Bill C-12: An Act respecting certain measures relating to the security of Canada's borders and the integrity of the Canadian immigration system and respecting other related security measures

Bill C-12: An Act respecting certain measures relating to the security of Canada's borders and the integrity of the Canadian immigration system and respecting other related security measures

Tabled in the House of Commons, November 5, 2025

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-12, An Act respecting certain measures relating to the security of Canada's borders and the integrity of the Canadian immigration system and respecting other related security measures, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-12 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Part 1 - Customs Act

Part 1 would amend the Customs Act by enacting provisions to clarify and expand obligations on certain persons in order to support Canada Border Services Agency (CBSA) officers carrying out their mandate. Under the proposed measures, it would be explicitly clarified that owners or operators of specified bridges, tunnels, railways, airports, wharves or docks must provide, equip and maintain buildings, facilities and accommodations to permit the administration and enforcement of border-related legislation, which includes examination and detention of imported goods and goods destined for export. The proposed measures would also provide CBSA officers free access to sufferance and bonded warehouses, which may be used for the short-term storage and examination of imported goods not yet released by CBSA, and any place under a transporter’s control where goods destined for export are located. The proposed measures concerning CBSA examination of goods destined for export at these locations potentially engage the protection against unreasonable search or seizure under section 8 of the Charter.

The following considerations support the consistency of the measures with section 8. The examination powers would not be available for the purpose of furthering a criminal investigation.  Rather, they would be available for regulatory purposes, such as to verify compliance with export control requirements. Further, these are border control measures which are to be executed at specified locations when CBSA has established that the goods are destined for export. In these circumstances, privacy expectations are substantially reduced. Similar authorities within the border control context have been upheld by the courts as meeting the requirements under section 8 for a search or seizure to be reasonable.

Part 2 – Controlled Drugs and Substances Act

The Controlled Drugs and Substances Act (CDSA) provides a legislative framework for the control of substances that can alter mental processes and that pose risks to public health and public safety when used inappropriately or diverted to the illegal market. In general, and depending on the particular schedule in the CDSA on which a substance is listed, the CDSA prohibits any person from conducting activities such as production, sale, or provision, importation and exportation of controlled substances unless authorized by regulation or an exemption from the provisions of the CDSA. The CDSA also includes a process for bringing substances temporarily under the control of the Act. The Minister of Health can make an order to add a substance to Schedule V for a period of up to one year if the Minister has reasonable grounds to believe that the item poses a significant risk to public health or safety or that it may pose a risk to public health or safety and is either being imported into Canada or distributed within Canada for no legitimate purpose. This listing can be extended by up to one additional year.

Part 2 would amend certain provisions of the CDSA related to the temporary accelerated scheduling of controlled substances and precursors. Precursor chemicals are chemicals that are essential to the production of a controlled substance. While some precursor chemicals have legitimate uses, they can also be used in the illegal production of controlled substances, like fentanyl and fentanyl analogues. The proposed amendments to the CDSA would include re-enacting Schedule V to divide it into two parts, with controlled substances being listed in Part 1 and precursors being listed in Part 2. The proposed amendments would also make precursors listed in Part 2 of Schedule V subject to the Precursor Control Regulations to allow for strict federal oversight of legitimate activities involving these chemicals.

Except as permitted under the regulations or under an exemption, activities involving substances listed on Schedule V are subject to offences punishable by imprisonment. The proposed re-enactment of Schedule V, which at the time of the bill’s introduction includes four substances, affects the scope of existing offences under the CDSA. As such, it engages liberty rights protected under section 7 of the Charter and must accord with the principles of fundamental justice.

The following considerations support the consistency of the amendments with the Charter. In reviewing the proposed amendments, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. A substance can only be included in Schedule V where there are reasonable grounds to believe that it poses a significant risk to public health or safety or that it may pose such a risk and is being imported into or distributed within Canada with no legitimate purpose. Legitimate uses of these chemicals are permitted, but subject to regulatory controls and licensing requirements in order to guard against the risks to public health and safety. The applicable offences are tailored to the legislative objectives under the CDSA and preserve the discretion of trial judges to impose a fit and appropriate sentence.

