5. Clause-by-Clause Documents

Part 4 – Division 3, Subdivision B – Criminal Code Amendments to Enhance the Recovery of Proceeds of Crime

Clause 211

This amendment would ensure consistency between the French and English versions of subsection 462.32(4.1) by clarifying, in the French text, that a peace officer returning property seized under a warrant issued under this section must receive a receipt for the property returned in order to return it. The English version better reflected the underlying policy intent when this provision was originally enacted.

Clause 212

This clause would establish the authority of a judge to issue a special warrant for the search and seizure of digital assets reasonably believed to be proceeds of crime eligible for forfeiture. It would also set out various procedures to be followed, including terms and conditions for the seizure and undertakings against loss or damage in relation to the search and seizure by the Attorney General (section 462.321).

The clause would set out the circumstances where notice must be provided to the person from whom the property is seized and circumstances where the property seized may be returned.

These amendments are adapted from the special search warrant for proceeds of crime in section 462.32.

Clause 213

This clause would provide that the court’s power to issue a management order in respect of property that may be subject to forfeiture as proceeds of crime, set out in section 462.331, would apply to property seized under the digital asset special warrant.

Clause 214

This clause would amend the provisions of the proceeds of crime scheme that enable a person with an interest in seized property to apply to the court for an order revoking or varying a seizure order so that they would also apply to property seized under the digital assets special warrant (462.34).

This clause would also amend the provisions enabling a person with an interest in seized property to apply to the court for permission to examine property, by including provisions adapted to the reality of digital assets. Instead of applying for an order to examine digital assets, a person could apply to the court for an accounting of the digital assets, to be assured that the digital assets continue to be preserved and safeguarded.

Finally, this clause would amend the structure of the English version of subsection 462.34(6) in order to conform to current drafting standards for effectively communicating the law by improving the readability and intelligibility of legislation.

Clause 215

Section 462.341 of the current proceeds of crime scheme extends certain remedies allowing for payment of living, business and legal and related expenses from property seized or restrained under existing provisions to persons who have an interest in seized money or bank notes. The amendment made by this clause would extend this provision to persons who have an interest in digital assets, including virtual assets, seized under the proposed digital assets special warrant.

Clause 216

This clause would amend the expiry provisions at section 462.35 that apply to the existing special search warrant and restraint order under the proceeds of crime scheme so that the expiry provisions apply to the proposed digital assets special warrant.

Clause 217

Section 462.36 of the current proceeds of crime scheme provides that the clerk of the Court that issues a special search warrant or a restraint order is required to forward a copy of the report of property seized or restrained to the Court that will hear the trial of the accused. This clause would amend the section to include the digital assets special warrant within its scope of application.

Clause 218

This clause would amend the residual disposal provisions of the current proceeds of crime scheme, at section 462.43, to extend their application to property seized under the digital assets special warrant.

Clause 219

Section 462.48 of the proceeds of crime scheme authorizes Attorneys General to apply to a judge for an order requiring the Minister of National Revenue to disclose specified tax records for the purposes of an investigation into a limited number of offences giving rise to proceeds of crime. Currently, the provision is available for designated drug offences, possession of proceeds and money laundering in relation to designated drug offences, organized crime offences, and terrorism offences.

This clause would amend section 462.48 by expanding the list of offences for which tax information may be disclosed. The proposed amendment would add the Criminal Code offences for corruption, human trafficking, fraud over $5,000, fraud affecting a public market, and extortion. The amendment would also add foreign bribery under the Corruption of Foreign Public Officials Act. Finally, the amendment would provide that tax information could be disclosed for the offences of conspiracy, attempt, and accessory after the fact as well as possession of property obtained by crime and laundering proceeds of crime under the Criminal Code where the underlying crime is any of the existing or proposed offences.

Clause 220

This clause would amend subsection 487.1(1) to add the digital assets special warrant to the list of warrants and orders which may be the subject of an application by a telewarrant that produces a writing.

Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), which received royal assent on December 15, 2022, expanded and updated the telewarrant regime by enabling applications for a wider variety of search warrants, authorizations and orders to be made by telecommunication.

Related Amendments

Parliament of Canada Act

Clause 221

Section 19.7 of the Parliament of Canada Act sets out the procedure by which a peace officer may seek judicial authorization for various Criminal Code warrants, orders and similar measures in the context of the peace officer’s investigation into the use by a senator of funds, goods, services or premises. The procedure sets out various processes for which the Senate Standing Senate Committee on Internal Economy, Budgets and Administration may provide an opinion to the peace officer in relation to the propriety of the senator’s use of funds, goods, services or premises.

