Profits of Criminal Notoriety Act

Profits of Criminal Notoriety Act 24 2016 May 19, 2016 1922970521/581626513/1897829161 E3tlc16024 1 Definitions and Application of Act Definitions and interpretation 1 1 In this Act: agent , in relation to a person who is charged with or convicted of a designated crime, includes the following: a an executor, administrator, attorney under a power of attorney, property guardian, trustee or receiver of the person; b another person to whom the person has assigned a right in relation to i a contract for the recounting of the designated crime, or ii crime memorabilia; c a spouse, former spouse or relative of the person, if the presumption under subsection (2) applies to the spouse, former spouse or relative; d a corporation to which the person has a substantial connection; e a corporation in which the person has a substantial interest; contract for the recounting of a designated crime means a contract under which a a person who is charged with or convicted of a designated crime provides or agrees to provide, directly or indirectly, a recounting of the designated crime, and b consideration is to be provided to, or at the direction of, i the person charged with or convicted of the designated crime, or ii an agent of the person referred to in subparagraph (i), but does not include a contract excluded from the application of this Act under section 3 [exemption for law enforcement contracts] ; conviction , in relation to a designated crime, includes the following: a the granting of an absolute or conditional discharge to a person who pleads guilty to the designated crime or is found guilty of the designated crime; b a finding that a person is not criminally responsible for the designated crime on account of mental disorder; c a finding in a proceeding under the Youth Criminal Justice Act (Canada) that a person is guilty of the designated crime; court , except in section 18 [recovery of amounts owed to government] , means the Supreme Court; crime memorabilia , in relation to a person who is charged with or convicted of a designated crime, means items that a are used, owned, possessed, autographed, made, manufactured or produced by the person, or b are otherwise associated with that person; crime memorabilia order means an order under section 11 [crime memorabilia order] ; designated crime means an act or omission that is one of the following: a an indictable offence under the Criminal Code that involves i the use of violence against another person, or ii conduct that endangers the life or safety of another person; b an indictable offence under the Controlled Drugs and Substances Act (Canada) for which the maximum penalty is imprisonment for 7 years or more; c an offence under the law of a jurisdiction outside Canada, if the act or omission would, had the act or omission occurred in Canada, be an offence referred to in paragraph (a) or (b); d a prescribed offence; finally determined , in relation to an acquittal or conviction in respect of a designated crime, means a the time for bringing an appeal, or an application for leave to appeal, in respect of the acquittal or conviction has expired and no appeal or application has been brought, or b an appeal, or an application for leave to appeal, in respect of the acquittal or conviction has been brought but the appeal or application has been dismissed and no further appeals are available; net recovered proceeds , in relation to recovered proceeds associated with a person who is charged with or convicted of a designated crime, means a the amount equal to the sum of the recovered proceeds and the interest or other income, if any, earned in relation to those proceeds, less the prescribed costs associated with administering those proceeds, or b if the government has paid an amount out of the recovered proceeds to comply with a payment order, the amount equal to the sum of the recovered proceeds and the interest or other income, if any, earned in relation to those proceeds, less the sum of i the prescribed costs associated with administering those proceeds, and ii the amount paid by the government under the payment order; payment order means an order under section 9 (1) (b) [court order to uphold recounting contract] ; recounting includes the following: a the recalling and retelling of the circumstances related to a designated crime; b an expression of thoughts or feelings about a designated crime; c a re-enactment of a designated crime; recovered proceeds means the following amounts received by the Minister of Finance: a amounts received under Part 2 [Contracts for the Recounting of Designated Crimes] , including amounts received under an order under section 19 [court order for compliance] requiring compliance with Part 2; b amounts received under Part 3 [Crime Memorabilia] , including amounts received under an order under section 19 requiring compliance with Part 3; spouse means a person who a is married to another person, or b is living with another person in a marriage-like relationship; trust fund means the fund established under section 13 (1) [trust fund] . 2 A spouse, former spouse or relative of a person who is charged with or convicted of a designated crime is presumed to be an agent of the person, unless the contrary is established. 