Law:Export and Import of Rough Diamonds Act

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S.c. 2002, c. 25

Assented to 2002-12-12

An Act providing for controls on the export, import or transit across Canada of rough diamonds and for a certification scheme for the export of rough diamonds in order to meet Canada’s obligations under the Kimberley Process

Preamble

WHEREAS the Kimberley Process establishes minimum requirements for an international scheme of certification for rough diamonds with a view to breaking the link between armed conflict and the trade in rough diamonds;

AND WHEREAS Canada is a participant in the Kimberley Process;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Export and Import of Rough Diamonds Act.


Interpretation

Definitions

2. The following definitions apply in this Act.

“Canadian Certificate”

« certificat canadien »

“Canadian Certificate” means a Kimberley Process Certificate issued by the Minister under paragraph 9(1)(a).

“in transit”

« en transit »

“in transit”, in respect of rough diamonds, means from a place outside Canada in transit through Canada to a place outside Canada.

“Kimberley Process”

« Processus de Kimberley »

“Kimberley Process” means the international understanding among participants that was recognized by Resolution 55/56 adopted by the General Assembly of the United Nations on December 1, 2000, as that understanding is amended from time to time.

“Kimberley Process Certificate”

« certificat du Processus de Kimberley »

“Kimberley Process Certificate” means a document, issued by a participant, that certifies that rough diamonds for export or import or in transit have been handled in a manner that meets the minimum requirements of the Kimberley Process.

“Minister”

« ministre »

“Minister” means the Minister of Natural Resources.

“participant”

« participant »

“participant” means a state, international organization of states or dependent territory of a state, or a customs territory, named in the schedule.

“resident of Canada”

« résident du Canada »

“resident of Canada” means an individual who ordinarily resides in Canada or a corporation that has its head office, or operates a branch office, in Canada.

“rough diamond”

« diamant brut »

“rough diamond” means a diamond that is unsorted, unworked or simply sawn, cleaved or bruted, and that falls under subheading 7102.10, 7102.21 or 7102.31 in the List of Tariff Provisions set out in the schedule to the Customs Tariff, but does not include diamonds that are of a class prescribed by regulation.

2002, c. 25, s. 2; 2005, c. 51, s. 1.

Previous Vrsion

Ministerial Powers

Amendment of schedule

3. The Minister may, by order, amend the schedule by adding the name of a state, international organization of states or dependent territory of a state, or a customs territory, that participates in the Kimberley Process or by deleting the name of an entity that ceases to participate in that Process.

Disclosure

4. For the purpose of administering this Act, the Minister may disclose any information received in an application for a Canadian Certificate or gathered in the course of an inspection under this Act if the Minister considers the disclosure to be in the public interest, taking into account the competitive position of the individual, corporation, partnership, trust, organization or association of persons affected by the disclosure.

Statistics

5. The Minister may collect, compile and use statistics respecting Canadian Certificates and Kimberley Process Certificates accompanying imports into Canada for analysis, study or exchange with other participants. The Minister may also publish those statistics in any form and manner that the Minister considers appropriate.

2002, c. 25, s. 5; 2005, c. 51, s. 2.

Previous VersionDelegation of ministerial powers, duties and functions

6. The Minister may authorize any person, subject to any terms and conditions that the Minister may specify, to exercise or perform on the Minister’s behalf a power of the Minister under any other provision of this Act except section 3, subsection 7(1) and section 35.

Designation of inspectors and investigators

7. (1) The Minister may designate as an inspector for the administration of this Act, or as an investigator for the enforcement of this Act, any person or class of persons that the Minister considers qualified.

Designation document

(2) The Minister must give every person designated under subsection (1) a designation document specifying the terms and conditions of their designation.


Exporting Rough Diamonds

Requirements for exporting rough diamonds

8. (1) Every person who exports rough diamonds must ensure that, on export, they are in a container that meets the requirements of the regulations and are accompanied by a Canadian Certificate.

Rough diamonds to be parcelled separately

(2) Every person who exports rough diamonds must ensure that, on export, the rough diamonds in the container are not parcelled with diamonds excluded from the definition “rough diamond” or with anything else.

2002, c. 25, s. 8; 2005, c. 51, s. 3.

Previous VersionIssuance of Canadian Certificate

9. (1) On receiving an application for a Canadian Certificate from a resident of Canada for the export of rough diamonds, the Minister must

(a) if the application meets the requirements of the regulations and of subsection (2), issue a Canadian Certificate;

(b) if the application does not meet the requirements of the regulations, send a notice to the applicant containing written reasons for the deficiency; or

(c) if the application does not meet the criteria in subsection (2), reject the application and send to the applicant written reasons for the rejection.

Criteria

(2) Before issuing a Canadian Certificate, the Minister must be satisfied that

(a) the export is to a participant;

(b) the information contained in the application is accurate;

(c) the rough diamonds in respect of which the application is made originated in Canada, were extracted from mineral concentrates in Canada, were imported from a participant or were in Canada at the time of the coming into force of this section; and

(d) the fees established by the regulations for the issuance of the certificate have been paid.

