PART 3Financial Transactions and Reports Analysis Centre of Canada (continued)
Disclosure and Use of Information (continued)
Marginal note:Hearing of applications
60.2 An application under subsection 60.1(2) to a judge for a production order, or an objection under subsection 60.1(7), shall be heard in private in accordance with regulations made under section 28 of the Canadian Security Intelligence Service Act.
- 2001, c. 41, s. 72
Marginal note:Purpose of application
60.3 (1) If the Centre makes a disclosure under paragraph 55(3)(b), the Commissioner of Revenue, appointed under section 25 of the Canada Revenue Agency Act, may, for the purposes of an investigation in respect of an offence that is the subject of the disclosure, after having obtained the approval of the Minister of National Revenue, make an application for an order for disclosure of information.
(2) An application shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Commissioner — or a person specially designated by the Commissioner for that purpose — deposing to the following matters:
(a) the offence under investigation;
(b) the person or entity in relation to which the information or documents referred to in paragraph (c) are required;
(c) the type of information or documents — whether in written form, in the form of a report or record or in any other form — obtained by or on behalf of the Director in respect of which disclosure is sought;
(d) the facts relied on to justify the belief, on reasonable grounds, that the person or entity referred to in paragraph (b) has committed or benefited from the commission of an offence referred to in subsection (1) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to an investigation in respect of that offence;
(e) a summary of any information already received from the Centre in respect of the offence; and
(f) information respecting all previous applications brought under this section in respect of any person or entity being investigated for the offence.
Marginal note:Order for disclosure of information
(3) Subject to the conditions that the judge considers advisable in the public interest, the judge to whom an application is made may order the Director — or any person specially designated in writing by the Director for the purposes of this section — to allow an employee of the Canada Revenue Agency named in the order to have access to and examine all information and documents to which the application relates or, if the judge considers it necessary in the circumstances, to produce the information and documents to the employee and allow the employee to remove them, if the judge is satisfied
(a) of the matters referred to in paragraph (2)(d); and
(b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents, having regard to the benefit likely to accrue to the investigation if the access is obtained.
The order must be complied with within the period following the service of the order that the judge may specify.
Marginal note:Execution in another province
(4) A judge may, if the information or documents in respect of which disclosure is sought are in a province other than the one in which the judge has jurisdiction, issue an order for disclosure and the order may be executed in the other province after it has been endorsed by a judge who has jurisdiction in that other province.
Marginal note:Service of order
(5) A copy of the order shall be served on the person to whom it is addressed in the manner that the judge directs or as may be prescribed by rules of court.
Marginal note:Extension of period for compliance with order
(6) A judge who makes an order under subsection (3) may, on application of the Director, extend the period within which it is to be complied with.
Marginal note:Objection to disclosure of information
(7) The Director — or any person specially designated in writing by the Director for the purposes of this section — may object to the disclosure of any information or document in respect of which an order under subsection (3) has been made by certifying orally or in writing that it should not be disclosed on the ground that
(a) the Director is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement to which the Government of Canada is a signatory respecting the sharing of information related to a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence;
(b) a privilege is attached by law to the information or document;
(c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction;
(d) disclosure of the information or document would be injurious to national security; or
(e) disclosure of the information or document would not, for any other reason, be in the public interest.
Marginal note:Determination of objection
(8) An objection made under subsection (7) may be determined, on application, in accordance with subsection (9), by the Chief Justice of the Federal Court, or by any other judge of that Court that the Chief Justice may designate to hear those applications.
Marginal note:Judge may examine information
(9) A judge who is to determine an objection may, if the judge considers it necessary to determine the objection, examine the information or document in relation to which the objection is made. The judge shall grant the objection and order that disclosure be refused if the judge is satisfied of any of the grounds mentioned in subsection (7).