3 For certainty, a reference in this Act to the minister is a reference to the minister responsible for the administration of this Act. 4 A reference in this Act to recovered proceeds or net recovered proceeds associated with a person who is charged with or convicted of a designated crime is a reference to recovered proceeds or net recovered proceeds that relate to a a contract under which the person provides, or agrees to provide, a recounting of the designated crime, or b crime memorabilia disposed of by the person, or the person's agent, for consideration that is greater in value than the consideration that would have been provided if that person had not been charged with or convicted of the designated crime. Application of Act 2 1 This Act applies to a contract for the recounting of a designated crime, whether the contract is entered into before or after this Act comes into force, if a the designated crime occurred in British Columbia, or b consideration under the contract has been provided, or is to be provided, in whole or in part, i to or by an individual who is a resident of British Columbia, ii to or by a corporation that carries on business or activities in British Columbia, or iii to an individual serving a sentence of imprisonment in a penitentiary, correctional facility or other custodial facility located in British Columbia. 2 This Act applies to a designated crime that occurred or is alleged to have occurred before or after this Act comes into force. Exemption for law enforcement contracts 3 This Act does not apply to a contract for the recounting of a designated crime if the contract is entered into by a law enforcement agency, the federal or provincial government or a prescribed entity a for law enforcement purposes, b in support of crime prevention, or c in support of victim services programs. 2 Contracts for the Recounting of Designated Crimes Notice to minister 4 1 If a contract for the recounting of a designated crime is entered into on or after the date this Act comes into force, each party to the contract must, within 7 days after entering into that contract, give the following information to the minister: a a written notice setting out the name and address of each party to the contract; b a copy of the contract or, if the contract is not in writing, a written summary of the terms and conditions of the contract. 2 If a contract for the recounting of a designated crime was entered into a on or after January 1, 2001, and b before this Act comes into force, each party to the contract must, within 60 days after this Act comes into force, give to the minister the information referred to in subsection (1). 3 If a contract for the recounting of a designated crime was entered into a on or after a date prescribed by regulation, and b before January 1, 2001, each party to the contract must, within 60 days after the regulation comes into force, give to the minister the information referred to in subsection (1). Prohibition against providing consideration 5 1 A person must not provide consideration in accordance with a contract for the recounting of a designated crime, except as permitted under an order under section 9 (1) [court order to uphold recounting contract] . 2 When consideration becomes due under a contract for the recounting of a designated crime, a person who is prohibited under subsection (1) from providing the consideration in accordance with the contract must instead provide that consideration to the Minister of Finance. Prohibition against accepting consideration 6 1 A person must not accept consideration in accordance with a contract for the recounting of a designated crime, except as permitted under an order under section 9 (1) [court order to uphold recounting contract] . 2 When consideration becomes due under a contract for the recounting of a designated crime, a person who is prohibited under subsection (1) from accepting the consideration in accordance with the contract must instead direct the payor to provide that consideration to the Minister of Finance. 3 If, before this Act comes into force, a person accepted consideration in accordance with a contract for the recounting of a designated crime to which section 4 (2) [notice to minister] applies, the person must, within 60 days after this Act comes into force, provide the consideration to the Minister of Finance. 4 If, before this Act comes into force, a person accepted consideration in accordance with a contract for the recounting of a designated crime to which section 4 (3) applies, the person must, within 60 days after the regulation referred to in that section comes into force, provide the consideration to the Minister of Finance. Relief from obligation to provide consideration to government 7 1 The minister may, by order, relieve a person from an obligation under section 5 (2) [prohibition against providing consideration] or 6 (2), (3) or (4) respecting consideration due or accepted under a contract for the recounting of a designated crime if the minister is satisfied that a an enactment of Canada or another province also applies to the contract for the recounting of the designated crime, b the person is required under the enactment of Canada or the other province to provide the consideration, or to direct the payor to provide that consideration, to the entity specified in that enactment, and c the person has complied with or will comply with the requirement referred to in paragraph (b) of this subsection. 