Part 4 - Oceans Act

Part 4 would amend the Oceans Act to add security-related activities as part of coast guard services, including conducting security patrols and collecting, analyzing and disclosing information or intelligence. It would also authorize the responsible Minister to collect, analyze and disclose information or intelligence in the conduct of these activities. The collection, use and disclosure of information has the potential to engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8 of the Charter. The powers to collect, analyze and disclose information and intelligence are necessary to support coast guard services. They could only be used in support of the Minister’s responsibility for coast guard services under the Oceans Act, which includes matters related to the safe movement of ships in Canadian waters and marine pollution response, and not for other, broader or inconsistent purposes. These powers would not displace existing legal frameworks, such as the requirement for law enforcement and national security agencies to use specific lawful authorities where necessary.

Part 5 – Information Sharing – Immigration, Refugees and Citizenship

Information disclosure power

Part 5 proposes to amend the Department of Citizenship and Immigration Act to authorize the Minister of Citizenship and Immigration to disclose, for certain purposes, personal information under the control of the Department of Citizenship and Immigration. Specifically, the bill would allow the Minister of Citizenship and Immigration to disclose any personal information under the control of the Department of Citizenship and Immigration within the Department for the purposes of exercising the Minister’s powers or performing their duties or functions. It would also allow the Minister of Citizenship and Immigration to disclose certain personal information to other parts of the federal government, to a provincial government or to a federal or provincial Crown corporation for the purposes of administering or enforcing any federal or provincial laws. These powers to disclose personal information potentially engage section 8 of the Charter.

The following considerations support the consistency of the provisions with section 8. The bill would limit disclosure of information within the Department for the purposes of the exercise of the Minister’s powers or performance of their duties or functions. The personal information that could be disclosed outside of the Department under these authorities is limited to only that which relates to the identity of an individual, their immigration or citizenship status in Canada, and the contents or status of documents issued to the individual, including information relating to the issuance, refusal, validity or termination of such a document. For example, information about an individual’s identity and immigration status could be disclosed to federal, provincial and territorial partners in order to confirm eligibility for benefit programs or other services.  Disclosure outside of the Department would be subject to a written agreement or arrangement that would govern personal information, the purpose for disclosure, any limits on secondary use, onward transfer of personal information, and any other relevant details. It would also be prohibited for a provincial government or a provincial Crown corporation to disclose personal information that it receives under this authority to a foreign entity unless the disclosure is done with the written consent of the Minister of Citizenship and Immigration and in a manner that respects Canada’s international obligations in respect of mistreatment.

Part 6 – Immigration and Refugee Protection Act (In-Canada Asylum System)

Part 6 would amend the Immigration and Refugee Protection Act to provide that individuals whose claim for refugee protection was determined by the Minister to be withdrawn would not be eligible for a pre-removal risk assessment, unless 12 months have passed since the Minister made that determination, where no application was made to the Federal Court for leave to commence an application for judicial review of the Minister’s decision. Where such an application to the Federal Court is made, an individual would be entitled to a pre-removal risk assessment if 12 months have passed since the later of the day on which the Minister made the determination that the claim for refugee protection was withdrawn, or the day on which the Federal Court refused the application for leave to commence an application for judicial review or denied their application for judicial review, with respect to the Minister’s determination.

The bill would also extend the authority of the Minister of Citizenship and Immigration to exempt all or some foreign nationals from a given country from the twelve-month bar on access to a pre-removal risk assessment, described above, to address the possibility that conditions in a foreign national’s home country have changed such that the foreign national could face the possibility of removal to a situation of risk within that twelve-month period.

Because foreign nationals whose claim for refugee protection was determined by the Minister to be withdrawn would not be entitled to a pre-removal risk assessment for a period of 12 months, their right to liberty or security of the person protected by section 7 of the Charter could potentially be engaged by the prospect of removal.

The following considerations support the consistency of the proposed amendment with section 7 of the Charter. The Immigration and Refugee Protection Act regime protects against removal to situations of risk during the period when a foreign national is not eligible for a pre-removal risk assessment by providing for safeguards against removal. These include the ability of a foreign national to request a deferral of removal and for the Minister to grant an exemption from the pre-removal risk assessment bar if justified by humanitarian and compassionate considerations in accordance with section 25.1 of the Immigration and Refugee Protection Act. Foreign nationals subject to the pre-removal risk assessment bar can also seek leave and judicial review of decisions made under Immigration and Refugee Protection Act and can seek a stay of removal.

