but not after, five years after the time when the subject-matter of the proceedings arose.
R.S., c. 1 (5th Supp.)
AMENDMENTS TO THE INCOME TAX ACT
45. (1) Paragraph 241(4)(f.1) of the Income Tax Act is replaced by the following:
(f.1) provide taxpayer information to an official for the purposes of the administration and enforcement of the Charities Registration (Security Information) Act, and where an official has so received taxpayer information, the official may provide that information to another official as permitted by subsection (9.1);
(2) Section 241 of the Act is amended by adding the following after subsection (8):
Threats to security
(9) An official may provide, to an official of the Canadian Security Intelligence Service, of the Royal Canadian Mounted Police or of the Financial Transactions and Reports Analysis Centre of Canada,
(a) publicly accessible charity information;
(b) designated taxpayer information, if there are reasonable grounds to suspect that the information would be relevant to
(i) an investigation by the Canadian Security Intelligence Service of whether the activity of any person may constitute threats to the security of Canada, as defined in section 2 of the Canadian Security Intelligence Service Act,
(ii) an investigation of whether an offence may have been committed under
(A) Part II.1 of the Criminal Code, or
(B) section 462.31 of the Criminal Code, if that investigation is related to an offence under Part II.1 of that Act, or
(iii) the prosecution of an offence referred to in subparagraph (ii); and
(c) information setting out the reasonable grounds referred to in paragraph (b), to the extent that any such grounds rely on information referred to in paragraph (a) or (b).
Threats to security
(9.1) Information — other than designated donor information — provided to an official of the Canadian Security Intelligence Service or the Royal Canadian Mounted Police, as permitted by paragraph (4)(f.1), may be used by such an official, or communicated by such an official to another official of the Canadian Security Intelligence Service or the Royal Canadian Mounted Police for use by that other official, for the purpose of
(a) investigating whether an offence may have been committed, ascertaining the identity of a person or persons who may have committed an offence, or prosecuting an offence, which offence is
(i) described in Part II.1 of the Criminal Code, or
(ii) described in section 462.31 of the Criminal Code, if that investigation, ascertainment or prosecution is related to an investigation, ascertainment or prosecution in respect of an offence described in Part II.1 of that Act; or
(b) investigating whether the activities of any person may constitute threats to the security of Canada, as defined in section 2 of the Canadian Security Intelligence Service Act.
(3) Subsection 241(10) of the Act is amended by adding the following in alphabetical order:
“designated donor information”« renseignements désignés sur les donateurs »
“designated donor information” means information of a charity, or of a person who has at any time made an application for registration as a registered charity, that is directly attributable to a gift that has been made or proposed to be made to the charity or applicant and that is presented in any form that directly or indirectly reveals the identity of the donor or prospective donor, other than a donor or prospective donor who is not resident in Canada and is neither a citizen of Canada nor a person described in subsection 2(3);
“designated taxpayer information”« renseignement confidentiel désigné »
“designated taxpayer information” means taxpayer information — other than designated donor information — of a registered charity, or of a person who has at any time made an application for registration as a registered charity, that is
(a) in respect of a financial transaction
(i) relating to the importation or exportation of currency or monetary instruments by the charity or applicant, or
(ii) in which the charity or applicant has engaged a person to whom section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act applies,
(b) information provided to the Minister by the Canadian Security Intelligence Service, the Royal Canadian Mounted Police or the Financial Transactions and Reports Analysis Centre of Canada,
(c) the name, address, date of birth and citizenship of any current or former director, trustee or like official, or of any agent, mandatary or employee, of the charity or applicant,
(d) information submitted by the charity or applicant in support of an application for registration as a registered charity that is not publicly accessible charity information,
(e) publicly available, including commercially available databases, or
(f) information prepared from publicly accessible charity information and information referred to in paragraphs (a) to (e);
“publicly accessible charity information”« renseignement d’organismes de bienfaisance accessible au public »
“publicly accessible charity information” means taxpayer information that is
(a) described in subsection (3.2), or that would be described in that subsection if the words “that was at any time a registered charity” were read as “that has at any time made an application for registration as a registered charity”,
(b) information — other than designated donor information — submitted to the Minister with, or required to be contained in, any public information return filed or required to be filed under subsection 149.1(14), or
(c) information prepared from information referred to in paragraph (a) or (b);
CONSEQUENTIAL AMENDMENT
2005, c. 38
Canada Border Services Agency Act
46. Subsection 13(1) of the Canada Border Services Agency Act is replaced by the following:
Agreements
13. (1) Subject to sections 38 and 38.1 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Agency may, with the approval of the Governor in Council, on the recommendation of the Minister and the Minister of Foreign Affairs, enter into an agreement with a foreign state or an international organization, for the purposes of carrying out the mandate of the Agency.
COMING INTO FORCE
Order in council
47. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada