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3rd Session, 37th Parliament,
52-53 Elizabeth II, 2004
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House of Commons of Canada
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BILL C-13
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An Act to amend the Criminal Code (capital
markets fraud and evidence-gathering)
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Her Majesty, by and with the advice and
consent of the Senate and House of Commons
of Canada, enacts as follows:
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| R.S., c. C-46
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| 2001, c. 41,
s. 2(1)
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1. (1) Paragraph (a) of the definition
``Attorney General'' in section 2 of the
Criminal Code is replaced by the following:
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(a) subject to paragraphs (c) to (g), with
respect to proceedings to which this Act
applies, means the Attorney General or
Solicitor General of the province in
which those proceedings are taken and
includes his or her lawful deputy,
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(2) The definition ``Attorney General'' in
section 2 of the Act is amended by striking
out the word ``and'' at the end of paragraph
(e), by adding the word ``and'' at the end of
paragraph (f) and by adding the following
after paragraph (f):
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(g) with respect to proceedings in relation
to an offence referred to in sections 380,
382, 382.1 and 400, means either the
Attorney General of Canada or the
Attorney General or Solicitor General of
the province in which those proceedings
are taken and includes the lawful deputy
of any of them;
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| 1994, c. 44,
s. 25(1)
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2. (1) Paragraph 380(1)(a) of the Act is
replaced by the following:
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(a) is guilty of an indictable offence and
liable to a term of imprisonment not
exceeding fourteen years, where the
subject-matter of the offence is a
testamentary instrument or the value of the
subject-matter of the offence exceeds five
thousand dollars; or
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(2) Subsection 380(2) of the Act is
replaced by the following:
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| Affecting
public market
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(2) Every one who, by deceit, falsehood or
other fraudulent means, whether or not it is a
false pretence within the meaning of this Act,
with intent to defraud, affects the public
market price of stocks, shares, merchandise or
anything that is offered for sale to the public
is guilty of an indictable offence and liable to
imprisonment for a term not exceeding
fourteen years.
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3. The Act is amended by adding the
following after section 380:
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| Sentencing -
aggravating
circumstances
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380.1 (1) Without limiting the generality of
section 718.2, where a court imposes a
sentence for an offence referred to in sections
380, 382, 382.1 and 400, it shall consider the
following as aggravating circumstances:
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(a) the value of the fraud committed
exceeded one million dollars;
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(b) the offence adversely affected, or had
the potential to adversely affect, the
stability of the Canadian economy or
financial system or any financial market in
Canada or investor confidence in such a
financial market;
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(c) the offence involved a large number of
victims; and
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(d) in committing the offence, the offender
took advantage of the high regard in which
the offender was held in the community.
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| Non-mitigatin
g factors
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(2) The court shall not consider as
mitigating circumstances the offender's
employment, employment skills or status or
reputation in the community if those
circumstances were relevant to, contributed
to, or were used in the commission of the
offence.
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4. The portion of section 382 of the Act
after paragraph (c) is replaced by the
following:
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is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten
years.
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5. The Act is amended by adding the
following after section 382:
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| Prohibited
insider trading
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382.1 (1) A person is guilty of an indictable
offence and liable to imprisonment for a term
not exceeding ten years who, directly or
indirectly, buys or sells a security, knowingly
using inside information that they
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(a) possess by virtue of being a shareholder
of the issuer of that security;
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(b) possess by virtue of, or obtained in the
course of, their business or professional
relationship with that issuer;
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(c) possess by virtue of, or obtained in the
course of, a proposed takeover or
reorganization of, or amalgamation, merger
or similar business combination with, that
issuer;
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(d) possess by virtue of, or obtained in the
course of, their employment, office, duties
or occupation with that issuer or with a
person referred to in paragraphs (a) to (c);
or
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(e) obtained from a person who possesses or
obtained the information in a manner
referred to in paragraphs (a) to (d).
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| Tipping
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(2) Except when necessary in the course of
business, a person who knowingly conveys
inside information that they possess or
obtained in a manner referred to in subsection
(1) to another person, knowing that there is a
risk that the person will use the information to
buy or sell, directly or indirectly, a security to
which the information relates, or that they
may convey the information to another person
who may buy or sell such a security, is guilty
of
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(a) an indictable offence and liable to
imprisonment for a term not exceeding five
years; or
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(b) an offence punishable on summary
conviction.
