Bill C-61

3rd Session, 40th Parliament,

59-60 Elizabeth II, 2010-2011

house of commons of canada

BILL C-61

An Act to provide for the taking of restrictive measures in respect of the property of officials and former officials of foreign states and of their family members

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Freezing Assets of Corrupt Regimes Act.

INTERPRETATION

2. (1) The following definitions apply in this Act.

“Canadian” means a person who is a citizen within the meaning of the Citizenship Act or a corporation incorporated or continued by or under the laws of Canada or of a province.

“entity” means a corporation, trust, partnership, fund, an unincorporated association or organization or a foreign state.

“foreign state” means a country other than Canada, and includes

(a) any of its political subdivisions;

(b) its government and any of its departments, or the government or any department of any of its political subdivisions; and

(c) any of its agencies or any agency of any of its political subdivisions.

“Minister” means the Minister of Foreign Affairs.

“person” means an individual or an entity.

“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 and includes any person who, for personal or business reasons, is or was closely associated with such a person, including a family member:

(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.

“prescribed” means prescribed by regulation.

“property” means any real, personal, movable or immovable property.

(2) For the purposes of this Act, the property of a person includes property controlled, directly or indirectly, by the person.

HER MAJESTY

3. This Act is binding on Her Majesty in right of Canada or a province.

ORDERS AND REGULATIONS

4. (1) If a foreign state, in writing, asserts to the Government of Canada that a person has misappropriated property of the foreign state or acquired property inappropriately by virtue of their office or a personal or business relationship and asks the Government of Canada to freeze property of the person, the Governor in Council may

(a) make any orders or regulations with respect to the restriction or prohibition of any of the activities referred to in subsection (3) in relation to the person’s property that the Governor in Council considers necessary; and

(b) by order, cause to be seized, frozen or sequestrated in the manner set out in the order any of the person’s property situated in Canada.

(2) The Governor in Council may make the order or regulation only if the Governor in Council is satisfied that

(a) the person is, in relation to the foreign state, a politically exposed foreign person;

(b) there is internal turmoil, or an uncertain political situation, in the foreign state; and

(c) the making of the order or regulation is in the interest of international relations.

(3) Orders and regulations may be made under paragraph (1)(a) with respect to the restriction or prohibition of any of the following activities, whether carried out in or outside Canada:

(a) the dealing, directly or indirectly, by any person in Canada or Canadian outside Canada in any property, wherever situated, of the politically exposed foreign person;

(b) the entering into or facilitating, directly or indirectly, by any person in Canada or Canadian outside Canada, of any financial transaction related to a dealing referred to in paragraph (a); and

(c) the provision by any person in Canada or Canadian outside Canada of financial serv- ices or other related services in respect of property of the politically exposed foreign person.

(4) An order or regulation made under subsection (1) may exclude, individually or by class, any person, property or transaction from the application of the order or regulation.

5. (1) The Minister may issue to any person in Canada or Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction, that is restricted or prohibited by order or regulation made under section 4. The permit may be subject to any terms and conditions that are, in the opinion of the Minister, consistent with this Act and any order or regulations made under section 4.

(2) The Minister may amend, suspend, revoke or reinstate the permit.

6. An order or regulation made under section 4 in respect of a politically exposed foreign person ceases to have effect on the day that is five years after the day on which it comes into force unless the Governor in Council, by order, extends it for the period specified in the order. It may be extended more than once.

7. A copy of each order or regulation made under section 4 must be tabled in each House of Parliament within 15 days after it is made. It may be sent to the Clerk of the House if the House is not sitting.