Part 7 - Immigration and Refugee Protection Act (Certain Measures in Respect of Applications and Documents)

Part 7 proposes to amend the Immigration and Refugee Protection Act (IRPA) to expand legal authorities to strengthen control over immigration documents and by extension, migration to Canada. Among the proposed legislative amendments are measures to authorize the Governor in Council to make orders in the public interest (a) concerning the management of intake, suspension and termination of applications made by foreign nationals to obtain various immigration documents; and (b) relating to the cancellation, suspension and variance of active immigration documents held by non-Canadian citizens. These authorities are needed to effectively respond to a wide range of scenarios when it is in the public interest to do so in order to protect the public and integrity of Canada’s immigration system. Examples include cases of wide-scale fraud or system errors, pandemics, security flaws in issued documents, major irregular migration movements or cyber-attacks. Immigration documents subject to the amendments include but are not limited to permanent resident visas, permanent resident cards, temporary resident visas, temporary resident permits, electronic travel authorizations, work permits, and study permits.

Cancellation, Suspension and Variance of Immigration Documents

The proposed IRPA amendments would introduce authorities to allow the Governor in Council to make orders to cancel, suspend, or vary immigration documents and impose or vary conditions on temporary residents, where the Governor in Council is of the opinion that it is in the public interest to do so. The period of suspension and conditions, if any, is to be set out in the order. If a period is not specified, it is during the period in which the Governor in Council’s order is in force. These orders may apply to specific documents or individuals. An order that impacts persons who are in Canada must be made on the recommendation of the Minister of Citizenship and Immigration with the agreement of the Minister of Public Safety and Emergency Preparedness.

These orders made under the proposed IRPA amendments may be repealed or amended by order if the Governor in Council is of the opinion it is in the public interest. This authority lies with the Governor in Council or the Minister of Citizenship and Immigration if approved by the Governor in Council. If the repeal or amendment of orders affects persons who are in Canada, the Minister of Public Safety and Emergency Preparedness must also be in agreement with the repeal or amendment of the order.

The proposed measures to authorize the cancellation, suspension and variance of active immigration documents include the ability to impose specific conditions on document holders, such as undergoing a medical examination. These measures may interfere with inherently personal choices, such as whether to undergo certain medical procedures. Accordingly, these measures have the potential to engage liberty and security interests under section 7 of the Charter. The following considerations support the consistency of these measures with section 7.

The Governor in Council must be of the opinion that it is in the public interest to make an order that would result in the cancellation, suspension or variance of immigration documents. The duration of the suspension or conditions, if applicable, is temporary in nature. Furthermore, the initial order to cancel, suspend or vary documents may be repealed or amended if the circumstances have changed such that the Governor in Council is of the opinion that doing so is in the public interest. In addition, the cancellation, suspension and variance of immigration documents would have no immediate impact on the legal status of individuals who are already in Canada. For instance, the cancellation of an individual’s temporary resident visa under the order would mean that once they leave Canada, they cannot return without a new visa. However, the cancellation would not result in an immediate loss of their temporary resident status. Amendments would also ensure that the cancellation of a Temporary Resident Permit under this power would not result in loss of status. It is also a well-established principle of immigration law that non-citizens do not have an unqualified right to enter and remain in Canada; they must comply with the applicable rules of Canada’s immigration scheme.

Statutory Obligations of Persons Subject to a Public Interest Order and of Foreign Nationals Outside Canada

The proposed IRPA amendments would require persons who are subject to an order made in the public interest in relation to the cancellation, suspension or variance of immigration documents (“public interest order”) to: (a) answer truthfully all questions put to them that relate to the application of a public interest order; (b) produce a visa and all relevant evidence and documents that an officer reasonably requires for the purpose of the application of the public interest order; and (c) on request of an officer, appear for an examination including a medical examination that relates to the application of a public interest order. “Application” of the order, in this context, refers to the determination of whether an individual is the same individual or falls within the class of individuals that are subject to the order, and whether the individual has complied with the order’s requirements. For example, an examination may be conducted to confirm that a particular individual is actually captured by the scope of the order and has met the specific conditions imposed on their immigration document.

The proposed IRPA amendments would also require foreign nationals outside of Canada who hold immigration documents in the circumstances prescribed by the regulations to: (a) answer truthfully all questions put to them; (b) produce a visa and all relevant evidence and documents that an officer reasonably requires; and (c) on request of an officer, appear for an examination including a medical examination.