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| Saving
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(3) For greater certainty, an act is not an
offence under this section if it is authorized or
required, or is not prohibited, by any federal or
provincial Act or regulation applicable to it.
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| Definition of
``inside
information''
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(4) In this section, ``inside information''
means information relating to or affecting the
issuer of a security or a security that they have
issued, or are about to issue, that
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(a) has not been generally disclosed; and
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(b) could reasonably be expected to
significantly affect the market price or
value of a security of the issuer.
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6. The Act is amended by adding the
following after section 425:
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| Threats and
retaliation
against
employees
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425.1 (1) No employer or person acting on
behalf of an employer or in a position of
authority in respect of an employee of the
employer shall take a disciplinary measure
against, demote, terminate or otherwise
adversely affect the employment of such an
employee, or threaten to do so,
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(a) with the intent to compel the employee
to abstain from providing information to a
person whose duties include the
enforcement of federal or provincial law,
respecting an offence that the employee
believes has been or is being committed
contrary to this or any other federal or
provincial Act or regulation by the
employer or an officer or employee of the
employer or, if the employer is a
corporation, by one or more of its directors;
or
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(b) with the intent to retaliate against the
employee because the employee has
provided information referred to in
paragraph (a) to a person whose duties
include the enforcement of federal or
provincial law.
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| Punishment
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(2) Any one who contravenes subsection (1)
is guilty of
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(a) an indictable offence and liable to
imprisonment for a term not exceeding five
years; or
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(b) an offence punishable on summary
conviction.
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7. The Act is amended by adding the
following after section 487.01:
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| Definitions
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487.011 The following definitions apply in
sections 487.012 to 487.017.
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``data''
« données »
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``data'' has the same meaning as in subsection
342.1(2).
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``document''
« document »
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``document'' means any medium on which is
recorded or marked anything that is capable
of being read or understood by a person or
a computer system or other device.
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| Production
order
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487.012 (1) A justice or judge may order a
person, other than a person under
investigation for an offence referred to in
paragraph (3)(a),
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(a) to produce documents, or copies of them
certified by affidavit to be true copies, or to
produce data; or
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(b) to prepare a document based on
documents or data already in existence and
produce it.
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| Production to
peace officer
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(2) The order shall require the documents or
data to be produced within the time, at the
place and in the form specified and given
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(a) to a peace officer named in the order; or
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(b) to a public officer named in the order,
who has been appointed or designated to
administer or enforce a federal or provincial
law and whose duties include the
enforcement of this or any other Act of
Parliament.
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| Conditions for
issuance of
order
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(3) Before making an order, the justice or
judge must be satisfied, on the basis of an ex
parte application containing information on
oath in writing, that there are reasonable
grounds to believe that
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(a) an offence against this Act or any other
Act of Parliament has been or is suspected
to have been committed;
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(b) the documents or data will afford
evidence respecting the commission of the
offence; and
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(c) the person who is subject to the order has
possession or control of the documents or
data.
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| Terms and
conditions
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(4) The order may contain any terms and
conditions that the justice or judge considers
advisable in the circumstances, including
terms and conditions to protect a privileged
communication between a lawyer and their
client or, in the province of Quebec, between
a lawyer or a notary and their client.
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| Power to
revoke, renew
or vary order
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(5) The justice or judge who made the order,
or a judge of the same territorial division, may
revoke, renew or vary the order on an ex parte
application made by the peace officer or
public officer named in the order.
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| Application
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(6) Sections 489.1 and 490 apply, with any
modifications that the circumstances require,
in respect of documents or data produced
under this section.
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| Probative
force of
copies
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(7) Every copy of a document produced
under this section, on proof by affidavit that it
is a true copy, is admissible in evidence in
proceedings under this or any other Act of
Parliament and has the same probative force
as the original document would have if it had
been proved in the ordinary way.
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| Return of
copies
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(8) Copies of documents produced under
this section need not be returned.
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| Production
order -
financial or
commercial
information
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487.013 (1) A justice or judge may order a
financial institution, as defined in section 2 of
the Bank Act, or a person or entity referred to
in section 5 of the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act,
unless they are under investigation for an
offence referred to in paragraph (4)(a), to
produce in writing the account number of a
person named in the order or the name of a
person whose account number is specified in
the order, the status and type of the account,
and the date on which it was opened or closed.