DUTY TO DETERMINE

8. Each of the following entities must determine on a continuing basis whether it is in possession or control of property that they have reason to believe is the property of a politically exposed foreign person who is the subject of an order or regulation made under section 4:

(a) authorized foreign banks, as defined in section 2 of the Bank Act, in respect of their business in Canada or banks to which that Act applies;

(b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;

(c) foreign companies, as defined in subsection 2(1) of the Insurance Companies Act, in respect of their insurance business in Canada;

(d) companies, provincial companies and societies, as those terms are defined in subsection 2(1) of the Insurance Companies Act;

(e) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;

(f) companies to which the Trust and Loan Companies Act applies;

(g) trust companies regulated by a provincial Act;

(h) loan companies regulated by a provincial Act;

(i) entities that engage in any activity described in paragraph 5(h) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act if the activity involves the opening of an account for a client;

(j) entities authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services; and

(k) other entities of a prescribed class of entities.

DISCLOSURE

9. (1) Every person in Canada and every Canadian outside Canada must, without delay, disclose to the Commissioner of the Royal Canadian Mounted Police

(a) the existence of property in their possession or control that they have reason to believe is the property of any politically exposed foreign person who is the subject of an order or regulation under section 4; and

(b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

(2) No criminal or civil proceedings lie against a person for disclosure made in good faith under subsection (1).

OFFENCES

10. (1) Every person who wilfully contravenes an order or regulation made under section 4

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both.

(2) Every person who wilfully contravenes section 8 or 9

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both.

11. (1) Any proceedings in respect of an offence under this Act may be tried and determined by the court having jurisdiction at the place in Canada where the offence was committed or at the place in Canada in which the person charged with the offence is, resides or has an office or place of business at the time of commencement of the proceedings.

(2) If a Canadian is alleged to have committed, outside Canada, an offence under this Act, any proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

(3) For greater certainty, the provisions of the Criminal Code relating to requirements that an accused appear at and be present during proceedings and the exception to those requirements apply to proceedings commenced under subsection (2) in any territorial division.

12. Proceedings with respect to an offence under this Act may be commenced only with the consent of the Attorney General of Canada.

RIGHTS OF PERSONS WHO ARE SUBJECT TO AN ORDER OR REGULATION

13. (1) A person who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation on the grounds that the person is not a politically exposed foreign person.

(2) If the Minister has reasonable grounds to believe that the applicant is not a politically exposed foreign person, the Minister must recommend to the Governor in Council that the order or regulation be amended or repealed, as the case may be, so that the applicant is no longer the subject of the order or regulation.

(3) The Minister must give notice without delay to the applicant of any decision to reject the application.

APPLICATION FOR A CERTIFICATE

14. (1) A person claiming not to be a politically exposed foreign person may apply to the Minister in writing for a certificate stating that they are not a politically exposed foreign person who is the subject of an order or regulation made under section 4.

(2) If the Minister determines that the person is not a politically exposed foreign person, the Minister must issue a certificate to the applicant as soon as feasible.

15. (1) A person who is the subject of an order or regulation made under section 4 may apply to the Minister in writing for a certificate to exempt property from the application of the order or regulation if the property is necessary to meet the reasonable expenses of the person and their dependants.

(2) If the Minister determines that the property is necessary to meet the reasonable expenses of the applicant and their dependants, the Minister must issue a certificate to the applicant as soon as feasible.

GENERAL

16. A person who, in relation to any property that is the subject of an order or regulation made under section 4, acts reasonably in taking, or omitting to take, measures to comply with the order or regulation is not liable in any civil action arising from having taken or omitted to take the measures if they took all reasonable steps to satisfy themselves that the property was property that is the subject of the order or regulation.

17. All secured and unsecured rights and interests in any property that is the subject of an order or regulation made under section 4 that are held by a person, other than the politically exposed foreign person who is the subject of the order or regulation, are entitled to the same ranking that they would have been entitled to had the order or regulation not been made.

18. The making of an order or regulation under section 4 does not preclude the commencement of proceedings under any Act of Parliament other than this Act, or any civil proceedings, in respect of any property that is subject of the order or regulation.

19. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations prescribing anything that by this Act is to be prescribed.