Update Canada’s Anti-money Laundering, Terrorism Financing and Economic Sanction Authors Regimes One of the key priorities for any government is ensuring the security of its country and its allies. Addressing these priorities means not only developing military and domestic police capabilities, but also implementing the necessary financial regulations to curb financing of criminal and terrorist activities, and taking actions against foreign state actors and foreign nationals who engage in criminal and terrorist activities. Jason Wadden [email protected] Like its allies, Canada has enacted various statutes to thwart money laundering and terrorist financing, and 416.597.5165 to impose economic sanctions on foreign states and nationals where appropriate. This commentary provides an overview of Canada’s legislative regime to combat money laundering and terrorist financing, as well as its economic sanctions regime to respond to actions of international actors that undermine the interests of Canada, the U.S. or its allies. A. Jurisdiction To Address Money Laundering, Terrorism and Economic Sanctions Canada has a parliamentary system of government, which means governmental power is shared between the federal Parliament of Canada and the provincial and territorial governments. Under the Constitution Act, 1867, the federal government has exclusive jurisdiction over both criminal matters and banking. The statutes and measures discussed below are therefore within the purview of Canada’s federal government. Notably, however, there are areas of provincial jurisdiction that have been leveraged to combat money laundering and terrorist financing. For instance, in response to growing concerns about “snow washing” (the flow of money into Canada for money laundering purposes), finance ministers from across Canada signed the Agreement to Strengthen Beneficial Ownership Transparency, under which the provinces committed to amending certain statutes within their jurisdiction to address money laundering. However, these efforts tend to be incorporated into other aspects of provincial jurisdiction, such as provincial corporate statutes and civil forfeiture remedies. B. Money Laundering i. Overview Canada’s anti-money laundering regime is primarily set out in a number of provisions of the Criminal Code and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the “PC(ML)TFA”). These two statutes work in concert to address different aspects of money laundering. The Criminal Code creates a criminal offence for money laundering and the PC(ML)TFA implements measures to detect and deter money laundering by requiring certain entities (“Reporting Entities”) to implement compliance programs, ascertain the identity of clients, and report certain information to the authorities. A number of entities are responsible for enforcing these laws. Local and provincial police authorities, as well as the national Royal Canadian Mounted Police (RCMP), are responsible for enforcing the Criminal Code’s money laundering provisions. The federal Department of Public Safety and Emergency Preparedness (known as Public Safety Canada) and the Canada Border Services Agency (CBSA) are involved in combatting money laundering. Starting in 2019, the federal government made a number of investments to strengthen Canada’s anti-money laundering initiatives, including by creating the Trade Fraud and Trade-Based Money Laundering Centre of Expertise. March 30, 2021 | Corporate & Commercial and Litigation The PC(ML)TFA and its regulations are implemented and enforced by the federal Financial Transactions and Reporting Analysis Centre of Canada (FINTRAC). FINTRAC is an independent federal agency that operates at arm’s length from law enforcement. FINTRAC publishes non- binding guidelines to assist Reporting Entities in complying with the PC(ML)TFA. Canada’s money laundering legislation imposes due diligence requirements on the Reporting Entities who fall within the PC(ML)TFA regime, which are primarily companies in the financial services sector, including those dealing with crypto-currencies. In particular, Reporting Entities are required to adopt policies and procedures to assess the risk of money laundering in their activities. As part of establishing a compliance system as required under the PC(ML)TFA, Reporting Entities must assess and document the risk of money laundering arising from their dealings with clients and other third parties by considering the person’s or entity’s clients and business relationships, products and delivery channels, and geographic location. Where this investigation reveals a high risk of money laundering activity, Reporting Entities must take enhanced measures to mitigate those risks. FINTRAC issues guidelines on how to conduct a risk-based due diligence and implement appropriate measures to mitigate identified risks. In addition, special due diligence obligations apply when a Reporting Entity is dealing with a domestic or foreign political figure (known as politically exposed persons), or a family member or close associate of that person. ii. Offences Under the Criminal Code it is an offence to launder the proceeds of crime. In general, it makes it an offence to deal with any property, or proceeds of any property, in any manner and by any means with the intent to conceal or convert it, when it is known or believed to be the proceeds of crime. The Criminal Code also makes it an offence to attempt to launder the proceeds of crime. The PC(ML)TFA requires Reporting Entities to report, among other things, any transaction to FINTRAC that they reasonably suspect may be related to money laundering activities. The PC(ML)TFA provides for offences and penalties for anyone who knowingly contravenes or fails to comply with this Act, and includes offences against the directors and officers of the company for directing or acquiescing in such breaches. Furthermore, efforts to conceal an offence may result in obstruction of justice charges. iii. Defences Most crimes in Canada require prosecutors to prove that the accused had the requisite degree of intention or knowledge (i.e., mens rea) when committing the alleged offence. Thus, to prove a money laundering offence occurred contrary to the Criminal Code, the prosecution must prove there was an intent to conceal or convert the property or proceeds, as well as knowledge or belief that the property or proceeds were derived from certain crimes. The accused will not be liable if they can establish they did not possess the requisite intent or knowledge. The PC(ML)TFA provides a due diligence defence for companies failing to file the necessary reports with FINTRAC. A further defence is available to employees: an employee is not liable for failing to report certain matters to FINTRAC if the employee reported the information to his or her superior. iv. Sanctions/Penalties Those convicted of money laundering under the Criminal Code are subject to imprisonment for up to 10 years. The civil and regulatory penalties for failing to comply with the PC(ML)TFA vary depending on the specific violation. The largest fine available is $2,000,000. Imprisonment is also permitted, up to a maximum of five years. v. Enforcement Local and provincial police, and the national RCMP, can use the full scope of police powers to investigate money laundering under the Criminal Code. In addition, FINTRAC has broad search powers under the PC(ML)TFA. It may examine records and inquire into the business and affairs of Reporting Entities to ensure compliance with the PC(ML)TFA. To do so, it may enter most premises without a search warrant as long as the FINTRAC official believes, on reasonable grounds, that the premises contain relevant records. The person in charge of the premises must March 30, 2021 | Corporate & Commercial and Litigation 2 provide all reasonable assistance and any information to FINTRAC officials. Furthermore, FINTRAC may seize certain currency and monetary instruments that were not reported as required without obtaining a warrant. There is formalized cooperation between FINTRAC and police – FINTRAC will provide information obtained through its investigations to law enforcement officials where it has reasonable grounds to suspect that it is relevant to the investigation of a money laundering offence. Not only will FINTRAC share information with Canadian police authorities, but FINTRAC also has entered into agreements for the exchange of information with regulators in over 50 countries. C. Terrorist Financing i. Overview Following the 9-11 attacks in New York City in 2001, the Parliament of Canada passed the Anti-Terrorism Act, which amended a number of statutes to strengthen the government’s powers to address terrorism. As part of those amendments, the existing anti-money laundering statute was amended to include provisions to deal with terrorism financing, and was renamed the PC(ML)TFA. Canada’s regime to combat terrorist financing is primarily set out in theCriminal Code, the PC(ML)TFA, and the United Nations Act. The Criminal Code makes it an offence to collect or provide funds or other financial services, either directly or indirectly, to support terrorist activities or groups. The Criminal Code authorizes the Canadian government to create and maintain a list of terrorist organizations. In addition, the Criminal Code imposes reporting obligations on those possessing, controlling or transacting with property associated with terrorism (including property belonging to organizations on the government's terrorist list). Local