Bill C-420: An Act to amend the Criminal Code (criminal organizations and proceeds of crime)

R.S., c. C- 46 Criminal Code 1 (1) Section 462.33 of the Criminal Code is amended by adding the following after subsection (3): Restraint order — offence by criminal organization (3.001) A judge who hears an application for a restraint order in respect of an offence under section 467.11, 467.111 or 467.12 shall make the order if the judge is satisfied that there are reasonable grounds to believe that the property could disappear, be dissipated or reduce in value or be otherwise affected so that all or a part thereof could not be subject to an order of forfeiture under subsection 462.37(1), (1.1) or (2.01) or 462.38(2). (2) Section 462.33 of the Act is amended by adding the following after subsection (3.1): Digital assets (3.2) A restraint order may be issued under this section in respect of digital assets, including virtual currency. (3) Paragraph 462.33(10)(c) of the Act is replaced by the following: (c) an order of forfeiture or restoration of the property is made under subsection 462.37(1), (1.1) or (2.01), 462.38(2) or 462.41(3) or any other provision of this or any other Act of Parliament. 2 (1) The portion of subsection 462.34(1) of the Act before paragraph (a) is replaced by the following: Application for review of special warrants and restraint orders 462.34 (1) Any person who has an interest in property that was seized under a warrant issued under section 462.32 or 462.321 or in respect of which a restraint order was made under subsection 462.33(3) or (3.001) may, at any time, apply to a judge for (2) The portion of subsection 462.34(4) of the Act before paragraph (a) is replaced by the following: Order of restoration of property or revocation or variation of order (4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3) or (3.001) , revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit, (3) The portion of paragraph 462.34(6)(a) of the Act before subparagraph (i) is replaced by the following: (a) that a warrant should not have been issued under section 462.32 or 462.321 or a restraint order under subsection 462.33(3) or (3.001) should not have been made in respect of that property, in the case where the application is made by (4) Subsection 462.34(7) of the Act is replaced by the following: Saving provision (7) Sections 354, 355.2 and 355.4 do not apply to a person who comes into possession of any property that, by virtue of an order made under paragraph (4)(c), was returned to any person after having been seized or was excluded from the application of a restraint order made under subsection 462.33(3) or (3.001) . 3 Section 462.341 of the Act is replaced by the following: Application of property restitution provisions 462. 341 Subsection 462.34(2), paragraph 462.34(4)(c) and subsections 462.34(5), (5.1) and (5.2) apply, with any modifications that the circumstances require, to a person who has an interest in money, bank-notes or virtual currency or other digital assets that are seized under this Act, the Controlled Drugs and Substances Act or the Cannabis Act and in respect of which proceedings may be taken under subsection 462.37(1), (1.1) or (2.01) or 462.38(2). 4 (1) Section 462.37 of the Act is amended by adding the following after subsection (1): Onus (1.1) Subject to subsections (3) to (5) and sections 462.4 and 462.41, if an offender is convicted, or discharged under section 730, of an offence under section 467.11, 467.111, 467.12 or 467.13, the offender must demonstrate to the court, on a balance of probabilities, that each item of property owned by the offender is not proceeds of crime. If the offender fails to demonstrate that a particular item of property is not proceeds of crime, the court shall order that the item be forfeited to His Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. (2) The portion of subsection 462.37(3) before paragraph (a) of the English version of the Act is replaced by the following: Fine instead of forfeiture (3) If a court is satisfied that an order of forfeiture under subsection (1), ( 1.1 ) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property 5 Paragraph 462.4(a) of the Act is replaced by the following:   (a) prior to ordering property to be forfeited under subsection 462.37(1), (1.1) or (2.01) or 462.38(2), and 6 (1) Subsection 462.41(1) of the Act is replaced by the following: Notice 462.41 (1) Before making an order under subsection 462.37(1), (1.1) or (2.01) or 462.38(2) in relation to any property, a court shall require notice in accordance with subsection (2) to be given to and may hear any person who, in the opinion of the court, appears to have a valid interest in the property. (2) The portion of subsection 462.41(3) of the Act after paragraph (b) is replaced by the following:   is the lawful owner or is lawfully entitled to possession of any property or any part thereof that would otherwise be forfeited pursuant to subsection 462.37(1), (1.1) or (2.01) or 462.38(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part thereof be returned to that person. 7 The portion of subsection 462.42(1) of the Act before paragraph (a) is replaced by the following: Application by person claiming interest for relief from forfeiture 462.42 (1) Any person who claims an interest in property that is forfeited to His Majesty under subsection 462.37(1), (1.1) or (2.01) or 462.38(2) may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4) unless the person is 8 The portion of section 462.45 of the Act before paragraph (a) is replaced by the following: Suspension of forfeiture pending appeal 462. 45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4), 462.37(1), (1.1) or (2.01), 462.38(2) or 462.41(3) or section 462.43 is suspended pending 9 Subsection 462.46(1) of the Act is replaced by the following: Copies of documents returned or forfeited 462.46 (1) If any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection 462.34(3) or (4), 462.37(1), (1.1) or (2.01), 462.38(2) or 462.41(3) or section 462.43, the Attorney General may, before returning the document or complying with the order, cause a copy of the document to be made and retained. 