2 The minister may specify conditions on the relief granted to a person under subsection (1), including, without limitation, specifying that the relief is conditional on the person complying, within a specified time period, with the requirement referred to in subsection (1) (b). Consideration other than money 8 If a contract for the recounting of a designated crime provides for a form of consideration other than money, a person who is required under this Part to provide that consideration to the Minister of Finance must instead pay to the Minister of Finance an amount of money equal to the value of that consideration. Court order to uphold recounting contract 9 1 On application by a party to a contract for the recounting of a designated crime, the court may, by order, do one or both of the following: a authorize some or all of the consideration under the contract to be provided in accordance with that contract; b if consideration under the contract has already been provided to the Minister of Finance and paid into the trust fund as recovered proceeds, require the government to pay to a party to the contract some or all of the net recovered proceeds associated with the person who is charged with or convicted of the designated crime. 2 The court may make an order under subsection (1) only if, after taking into account the importance to society of not allowing a person who is charged with or convicted of a designated crime to profit from the notoriety of the designated crime, the court is satisfied that the value to society of recounting the designated crime justifies an order requiring that some or all of the consideration be provided in accordance with the contract. 3 In determining under subsection (2) the value to society of recounting a designated crime, the court must take into account each of the following: a the purpose of the recounting; b the details of the designated crime, including the violent or sexual nature of the crime; c the extent to which victims of the designated crime and their family members may suffer further harm from the recounting; d the extent to which the recounting is or will be available or made known to the public, including the manner in which the recounting is or will be published, broadcast or otherwise disseminated to the public; e the extent to which the recounting or its dissemination exploits or sensationalizes the designated crime. Application for court order to uphold recounting contract 10 1 Subject to subsection (2), an application for an order under section 9 (1) respecting a contract for the recounting of a designated crime must not be made more than 2 years after the date on which consideration under the contract was first due to the Minister of Finance under section 5 (2) [prohibition against providing consideration] or 6 (3) or (4) [prohibition against accepting consideration] . 2 If a person who is charged with a designated crime is convicted of the designated crime and the conviction is finally determined, an application for an order under section 9 (1) respecting a contract for the recounting of the designated crime must not be made more than 2 years after the later of a the date on which consideration under the contract was first due to the Minister of Finance under section 5 (2) or 6 (3) or (4), and b the date on which the conviction is finally determined. 3 An application for an order under section 9 (1) must name the minister as the respondent. 3 Crime Memorabilia Crime memorabilia order 11 On application by the minister and on being satisfied that a person who is charged with or convicted of a designated crime, or the person's agent, has sold, leased, licensed or otherwise disposed of crime memorabilia for consideration that is greater in value than the consideration that would have been provided if the person had not been charged with or convicted of the designated crime, the court may order that person, or that person's agent, to pay to the Minister of Finance an amount equal to the difference between a the value of the consideration provided for the crime memorabilia, and b the value of the consideration that the court determines would have been provided for the crime memorabilia if the person had not been charged with or convicted of the designated crime. Application for crime memorabilia order 12 1 An application for a crime memorabilia order must describe the crime memorabilia in sufficient detail to make the crime memorabilia readily identifiable. 2 The minister may not bring an application for a crime memorabilia order more than 2 years after the date on which the minister learned of the disposition of the crime memorabilia. 3 An application for a crime memorabilia order must name as the respondent the person who is charged with or convicted of the designated crime to which the application relates, or that person's agent. 4 Proceeds Recovered in Relation to Designated Crimes Trust fund 13 1 When the Minister of Finance first receives recovered proceeds, the Minister of Finance must establish a trust fund for the purposes of this Act. 2 The Minister of Finance must pay the following into the trust fund: a recovered proceeds; b interest and other income, if any, earned in relation to recovered proceeds. 3 The Minister of Finance is the trustee of the trust fund under subsection (1). 