Bill C-561: An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking and transplanting human organs and other body parts)

C-561 Second Session, Forty-first Parliament, 62 Elizabeth II, 2013 HOUSE OF COMMONS OF CANADA BILL C-561 An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking and transplanting human organs and other body parts) first reading, December 6, 2013 Mr. Cotler 412026 SUMMARY This enactment amends the Criminal Code to provide for the imposition of penal sanctions for persons who, in Canada or outside Canada, are knowingly involved in the medical transplant of human organs or other body parts obtained or acquired as a consequence of a direct or indirect financial transaction or without the donor’s consent. It also amends the Immigration and Refugee Protection Act to impose sanctions on individuals in respect of whom there is reason to believe were engaged in the trafficking and transplanting of human organs and other body parts by providing that they are inadmissible for the purposes of entering or remaining in Canada. Available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca 2nd Session, 41st Parliament, 62 Elizabeth II, 2013 house of commons of canada BILL C-561 An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking and transplanting human organs and other body parts) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. C-46 CRIMINAL CODE 1. (1) Section 7 of the Criminal Code is amended by adding the following after subsection (4.1): Offence in relation to the purchase of human organs or other body parts (4.11) Despite anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would be an offence against section 240.1 shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. (2) Subsection 7(4.3) of the Act is replaced by the following: Consent of Attorney General (4.3) Proceedings with respect to an act or omission deemed to have been committed in Canada under subsection (4.1) or (4.11) may only be instituted with the consent of the Attorney General. 2. The Act is amended by adding the following after section 240: Human organs and other body parts Without donor’s consent 240.1 (1) Every one commits an offence who (a) is the recipient of a human organ or other body part removed without the donor’s consent, and knew, at the time the organ or body part was transplanted or earlier, that the organ or other body part was removed without the donor’s consent; (b) participates in or facilitates the removal of a human organ or other body part without the donor’s consent; or (c) knowingly acts on behalf of, at the direction of or in association with a person who removes a human organ or other body part without the donor’s consent or a person who purchases the organ or other body part. Financial transaction (2) Every one commits an offence who (a) obtains or acquires a human organ or other body part with the intention of having that organ or other body part transplanted into his or her body or the body of another person, and knew, at the time of the obtaining or acquisition or earlier, that the organ or other body part was obtained or acquired as a consequence of a direct or indirect financial transaction; or (b) participates in or facilitates the obtaining or acquisition of a human organ or other body part, and knew, at the time of the obtaining or acquisition or earlier, that the organ or other body part was obtained or acquired as a consequence of a direct or indirect financial transaction. Without donor’s consent —negligence (3) Every one commits an offence who is the recipient of a human organ or other body part removed without the donor’s consent, and ought to have known, at the time the organ or other body part was transplanted or earlier, that the organ or other body part was removed without the donor’s consent. Financial trans-action — negligence (4) Every one commits an offence who (a) obtains or acquires a human organ or other body part with the intention of having that organ or other body part transplanted into his or her body or the body of another person, and ought to have known, at the time of the obtaining or acquisition or earlier, that the organ or other body part was obtained or acquired as a consequence of a direct or indirect financial transaction; or (b) participates in or facilitates the obtaining or acquisition of a human organ or other body part, and ought to have known, at the time of the obtaining or acquisition or earlier, that the organ or other body part was obtained or acquired as a consequence of a direct or indirect financial transaction. Duty to ask (5) Every person who obtains or acquires a human organ or other body part with the intention of having that organ or other body part transplanted into his or her body or the body of another person, and every person who participates in or facilitates the obtaining or acquisition of a human organ or other body part for those purposes shall request a copy of the certificate and affidavit or declaration referred to in subsection (7). Punishment (6) Every one who commits an offence under any of subsections (1) to (5) is guilty of an indictable offence and liable to imprisonment for life. Certificate (7) Anyone who has a human organ or other body part transplanted into his or her body shall, at any time prior to the transplant and not later than 30 days after the transplant, (a) obtain a certificate, supported by a sworn affidavit or declaration, establishing that the organ or other body part was donated and that it was not obtained or acquired as a consequence of a direct or indirect financial transaction; and (b) provide that certificate and