Financial Exploitation of Crime 1996


APPENDIX E

DRAFT LEGISLATION. PRESERVING THE FUNDS

Criminals' Exploitation of Violent Crime Act 56

Table of Contents

1. Definitions
2. Paying for a criminal's recollection
3. Selling a criminal's recollection
4. Persons deemed to be agents
5. Use of consideration by (Government Agency)
6. Eligible judgments
7. When consideration distributed
8. How consideration distributed
9. Interim distributions
10. Extension of limitation periods in actions
11. Offences
12. Regulations

Definitions

1. In this Act,

"convicted" includes a verdict that the accused committed the act or made the omission that formed the basis of the offence with which the accused was charged but was not criminally responsible on account of mental disorder; 57S

"eligible judgment" means a judgment that is eligible under section 6;

"recollection of a violent crime" includes a recollection of circumstances relating to the crime, an expression of thoughts or feelings about the crime and a re-enactment of the crime;

"violent crime" means,58

(a)an offence under the Criminal Code (Canada) that was an indictable offence for which the offender might have been sentenced to imprisonment for five years or more and that involved,

(i)the use or attempted use of violence against another person, or

(ii)conduct that endangered or was likely to endanger the life or safety of another person or inflicted or was likely to inflict severe psychological damage upon another person,

(b)an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), or 273 (aggravated sexual assault) of the Criminal Code (Canada),

(c)an offence in a jurisdiction other than Canada that corresponds to an offence described in clause (a) or (b).

Paying for a criminal's recollection

2. (1) No person shall give consideration in exchange for the recollection of a violent crime to a person who has been convicted of the crime or his or her agent.

(2) A person who has an obligation to give consideration that would contravene subsection (1) shall, without delay, give the consideration to the (Government Agency) 59 instead of to the person to whom it would otherwise be owed.

(3) The situations to which this section applies include situations in which consideration is given outside the province if the consideration is given by a resident of the province.

(4) This section does not apply in the circumstances prescribed in the regulations as circumstances in which consideration is not necessary to ensure that all eligible judgments are satisfied.

(5) This section does not apply with respect to consideration that is given to an official or agency in another jurisdiction that is prescribed in the regulations as the

(Government Agency)'s counterpart in that jurisdiction.

Selling a criminal's recollection

3. (1) No person who has been convicted of a violent crime or agent of such a person shall accept consideration in exchange for the recollection of the crime.

(2) A person who has a right to receive consideration that would contravene subsection (1) shall, without delay, direct the person from whom they have a right to receive the consideration to give the consideration to the (Government Agency).

(3) The situations to which this section applies include situations in which consideration is accepted outside the province if the consideration is accepted by a resident of the province.

(4) This section does not apply in the circumstances prescribed in the regulations as circumstances in which consideration is not necessary to ensure that all eligible judgments are satisfied.

(5) Subsection (2) does not apply if the person who has a right to receive consideration directs the person from whom they have a right to receive the consideration to give it to an official or agency in another jurisdiction that is prescribed in the regulations as the (Government Agency)'s counterpart in that jurisdiction.

Persons deemed to be agents

4. (1) For the purposes of sections 2 and 3, the following persons shall be deemed to be agents of the person convicted of the crime:

1.An assignee of rights of the person convicted of the crime to receive consideration in exchange for the recollection of the crime.

2.A corporation if the person convicted of the crime has a substantial interest in or connection to, the corporation as defined in the regulations.

(2) For the purposes of sections 2 and 3, a relative of the person who has been convicted of the crime shall be deemed, in the absence of evidence to the contrary, to be an agent of the person.

Use of consideration by (Government Agency)

5. (1) The (Government Agency) shall retain one half of the consideration it receives in respect of the recollection of a violent crime to satisfy eligible judgments against the person convicted of the crime.


(2) The (Government Agency) shall distribute one half of the consideration it receives to the persons to whom the consideration would have been given had it not been given to the (Government Agency).

Eligible judgments

6. A judgment against a person is eligible if it is for compensation arising from a violent crime of which the person was convicted.

When consideration distributed

7. (1) The (Government Agency) shall distribute consideration it retains to satisfy eligible judgments against a person,

(a)upon the expiry of the three year period following the first receipt of such consideration if there are no ongoing actions, of which the (Government Agency) has notice, in which a judgement would be an eligible judgement;

(b)following the expiry of the three year period at any time there are no ongoing actions, of which the (Government Agency) has notice, in which a judgement would be an eligible judgement.

(2) For the purposes of this section "ongoing action" means an action that has been commenced but has not been finally disposed of but does not include an action if, in the opinion of the (Government Agency), the action has been unreasonably delayed and the plaintiff has failed to take reasonable steps to ensure that it was not so delayed.

How consideration distributed

8. The (Government Agency) shall distribute consideration it retains to satisfy eligible judgments against a person as follows:

1.The (Government Agency) shall distribute the consideration in satisfaction of the eligible judgments of which the (Government Agency) has notice.

2.If the consideration is insufficient to satisfy all the eligible judgements of which the (Government Agency) has notice, the (Government Agency) shall distribute the consideration in proportion to the unpaid amounts of those judgments.

