Bill C-381
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2nd Session, 40th Parliament,
57-58 Elizabeth II, 2009
house of commons of canada
BILL C-381
An Act to amend the Criminal Code (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) Notwithstanding 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 transaction —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.
Punishment
(5) Every one who commits an offence under any of subsections (1) to (4) is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of five years.
Exception
(6) The punishment to be imposed shall be equal to or greater than the minimum punishment, unless the court that sentences the accused is satisfied that exceptional circumstances warrant the imposition of a punishment that is less than the prescribed minimum punishment. The court shall give reasons for its decision.
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 but not later that 30 days after the transplant,
(a) obtain a certificate establishing that the organ or other body part was donated and that no money was paid for it; and
(b) provide that certificate 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 but not later that 30 days after the transplant, obtain a certificate establishing that the organ or other body part was donated and that no money was paid for it, and shall, prior to or upon his or her return to Canada, provide that certificate 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 provided to Canadian entities under subsection (7) or (8) and of every report made under subsection (9).
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 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.
COMING INTO FORCE
Coming into force
3. Subsections 240.1(7) to (10) 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
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