Vol. 136, No. 4 — February 13, 2002

Its content is very similar except for the footnotes, the symbols and the tables

Registration SOR/2002-63 31 January, 2002

CRIMINAL CODE

Regulations Excluding Certain Indictable Offences from the Definition of "Designated Offence"

P.C. 2002-114 31 January, 2002

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 462.3(2) (see footnote a)  of the Criminal Code, hereby makes the annexed Regulations Excluding Certain Indictable Offences from the Definition of "Designated Offence".

REGULATIONS EXCLUDING CERTAIN INDICTABLE OFFENCES FROM THE DEFINITION OF "DESIGNATED OFFENCE"

EXCLUSION

1. The indictable offences under the following Acts are excluded from the definition "designated offence" in subsection 462.3(1) of the Criminal Code:

(a) Budget Implementation Act, 2000;

(b) Canada Agricultural Products Act;

(c) Copyright Act;

(d) Excise Act, except for the indictable offences under subsections 233(1) and 240(1);

(e) Excise Tax Act;

(f) Feeds Act;

(g) Fertilizers Act;

(h) Foreign Publishers Advertising Services Act;

(i) Health of Animals Act;

(j) Income Tax Act;

(k) Meat Inspection Act;

(l) Nuclear Safety and Control Act, except for the indictable offence under section 50;

(m) Plant Protection Act; and

(n) Seeds Act.

COMING INTO FORCE

2. These Regulations come into force on February 1, 2002.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

Bill C-24 (now S.C. 2001, c. 32) amended the Criminal Code to enact a number of measures to combat organized crime and enhance law enforcement generally. The Bill received Royal Assent on December 18, 2001. Most of the Bill came into force on January 7, 2002, with the balance in force on February 1 (SI/2002-17).

One of the amendments that comes into force on February 1, 2002 expands the application of the proceeds of crime provisions in Part XII.2 of the Criminal Code to almost all indictable offences. The provisions previously applied only to a limited list of some forty indictable offences associated with organized crime and defined as "enterprise crime offences". They will now apply to offences defined as "designated offences". The new definition has been added to subsection 462.3(1) of the Code by subsection 12(6) of S.C. 2001, c. 32. It comprises all indictable offences under the Criminal Code and other Acts of Parliament, with a few exceptions to be prescribed by regulation.

The indictable offences that are to be excluded from the definition of "designated offence" are to be prescribed in regulations made by the Governor in Council under the authority of a new subsection 462.3(2) that was added to the Criminal Code by Bill C-24 (c. 32, subsection 12(7)). These Regulations set out a list of statutes containing offences that will be excluded from the definition of "designated offence", and thus from the application of the proceeds of crime provisions in Part XII.2 of the Criminal Code. The excluding Regulations will come into force on the same day as the definition — February 1, 2002.

These offences are regarded as inappropriate for inclusion in the Criminal Code proceeds of crime scheme for a number of reasons. In some cases, the proceeds derived from the commission of the excluded offence are subject to particular procedures contained in the statute in which that offence is found. For example, offences under the Income Tax Act, Excise Act, and Excise Tax Act, are being excluded because those statutes already provide for comprehensive and specifically designed rules and penalties for dealing with tax evasion and for recovering any unpaid tax. Under the Copyright Act any benefit obtained by the commission of a copyright offence should be returned to the authors whose copyright has been breached, rather than being forfeited to the Crown as proceeds of crime. In other cases, the offences are part of a regulatory context based on enforcement involving an administrative and monetary penalty structure. This is the case with a number of statutes that are subject to the Agriculture and Agri-Food Administrative Monetary Penalties Act, such as the Feeds Act, the Fertilizers Act, the Meat Inspection Act, and so on, as well as offences under the Nuclear Safety and Control Act.

Alternatives

In order to achieve the legislative intent to exclude from the expanded operation of Part XII.2 of the Criminal Code certain indictable offences, it is necessary that the Governor in Council, pursuant to subsection 462.3(2) of the Criminal Code, make regulations to identify the offences that are to be excluded from the definition of "designated offence".

Benefits and Costs

The expanded application of the proceeds of crime provisions of the Criminal Code to the proceeds of almost all indictable offences will significantly enhance the ability of law enforcement authorities to seize, restrain and forfeit the profits obtained by criminal activity. Expanding this application beyond offences traditionally associated with organized crime will provide for consistency in the treatment of the benefits obtained by crime, and thus enhanced effectiveness for overall law enforcement, while at the same time strengthening the ability to target the profits of the growing range of criminal activity that is linked to or facilitated by organized crime. These Regulations are, however, relieving in nature and thus do not impose any liability on those who are subject to the offence provisions involved, but rather ensure that they are not subject to additional criminal liability that would be inappropriate in the context of those offences. The federal government will not be involved in pursuing proceeds of crime investigations, prosecutions, and proceedings in such cases, and will thus avoid any unnecessary costs, in regard to matters where such proceedings would be inappropriate in any event.

Consultation

Consultations in regard to all of the measures contained in Bill C-24 were conducted with the full range of stakeholders in the criminal justice system: federal, provincial and territorial authorities, including prosecution authorities and criminal law policy officials; police and other law enforcement agencies, including the R.C.M.P., provincial and municipal police agencies; police associations, including the Canadian Association of Chiefs of Police and the Canadian Police Association; legal and civil liberties groups, including the Canadian Bar Association, the Barreau du Québec, the Canadian Criminal Lawyers Association, the Criminal Defence Lawyers Association, and the Canadian Civil Liberties Association; and community and other interest groups such as National Action Committee on the Status of Women.

Specific consultations on the development of these Regulations were conducted with the Office of the Superintendent of Financial Institutions, the Departments of Finance, Health, Canadian Heritage and Agriculture and Agri-Food Canada, and the Canadian Nuclear Safety Commission.

Compliance and Enforcement

The expanded application of the proceeds of crime provisions of Part XII.2 of the Criminal Code will be enforced through prosecutions for laundering the proceeds of crime (section 462.31), and through the application of the search, seizure, detention, restraint and forfeiture provisions of that Part to the proceeds of almost all indictable offences. No compliance or enforcement is required in regard to these Regulations, as they serve only to exclude offences from the operation of those proceeds of crime provisions. Compliance and enforcement mechanisms are contained in each of the statutes listed in these Regulations.

Contact

Paul Saint-Denis

Criminal Law Policy Section

Criminal Law Policy and Community Justice Branch

Department of Justice

East Memorial Building

284 Wellington Street

Ottawa, Ontario

K1A 0H8

Telephone: (613) 957-4751

FAX: (613) 941-9310

 Footnote a 

S.C. 2001, c. 32, s. 12(7)

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