Marginal note:Limitation period
(10) An application under subsection (8) shall be made within 10 days after the objection is made or within any greater or lesser period that the Chief Justice of the Federal Court, or any other judge of that Court that the Chief Justice may designate to hear those applications, considers appropriate in the circumstances.
Marginal note:Appeal to Federal Court of Appeal
(11) An appeal lies from a determination under subsection (8) to the Federal Court of Appeal.
Marginal note:Limitation period for appeal
(12) An appeal under subsection (11) shall be brought within 10 days after the date of the determination appealed from or within any further time that the Federal Court of Appeal considers appropriate in the circumstances.
Marginal note:Special rules for hearings
(13) An application under subsection (8) or an appeal brought in respect of that application shall be heard in private and, on the request of the person objecting to the disclosure of the information or documents, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.
Marginal note:Ex parte representations
(14) During the hearing of an application under subsection (8) or an appeal brought in respect of that application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on his or her request, be given the opportunity to make representations ex parte.
(15) Where any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any employee of the Centre may make, or cause to be made, one or more copies of it and any copy purporting to be certified by the Director to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.
Definition of judge
(16) For the purposes of this section, judge means a provincial court judge as defined in section 2 of the Criminal Code or a judge as defined in subsection 462.3(1) of that Act.
- 2006, c. 12, s. 33
Marginal note:Certain provisions not applicable
Marginal note:To ensure compliance
62 (1) An authorized person may, from time to time, examine the records and inquire into the business and affairs of any person or entity referred to in section 5 for the purpose of ensuring compliance with Part 1 or 1.1, and for that purpose may
(a) at any reasonable time, enter any premises, other than a dwelling-house, in which the authorized person believes, on reasonable grounds, that there are records relevant to ensuring compliance with Part 1 or 1.1;
(b) use or cause to be used any computer system or data processing system in the premises to examine any data contained in or available to the system;
(c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and
(d) use or cause to be used any copying equipment in the premises to make copies of any record.
Marginal note:Assistance to Centre
(2) The owner or person in charge of premises referred to in subsection (1) and every person found there shall give the authorized person all reasonable assistance to enable them to carry out their responsibilities and shall furnish them with any information with respect to the administration of Part 1 or 1.1 or the regulations under it that they may reasonably require.
- 2000, c. 17, s. 62
- 2010, c. 12, s. 1882
Marginal note:Warrant required to enter dwelling-house
63 (1) If the premises referred to in subsection 62(1) is a dwelling-house, the authorized person may not enter it without the consent of the occupant except under the authority of a warrant issued under subsection (2).
Marginal note:Authority to issue warrant
(2) A justice of the peace may issue a warrant authorizing the authorized person to enter a dwelling-house, subject to any conditions that may be specified in the warrant, if on ex parte application the justice is satisfied by information on oath that
(a) there are reasonable grounds to believe that there are in the premises records relevant to ensuring compliance with Part 1 or 1.1;
(b) entry to the dwelling-house is necessary for any purpose that relates to ensuring compliance with Part 1 or 1.1; and
(c) entry to the dwelling-house has been refused or there are reasonable grounds for believing that entry will be refused.
Marginal note:Areas that may be entered
(3) For greater certainty, an authorized person who enters a dwelling-house under authority of a warrant may enter only a room or part of a room in which the person believes on reasonable grounds that a person or an entity referred to in section 5 is carrying on its business, profession or activity.
- 2000, c. 17, s. 63
- 2010, c. 12, s. 1882
Marginal note:Information demand
63.1 (1) For an examination under subsection 62(1), an authorized person may also serve notice to require that the person or entity provide, at the place and in accordance with the time and manner stipulated in the notice, any document or other information relevant to the administration of Part 1 or 1.1 in the form of electronic data, a printout or other intelligible output.
Marginal note:Obligation to provide information
(2) The person or entity on whom the notice is served shall provide, in accordance with the notice, the documents or other information with respect to the administration of Part 1 or 1.1 that the authorized person may reasonably require.
