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Fourth Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 25

THE MANITOBA EVIDENCE AMENDMENT ACT (SCHEDULING OF CRIMINAL ORGANIZATIONS)


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. E150 amended

1           The Manitoba Evidence Act is amended by this Act.

2           The following is added after section 68 as part of Part I:

DIVISION VI

CRIMINAL ORGANIZATIONS

Definitions

68.1        The following definitions apply in this Division.

"criminal organization" means a criminal organization as defined in section 2 of the Criminal Code (Canada). (« organisation criminelle »)

"department" means the department of government over which the minister presides. (« ministère »)

"director" means the director appointed under section 68.13. (« directeur »)

"entity" means a group or organization, however structured, and includes a partnership, a corporation or an unincorporated association. (« entité »)

"law enforcement agency" means

(a) the Royal Canadian Mounted Police;

(b) a municipal police service; or

(c) an agency or organization designated by regulation. (« organisme d'application de la loi »)

"review panel" means the panel appointed under section 68.14. (« comité d'examen »)

"schedule" means the schedule of criminal organizations contained in a regulation made under section 68.2. (« liste »)

Schedule of criminal organizations

68.2(1)     The Lieutenant Governor in Council may, by regulation, establish a schedule of criminal organizations.

Entry on schedule of criminal organizations

68.2(2)     The Lieutenant Governor in Council may place an entity on the schedule if, on the recommendation of the minister, the Lieutenant Governor in Council is satisfied that there are reasonable grounds to believe that the entity is a criminal organization.

Recommendation process

68.2(3)     The minister may make a recommendation to the Lieutenant Governor in Council to add an entity to the schedule only in accordance with the process set out in sections 68.4 to 68.9.

Scheduled entity deemed to be criminal organization

68.3(1)     When an entity is on the schedule it is deemed to be conclusive proof in an action or other legal proceeding that the entity is a criminal organization.

Clarification

68.3(2)     Subsection (1) does not affect the requirement to prove that a person is a member of a criminal organization.

No inference if entity not on schedule

68.3(3)     No inference is to be drawn from the fact that an entity is not on the schedule in an action or other legal proceeding where a person seeks to prove that an entity is a criminal organization.

Application

68.4(1)     The director may apply to have an entity added to the schedule if he or she has determined that the entity is a criminal organization.

Contents of application

68.4(2)     The application must

(a) be made in writing to the minister;

(b) identify the entity that is the subject of the application; and

(c) provide detailed information setting out the basis on which the director has determined that the entity is a criminal organization, including one or both of the following:

(i) information obtained by the director respecting the entity and its members,

(ii) a decision, order or finding of a federal, provincial or territorial court that the entity is a criminal organization.

Identifying entity

68.4(3)     The application may identify the entity by specifying the name of the entity, the names by which the entity is commonly known or by providing other particulars of the entity.

Notice of application

68.5(1)     The director must give public notice of the application in accordance with this section.

Contents of notice

68.5(2)     The notice of the application must include the following information:

(a) the entity that is the subject of the application;

(b) a statement that a member of the entity who objects to the application and wishes to make a submission to the review panel must file written notice of his or her objection at an address set out in the notice;

(c) the deadline for an objection to be filed, which must be at least 30 days after public notice of the application was first given;

(d) any other information prescribed by regulation.

Publication of notice

68.5(3)     The director must arrange for public notice of the application to be given

(a) by publishing notice of the application on at least two occasions in a newspaper with general circulation throughout the province;

(b) by posting notice of the application on the department's website; and

(c) in any other manner that the director considers appropriate.

Objection process

68.6(1)     If a member of an entity files an objection by the deadline set out in the notice of application, the director must give the objector a reasonable opportunity to review — at a location selected by the director — a statement that summarizes the information that led to the director's determination that the entity is a criminal organization.

Contents of summary statement

68.6(2)     The summary statement must be prepared by the director and must enable the objector to be reasonably informed of the basis on which the director determined that the entity is a criminal organization.

Restriction on summary statement

68.6(3)     The summary statement must not disclose any information that might

(a) reveal the identity of a confidential informant, or otherwise jeopardize the safety of a person; or

(b) negatively affect

(i) an investigation or operation conducted by a law enforcement agency, or

(ii) the utility of investigative or intelligence-gathering techniques used by a law enforcement agency.

Copy of decision or order

68.6(4)     When an application is based on a determination by a federal, provincial or territorial court that the entity is a criminal organization, the director must give the objector a copy of the decision or order in question.

Submissions by objector

68.6(5)     Within 30 days after being given an opportunity to review the summary statement, an objector may provide the director with a written submission that

(a) responds to the information provided by the director in support of the application; and

(b) sets out any additional arguments or evidence in support of the objector's position that the entity in question is not a criminal organization.

Submission of material

68.7        The director must give the following material to the review panel:

(a) a copy of the application;

(b) all material submitted by the director in support of the application;

(c) any written submissions received from an objector.