4 Subject to this Act, the Minister of Finance a must make payments out of the trust fund as required under sections 14 [payments from trust fund to comply with court order to uphold recounting contract] , 15 [payments from trust fund on acquittal, stay or withdrawal of charges] and 17 [payments from trust fund to Victim Surcharge Special Account] , b on request of the minister under section 16 (1) [payments from trust fund to victims of designated crimes] , must pay specified amounts out of the trust fund to specified victims of designated crimes, c may make payments out of the trust fund to cover prescribed costs associated with administering recovered proceeds, and d may make payments out of the trust fund to cover prescribed costs associated with payments authorized under section 16 (1). 5 The cumulative total of amounts paid out of the trust fund under subsection (4) must not be greater than the cumulative total of amounts paid into the trust fund under subsection (2). Payments from trust fund to comply with court order to uphold recounting contract 14 Net recovered proceeds associated with a person who is charged with or convicted of a designated crime must be paid out of the trust fund, in the amount and to the person specified in a payment order, if the government is required under the payment order to pay that amount to that person. Payments from trust fund on acquittal, stay or withdrawal of charges 15 1 Net recovered proceeds associated with a person who is charged with a designated crime must be paid out of the trust fund to the person from whom the Minister of Finance received those proceeds if one of the following events has occurred in relation to the person charged with the designated crime: a the person is acquitted of the charge and the acquittal is finally determined; b the charge is stayed and the time for recommencement has expired; c the charge is withdrawn. 2 For certainty, a person is no longer a person who is charged with a designated crime if an event described in subsection (1) (a), (b) or (c) has occurred in respect of the charge against the person for the designated crime. Payments from trust fund to victims of designated crimes 16 1 The minister may request the Minister of Finance to pay specified amounts of the net recovered proceeds associated with a person who is convicted of a designated crime to specified victims of the designated crime or a related designated crime. 2 The minister may request a payment under subsection (1) only if the conviction referred to in that subsection is finally determined. 3 Net recovered proceeds that relate to a contract for the recounting of a designated crime may be paid out under subsection (1) only during the period that a starts 2 years after the later of i the date on which consideration under the contract was first due to the Minister of Finance under section 5 (2) [prohibition against providing consideration] or 6 (3) or (4) [prohibition against accepting consideration] , and ii the date on which the conviction referred to in subsection (1) is finally determined, and b subject to subsection (5) of this section, ends 2 years after the applicable start date described in paragraph (a) of this subsection. 4 Net recovered proceeds that relate to a crime memorabilia order may be paid out under subsection (1) only during the period that a starts on the later of i the date on which the Minister of Finance received the amount under the crime memorabilia order, and ii the date on which the conviction referred to in subsection (1) is finally determined, and b subject to subsection (5), ends 2 years after the applicable start date described in paragraph (a) of this subsection. 5 The minister may extend the end date of the period described in subsection (3) or (4). 6 The total amount of payments made under subsection (1) must not exceed the amount equal to the net recovered proceeds associated with the person who is convicted of the designated crime, less the prescribed costs associated with those payments. 7 For the purposes of this section, a victim of a designated crime may include a member of the victim's family. Payments from trust fund to Victim Surcharge Special Account 17 1 If, in respect of the net recovered proceeds associated with a person who is convicted of a designated crime, there is a balance of those proceeds remaining in the trust fund after both of the events described in subsection (2) have occurred, the balance must be released from the trust fund and paid into the Victim Surcharge Special Account continued under section 9 of the Victims of Crime Act . 2 The events for the purposes of subsection (1) are a the period during which the net recovered proceeds may be paid out to victims under section 16 (1) has expired, and b the prescribed costs associated with the payments, if any, under section 16 (1) have been i deducted from the net recovered proceeds, and ii paid out of the trust fund by the Minister of Finance. 5 Administration and Enforcement Recovery of amounts owed to government 18 1 If an amount is owing to the Minister of Finance under Part 2 [Contracts for the Recounting of Designated Crimes] or 3 [Crime Memorabilia] , the minister may issue a certificate specifying the amount owed and the name of the person who owes it. 2 The minister may file with a court that has jurisdiction a certificate issued under subsection (1). 