The proposed amendments that would require individuals to truthfully answer questions, provide all relevant evidence and documents, and appear for an examination, including a medical examination, potentially engage the liberty and security interests under section 7 of the Charter, which includes residual protections against self-incrimination. These obligations also have the potential to engage privacy interests protected by section 8 of the Charter because they could require individuals to provide personal information.

The following considerations support the consistency of these provisions with section 7 and section 8. Privacy interests are diminished in regulatory or administrative contexts. Statutory powers to require relevant information to be provided for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8. In the case of individuals who are the subject of a public interest order, an officer’s questions, request for evidence and documents, and the requirement to attend an examination must be specifically tied to the purpose of determining whether an individual is actually captured by the scope of the order and has complied with all of its requirements. This purpose is in furtherance of the primary objective of the order and related IRPA amendments to protect the public interest.

In the case of foreign nationals outside of Canada, the specific purpose of the new statutory obligations is to ensure that the foreign national continues to meet the requirements of the IRPA. An individual’s non-compliance with these obligations would not result in any penal consequences, such as imprisonment, but rather could result in their inability to lawfully enter Canada. In addition, any incriminating evidence obtained from the exercise of the new statutory powers may not be used in another proceeding against individuals if such use would violate the principle against self-incrimination.

Part 8 – Immigration and Refugee Protection Act (Ineligibility)

Part 8 would amend the Immigration and Refugee Protection Act to make certain claims ineligible for referral to the Refugee Protection Division of the Immigration and Refugee Board of Canada. As proposed, a claim would be ineligible for referral if refugee protection is claimed more than one year after an individual’s first entry into Canada after June 24, 2020. In addition, a claim is ineligible for referral if a claimant arrives in Canada between land ports of entry from the United States and makes a claim for refugee protection 14 days or more after the day on which they entered Canada. This is set out in subsection 159.4(1.1) of the Immigration and Refugee Protection Regulations.

In reviewing the Bill, the Minister has not identified any potential effects on Charter rights and freedoms. While an immigration removal has the potential to engage the rights to life, liberty, and security of the person under s. 7 of the Charter in certain circumstances, the proposed ineligibility provisions would not result in the immediate removal of foreign nationals and would not impact the ability of foreign nationals to access an evaluation of the risk they could face upon removal. Foreign nationals whose claims are found ineligible for referral to the Refugee Protection Division pursuant to the proposed ineligibility provisions would, prior to their removal from Canada, have access to a pre-removal risk assessment conducted by an IRCC officer trained to make such assessments. Subject to certain exceptions, for example, those found inadmissible on grounds of security or for violating human or international rights, a pre-removal risk assessment would provide an assessment of whether a claimant could face a risk of persecution, a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment if removed from Canada, which are the same risks assessed by the Refugee Protection Division. A pre-removal risk assessment must be conducted in a procedurally fair manner, and could result in the person obtaining protected person status that would enable them to remain in Canada.

Part 9 - Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Various Measures)

Part 9 would make a number of amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

Prohibition on anonymous accounts

The bill would amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) to prohibit reporting entities (for example, banks and money services businesses) from opening anonymous accounts, or accounts for anonymous clients (that is, clients whose identity cannot be properly verified or is obviously fictitious). Since this prohibition would be an offence punishable by imprisonment under section 74 of the PCMLTFA, it has the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offence would have to be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of the bill with the Charter. The new prohibition reflects the obligations that reporting entities already have to identify clients. Client identification is essential to the functioning of the reporting mechanism of the PCMLTFA scheme, as well as the various customer due diligence obligations in the scheme. In this manner, the prohibition would advance the PCMLTFA’s overall objectives of combating money laundering and terrorist financing.

Information Sharing – Commissioner of Canada Elections

The bill would amend the PCMLTFA to obligate the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to disclose information to the Commissioner of Canada Elections, where it has reasonable grounds to suspect that designated information would be relevant to investigating or prosecuting a money laundering offence, a terrorist financing offence or a sanctions evasion offence, or where the information is relevant to threats to the security of Canada, and the information is also relevant to investigating or prosecuting an offence or violation under the Canada Elections Act, or an attempt to commit such an offence or violation. The information provided could consist of, for example, details of a suspicious financial transaction, including information identifying the parties to it. As these amendments require the disclosure of information to a government agency, they have the potential to engage section 8 of the Charter, which guarantees the right to be secure against unreasonable search or seizure.

