Restraint of Terrorism-related Property
| This page was last substantively updated or reviewed January 2020. (Rev. # 95794) |
- Freezing of Property
- Freezing of property
83.08 (1) No person in Canada and no Canadian outside Canada shall knowingly
- (a) deal directly or indirectly in any property that is owned or controlled by or on behalf of a terrorist group;
- (b) enter into or facilitate, directly or indirectly, any transaction in respect of property referred to in paragraph (a); or
- (c) provide any financial or other related services in respect of property referred to in paragraph (a) to, for the benefit of or at the direction of a terrorist group.
- No civil liability
(2) A person who acts reasonably in taking, or omitting to take, measures to comply with subsection (1) [freezing of property] shall not be liable in any civil action arising from having taken or omitted to take the measures, if they took all reasonable steps to satisfy themselves that the relevant property was owned or controlled by or on behalf of a terrorist group.
2001, c. 41, s. 4; 2013, c. 9, s. 3.
[annotation(s) added]
- Exemptions
83.09 (1) The Minister of Public Safety and Emergency Preparedness, or a person designated by him or her, may authorize any person in Canada or any Canadian outside Canada to carry out a specified activity or transaction that is prohibited by section 83.08, or a class of such activities or transactions.
- Ministerial authorization
(2) The Minister, or a person designated by him or her, may make the authorization subject to any terms and conditions that are required in their opinion and may amend, suspend, revoke or reinstate it.
- Existing equities maintained
(3) All secured and unsecured rights and interests in the frozen property that are held by persons, other than terrorist groups or their agents, are entitled to the same ranking that they would have been entitled to had the property not been frozen.
- Third party involvement
(4) If a person has obtained an authorization under subsection (1) [freezing of property – exemptions], any other person involved in carrying out the activity or transaction, or class of activities or transactions, to which the authorization relates is not subject to sections 83.08 [freezing of property], 83.1 [mandatory disclosure by citizens of information re terrorist property] and 83.11 [mandatory audit by corps for possession of terrorist property] if the terms or conditions of the authorization that are imposed under subsection (2), if any, are met. 2001, c. 41, s. 4; 2005, c. 10, s.
[annotation(s) added]
- Disclosure
83.1 (1) Every person in Canada and every Canadian outside Canada shall disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service
- (a) the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist group; and
- (b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).
- Immunity
(2) No criminal or civil proceedings lie against a person for disclosure made in good faith under subsection (1) [freezing of property – exemptions].
2001, c. 41, s. 4; 2013, c. 9, s. 4.
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- Audit
83.11 (1) The following entities must determine on a continuing basis whether they are in possession or control of property owned or controlled by or on behalf of a listed entity:
- (a) authorized foreign banks within the meaning of section 2 of the Bank Act in respect of their business in Canada, or banks to which that Act applies;
- (b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act;
- (c) foreign companies within the meaning of subsection 2(1) of the Insurance Companies Act in respect of their insurance business in Canada;
- (c.1) companies, provincial companies and societies within the meaning of subsection 2(1) of the Insurance Companies Act;
- (c.2) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities, and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;
- (d) companies to which the Trust and Loan Companies Act applies;
- (e) trust companies regulated by a provincial Act;
- (f) loan companies regulated by a provincial Act; and
- (g) entities authorized under provincial legislation to engage in the business of dealing in securities, or to provide portfolio management or investment counselling services.
- Monthly report
(2) Subject to the regulations, every entity referred to in paragraphs (1)(a) to (g) must report, within the period specified by regulation or, if no period is specified, monthly, to the principal agency or body that supervises or regulates it under federal or provincial law either
- (a) that it is not in possession or control of any property referred to in subsection (1) [mandatory audit by corps for possession of terrorist property – applicable entities], or
- (b) that it is in possession or control of such property, in which case it must also report the number of persons, contracts or accounts involved and the total value of the property.
- Immunity
(3) No criminal or civil proceedings lie against a person for making a report in good faith under subsection (2) [mandatory audit by corps for possession of terrorist property – monthly report].
- Regulations
(4) The Governor in Council may make regulations
- (a) excluding any entity or class of entities from the requirement to make a report referred to in subsection (2) [mandatory audit by corps for possession of terrorist property – monthly report], and specifying the conditions of exclusion; and
- (b) specifying a period for the purposes of subsection (2) [mandatory audit by corps for possession of terrorist property – monthly report].
2001, c. 41, s. 4.