3.The (Government Agency) shall distribute any consideration that

remains after satisfying the eligible judgements to the persons to whom the original consideration would have been given had it not been given to the (Government Agency). If different amounts of the consideration would have been given to different persons, then the (Government Agency) shall distribute the consideration in proportion to the consideration the persons would have received had the consideration not been given to the (Government Agency).

Interim distributions

9. (1) The (Government Agency) may make interim distributions of the consideration it retains before the time distribution is required under section 7.

(2) Interim distributions may be made to satisfy all or part of any eligible judgement or they may be made to the persons to whom the original consideration would have been paid had it not been given to the (Government Agency).

(3) An interim distribution may be made only if, in the opinion of the (Government Agency), the interim distribution will not prejudice any person to whom consideration would otherwise be distributed at the time required under section 7.

(4) If interim distributions have been made the final distribution shall be made, at the time required under section 7, so that the total amount distributed on an interim or final basis to each person is what they would have received had the interim distributions not been made.

Extension of limitation periods in actions

10. (1) This section applies only with respect to an action in which a judgment would be an eligible judgement.

(2) Despite the expiry of a limitation of time for the bringing of an action fixed by or under any Act, if consideration is received by the (Government Agency) or an official or agency in another jurisdiction that is prescribed in the regulations as the (Government Agency)'s counterpart in that jurisdiction and the consideration would be available to satisfy any judgment obtained, the action may be brought within three years after the day on which any such consideration is first received. 60

(3) Despite the expiry of a limitation of time for the bringing of an action fixed by or under any Act, the action may be brought if,

(a)no consideration has been received by the (Government Agency) or an official or agency in another jurisdiction that is prescribed in the regulations as the (Government Agency)'s counterpart in that jurisdiction that is or was available to satisfy a judgment obtained in the action;

(b)a contract exists that provides, either absolutely or upon conditions being satisfied, for consideration to be given where the giving or acceptance of the consideration is prohibited by this Act or under comparable legislation in another jurisdiction or would be prohibited but for the fact that the contract provides for the consideration to be paid to the (Government Agency) or an official or agency in another jurisdiction that is prescribed in the regulations as the (Government Agency)'s counterpart in that jurisdiction;

(c)the time the consideration referred to in clause (b), or any part of it, is to be given is within one year after the bringing of the action; and

(d)the consideration referred to in clause (b) would be available to satisfy a judgment obtained in the action.

(4) The court may allow an action to be brought after the expiry of the three year period under subsection (2), on such terms as it considers proper, if it is satisfied that,

(a)consideration is being retained by the (Government Agency) or an official or agency in another jurisdiction that is prescribed in the regulations as the (Government Agency)'s counterpart in that jurisdiction and the consideration would be available to satisfy a judgment obtained in the action or the conditions in clauses (3) (b), (c) and (d) are satisfied;

(b)there was a significant risk, before the three year period expired, that it would not be possible to collect any significant amount on any judgement obtained;

(c)there is a reasonable chance that an eligible judgment will be obtained; and

(d)given the circumstances, the plaintiff has commenced the action without unreasonable delay.

Offences

11. (1) A person who contravenes subsection 2(1) or 2(2) is guilty of an offence and on conviction is liable to a fine not exceeding the greater of $5,000 and the

amount of the consideration that the person gave in contravention of subsection 2 (1) or failed to give as required under subsection 2 (2).

(2) A person who contravenes subsection 3 (1) or 3 (2) is guilty of an offence and on conviction is liable to a fine not exceeding the greater of $5,000 and the amount of the consideration accepted in contravention of subsection 3 (1) or with respect to which the person failed to make a direction as required under subsection 3 (2).

(3) The payment of a fine under subsection (1) or (2) does not affect any liability a person may have to the (Government Agency) arising from their failure to give consideration to the (Government Agency) or to give a direction that consideration be given to the (Government Agency).

(4) A person who fails to give the (Government Agency) information as required under a regulation made under clause 12 (c) is guilty of an offence and on conviction is liable to a fine not exceeding $5,000.

Regulations

12. The Lieutenant Governor in Council may make regulations,

(a)for the purposes of subsections 2 (4) and 3 (4), prescribing circumstances in which consideration is not necessary to ensure that all eligible judgments are satisfied;

(b)prescribing an official or agency in another jurisdiction as the (Government Agency)'s counterpart in that jurisdiction;

(c)requiring the following persons to give the (Government Agency) information described in the regulations at the times and in the manner set out in the regulations,

(i)persons who are required under subsection 2 (2) to give consideration to the (Government Agency),

(ii)persons who are required under subsection 3 (2) to give a direction that consideration be given to the (Government Agency);

(d)defining a substantial interest in or connection to a corporation for the purposes of paragraph 2 of subsection 4 (1);

(e)governing the final distribution of consideration in circumstances in which interim distributions have been made and there is not enough consideration remaining to comply with subsection 9 (4);

(f)requiring interest to be credited by the (Government Agency) to consideration retained by the (Government Agency) and governing the determination of such interest;

(g)requiring interest that would have been credited had interim distributions not been made to be taken into account in the final distribution of the consideration and governing how such interest shall be taken into account;

(h)authorizing the (Government Agency) to convert non-monetary consideration into money or to accept money instead of non-monetary consideration and governing such conversion or acceptance.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018