The following considerations support the consistency of these amendments with section 8 of the Charter. Disclosure is only authorized where FINTRAC has already developed reasonable grounds to suspect that the information would be relevant to the investigation of a money laundering, terrorist financing or sanctions evasions offence, or threats to national security, and so would already be obligated to disclose it to the appropriate police force and other agencies. Disclosure to the Commissioner of Canada Elections would be incidental to the existing disclosure obligations, and reflect the reality that information related to money laundering, terrorist financing, sanctions evasion and threats to national security can reveal information relevant to election-related offences and violations. The disclosure obligation would not extend FINTRAC’s mandate, but would allow additional disclosure of relevant information that is already being disclosed to police and other agencies.

Enrollment

The bill would require every reporting entity under the PCMLTFA to be enrolled with FINTRAC, and would include provisions governing applications for enrollment and renewal of enrollment, as well as circumstances in which enrollment may be denied or revoked. Enrollment involves the entity making an application to FINTRAC, after which, if various requirements are met, FINTRAC adds information about the entity to a roll that it maintains. As failure to enroll with FINTRAC would be an offence under section 74 of the PCMLTFA punishable by imprisonment, these measures have the potential to engage the right to liberty under section 7 of the Charter, and so would have to comply with the principles of fundamental justice, including the principles against arbitrariness and overbreadth.

The following considerations support the consistency of these amendments with the Charter. Enrollment would enhance the ability of FINTRAC to exercise its compliance role, by ensuring that FINTRAC has up to date information on entities that are subject to obligations under the PCMLTFA. This would enable FINTRAC, for example, to share guidance and relevant information with reporting entities, as well as to target compliance activities. It would also give FINTRAC an accurate picture of the number and types of entities that are subject to these obligations, which would assist in planning of compliance activities.

Compliance inspections

The bill would amend, by re-enacting, subsection 62(1) of the PCMLTFA, which relates to FINTRAC’s use of its compliance powers, including the power to enter premises and inspect records. The amendment would extend the application of these powers to situations where FINTRAC believes, on reasonable grounds, that an entity is a reporting entity for the purposes of the PCMLTFA. Since the powers referred to in this section can engage a reasonable expectation of privacy, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with the Charter. The powers created by section 62 apply in a regulatory context where privacy expectations are diminished. Powers to gather, compel the production of or disclose relevant information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under section 8 of the Charter. The standard of “reasonable grounds to believe” that the subject of the inquiry is an entity subject to the PCMLTFA’s compliance regime is a common standard applied in administrative and regulatory inspection contexts. If the location being inspected is a dwelling house, a warrant would be required.

Administrative Monetary Penalties and Compliance Orders

The bill would amend the PCMLTFA to increase the maximum administrative monetary penalty for prescribed violations to $4,000,000 (from $100,000) if the violation is committed by a person, and $20,000,000 (from $500,000) if the violation is committed by an entity. It would also introduce administrative monetary penalties for contravention of a compliance order, which are new types of orders created by the bill. Penalties for contravention of a compliance order would be up to a maximum of, in the case of a person, the greater of $5,000,000 or 3% of the person’s income from domestic and foreign sources and, in the case of an entity, the greater of $30,000,000 or 3% of the entity’s gross revenue from domestic and foreign sources. Given the possibility of substantial monetary penalties, these amendments could potentially be perceived as impacting section 11 Charter rights.

The following considerations support the consistency of the bill with the Charter. The process leading to the imposition of a monetary penalty would be administrative in nature. The purpose would be to encourage compliance with the Act rather than to punish. Penalties would either be fixed, or would be determined by taking into account the purpose of the penalty, the harm done by the violation, the ability of the person or entity to pay the amount, and any other criteria prescribed by regulation.

Offence – Disclosure of reports

Section 7 of the PCMLTFA currently requires certain persons and entities to report to FINTRAC where they have reasonable grounds to suspect that a transaction or attempted transaction is related to the commission or attempted commission of a money laundering, terrorist financing, or sanctions evasions offence. The bill would re-enact section 76 of the PCMLTFA, which makes it an offence for a person or entity to disclose the fact that they have made, are making, or will make a report under section 7 of the PCMLTFA, or disclose the contents of such a report, with the intent to prejudice a criminal investigation. Since this offence is punishable by imprisonment, it has the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offence must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of the bill with the Charter. The offence in question is meant to prevent reporting entities from “tipping off” those they suspect of money laundering, terrorist financing or sanctions evasion. A “tip off” from reporting entities would make it easier for persons suspected of these offences to thwart eventual investigation of these crimes, for example by moving assets or destroying evidence. The behaviour caught by the offence is therefore directly related to the objectives of combating money laundering, terrorist financing and sanctions evasion. The offence is further narrowed by requiring an intent to prejudice a criminal investigation.