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- Seizure and Restraint of Property
- Seizure and restraint of assets
83.13 (1) Where a judge of the Federal Court, on an ex parte application by the Attorney General, after examining the application in private, is satisfied that there are reasonable grounds to believe that there is in any building, receptacle or place any property in respect of which an order of forfeiture may be made under subsection 83.14(5) [granting order of forfeiture of terrorism property], the judge may issue
- (a) if the property is situated in Canada, a warrant authorizing a person named therein or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection; or
- (b) if the property is situated in or outside Canada, a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, that property other than as may be specified in the order.
- Contents of application
(1.1) An affidavit in support of an application under subsection (1) [seizure and restraint of assets re terrorism offences] may be sworn on information and belief, and, notwithstanding the Federal Court Rules, 1998, no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.
- Appointment of manager
(2) On an application under subsection (1) [seizure and restraint of assets re terrorism offences], at the request of the Attorney General, if a judge is of the opinion that the circumstances so require, the judge may
- (a) appoint a person to take control of, and to manage or otherwise deal with, all or part of the property in accordance with the directions of the judge; and
- (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).
- Appointment of Minister of Public Works and Government Services
(3) When the Attorney General of Canada so requests, a judge appointing a person under subsection (2) [seizure and restraint of assets – appointment of manager] shall appoint the Minister of Public Works and Government Services.
- Power to manage
(4) The power to manage or otherwise deal with property under subsection (2) [seizure and restraint of assets – appointment of manager] includes
- (a) the power to make an interlocutory sale of perishable or rapidly depreciating property;
- (b) the power to destroy, in accordance with subsections (5) to (8) [destruction of assets], property that has little or no value; and
- (c) the power to have property, other than real property or a conveyance, forfeited to Her Majesty in accordance with subsection (8.1) [seizure and restraint of assets – forfeiture order].
[omitted (5) to (8)]
- Forfeiture order
(8.1) On application by a person who is appointed to manage the property, a judge of the Federal Court shall order that the property, other than real property or a conveyance, be forfeited to Her Majesty to be disposed of or otherwise dealt with in accordance with the law if
- (a) a notice is given or published in the manner that the judge directs or that may be specified in the rules of the Federal Court;
- (b) the notice specifies a period of 60 days during which a person may make an application to the judge asserting their interest in the property; and
- (c) during that period, no one makes such an application.
- When management order ceases to have effect
(9) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law, destroyed or forfeited to Her Majesty.
- For greater certainty
(9.1) For greater certainty, if property that is the subject of a management order is sold, the management order applies to the net proceeds of the sale.
- Application to vary
(10) The Attorney General may at any time apply to a judge of the Federal Court to cancel or vary an order or warrant made under this section, other than an appointment made under subsection (3).
- Procedure
(11) Subsections 462.32(4) [detention and record of things seized] and (6) [judge may impose undertakings], sections 462.34 to 462.35 [applications relating to special warrants and restraint orders] and 462.4 [voidable transfers], subsection 487(3) and section 488 [execution of territorial search or general warrant] apply, with any modifications that the circumstances require, to a warrant issued under paragraph (1)(a) [seizure and restraint of assets re terrorism offences – seizure order]. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.
- Procedure
(12) Subsections 462.33(4) [application for restraint order – power to impose conditions] and (6) to (11) [application for restraint order – consequences of order] and sections 462.34 to 462.35 [applications relating to special warrants and restraint orders] and 462.4 [voidable transfers] apply, with such modifications as the circumstances require, to an order issued under paragraph (1)(b) [seizure and restraint of assets re terrorism offences – restraint order].
2001, c. 41, s. 4; 2017, c. 7, s. 54; 2019, c. 25, s. 19.
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Destruction of Assets
83.13
[omitted (1), (1.1), (2), (3) and (4)]
- Application for destruction order
(5) Before a person who is appointed to manage property destroys property that has little or no value, they shall apply to a judge of the Federal Court for a destruction order.
- Notice
(6) Before making a destruction order, a judge shall require notice in accordance with subsection (7) [seizure and restraint of assets – manner of giving notice] to be given to and may hear any person who, in the judge’s opinion, appears to have a valid interest in the property.
- Manner of giving notice
(7) A notice shall
- (a) be given in the manner that the judge directs or that may be specified in the rules of the Federal Court; and
- (b) specify the effective period of the notice that the judge considers reasonable or that may be set out in the rules of the Federal Court.
- Destruction order
(8) A judge shall order that the property be destroyed if they are satisfied that the property has little or no financial or other value.
[omitted (9), (9.1), (10), (11) and (12)]
2001, c. 41, s. 4; 2017, c. 7, s. 54; 2019, c. 25, s. 19.
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