Anti-Terrorism/Money Laundering Update
Jun 2019 Charity & NFP Law Update
Joint Statement by Federal, Provincial and Territorial Governments
On June 14, 2019, several representatives from federal, provincial, and territorial governments, including ministers responsible for anti-money laundering and beneficial ownership transparency, released a joint statement (the “Joint Statement”) to advance a new initiative to combat money laundering and terrorist financing in Canada.
The Joint Statement highlights the federal, provincial, and territorial governments’ commitment to protecting Canadians and the integrity of Canadian institutions. It also recognizes the importance of coordinated action by the different levels of government to prevent criminals from exploiting gaps and vulnerabilities across jurisdictions.
As well, the Joint Statement reaffirms the commitment to improving transparency of beneficial ownership information for law enforcement, tax and other authorities, with appropriate privacy safeguards, in order to target criminals who use corporations to hide or launder money, without deterring good corporate citizens from conducting their regular business activities.
In terms of next steps, the Joint Statement recognizes the importance of consultations with vulnerable sectors, and announced the creation of a new working group with the Federation of Law Societies of Canada. The representatives also agreed to work together on cross-government anti-money laundering best practices to be reported by January 2020.
Last FATF Plenary Meeting for the 2018-2019 Period
Between June 16 and 21, 2019, the Financial Action Task Force (“FATF”), an independent inter-governmental body that develops and promotes anti-money laundering and anti-terrorist financing policies and standards, had its last Plenary meeting for the 2018-2019 period. At this Plenary meeting, the FATF discussed the mitigation of risks from virtual asset activities and finalized the Interpretive Note to Recommendation 15 which sets out the application of the FATF Standards for the regulation and supervision of activities and service involving virtual assets.
Recommendation 15 and its Interpretive Note are annexed to the FATF’s “Guidance for a Risk-based Approach for Virtual Assets and Virtual Asset Service Providers” (the “Guidance”). The Guidance is intended to further assist countries and providers in complying with their anti-money laundering and counter-terrorism financing obligations. The Guidance describes how the FATF Recommendations apply to virtual asset activities and service providers. In the case of Recommendation 8, the Guidance provides that the risk-based approach to protect non-profit organisations from terrorist financing abuse must consider the clandestine diversion of funds through the use of virtual assets.
In anticipation of the FATF’s Interpretive Note to Recommendation 15 and the Guidance, the G20 Finance Ministers and Central Bank Governors Meeting, held between June 8 and June 9, 2019 in Japan, also reaffirmed their commitment to applying the FATF Standards to virtual assets and service providers for combating money laundering and terrorist financing.
Consortium for Financial Access Releases Guidance to Address Issue of De-risking
The Consortium for Financial Access, comprised of a number of large multi-national financial organizations, community banks, money services businesses, security firms, credit unions, charities, law enforcement, regulators, advisory firms and academics, who all originally came together by initiative of the Association of Certified Anti-Money Laundering Specialists and the World Bank, has released its guidance document entitled Banking Nonprofit Organizations – The Way Forward (the “Guidance”). The Guidance provides policy and practice recommendations for not-for-profits, financial institutions and governments, and it is aimed at improving financial access for not-for-profits.
The Guidance relies on the most recent National Terrorist Financing Risk Assessment by the United States Department of the Treasury, discussed in the March 2019 Anti-Terrorism/money Laundering Update, to emphasize that the not-for-profit sector does not present a uniformly high risk and, as such, financial institutions “should be careful to not require excessive or unnecessary information from [not-for-profits] and should ensure that all information collected from [not-for-profits] is relevant to the stated purpose, remembering that [not-for-profits] have legal and ethical obligations to protect the privacy of their donors, beneficiaries and members.”
Further, the Guidance calls for governments and financial regulators to promote financial access for not-for-profits by emphasizing appropriate due diligence for the sector, which is not inherently risky, clarifying that the policy objectives of combating money laundering and promoting humanitarian and development assistance are complementary goals, and with appropriate policy statements stressing governments’ support for the not-for-profit sector and its humanitarian and developmental efforts.
Legislation Update
Jun 2019 Charity & NFP Law Update
Bill C-97, Budget Implementation Act, 2019, No. 1, Receives Royal Assent
On June 21, 2019, Bill C-97, Budget Implementation Act, 2019, No. 1 (“Bill C-97”), received Royal Assent. Bill C-97, which was discussed in the April 2019 Charity & NFP Law Update, implements new tax measures with respect to Canadian journalism, removes the “national importance” criteria with respect to donations of cultural property for the purposes of receiving a tax benefit, and implements several health-related measures.
Bill C-59, An Act respecting national security matters, Receives Royal Assent
Also on June 21, 2019, after two years of debates in both Chambers of Parliament, Bill C-59, An Act respecting national security matters (“Bill C-59”), received Royal Assent. As mentioned in the June 2017 Anti-Terrorism Law Update, Bill C-59 was introduced in the House of Commons on June 20, 2017 and later amended by Committee, as discussed in the May 2018 Anti-Terrorism/Money Laundering Update. Bill C-59 introduces a number of changes to the Criminal Code and various other federal statutes, and enacts the National Security and Intelligence Review Agency Act, Avoiding Complicity in Mistreatment by Foreign Entities Act, Intelligence Commissioner Act, and the Communications Security Establishment Act.