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| Identification
of person
named in the
order
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(2) For the purpose of confirming the
identity of the person named in the order or
whose account number is specified in the
order, the production order may require the
financial institution, person or entity to
produce that person's date of birth, current
address and any previous addresses.
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| Production to
peace officer
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(3) The order shall require the information
to be produced within the time, at the place
and in the form specified and given
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(a) to a peace officer named in the order; or
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(b) to a public officer named in the order,
who has been appointed or designated to
administer or enforce a federal or provincial
law and whose duties include the
enforcement of this or any other Act of
Parliament.
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| Conditions for
issuance of
order
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(4) Before making an order, the justice or
judge must be satisfied, on the basis of an ex
parte application containing information on
oath in writing, that there are reasonable
grounds to suspect that
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(a) an offence against this Act or any other
Act of Parliament has been or will be
committed;
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(b) the information will assist in the
investigation of the offence; and
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(c) the institution, person or entity that is
subject to the order has possession or
control of the information.
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| Terms and
conditions
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(5) The order may contain any terms and
conditions that the justice or judge considers
advisable in the circumstances, including
terms and conditions to protect a privileged
communication between a lawyer and their
client or, in the province of Quebec, between
a lawyer or a notary and their client.
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| Power to
revoke, renew
or vary order
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(6) The justice or judge who made the order,
or a judge of the same territorial division, may
revoke, renew or vary the order on an ex parte
application made by the peace officer or
public officer named in the order.
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| Power of
peace officer
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487.014 (1) For greater certainty, no
production order is necessary for a peace
officer or public officer enforcing or
administering this or any other Act of
Parliament to ask a person to voluntarily
provide to the officer documents, data or
information that the person is not prohibited
by law from disclosing.
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| Application of
section 25
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(2) A person who provides documents, data
or information in the circumstances referred
to in subsection (1) is deemed to be authorized
to do so for the purposes of section 25.
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| Application
for exemption
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487.015 (1) A person named in an order
made under section 487.012 and a financial
institution, person or entity named in an order
made under section 487.013 may, before the
order expires, apply in writing to the judge
who issued the order, or a judge of the same
territorial division as the judge or justice who
issued the order, for an exemption from the
requirement to produce any document, data or
information referred to in the order.
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| Notice
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(2) A person, financial institution or entity
may only make an application under
subsection (1) if they give notice of their
intention to do so to the peace officer or public
officer named in the order, within 30 days after
it is made.
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| Order
suspended
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(3) The execution of a production order is
suspended in respect of any document, data or
information referred to in the application for
exemption until a final decision is made in
respect of the application.
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| Exemption
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(4) The judge may grant the exemption if
satisfied that
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(a) the document, data or information
would disclose information that is
privileged or otherwise protected from
disclosure by law;
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(b) it is unreasonable to require the
applicant to produce the document, data or
information; or
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(c) the document, data or information is not
in the possession or control of the applicant.
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| Self-incrimina
tion
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487.016 No person is excused from
complying with an order made under section
487.012 or 487.013 on the ground that the
document, data or information referred to in
the order may tend to incriminate them or
subject them to any proceeding or penalty, but
no document prepared by an individual under
paragraph 487.012(1)(b) may be used or
received in evidence against that individual in
any criminal proceedings subsequently
instituted against them, other than a
prosecution under section 132, 136 or 137.
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| Offence
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487.017 A financial institution, person or
entity who does not comply with a production
order made under section 487.012 or 487.013
is guilty of an offence and liable on summary
conviction to a fine not exceeding $250,000 or
imprisonment for a term not exceeding six
months, or to both.
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| 1997, c. 39,
s. 1
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8. (1) The portion of subsection 487.3(1)
of the Act before paragraph (a) is replaced
by the following:
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| Order denying
access to
information
used to obtain
a warrant or
production
order
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487.3 (1) A judge or justice may, on
application made at the time of issuing a
warrant under this or any other Act of
Parliament or a production order under section
487.012 or 487.013, or of granting an
authorization to enter a dwelling-house under
section 529 or an authorization under section
529.4 or at any time thereafter, make an order
prohibiting access to and the disclosure of any
information relating to the warrant,
production order or authorization on the
ground that
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