- 2006, c. 12, s. 34
- 2010, c. 12, s. 1882
Definition of judge
64 (1) In this section, judge means a judge of a superior court having jurisdiction in the province where the matter arises or a judge of the Federal Court.
Marginal note:No examination or copying of certain documents when privilege claimed
(2) If an authorized person acting under section 62, 63 or 63.1 is about to examine or copy a document in the possession of a legal counsel who claims that a named client or former client of the legal counsel has a solicitor-client privilege in respect of the document, the authorized person shall not examine or make copies of the document.
Marginal note:Retention of documents
(3) A legal counsel who claims privilege under subsection (2) shall
(a) place the document, together with any other document in respect of which the legal counsel at the same time makes the same claim on behalf of the same client, in a package and suitably seal and identify the package or, if the authorized person and the legal counsel agree, allow the pages of the document to be initialled and numbered or otherwise suitably identified; and
(b) retain it and ensure that it is preserved until it is produced to a judge as required under this section and an order is issued under this section in respect of the document.
Marginal note:Application to judge
(4) If a document has been retained under subsection (3), the client or the legal counsel on behalf of the client may
(a) within 14 days after the day the document was begun to be so retained, apply, on three days notice of motion to the Deputy Attorney General of Canada, to a judge for an order
(i) fixing a day, not later than 21 days after the date of the order, and a place for the determination of the question whether the client has solicitor-client privilege in respect of the document, and
(ii) requiring the production of the document to the judge at that time and place;
(b) serve a copy of the order on the Deputy Attorney General of Canada; and
(c) if the client or legal counsel has served a copy of the order under paragraph (b), apply at the appointed time and place for an order determining the question.
Marginal note:Disposition of application
(5) An application under paragraph (4)(c) shall be heard in private and, on the application, the judge
(a) may, if the judge considers it necessary to determine the question, inspect the document and, if the judge does so, the judge shall ensure that it is repackaged and resealed;
(b) shall decide the question summarily and
(i) if the judge is of the opinion that the client has a solicitor-client privilege in respect of the document, order the release of the document to the legal counsel, or
(ii) if the judge is of the opinion that the client does not have a solicitor-client privilege in respect of the document, order that the legal counsel make the document available for examination or copying by the authorized person; and
(c) at the same time as making an order under paragraph (b), deliver concise reasons that identify the document without divulging the details of it.
Marginal note:Order to deliver
(6) If a document is being retained under subsection (3) and a judge, on the application of the Attorney General of Canada, is satisfied that no application has been made under paragraph (4)(a) or that after having made that application no further application has been made under paragraph (4)(c), the judge shall order that the legal counsel make the document available for examination or copying by the authorized person.
Marginal note:Application to another judge
(7) If the judge to whom an application has been made under paragraph (4)(a) cannot act or continue to act in the application under paragraph (4)(c) for any reason, the application under paragraph (4)(c) may be made to another judge.
(8) No costs may be awarded on the disposition of an application under this section.
(9) The authorized person shall not examine or make copies of any document without giving a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2).
(9.1) The authorized person shall not examine or make copies of a document in the possession of a person, not being a legal counsel, who contends that a claim of solicitor-client privilege may be made in respect of the document by a legal counsel, without giving that person a reasonable opportunity to contact that legal counsel to enable a claim of solicitor-client privilege to be made.
Marginal note:Waiver of claim of privilege
(10) If a legal counsel has made a claim that a named client or former client of the legal counsel has a solicitor-client privilege in respect of a document, the legal counsel shall at the same time communicate to the authorized person the client’s latest known address so that the authorized person may endeavour to advise the client of the claim of privilege that has been made on their behalf and may by doing so give the client an opportunity, if it is practicable within the time limited by this section, to waive the privilege before the matter is to be decided by a judge.
- 2000, c. 17, s. 64
- 2001, c. 12, s. 4
- 2006, c. 12, s. 35(E)
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