Offence – Reporting

The bill would re-enact section 77 of the PCMLTFA, which makes it an offence not to make a report required by the PCMLTFA. Since this offence is punishable by imprisonment, it has the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offence must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following consideration support the consistency of the bill with the Charter. The mandatory reporting of suspicious transactions is one of the key elements of the PCMLTFA scheme, and is the basis for FINTRAC to perform its analysis function. The offence for failure to provide a report directly advances the objectives of combating money laundering and terrorist financing.

Offence – False or misleading statements

The bill would re-enact the offences under section 77.1 of the PCMLTFA of making false or misleading statements or providing false or misleading information to FINTRAC, would clarify that these offences can be committed by omission, and would expand these offences by adding the withholding of material information. These offences apply only to persons or entities that are required to provide information to FINTRAC and persons carrying out functions under the PCMLTFA. Since these offences are punishable by imprisonment, they have the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offences must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of these offences with section 7 of the Charter. Requiring that persons and entities provide complete, accurate and non-misleading information to FINTRAC helps ensure the effectiveness of the various requirements to provide information. Requiring that persons performing functions under the PCMLTFA provide accurate, complete and non-misleading information to FINTRAC helps protect against the possibility of fraud and collusion by officials. In both cases, the behaviour caught by the offences is directly related to the purpose of ensuring the effectiveness of the PCMLTFA scheme.

Part 10 - Legislation Related to Financial Institutions (Supervisory Committee)

Part 10 would amend the Office of the Superintendent of Financial Institutions Act (OSFI Act) to add the Director of FINTRAC to the Financial Institutions Supervisory Committee. This committee’s purpose is to share information related to the regulation of federally regulated financial institutions, and currently includes the Superintendent of Financial Institutions, the Commissioner of the Financial Consumer Agency of Canada, the Governor of the Bank of Canada, the Deputy Minister of Finance, and the CEO of the Canada Deposit Insurance Corporation. The relevant provisions in the OSFI Act obligate members of the committee to share with other members any information requested on matters relating directly to the supervision of these institutions. The amendments would clarify that the Director of FINTRAC would only be permitted to share information relating to the compliance of institutions with Parts 1 and 1.1 of the PCMLTFA. Since these amendments allow for the sharing of information collected pursuant to compliance powers for a new purpose, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with the Charter. FINTRAC, like the other organizations currently represented on the committee, plays an important role in the supervision of federally regulated financial institutions. Information related to the compliance of financial institutions with PCMLTFA obligations is relevant to the supervision of these institutions more generally, as a lack of compliance can be an indicator of some of the business risks faced by an institution. The information that could be shared with the committee would be limited to compliance information that relates directly to the supervision of these institutions. It would not include, for example, information relating solely to FINTRAC’s intelligence mandate. The sharing of compliance information serves the broader goals of FINTRAC’s compliance activities in terms of mitigating the risk to the financial system posed by money laundering and terrorist financing, by helping ensure that other regulatory bodies are made aware of information that relates to their mandate and can take action where appropriate

Part 11 - Sex Offender Information Registration Act

The National Sex Offender Registry is an important law enforcement tool that provides police with timely access to current and reliable information on registered sex offenders. The legal framework for the registry is set out in the Criminal Code and the Sex Offender Information Registration Act (SOIRA). The Criminal Code creates the power to require individuals to comply with SOIRA. A similar power is set out in the National Defence Act for military personnel. SOIRA sets out the specific obligations with which registered sex offenders must comply, such as providing up-to-date information about their place of residence or travel. SOIRA also sets out the parameters on the ability to access, use and disclose any information collected under the statute.