Determination by review panel

68.8(1)     The review panel must review the material provided by the director and advise the minister if there are reasonable grounds to believe that the entity in question is a criminal organization.

Review panel report

68.8(2)     The review panel must provide the minister with

(a) a report that sets out the reasons for the advice provided to the minister by the review panel under subsection (1); and

(b) any written submissions received from an objector.

Recommendation by minister

68.9        The minister may make a recommendation to the Lieutenant Governor in Council to add an entity to the schedule if

(a) the review panel has advised the minister that there are reasonable grounds to believe that the entity is a criminal organization; and

(b) he or she has reasonable grounds to believe that the entity is a criminal organization, having regard to

(i) the information provided by the director in support of the application,

(ii) any written submissions received from an objector, and

(iii) the report of the review panel.

Request for removal from schedule

68.10(1)    A member of an entity that is on the schedule may make a written request to the director to have the entity removed from the schedule.

Content of request

68.10(2)    The request must set out the basis on which it is alleged that the entity in question is not a criminal organization.

Director's statement

68.10(3)    Within 90 days after receiving a request, the director must give a written statement to the person making the request that sets out the director's position respecting the request, including any relevant information in support of the director's position.

Response to director's statement

68.10(4)    Within 30 days after receiving the director's statement, the person making a request may give the director a written statement that responds to the position taken in the director's statement.

Referral to review panel

68.10(5)    The director must give the following material to the review panel:

(a) the request to have the entity removed from the schedule;

(b) the director's written statement in response to the request;

(c) the response to the director's written statement, if any.

Decision by review panel

68.10(6)    The review panel must review the material provided by the director and determine whether the entity in question is no longer a criminal organization and advise the minister of the reasons for its decision.

Recommendation

68.10(7)    The minister may recommend to the Lieutenant Governor in Council that an entity be removed from the schedule if he or she is satisfied that the entity is no longer a criminal organization.

Restriction on requests

68.10(8)    A request under this section may not be made if

(a) an objection to the application to place the entity on the schedule was made and less than five years have elapsed since the entity was placed on the schedule; or

(b) a request to have the entity removed from the schedule has been received within the previous five years.

No appeal or judicial review

68.11       The decision to add an entity to the schedule or deny a request under section 68.10 is final and is not subject to judicial review or appeal.

Mistaken identity

68.12(1)    An entity claiming not to be an entity on the schedule may apply to the minister for a certificate stating that it is not on the schedule.

Certificate

68.12(2)    The minister may issue a certificate confirming that an entity is not on the schedule if he or she is satisfied that the applicant is not on the schedule and is not affiliated or associated in any way with an entity on the schedule.

Director

68.13       The minister must appoint a senior official in the department as the director for the purpose of this Division.

Review panel

68.14(1)    The minister must appoint three or more persons who are not government employees or members of a law enforcement agency to serve on an independent panel that will review applications to have entities added to the schedule and requests to have entities removed from the schedule.

Chair

68.14(2)    The minister must designate a member of the panel to serve as chair.

Panel proceedings confidential

68.14(3)    The proceedings of the review panel are confidential and no member of the panel may disclose any information about its operations without the prior approval of the minister.

Director and panel not compellable

68.15       The director and members of the review panel cannot be compelled to give evidence in court or in any other proceeding respecting an application under section 68.4 or a request under section 68.10.

No access under Freedom of Information Act

68.16(1)    Despite Part 2 (Access to Information) of The Freedom of Information and Protection of Privacy Act, no person may obtain access under that Act to any record or information created, obtained or submitted under this Division.

Director may collect information

68.16(2)    The director is authorized to collect information, including personal information, from a law enforcement agency or other source in order to determine whether to make an application under section 68.4 or respond to a request under section 68.10.

Disclosure of information

68.16(3)    A law enforcement agency is authorized to disclose personal information to the director for a purpose set out in subsection (2).

Agreements re disclosure of information

68.16(4)    The minister may enter into an agreement with a law enforcement agency or a federal, provincial or territorial government, or a department or agency of those governments, respecting the disclosure of information to the director for a purpose set out in subsection (2).

Interpretation

68.16(5)    In this section, "personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act, but does not include personal health information as defined in The Personal Health Information Act.

Regulations

68.17       The Lieutenant Governor in Council may make regulations

(a) designating agencies or organizations as law enforcement agencies for the purposes of this Division;

(b) prescribing information to be contained in a notice of application under section 68.5;

(c) respecting any matter the Lieutenant Governor in Council considers necessary to carry out the purposes of this Division.

Coming into force

3           This Act comes into force on the day it receives royal assent.

Explanatory Note

This Bill amends The Manitoba Evidence Act. It enables Cabinet to place a group on a schedule of criminal organizations if it has reasonable grounds to believe that the group is a criminal organization.  When a group is on the schedule, it is conclusive proof in any proceeding that the group is a criminal organization. The Bill sets out the process to place a group on the schedule and how a group can seek to be removed from the schedule.