3 If the amount specified in a certificate issued under subsection (1) is different from the actual amount owing to the Minister of Finance under Part 2 or 3, the minister may correct the amount by issuing a new certificate specifying the revised amount owed and the name of the person who owes it. 4 The minister may file with a court that has jurisdiction a certificate issued under subsection (3). 5 A certificate filed with a court under subsection (2) or (4) has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment of the court in favour of the government for the recovery of a debt in the amount specified in the certificate against the person named in that certificate. 6 A certificate filed under subsection (4) a revises the certificate filed under subsection (2), if the certificates filed under subsections (2) and (4) name the same person, and b is deemed to be filed at the same time as the certificate it revises. 7 A copy of a certificate filed under subsection (2) or (4) must be provided to the person named in the certificate. Court order for compliance 19 1 On application by the minister and on being satisfied that a person has contravened or is likely to contravene this Act, the court may, by interim or permanent order, a restrain the person from contravening this Act, or b require the person to comply with this Act. 2 An order under subsection (1) does not prevent the imposition of a penalty in respect of an offence in relation to the contravention that is the subject of the order. Offences 20 1 A person who contravenes any of the following provisions commits an offence: a section 4 (1), (2) or (3) [notice to minister] ; b section 5 (1) or (2) [prohibition against providing consideration] ; c section 6 (1), (2), (3) or (4) [prohibition against accepting consideration] . 2 A person who commits an offence under subsection (1) (a) is liable to a fine of not more than $50 000. 3 A person who commits an offence under subsection (1) (b) or (c) is liable to a fine of not more than the greater of $50 000 and, as applicable, a the amount or value of consideration that the person provided in contravention of section 5 (1), b the amount or value of consideration that the person accepted in contravention of section 6 (1), c the amount or value of consideration that the person, in contravention of section 5 (2) or 6 (3) or (4), did not provide to the Minister of Finance, or d the amount or value of consideration in respect of which the person, in contravention of section 6 (2), did not direct the payor to provide to the Minister of Finance. 4 Each occasion on which a person contravenes a provision referred to in subsection (1) is a separate offence. 5 The payment of a fine under this section does not relieve a person of a duty under this Act to provide consideration to the Minister of Finance. Liability of directors and officers 21 If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence also commits the offence, whether or not the corporation is convicted of the offence. Limitation period 22 1 The time limit for laying an information to commence a prosecution for an offence under section 20 [offences] is 2 years after the date on which the minister learned of the facts on which the information is based. 2 A certificate purporting to have been issued by the minister certifying the date referred to in subsection (1) is proof of that date. Section 5 of Offence Act 23 Section 5 [general offence] of the Offence Act does not apply to this Act or the regulations. 6 General Power of court to make orders 24 In making an order under this Act, the court may make any additional order the court considers appropriate. Personal information 25 1 In this section: ministry means a the ministry of the minister, or b the Ministry of Finance; ministry person means any of the following: a the minister; b the Minister of Finance; c a person who is employed in a ministry; d a person who is retained under a contract to perform services for a ministry; personal information has the same meaning as in the Freedom of Information and Protection of Privacy Act . 2 A ministry person may collect or disclose personal information under this Act for one or more of the following purposes: a to administer this Act, including, without limitation, to i exercise powers and perform duties under this Act, ii conduct a proceeding or determine whether to bring a proceeding under this Act, iii enforce or comply with A an order under section 9 (1) [court order to uphold recounting contract] , B a crime memorabilia order, C a certificate filed under section 18 (2) or (4) [recovery of amounts owed to government] , or D an order under section 19 [court order for compliance] , iv determine ownership of crime memorabilia, and v administer payments to victims under section 16 (1) [payments from trust fund to victims of designated crimes] ; b to assist with the administration of an enactment of Canada, or another jurisdiction in or outside of Canada, that is similar to this Act; c a prescribed purpose. 3 Personal information that may be collected under subsection (2) may be collected directly from the individual the information is about or indirectly from another person. 4 The minister may enter into agreements with any person, including the government of another jurisdiction, for the purpose of sharing personal information for a purpose set out in subsection (2). Information request 26 1 In this section, public body has the same meaning as in the Freedom of Information and Protection of Privacy Act . 