The proposed amendments to SOIRA in Part 11 would expand the current purpose of the law, which is to help police prevent and investigate sex crimes by requiring the registration of certain information relating to sex offenders. The amendments would include “other law enforcement agencies” within the existing purpose provisions of SOIRA. The proposed amendments would also enhance the ability of the Royal Canadian Mounted Police (RCMP) to share information collected under SOIRA with domestic and international law enforcement partners. In addition, the proposed amendments would allow the Canada Border Services Agency (CBSA) to disclose certain information about registered sex offenders with law enforcement agencies for the purposes of administering and enforcing SOIRA.

The Collection of Identifying Information

The proposed amendments would permit authorized persons to photograph registered sex offenders and record any physical characteristics that may assist in identifying the offenders, including their eye colour, hair colour and any tattoos and distinguishing marks. As these amendments allow for the collection of personal information, they have the potential to interfere with a reasonable expectation of privacy and therefore engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The purpose of the proposed amendments is to clarify that the current provision of SOIRA – which permits the recording of “any observable characteristics that may assist in identifying the sex offender” – would permit the collection of physical characteristics that may not be easily observable, such as tattoos and distinguishing marks. Registered sex offenders generally have diminished privacy interests in their identifying information because their identity, as a convicted offender, is already known to the state. Furthermore, recording and photographing are a relatively non-intrusive means of collecting information. Finally, the amendments promote the objectives of SOIRA by authorizing the collection of information that can help to accurately identify registered sex offenders.

Obligation to Report Changes in Vehicle Information

The proposed amendments to SOIRA would obligate registered sex offenders to report a change to the plate number, make, model, body type, year of manufacture or colour of a motor vehicle that is registered in their name or that they use regularly. This information must be reported within seven days after the change or fifteen days after the change for military personnel convicted by a court martial and who are required to report under the National Defence Act. Because the amendments authorizing the collection of vehicle information have the potential to interfere with privacy interests, they may engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. Sex offenders are already required to provide the same type of vehicle information under SOIRA. The specified vehicle information they must provide does not reveal highly sensitive information about individuals. Furthermore, sex offenders are currently obligated to report changes to other types of information about themselves, such as their name and place of residence, within the same time periods. Requiring registered sex offenders to provide this information strikes a reasonable balance between privacy and the objectives of SOIRA by ensuring that police and law enforcement agencies have accurate and up-to-date information.

CBSA’s Consultation of SOIRA Information

The proposed SOIRA amendments would allow CBSA officials to consult information collected under the statute to exercise the functions and duties assigned to them under an Act of Parliament. Because the amendments would permit access to personal information, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. CBSA officials may consult information collected under SOIRA for the limited purpose of carrying out their lawful duties as set out under Canada’s border laws. For example, CBSA officials may access SOIRA information to inform how they may exercise their statutory authorities to examine individuals and their imported goods at the border under the Customs Act and the Immigration and Refugee Protection Act. In doing so, the amendments contribute to important objectives of preventing the importation of contraband, such as child sexual exploitation material. Furthermore, SOIRA currently permits CBSA officials to collect and receive information about sex offenders in certain circumstances.

CBSA’s Disclosure of Certain Information

The proposed SOIRA amendments would allow the CBSA to disclose the following information about registered sex offenders to law enforcement agencies for the purpose of the administration or enforcement of the statute:

These amendments permit the disclosure of personal information which has the potential to interfere with a reasonable expectation of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. The information that may be disclosed by the CBSA is limited to biographical and travel-related information which is not highly sensitive in nature. Furthermore, the CBSA is currently authorized under SOIRA to collect similar types of information, such as a sex offender’s entry/exit dates to and from Canada, which it may disclose to the Commissioner of the RCMP for SOIRA-related objectives. Finally, the CBSA may only disclose the specific types of information to law enforcement agencies for the purpose of administering and enforcing SOIRA, such as by allowing the RCMP to verify when a registered sex offender has specifically departed and returned to Canada and compare this information with what the offender has self-reported.

Enhanced Information-Sharing under SOIRA

The proposed amendments to SOIRA would aim to enhance the sharing of information about registered sex offenders in several ways:

Because these amendments would authorize the disclosure of personal information, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. The relevant disclosure threshold is “reasonable grounds to believe” that the information will assist in the prevention and/or investigation of a sex crime. This threshold has been upheld by the Supreme Court of Canada as a robust standard under section 8 of the Charter in contexts where prior judicial authorization is not required. In addition, the purpose of the disclosure is tailored to the stated objective of SOIRA – as amended by the proposed amendments – to help police and law enforcement prevent and investigate sex crimes using the information collected under SOIRA.