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Bill C-36

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CERTIFICATE BASED ON INTELLIGENCE

Signature by Ministers

4. (1) The Minister and the Minister of National Revenue may sign a certificate stating that it is their opinion, based on security or criminal intelligence reports, that there are reasonable grounds to believe

    (a) that an applicant or registered charity has made, makes or will make available any resources, directly or indirectly, to an entity that is a listed entity as defined in subsection 83.01(1) of the Criminal Code;

    (b) that an applicant or registered charity made available any resources, directly or indirectly, to an entity as defined in subsection 83.01(1) of the Criminal Code and the entity was at that time, and continues to be, engaged in terrorist activities as defined in that subsection or activities in support of them; or

    (c) that an applicant or registered charity makes or will make available any resources, directly or indirectly, to an entity as defined in subsection 83.01(1) of the Criminal Code and the entity engages or will engage in terrorist activities as defined in that subsection or activities in support of them.

Statutory Instruments Act

(2) A certificate is not a statutory instrument for the purposes of the Statutory Instruments Act.

JUDICIAL CONSIDERATION OF CERTIFICATE

Notice

5. (1) As soon as the Minister and the Minister of National Revenue have signed a certificate, the Minister, or a person authorized by the Minister, shall cause the applicant or registered charity to be served, personally or by registered letter sent to its last known address, with a copy of the certificate and a notice informing it that the certificate will be referred to the Federal Court not earlier than seven days after service and that, if the certificate is determined to be reasonable, the applicant will be ineligible to become a registered charity or the registration of the registered charity will be revoked, as the case may be.

Restriction

(2) The certificate and any matters arising out of it are not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with this Act.

Non-publicati on or confidentiality order

(3) Notwithstanding subsection (2), the applicant or registered charity may apply to a judge for an order

    (a) directing that the identity of the applicant or registered charity not be published or broadcast in any way except in accordance with this Act; or

    (b) that any documents to be filed with the Federal Court in connection with the reference be treated as confidential.

No appeal

(4) An order on an application referred to in subsection (3) is not subject to appeal or review by any court at the instance of a party to the application.

Filing in Federal Court

(5) Seven days after service under subsection (1), or as soon afterwards as is practicable, the Minister or a person authorized by the Minister shall

    (a) file a copy of the certificate in the Federal Court for it to make a determination under paragraph 6(1)(d); and

    (b) cause the applicant or registered charity to be served, personally or by registered letter sent to its last known address, with a notice informing it of the filing of the certificate.

Reference

6. (1) When the certificate is referred to the Federal Court, the judge shall, without delay,

    (a) examine, in private, the security or criminal intelligence reports considered by the Minister and the Minister of National Revenue and hear any other evidence or information that may be presented by or on behalf of those Ministers and may, on the request of the Minister or the Minister of National Revenue, hear all or part of that evidence or information in the absence of the applicant or registered charity and any counsel representing it if the judge is of the opinion that disclosure of the information would injure national security or endanger the safety of any person;

    (b) provide the applicant or registered charity with a statement summarizing the information available to the judge so as to enable the applicant or registered charity to be reasonably informed of the circumstances giving rise to the certificate, without disclosing any information the disclosure of which would, in the judge's opinion, injure national security or endanger the safety of any person;

    (c) provide the applicant or registered charity with a reasonable opportunity to be heard; and

    (d) determine whether the certificate is reasonable on the basis of the information available to the judge and, if found not to be reasonable, quash it.

No appeal or review

(2) A determination under paragraph (1)(d) is not subject to appeal or review by any court.

EVIDENCE

Admissible information

7. For the purposes of subsection 6(1), the judge may, subject to section 8, admit any reliable and relevant information, whether or not the information is or would be admissible in a court of law, and base the determination under paragraph 6(1)(d) on that information.

Foreign information obtained in confidence

8. (1) For the purposes of subsection 6(1), in private and in the absence of the applicant or registered charity or any counsel representing it,

    (a) the Minister or the Minister of National Revenue may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and

    (b) the judge shall examine the information and provide counsel representing the Minister or the Minister of National Revenue with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or registered charity or any counsel representing it because the disclosure would injure national security or endanger the safety of any person.

Return of information

(2) The information shall be returned to counsel representing the minister who made the application and shall not be considered by the judge in making the determination under paragraph 6(1)(d) if

    (a) the judge determines that the information is not relevant;

    (b) the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 6(1)(b); or

    (c) the minister withdraws the application.

Use of information

(3) If the judge decides that the information is relevant but that its disclosure would injure national security or endanger the safety of any person, the information shall not be disclosed in the statement mentioned in paragraph 6(1)(b), but the judge may base the determination under paragraph 6(1)(d) on it.

Ineligibility or revocation

9. (1) A certificate that is determined to be reasonable under paragraph 6(1)(d) is conclusive proof, in the case of an applicant, that it is ineligible to become a registered charity or, in the case of a registered charity, that it does not comply with the requirements to continue to be a registered charity.

Publication

(2) The Minister shall, without delay after a certificate is determined to be reasonable, cause the certificate to be published in the Canada Gazette.

REVIEW OF CERTIFICATE

Review of certificate

10. (1) An applicant or former registered charity in relation to which a certificate was determined to be reasonable under paragraph 6(1)(d) and that believes that there has been a material change in circumstances since that determination was made may apply in writing to the Minister for a review of the certificate by the Minister and the Minister of National Revenue.