This clause would amend the Parliament of Canada Act to provide that the definition of “process” for the purposes of section 19.7 would include a digital assets special warrant.

Clause 222

Section 52.7 of the Parliament of Canada Act sets out the authority of the Board of Internal Economy to provide an opinion to a peace officer regarding the propriety of the use by a member of the House of Commons of funds, goods, services or premises, in the context of the peace officer’s application for judicial authorization for certain Criminal Code warrants or orders, in relation to the peace officer’s investigation into the use by a member of funds, goods, services or premises.

This clause would amend the Parliament of Canada Act to provide that the definition of “process” under this section would include a digital assets special warrant.

Mutual Legal Assistance in Criminal Matters Act

Clause 223

This clause would amend subsection 9.1(3) of the Mutual Legal Assistance in Criminal Matters Act to provide that an order issued by the International Criminal Court for the seizure of digital assets may be enforced as if it were a warrant issued under the digital assets special warrant.

Clause 224

This clause would amend paragraph 9.3(4)(a) of the Mutual Legal Assistance in Criminal Matters Act to provide that an order issued by a court of criminal jurisdiction of a foreign state or entity for the seizure of digital assets may be enforced as if it were a warrant issued under the digital assets special warrant.

Seized Property Management Act

Clause 225

This clause would amend paragraph 4(1)(a) of the Seized Property Management Act to provide the Minister of Public Works and Government Services with the authority to manage digital assets seized under the digital assets special warrant.

Clause 226

This clause would amend paragraph 13(3)(b) of the Seized Property Management Act to authorize the payment of claims arising from an undertaking entered into by the Attorney General of Canada in the context of a digital asset special warrant out of the Government’s Proceeds Account.

Clause 227

This clause would amend paragraph 16(b) the Seized Property Management Act to reserve excess amounts credited to the Government’s Proceeds Account for claims arising from undertakings entered into by the Attorney General of Canada in the context of a digital asset special warrant, as is the case for other liabilities that may be required to be paid out of the Proceeds Account.

Coming into Force

Clause 228

This clause provides that the provisions of Subdivision B of Part 4 Division 3 of this Act would come into force 90 days after Royal Assent.

Part 4 – Division 34 – Criminal Rate of Interest

Clause 610(1)

Clause 610(1) amends the definition of ‘criminal rate’ in subsection 347(2) of the Criminal Code (the Code) to be a rate that exceeds 35 percent from the existing rate of 60 per cent. The clause also replaces the term ‘effective annual rate’ with ‘annual percentage rate’.

Clause 610(2)

Clause 610(2) makes a consequential amendment to section 347(4) of the Code to replace the term ‘effective annual rate’ with ‘annual percentage rate’.

Clause 611

Clause 611 adds a new subsection 347.01 (1) to the Code to affirm that section 347 of the Code will not apply to agreements or arrangements that are provided for by regulation.

A new subsection 347.01 (2) is also added allowing the Governor in Council to make regulations, upon the recommendation of the Minister of Justice after consultation with the Minister of Finance, to provide for the types of agreements or arrangements that are exempt under 347.01 (1).

Clause 612(1)

Clause 612(1) adds a new paragraph 347.1(2)(a.1) that provides that the total cost of borrowing under a payday loan agreement does not exceed the limit fixed by regulations.

Clause 612(2)

Clause 612(2) adds a new subsection 347.1(2.1) allowing the Governor in Council to make regulations, upon the recommendation of the Minister of Justice after consultation with the Minister of Finance, to fix the limit on the total cost of borrowing under a payday loan agreement under 347.1(2)(a.1).

A new subsection 347.1(2.2) is also added to affirm that subsection 347 continues to not apply to payday loan agreements that were entered into prior to the coming into force of regulations made under 347.1(2.1).

Clause 613

Clause 613 affirms that the terminology in 614 and 615 of the Code have the same meaning as sections 347 and 347.1 of the Code.

Clause 614

Clause 614 affirms that for purposes of subsection 347(1), changes to the definition of criminal rate in subsection 347(2) of the Code will not apply to the receipt of payments that arise from credit agreements and arrangements entered into before the day the new criminal rate of interest comes into force.

Clause 615

Clause 615 affirms that the changes to paragraph 347.1(2)(a.1) of the Code will not apply to payday loan agreements entered into before the day the changes come into force, and will not apply to the receipt of payments that arises from payday loans agreements entered into before the changes come into force.

Clause 616

Clause 616 provides that the amendments to sections 347 and 347.1 of the Code in Clauses 610 to 612 will come into force on a day or days fixed by order of the Governor in Council.