supporting affidavit or declaration to the Canadian entities designated by regulation. Certificate— outside Canada (8) Despite subsection (7), a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has a human organ or other body part transplanted into his or her body outside Canada shall, at any time prior to the transplant and not later than 30 days after the transplant, obtain a certificate, supported by a sworn affidavit or declaration, establishing that the organ or other body part was donated and that it was not obtained or acquired as a consequence of a direct or indirect financial transaction, and shall, prior to or upon his or her return to Canada, provide that certificate and supporting affidavit or declaration to the Canadian entities designated by regulation. Reporting (9) Any medical practitioner or nurse duly qualified under the laws of a province to practice his or her profession shall report to the Canadian entities designated by regulation the identity of any person that the medical practitioner or nurse has examined in the course of his or her duties and that has had a human organ or other body part transplanted into his or her body. Regulations (10) For the purposes of subsections (7) to (9), the Governor in Council shall, by regulation, (a) establish a certification program; (b) designate Canadian entities; and (c) establish a registry for the purposes of keeping a record of every certificate and supporting affidavit or declaration provided to Canadian entities under subsection (7) or (8) and of every report made under subsection (9). False certificate (11) Every one who, with intent to deceive or defraud any person, forges or falsifies in any manner a certificate referred to in this section is guilty of an indictable offence. Definition of “person” 240.2 (1) In this section, “person” means a person other than a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. Establishment of a list (2) The Governor in Council shall establish a list on which the Governor in Council may place any person if, on the recommendation of the Attorney General of Canada, the Governor in Council is satisfied that there are reasonable grounds to believe that the person was, with intent to make a profit, knowingly involved in the transplant of a human organ or other body part obtained or acquired without the donor's consent or as a consequence of a financial transaction. Recommendation (3) The Attorney General of Canada may make the recommendation referred to in subsection (2) only if he or she has reasonable grounds to believe that the person to whom the recommendation relates is a person referred to in subsection (2). Notification (4) The Attorney General of Canada shall take all reasonable measures to notify a person that the person has been placed on the list. Application to Attorney General (5) On application in writing by a person placed on the list referred to in subsection (2), the Attorney General of Canada shall decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be on the list. Deeming (6) If the Attorney General of Canada does not make a decision on the application referred to in subsection (5) within 60 days after receipt of the application, he or she is deemed to have decided to recommend that the applicant remain on the list. Notice of decision to applicant (7) The Attorney General of Canada shall give notice without delay to the applicant of any decision taken or deemed to have been taken respecting the application referred to in subsection (5). Judicial review (8) Within 60 days after the receipt of the notice of the decision referred to in subsection (7), the applicant may apply to a judge of the Federal Court, for judicial review of the decision. Review of list (9) Two years after the establishment of the list referred to in subsection (2), and every two years after that, the Attorney General of Canada shall review the list to determine whether there are still reasonable grounds, as set out in subsection (2), for a person to be on the list and make a recommendation to the Governor in Council as to whether the person should remain on the list. The review does not affect the validity of the list. Deletion from list (10) The Governor in Council shall delete from the list the name of any person in respect of whom the Attorney General of Canada has recommended that the person no longer be on the list. Statutory Instruments Act (11) The list referred to in subsection (2) is not a statutory instrument for the purposes of the Statutory Instruments Act. 2001, c. 27 IMMIGRATION AND REFUGEE PROTECTION ACT 3. Section 37 of the Immigration and Refugee Protection Act is amended by adding the following after subsection (1): Trafficking in human organs (1.1) A foreign national is inadmissible on grounds of violating human or international rights if that individual (a) is an individual who the Minister believes, on reasonable grounds, has knowingly participated in or facilitated the obtaining or acquisition of a human organ or other body part, and knew, at the time of the obtaining or acquisition or earlier, that the organ or other body part was obtained or acquired as a consequence of a direct or indirect financial transaction; or (b) is on the list established by the Governor in Council in accordance with subsection 240.2(2) of the Criminal Code. COMING INTO FORCE Coming into force 4. Subsections 240.1(5) and (7) to (11) of the Criminal Code, as enacted by section 2 of this Act, come into force on the day that is one year after the day on which this Act receives royal assent. Published under authority of the Speaker of the House of Commons