Trademarks Act Amendments Now in Force
On June 17, 2019, amendments to the Trademarks Act arising from Bill C-31, Economic Action Plan 2014 Act, No 1 (“Bill C-31”) came into force enabling Canada to accede to the Singapore Treaty, the Madrid Protocol, and the Nice Agreement. The amendments in Bill C-31 as discussed in Charity Law Bulletin No 360 and the November 2018 Charity & NFP Law Update, introduce significant changes to Canada’s trademarks regime, including, the removal of the “use” requirement to register a trademark, the introduction of new types of trademarks, the ability to file international applications through the Madrid System, the requirement to classify goods and services according to the Nice Classification, a shortened registration term, and expanded enforcement tools as further discussed in Trademark Amendments In Force: What To Do Now, below.
Ontario Bill 117, OPSCA (Interim Period), 2019 Receives Royal Assent
On June 6, 2019, Ontario Bill 117, Ontario Society for the Prevention of Cruelty to Animals Amendment Act (Interim Period), 2019 (“Bill 117”) received Royal Assent. Bill 117 was introduced as a result of the Ontario Society for the Prevention of Cruelty to Animals’ (“OSPCA”) decision to relinquish its responsibilities with respect to the enforcement of animal welfare legislation in Ontario once its contract with the government ended on March 31, 2019, as reported in its March 4, 2019 news release. The move to end its enforcement services came in response to a recent Ontario Superior Court decision, Bogaerts v. Attorney General of Ontario (discussed in the January 2019 Charity & NFP Law Update), in which the court found that it was unconstitutional for the government to enact legislation that delegated law enforcement responsibilities to a private organization because of the lack of transparency and accountability to the public. As such, the court invalidated the provisions that govern the powers of the OPSCA with respect to warrantless search and/or seizure powers, but suspended such declaration for an interim period of one year to allow legislation to establish a new framework with respect to animal welfare enforcement.
Bill 117 addresses this interim period and amends the existing Ontario Society for the Prevention of Cruelty to Animals Act (the “Act”) by adding section 21.1, which authorizes the Solicitor General to appoint any person as the Chief Inspector for the interim period. Further, O Reg 101/19 was filed on May 17, 2019 and amended the General Regulation (“O Reg 59/09”) under the Act by expanding on the responsibilities of the Chief Inspector. The Amending Regulation states that the Chief Inspector has the authority to establish standards for the inspectors and agents of the OPSCA “in the performance of their functions” and generally oversees “the performance of their functions.” It also makes clear that the Chief Inspector does not have authority over inspectors and agents of affiliated societies that were appointed by the OPSCA or Chief Inspector. However, affiliated societies may make a written request to the Chief Inspector, which the Chief Inspector may accept or decline, to appoint one of the societies’ employees as an inspector or agent. The Chief Inspector may also revoke any such appointments that were made.
Bill 116, Foundations for Promoting and Protecting Mental Health and Addictions Services Act, 2019
On May 27, 2019, Ontario Bill 116, Foundations for Promoting and Protecting Mental Health and Addictions Service Act, 2019 was introduced to the Legislative Assembly of Ontario. If Bill 116 is passed, it will enact two Schedules, the Mental Health and Addictions Centre of Excellence Act, 2019 (“Mental Health Act”) and the Opioid Damages and Health Costs Recovery Act, 2019 (“Opioid Act”). The Mental Health Act lays the foundation to support a “mental health and addictions strategy” (the “Strategy”) in Ontario that would recognize mental health and addictions care as a “core component of an integrated health care system”. Further, under the Mental Health Act, Ontario Health will establish and maintain the Mental Health and Addictions Centre of Excellence to implement the Strategy, provide mental health services, collect data and research on the system, as well as provide resources and support to health service providers, integrated care delivery systems and other related parties.
The Opioid Act sets out a framework under which the government of Ontario may seek to “recover the cost of health care benefits caused or contributed to by an opioid-related wrong” against manufacturers and wholesalers of opioid products. Ontario would have a “direct and distinct action”, could seek to recover costs on an aggregate basis, and defendants could be held jointly or severally liable. Further, the Opioid Act sets out unique limitation period rules, allowing Ontario to commence an action for damages or for the recovery of the cost of health care benefits with respect to opioid-related wrong within 15 years after the relevant provision in the Act comes into force. The Opioid Act is being enacted in part to support Ontario’s participation in a national class action lawsuit British Columbia launched in August 2018 against more than 40 opioid manufacturers and wholesalers, on behalf of provincial, territorial, and federal governments.
Special Senate Committee on Charitable Sector Releases Final Report
Special Senate Committee on Charitable Sector Releases Final Report
Jun 2019 Charity & NFP Law Update
On June 20, 2019, the Special Senate Committee on the Charitable Sector released its final report, Catalyst for Change: A Roadmap to a Stronger Charitable Sector (“Report”), setting out its findings from a year-long study with respect to the charitable and non-profit sector and making 42 recommendations to the Government of Canada. The Report is intended to provide a “roadmap to ensure that genuine change is delivered so that the sector can reach from great to exceptional” as well as a “roadmap to a stronger and brighter future for the sector.”
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 451.