10 The definition criminal organization in subsection 467.1(1) of the Act is replaced by the following: criminal organization  means a group, however organized, other than a group of persons that forms randomly for the immediate commission of a single offence, that (a) is composed of three or more persons in or outside Canada and has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, could result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group; or (b) is an entity on the list established under section 467.101. ( organisation criminelle ) 11 The Act is amended by adding the following after section 467.1: Establishment of list of entities 467.101 (1) The Governor in Council may, by regulation, establish a list on which the Governor in Council may place, on the recommendation of the Minister of Public Safety and Emergency Preparedness, any entity if the Governor in Council is satisfied that there are reasonable grounds to believe that the entity, knowingly (a) has had a person carry out on its behalf, or while pretending to act on its behalf, participate in or facilitate an activity of a criminal organization; or (b) is acting on behalf of, at the direction of or in association with an entity described in paragraph (a). Recommendation (2) The Minister may recommend that an entity be placed on the list only if the Minister has reasonable grounds to believe that it is an entity described in paragraph (1)(a) or (b). Application to Minister (3) On application in writing by a listed entity, the Minister shall decide whether there are reasonable grounds to recommend to the Governor in Council that it no longer be a listed entity. Deeming (4) If the Minister does not make a decision on the application referred to in subsection (3) within 90 days after receipt of the application, the Minister is deemed to have decided to recommend that the entity remain listed. Notice of decision to applicant (5) The Minister shall give notice without delay to the listed entity of any decision taken or deemed to have been taken respecting its application under subsection (3). Application for judicial review (6) Within 60 days after receipt of the notice of the decision referred to in subsection (5), the listed entity may apply to the Chief Justice of the Federal Court, or a judge of that Court designated by the Chief Justice, for judicial review of the decision. Judicial review (7) When an application is made under subsection (6), the judge shall (a) examine, in private, any security or criminal intelligence reports considered in adding the applicant to the list and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at the Minister’s request, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any individual; (b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judge’s opinion, injure national security or endanger the safety of any individual; (c) provide the applicant with a reasonable opportunity to be heard; and (d) determine whether the decision was reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a listed entity. Evidence (8) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base their decision on that evidence. Publication (9) The Minister shall cause to be published in the Canada Gazette , without delay, notice of a final order of a court that the applicant no longer be a listed entity. New application (10) A listed entity shall not make another application under subsection (3) unless there has been a material change in its circumstances since the entity made its last application. Mistaken identity 467.102 (1) An entity whose name is the same as or similar to a name, appearing on the list , of a listed entity and that claims not to be that listed entity may apply in writing to the Minister of Public Safety and Emergency Preparedness for a certificate stating that it is not that listed entity. Issuance of certificate (2) The Minister shall, within 30 days after receiving the application, issue a certificate if the Minister is satisfied that the applicant is not that listed entity. Review of list 467.103 (1) Five years after the establishment of the list, and every five years after that, the Minister of Public Safety and Emergency Preparedness shall review the list to determine whether there are still reasonable grounds, as set out in subsection 467.101(1), for an entity to be listed and shall make a recommendation to the Governor in Council as to whether the entity should remain listed. The review does not affect the validity of the list. Completion of review (2) The Minister shall complete the review as soon as possible and, in any event, no later than 120 days after its commencement. After completing the review, the Minister shall cause to be published in the Canada Gazette , without delay, notice that the review has been completed. 12 Paragraph 467.11(3)(b) of the Act is replaced by the following: (b) frequently associates with any of the persons who constitute the criminal organization or is a known member of the criminal organization ; 13 Paragraph 487.1(1)(k) of the Act is replaced by the following: (k) an order under subsection 462.33(3) or (3.001) ; 14 The portion of subsection 689(1) of the Act before paragraph (a) is replaced by the following: Restitution or forfeiture of property 689 (1) If the trial court makes an order for compensation or for the restitution of property under section 738 or 739 or an order of forfeiture of property under subsection 164.2(1) or 462.37(1), (1.1) or (2.01), the operation of the order is suspended 15 Paragraph (o) after the heading “List of Conditions” of Form 32 of Part XXVIII of the Act is replaced by the following: (o) in the case where a warrant was issued under section 462.32 of the Criminal Code or a restraint order was made under subsection 462.33(3) or (3.001) of that Act in relation to any property ( set out a description of the property and its location ), refrains from doing or causing anything to be done that would result, directly or indirectly, in the disappearance, dissipation or reduction in value of the property or otherwise affect the property so that all or a part thereof could not be subject to an order of forfeiture under section 462.37 or 462.38 of that Act or any other provision of that Act or any other Act of Parliament (section 462.34 of the Criminal Code );