Notice to Minister of National Revenue

(2) The Minister shall, without delay, notify the Minister of National Revenue of an application for review.

Information for review

(3) For the purpose of a review, the Ministers may consider any submission made by the applicant or former registered charity that applied for the review and any security or criminal intelligence reports that are made available to the Ministers.

Time for decision

(4) The Ministers shall make their decision on an application for review within 120 days after receipt of the application by the Minister.

Decision on review

(5) The Ministers may decide that, since the time the certificate was determined to be reasonable,

    (a) there has not been a material change in circumstances, in which case the Ministers shall deny the application; or

    (b) there has been a material change in circumstances, in which case the Ministers shall determine whether there are reasonable grounds as provided in subsection 4(1) and, accordingly,

      (i) continue the certificate in effect, or

      (ii) cancel the certificate as of the date of the decision.

Automatic cancellation

(6) If no decision is made within a period of 120 days after receipt of the application, the certificate is cancelled on the expiration of that period.

Notice to applicant or charity

(7) As soon as a decision is made or the certificate is cancelled under subsection (6), the Minister or a person authorized by the Minister shall cause the applicant or former registered charity that applied for the review to be served, personally or by registered letter sent to its last known address, with notice of the decision or cancellation.

Application for review

11. (1) An applicant or former registered charity that applied for a review under subsection 10(1) may, after giving written notice to the Minister who in turn shall notify the Minister of National Revenue, apply to the Federal Court for a review of a decision made under paragraph 10(5)(a) or subparagraph 10(5)(b)(i).

Review by Court

(2) The Court shall carry out the review in accordance with section 6, with any adaptations that may be required.

Referral to Ministers

(3) If the Court quashes a decision of the Ministers made under paragraph 10(5)(a), it shall refer the application to the Ministers for a decision under paragraph 10(5)(b).

Cancellation of certificate

(4) If the Court quashes a decision of the Ministers made under subparagraph 10(5)(b)(i), the certificate is cancelled as of the date the decision is quashed.

No appeal

(5) The determination of the Court is not subject to appeal or judicial review.

Publication of spent certificate

12. The Minister shall, in a manner that mentions the original publication of the certificate, cause to be published in the Canada Gazette notice of the cancellation of a certificate by reason of

    (a) a decision made under subparagraph 10(5)(b)(ii);

    (b) the operation of subsection 10(6); or

    (c) a determination of the Federal Court referred to in subsection 11(4).

Term of a certificate

13. Unless it is cancelled earlier, a certificate is effective for a period of seven years beginning on the day it is first determined to be reasonable under paragraph 6(1)(d).

Regulations

14. The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of this Act.

R.S., c. 1 (5th Supp.)

AMENDMENTS TO THE INCOME TAX ACT

114. Section 168 of the Income Tax Act is amended by adding the following after subsection (2):

Charities Registration (Security Information) Act

(3) Notwithstanding subsections (1) and (2), if a registered charity is the subject of a certificate that is determined to be reasonable under paragraph 6(1)(d) of the Charities Registration (Security Information) Act, the registration of the charity is revoked as of the making of that determination.

115. (1) Section 172 of the Act is amended by adding the following after subsection (3):

Exception - Charities Registration (Security Information) Act

(3.1) Paragraphs (3)(a) and (a.1) do not apply to an applicant or a registered charity that is the subject of a certificate that has been determined to be reasonable under paragraph 6(1)(d) of the Charities Registration (Security Information) Act.

(2) The portion of subsection 172(4) of the Act after paragraph (f) is replaced by the following:

where the Minister has not notified the applicant of the disposition of the application within 180 days after the filing of the application with the Minister, and, in any such case, subject to subsection (3.1), an appeal from the refusal to the Federal Court of Appeal pursuant to subsection (3) may, notwithstanding subsection 180(1), be instituted under section 180 at any time by filing a notice of appeal in the Court.

(3) Section 172 of the Act is amended by adding the following after subsection (4):

Exception - Charities Registration (Security Information) Act

(4.1) An appeal referred to in subsection (3) or (4) is suspended when an applicant or a registered charity is, under subsection 5(1) of the Charities Registration (Security Information) Act, served with a copy of a certificate that has been signed under that Act, whether the appeal was instituted before or after the certificate was so signed, and the appeal is

    (a) discontinued on the determination that the certificate is reasonable under paragraph 6(1)(d) of that Act; or

    (b) reinstated as of the date the certificate is quashed under paragraph 6(1)(d) of that Act.

116. The description of A in paragraph 188(1)(a) of the Act is replaced by the following:

A is the total of all amounts each of which is the fair market value of an asset of the charity on the day (in this section referred to as the ``valuation day'') that is 120 days before the day on which

        (i) the notice of the Minister's intention to revoke the charity's registration is mailed, if the registration is revoked under subsection 168(2), or

        (ii) the charity is, under subsection 5(1) of the Charities Registration (Security Information) Act, served with a copy of a certificate, if the registration is revoked under subsection 168(3).

117. Paragraph 239(2.21)(b) of the Act is replaced by the following:

    (b) who is an official to whom taxpayer information has been provided for a particular purpose under paragraph 241(4)(a), (d), (f), (f.1), (i) or (j.1)

118. Subsection 241(4) of the Act is amended by adding the following after paragraph (f):

    (f.1) provide taxpayer information to an official solely for the purposes of the administration and enforcement of the Charities Registration (Security Information) Act;

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