An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (S.C. 2001, c. 32)
Full Document:
Assented to 2001-12-18
An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts
S.C. 2001, c. 32
Assented to 2001-12-18
An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts
SUMMARY
The enactment amends the Criminal Code by
(a) providing additional protection to members of the Senate and the House of Commons and persons who play a role in the administration of criminal justice from certain acts of intimidation directed against them or their families;
(b) providing law enforcement officers and other persons acting at their direction with circumscribed protection from criminal liability for certain otherwise illegal acts committed in the course of an investigation or enforcement of an Act of Parliament;
(c) extending the application of its proceeds of crime provisions to indictable offences under the Criminal Code and other Acts of Parliament, with a few exceptions;
(d) extending the application of its provisions relating to offence-related property to indictable offences under the Criminal Code;
(e) providing for the management, by judicial order, of proceeds of crime and offence-related property, whether seized or restrained; and
(f) providing broader measures for investigation and prosecution in connection with organized crime by expanding the concepts of criminal organization and criminal organization offence and by creating three new offences relating to participation in the activities — legal and illegal — of criminal organizations, and to the actions of their leaders.
The enactment also amends the Mutual Legal Assistance in Criminal Matters Act to allow the enforcement in Canada of search warrants, restraint orders and orders of forfeiture from foreign jurisdictions.
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-46CRIMINAL CODE
Marginal note:1997, c. 23, s. 1
1. (1) The definitions “acte de gangstérisme” and “gang” in section 2 of the French version of the Criminal Code are repealed.
Marginal note:1997, c. 23, s. 1
(2) The definition “offence-related property” in section 2 of the Act is replaced by the following:
“offence-related property”
« bien infractionnel »
“offence-related property” means any property, within or outside Canada,
(a) by means or in respect of which an indictable offence under this Act is committed,
(b) that is used in any manner in connection with the commission of an indictable offence under this Act, or
(c) that is intended for use for the purpose of committing an indictable offence under this Act;
Marginal note:1997, c. 23, s. 1
(3) The definition “criminal organization” in section 2 of the English version of the Act is replaced by the following:
“criminal organization”
« organisation criminelle »
“criminal organization” has the same meaning as in subsection 467.1(1);
Marginal note:1997, c. 23, s. 1
(4) Paragraph (a) of the definition “criminal organization offence” in section 2 of the English version of the Act is replaced by the following:
(a) an offence under section 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or
(5) Section 2 of the Act is amended by adding the following in alphabetical order:
“justice system participant”
« personne associée au système judiciaire »
“justice system participant” means
(a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council, and
(b) a person who plays a role in the administration of criminal justice, including
(i) the Solicitor General of Canada and a Minister responsible for policing in a province,
(ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court,
(iii) a judge and a justice,
(iv) a juror and a person who is summoned as a juror,
(v) an informant, a prospective witness, a witness under subpoena and a witness who has testified,
(vi) a peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition “peace officer”,
(vii) a civilian employee of a police force,
(viii) a person employed in the administration of a court,
(ix) a public officer within the meaning of subsection 25.1(1) and a person acting at the direction of such an officer,
(x) an employee of the Canada Customs and Revenue Agency who is involved in the investigation of an offence under an Act of Parliament,
(xi) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and
(xii) an employee and a member of the National Parole Board and of a provincial parole board;
“serious offence”
« infraction grave »
“serious offence” has the same meaning as in subsection 467.1(1);
Marginal note:1997, c. 23, s. 2
(6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« infraction d’organisation criminelle »
“criminal organization offence”
infraction d’organisation criminelle
a) Soit une infraction prévue aux articles 467.11, 467.12 ou 467.13 ou une infraction grave commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle;
b) soit le complot ou la tentative en vue de commettre une telle infraction ou le fait d’en être complice après le fait ou d’en conseiller la perpétration.
« organisation criminelle »
“criminal organization”
organisation criminelle S’entend au sens du paragraphe 467.1(1).
2. The Act is amended by adding the following after section 25:
Marginal note:Definitions
25.1 (1) The following definitions apply in this section and sections 25.2 to 25.4.
“competent authority”
« autorité compétente »
“competent authority” means, with respect to a public officer or a senior official,
(a) in the case of a member of the Royal Canadian Mounted Police, the Solicitor General of Canada, personally;
(b) in the case of a member of a police service constituted under the laws of a province, the Minister responsible for policing in the province, personally; and
(c) in the case of any other public officer or senior official, the Minister who has responsibility for the Act of Parliament that the officer or official has the power to enforce, personally.
“public officer”
« fonctionnaire public »
“public officer” means a peace officer, or a public officer who has the powers of a peace officer under an Act of Parliament.
“senior official”
« fonctionnaire supérieur »
“senior official” means a senior official who is responsible for law enforcement and who is designated under subsection (5).
Marginal note:Principle
(2) It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.
Marginal note:Designation of public officers
(3) A competent authority may designate public officers for the purposes of this section and sections 25.2 to 25.4.
