Criminal Code of Canada - section 83.11(4)

section 83.11(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the Governor in Council to make regulations exempting entities from the requirement to report suspicious activities related to terrorism financing and specifying exclusion conditions.

SECTION WORDING

83.11(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), and specifying the conditions of exclusion; and (b) specifying a period for the purposes of subsection (2).

EXPLANATION

Section 83.11(4) of the Criminal Code of Canada pertains to the Governor in Council's authority to create regulations that exclude specific entities or classes of entities from the requirement of reporting suspicious activities under subsection (2) of the same section. Subsection (2) states that any individual or entity that processes or receives property must report any suspicious transactions or attempted transactions to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). The Governor in Council has the power to exclude entities that may not have access to or involvement with such transactions or activities. For instance, an entity that solely deals with cash transactions and has no connections to financial institutions may be excluded from this requirement. However, the Governor in Council must specify the conditions of exclusion as part of the regulation. Moreover, the same section gives the Governor in Council the authority to specify a period for the purpose of reporting activities under subsection (2). This means that the Governor in Council can set a timeframe within which entities must report suspicious transactions. This clause ensures that entities are diligent and timely in reporting, minimizing the risk of illicit activities being overlooked or undetected. Overall, section 83.11(4) of the Criminal Code of Canada exists to prevent entities from being burdened with unnecessary reporting requirements and creating regulations that ensure the timely reporting of suspicious transactions by relevant entities. By doing so, it contributes to the goal of combating money laundering and terrorist financing, which the Canadian government has made a priority.

COMMENTARY

Section 83.11(4) of the Criminal Code of Canada is an important provision that grants the Governor in Council the power to make regulations regarding the requirement of entities to report suspicious activities related to terrorism financing. The regulation allows the Governor in Council to exclude entities or class of entities from this requirement and specify the conditions of exclusion. The purpose of this provision is to provide flexibility in the implementation of the mandatory reporting requirement for entities. It recognizes that certain entities may have unique circumstances that make it impractical or unnecessary for them to comply with the reporting requirement. The Governor in Council may consider factors such as the nature of the entity's activities, its size and resources, and the likelihood of it being involved in terrorist financing when making regulations under this section. One of the key challenges with the implementation of the mandatory reporting requirement is the potential burden it places on entities. The requirement to report every suspicious transaction or activity can result in a significant increase in compliance costs and lead to a diversion of resources from core business activities. The availability of the exclusion provision in Section 83.11(4)(a) can help alleviate some of these concerns by allowing certain entities to be exempt from the reporting requirement. However, it is important to note that any exclusion granted under this section must be subject to specific conditions. The purpose of these conditions is to ensure that the exclusion does not undermine the overall objectives of the mandatory reporting requirement. For example, an entity that is exempted from reporting must still implement adequate internal controls and risk management measures to prevent its business being used for terrorist financing. Furthermore, the conditions of exclusion should be reviewed periodically to ensure that they remain relevant and effective. In addition to the power to exclude entities from the reporting requirement, Section 83.11(4)(b) also grants the Governor in Council the power to specify a reporting period. This provision recognizes that entities may have different reporting cycles and allows for greater flexibility in the timing of reporting to FINTRAC. By specifying a reporting period that is aligned with the entity's existing reporting cycle, the reporting requirement can be integrated more seamlessly into its overall compliance framework. In conclusion, Section 83.11(4) of the Criminal Code of Canada provides an important tool for the Governor in Council to regulate the mandatory reporting requirement for entities. It recognizes the need for flexibility in the implementation of the requirement while ensuring that the objectives of preventing terrorist financing are not compromised. The availability of the exclusion provision and the ability to specify a reporting period can help entities manage the compliance burden associated with the reporting requirement. However, it is important to ensure that any exclusions granted are subject to specific conditions and reviewed periodically to remain effective.

STRATEGY

Section 83.11(4) of the Criminal Code of Canada provides the Governor in Council with the authority to make regulations that exclude certain entities or classes of entities from the requirement to make a report under subsection (2) and specify conditions for such exclusion. Moreover, the section allows the Governor in Council to specify a period for the purposes of subsection (2). This provision is critical when dealing with national security and anti-terrorism laws and requires a strategic approach to effectively and efficiently implement its provisions. Here are some strategic considerations when dealing with this section of the Criminal Code of Canada, as well as some strategies that could be employed to manage them. Awareness of the Legislative Framework: When dealing with Section 83.11(4), it is essential to have a comprehensive understanding of the legislative framework surrounding national security and anti-terrorism laws. This means that you need to be familiar with the Criminal Code of Canada, the Canadian Charter of Rights and Freedoms, and a broad range of legislation governing national security issues such as the Anti-Terrorism Act, the Security of Information Act, and the Canada Border Services Agency Act. Being conversant with these legislations will provide you with a clear picture of the obligations, rights, and limitations on the use of this section, ensuring a focused and effective approach. Understanding the Risks Associated with Exclusion: Exclusion under this section comes with some risks. For instance, when an entity is excluded from the requirements to report, it may lead to a gap in the intelligence that security agencies collect. Therefore, when making regulations for exclusions, one must closely consider the consequences and risks associated with such exclusions. Strategic thinking is vital in carefully considering the potential downsides and upsides of such exclusion and critically assessing the potential outcomes of such a strategy. Balancing Privacy and Security Concerns: National security legislation's core objective is to safeguard the country from radicalization and terrorism while respecting the Charter rights and freedoms of all Canadians. When considering the exclusion of entities from reporting requirements, the privacy considerations and impact on other rights and freedoms must be carefully weighed against the public safety and security concerns. As such, the balance between security and privacy is a strategic consideration that must be carefully evaluated. Ensuring Transparency and Accountability: Regulations must be explicit, clear, and transparent to avoid any ambiguity. Any exclusion made lest open to any type of abuse or arbitrary use of power, it is therefore of paramount importance to establish criteria that should be met for an entity to be eligible for exclusion from the reporting requirements. There must also be robust review mechanisms to ensure that regulations for exclusions are applied appropriately, securely, consistently, and accountably. Conclusion In conclusion, dealing with Section 83.11(4) of the Criminal Code of Canada requires strategic thinking, careful planning, transparent and robust mechanisms, and an awareness of legislative frameworks that promote accountability, transparency, privacy, and security. These strategies will help respective authorities to balance competing interests in national security and anti-terrorism laws, ensuring appropriate application and that the purpose of Section 83.11(4) is achieved.