Vol. 143, No. 44 — October 31, 2009

Regulations Amending the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence”

Statutory authority

Criminal Code

Sponsoring department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

This proposal would amend the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence” (the Regulations).

The proposal will play a role in supporting the enforcement of copyright law and will have a positive impact in strengthening Canada’s intellectual property regime. The initiative meets with Canada’s commitment to the Financial Action Task Force to include copyright offences as a predicate offence in respect of money laundering.

In the past several years, the scope and nature of copyright piracy have grown. Canada has come under pressure from industry stakeholders to take concrete action to better protect intellectual property rights (IPR), including copyright, a view that was echoed in two all-party reports from the Standing Committee on Public Safety and National Security and the Standing Committee on Industry, Science and Technology in 2007. Responses tabled on October 17, 2007, reaffirmed the Government’s commitment to pursuing strategies to better address IPR issues. The level of sophistication of organized criminals as well as that of the technology to commit acts of copyright piracy continues to grow, as does the availability of this technology, compelling law enforcement and industry representatives to seek the application of the Criminal Code’s confiscation regime to proceeds derived from criminal infringement of copyright.

In Canada’s 2007 evaluation of its anti-money laundering and terrorist financing measures by the Financial Action Task Force, Canada was criticized for not permitting the confiscation of proceeds from the commission of criminal copyright infringement.

Description and rationale

The proposed amendment to the Regulations would remove the Copyright Act from the list of statutes that are excluded from the definition of “designated offence” in relation to the application of the “proceeds of crime” provisions of the Criminal Code.

Part XII.2 of the Criminal Code dealing with proceeds of crime permits courts to order the confiscation of such proceeds, that is, of property derived from the commission of certain offences. Prior to 2001, the provisions applied only to a list of some 40 indictable offences associated with organized crime. In 2001, Part XII.2 expanded the application of the proceeds of crime provisions to all indictable offences captured by the definition of “designated offence.” “Designated offences” comprise all indictable offences under the Criminal Code and other Acts of Parliament, with exceptions that are prescribed by regulation. The purpose of this expansion was to enhance the ability of law enforcement authorities to seize, restrain and have forfeited the profits obtained through a wide range of criminal activity. Parliament concluded that expanding the application of the proceeds of crime provisions beyond offences traditionally associated with organized crime provided for greater consistency in the treatment of the benefits obtained by crime and enhanced effectiveness for overall law enforcement, and at the same time strengthened the ability of law enforcement to target the profits of the growing range of criminal activity that is linked to or facilitated by organized crime.

The Regulations were first made in 2002. Under the Copyright Act, a copyright owner is able, pursuant to section 35 of the Act, to claim damages and profits from infringers. Because of a concern that the application of the proceeds of crime provisions could undermine a copyright owner’s ability to recover damages and profits in a potential civil action launched for copyright infringement, the Copyright Act and its offences were excluded from the application of Part XII.2. However, experience has shown that very few civil claims against criminal infringers have been made. Indeed, representatives from the intellectual property industry have sought to have the Criminal Code’s confiscation of proceeds regime apply to the proceeds obtained from the commission of copyright offences.

Should this amendment to the Regulations be made, the law enforcement community’s ability to target intellectual property infringement would be enhanced, which is inherently beneficial to the intellectual property community and to all Canadian society.

Consultation

A number of representatives from intellectual property fields, including representatives from the Alliance of Canadian Cinema, Television and Radio Artists; the Canadian Film and Television Production Association; the Canadian Motion Picture Distributors Association; the Entertainment Software Association of Canada; the Canadian Recording Industry Association; and the Music Industries Association of Canada, have requested that the proposed amendment to the Regulations be made. This amendment was also echoed in reports from the Standing Committee on Public Safety and National Security and the Standing Committee on Industry, Science and Technology in 2007. A number of federal departments and agencies were also consulted, including the Royal Canadian Mounted Police. All who were consulted supported this proposal.

Implementation, enforcement and service standards

Under the present proceeds of crime confiscation regime, proceeds derived from the commission of copyright offences cannot be seized, restrained or confiscated. This amendment will allow such proceeds to fall within the ambit of the Criminal Code’s proceeds of crime regime and accordingly will improve the ability of law enforcement agencies to enforce the Copyright Act by permitting the seizure, restraint and confiscation of proceeds derived from the commission of copyright-related offences. The amendment will complement existing enforcement strategies to combat organized crime and copyright piracy.

Contact

Paul Saint-Denis
Senior Counsel
Criminal Law Policy Section
Department of Justice
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 613-957-4751

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 462.3(2) (see footnote a) of the Criminal Code (see footnote b), proposes to make the annexed Regulations Amending the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence”.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8 (tel.: 613-957-4751; fax: 613-941-9310; e-mail: paul.saint-denis@justice.gc.ca).

Ottawa, October 22, 2009

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE REGULATIONS EXCLUDING CERTAIN INDICTABLE OFFENCES FROM THE DEFINITION OF “DESIGNATED OFFENCE”

AMENDMENT

1. Paragraph 1(c) of the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence” (see footnote 1) is repealed.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

[44-1-o]

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

Footnote b
R.S., c. C-46

Footnote 1
SOR/2002-63

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