2 If the minister is satisfied that information, including personal information, is required for a purpose set out in section 25 (2) (a), the minister may request that a person or public body provide the information to the minister. 3 A person or public body that receives a request for information under this section must, if the person or public body has custody or control of the information, provide the information to the minister within the time requested. 4 On application by a person who receives a request for information under this section, the court may, by order, relieve the person from the obligation to provide the information if the court is satisfied that the person's privacy interest or other interests in the information outweigh the importance to society of not allowing a person who is charged with or convicted of a designated crime to profit from the notoriety of the designated crime. 5 An application for an order under subsection (4) must not be made more than 30 days after the date on which the person receives a request for information under this section. Liability protection 27 1 In this section, protected person means any of the following: a the government; b an employee, agent or minister of the government; c a person who is retained under a contract to perform services for a ministry and is acting on behalf of or under the direction of the minister responsible for the ministry. 2 Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a protected person because of anything done or omitted a in the performance or intended performance of any duty under this Act, or b in the exercise or intended exercise of any power under this Act. 3 Subsection (2) does not apply to a protected person in relation to anything done or omitted by a protected person in bad faith. General regulation-making authority 28 1 The Lieutenant Governor in Council may make regulations referred to in section 41 [powers to make regulations] of the Interpretation Act . 2 Without limiting subsection (1), the Lieutenant Governor in Council may make regulations respecting any matter for which regulations are contemplated by this Act. 3 The authority to make regulations under another provision of this Act does not limit subsection (1) or (2). 4 In making a regulation under this Act, the Lieutenant Governor in Council may do one or more of the following: a delegate a matter to a person; b confer a discretion on a person; c make different regulations for different persons, places, things, circumstances or transactions, or for different classes of persons, places, things, circumstances or transactions; d establish or define classes of persons, places, things, circumstances or transactions. Other regulations 29 The Lieutenant Governor in Council may make regulations as follows: a for the purpose of paragraph (d) of the definition of "designated crime" in section 1 (1) [definitions and interpretation] , prescribing as an offence an act or omission that is any of the following: i an offence under the Criminal Code or any other enactment of Canada; ii an offence under an enactment of British Columbia or any other province; iii an offence under the law of a jurisdiction outside Canada, if the act or omission would, had the act or omission occurred in Canada, be an offence prescribed under subparagraph (i) or (ii) of this paragraph; b for the purpose of paragraphs (a) and (b) (i) of the definition of "net recovered proceeds" in section 1 (1), and for the purpose of section 13 (4) (c) [trust fund] , prescribing as a cost any cost that is associated with administering recovered proceeds associated with a person who is charged with or convicted of a designated crime, including, without limitation, prescribing costs associated with one or both of the following: i investing or earning revenue in relation to the recovered proceeds; ii contracting with a person to provide to the minister or Minister of Finance advice or assistance in relation to administering the recovered proceeds; c for the purpose of section 3 [exemption for law enforcement contracts] , prescribing any of the following as an entity: i a person; ii an agency; iii any other body; d for the purpose of section 4 (3) (a) [notice to minister] , prescribing a date that is earlier than January 1, 2001; e for the purposes of sections 13 (4) (d), 16 (6) [payments from trust fund to victims of designated crimes] and 17 (2) (b) [payments from trust fund to Victim Surcharge Special Account] , prescribing as a cost any cost that is associated with payments under section 16 (1), including, without limitation, prescribing costs associated with contracting with a person to provide to the minister advice or assistance in relation to those payments; f respecting payments authorized to be made under section 16 (1), including, without limitation, prescribing principles, criteria or requirements in relation to the amounts that may be paid under that section and the victims who may receive those payments; g defining a word or expression used but not defined in this Act. Consequential Amendment [Note: See Table of Legislative Changes for the status of section 30.] 30 Section(s) Affected Act 30  Victims of Crime Act Commencement 31 This Act comes into force on the date of Royal Assent.