Marginal note:Condition — civilian oversight
(3.1) A competent authority referred to in paragraph (a) or (b) of the definition of that term in subsection (1) may not designate any public officer under subsection (3) unless there is a public authority composed of persons who are not peace officers that may review the public officer’s conduct.
Marginal note:Declaration as evidence
(3.2) The Governor in Council or the lieutenant governor in council of a province, as the case may be, may designate a person or body as a public authority for the purposes of subsection (3.1), and that designation is conclusive evidence that the person or body is a public authority described in that subsection.
Marginal note:Considerations
(4) The competent authority shall make designations under subsection (3) on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally, rather than in relation to any particular investigation or enforcement activity.
Marginal note:Designation of senior officials
(5) A competent authority may designate senior officials for the purposes of this section and sections 25.2 to 25.4.
Marginal note:Emergency designation
(6) A senior official may designate a public officer for the purposes of this section and sections 25.2 to 25.4 for a period of not more than 48 hours if the senior official is of the opinion that
(a) by reason of exigent circumstances, it is not feasible for the competent authority to designate a public officer under subsection (3); and
(b) in the circumstances of the case, the public officer would be justified in committing an act or omission that would otherwise constitute an offence.
The senior official shall without delay notify the competent authority of the designation.
Marginal note:Conditions
(7) A designation under subsection (3) or (6) may be made subject to conditions, including conditions limiting
(a) the duration of the designation;
(b) the nature of the conduct in the investigation of which a public officer may be justified in committing, or directing another person to commit, acts or omissions that would otherwise constitute an offence; and
(c) the acts or omissions that would otherwise constitute an offence and that a public officer may be justified in committing or directing another person to commit.
Marginal note:Justification for acts or omissions
(8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) — that would otherwise constitute an offence if the public officer
(a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;
(b) is designated under subsection (3) or (6); and
(c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.
Marginal note:Requirements for certain acts
(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10), unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she
(a) is personally authorized in writing to commit the act or omission — or direct its commission — by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties; or
(b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to
(i) preserve the life or safety of any person,
(ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or
(iii) prevent the imminent loss or destruction of evidence of an indictable offence.
Marginal note:Person acting at direction of public officer
(10) A person who commits an act or omission that would otherwise constitute an offence is justified in committing it if
(a) a public officer directs him or her to commit that act or omission and the person believes on reasonable grounds that the public officer has the authority to give that direction; and
(b) he or she believes on reasonable grounds that the commission of that act or omission is for the purpose of assisting the public officer in the public officer’s law enforcement duties.
Marginal note:Limitation
(11) Nothing in this section justifies
(a) the intentional or criminally negligent causing of death or bodily harm to another person;
(b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or
(c) conduct that would violate the sexual integrity of an individual.
Marginal note:Protection, defences and immunities unaffected
(12) Nothing in this section affects the protection, defences and immunities of peace officers and other persons recognized under the law of Canada.
Marginal note:Compliance with requirements
(13) Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence.
Marginal note:Exception: offences under Controlled Drugs and Substances Act
(14) Nothing in this section justifies a public officer or a person acting at his or her direction in committing an act or omission — or a public officer in directing the commission of an act or omission — that constitutes an offence under a provision of Part I of the Controlled Drugs and Substances Act or of the regulations made under it.
Marginal note:Public officer to file report
25.2 Every public officer who commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) or (b) shall, as soon as is feasible after the commission of the act or omission, file a written report with the appropriate senior official describing the act or omission.
Marginal note:Annual report
25.3 (1) Every competent authority shall publish or otherwise make available to the public an annual report for the previous year that includes, in respect of public officers and senior officials designated by the competent authority,
(a) the number of designations made under subsection 25.1(6) by the senior officials;
(b) the number of authorizations made under paragraph 25.1(9)(a) by the senior officials;
(c) the number of times that acts and omissions were committed in accordance with paragraph 25.1(9)(b) by the public officers;
(d) the nature of the conduct being investigated when the designations referred to in paragraph (a) or the authorizations referred to in paragraph (b) were made or when the acts or omissions referred to in paragraph (c) were committed; and
(e) the nature of the acts or omissions committed under the designations referred to in paragraph (a), under the authorizations referred to in paragraph (b) and in the manner described in paragraph (c).
Marginal note:Limitation
(2) The annual report shall not contain any information the disclosure of which would
(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;
(b) compromise the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer;
(c) endanger the life or safety of any person;
(d) prejudice a legal proceeding; or
(e) otherwise be contrary to the public interest.
Marginal note:Written notification to be given
25.4 (1) When a public officer commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) or (b), the senior official with whom the public officer files a written report under section 25.2 shall, as soon as is feasible after the report is filed, and no later than one year after the commission of the act or omission, notify in writing any person whose property was lost or seriously damaged as a result of the act or omission.
Marginal note:Limitation
(2) The competent authority may authorize the senior official not to notify the person under subsection (1) until the competent authority is of the opinion that notification would not
(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;
(b) compromise the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer;
(c) endanger the life or safety of any person;
(d) prejudice a legal proceeding; or
(e) otherwise be contrary to the public interest.
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