Notice of deficiency

10. If an applicant who receives a notice under paragraph 9(1)(b) does not remedy the deficiency within such time as the Minister considers reasonable, the Minister may reject the application.

Replacement certificate

11. If any information appearing on a Canadian Certificate is inaccurate or has changed, the Minister may, on application by the holder of the certificate made in accordance with the regulations, issue a replacement certificate.

Invalidation of Canadian Certificate

12. If the Minister determines that information provided by an applicant in order to obtain a Canadian Certificate, or information appearing on the certificate, is inaccurate or has changed, the Minister may invalidate the certificate.

Reporting

13. (1) Every person who exports rough diamonds must report the export to the Minister in accordance with the regulations.

Points of exit

(2) Every person who exports rough diamonds must do so at a point of exit designated under the regulations, if any.


Importing Rough Diamonds

Requirements for importing rough diamonds

14. (1) Every person who imports rough diamonds must ensure that, on import, they are in a container that meets the requirements of the regulations and are accompanied by a Kimberley Process Certificate that

(a) was issued by a participant;

(b) has not been invalidated by the participant; and

(c) contains accurate information.

Rough diamonds to be parcelled separately

(2) Every person who imports rough diamonds must ensure that, on import, the rough diamonds in the container are not parcelled with diamonds excluded from the definition “rough diamond” or with anything else.

2002, c. 25, s. 14; 2005, c. 51, s. 4.

Previous VersionReturn of imported rough diamonds

15. (1) If imported rough diamonds arrive in Canada accompanied by a Kimberley Process Certificate that meets the requirements of subsection 14(1) but are in a container that has been opened, the Minister may order the person who imported the rough diamonds to return them to the participant who issued the certificate.

Exception

(2) If the Minister orders the return of the rough diamonds, they may not be seized.

2002, c. 25, s. 15; 2005, c. 51, s. 5.

Previous VersionReporting

16. (1) Every person who imports rough diamonds must report the import to the Minister in accordance with the regulations.

Point of entry

(2) Every person who imports rough diamonds must do so at a point of entry designated under the regulations, if any.


In-transit Rough Diamonds

Seizure of in-transit rough diamonds

17. (1) An investigator may seize in-transit rough diamonds if they are not accompanied by a Kimberley Process Certificate or are in a container that has been opened.

Return of in-transit rough diamonds

(2) The Minister may order in-transit rough diamonds accompanied by a Kimberley Process Certificate to be returned to the participant who issued the certificate if they arrive in Canada in a container that has been opened.

No seizure in case of return

(3) If the Minister orders their return, the rough diamonds may not be seized.

Interpretation

18. For the purposes of this Act, in-transit rough diamonds are deemed not to be imported or exported.


Inspections

Powers

19. (1) For the purpose of administering this Act, an inspector may

(a) enter and inspect any place or conveyance, other than a dwelling-place, where the inspector has reason to believe that there are rough diamonds to which this Act applies or any record, book of account or other document or data relevant to the administration of this Act;

(b) open or cause to be opened any package or container that the inspector has reason to believe contains anything referred to in paragraph (a);

(c) require any person to present anything referred to in paragraph (a) for inspection in the manner and under any conditions that the inspector considers necessary to carry out the inspection;

(d) require any person to present any document or thing that may serve to establish the identity of the person or the origin of the rough diamonds;

(e) examine rough diamonds or any other things related to rough diamonds;

(f) examine any record, book of account or other document or data that the inspector has reason to believe contains information that is relevant to the administration of this Act and make copies of any of them; and

(g) take measurements of rough diamonds and conduct tests or analyses that do not affect their value.

Operation of computer and copying equipment

(2) In exercising any of the powers referred to in subsection (1), an inspector may

(a) use any computer or data processing system to examine any data contained in or available to the computer or system;

(b) reproduce any record from the data, in the form of a printout or other intelligible output, and remove the printout or other output for examination or copying; and

(c) use any equipment at the place to make copies of any data or any record, book of account or other document.

Stopping a conveyance

20. An inspector may stop a conveyance or direct that it be moved to a place where an inspection may be carried out if the inspector has reason to believe that it contains rough diamonds to which this Act applies or any record, book of account or other document or data that is relevant to the administration of this Act.

Production of designation document

21. When exercising their powers under this Act, inspectors must, on request, show their designation document.

Duty to assist

22. The owner or person in charge of a place or conveyance that is entered by an inspector and every person found there must give the inspector all reasonable assistance to enable the inspector to exercise his or her powers and carry out his or her duties and provide the inspector with any information relevant to the administration of this Act that the inspector requires.


Investigations

Designation document to be produced

23. When exercising their enforcement powers, investigators must, on request, show their designation document.

Entry

24. When exercising their enforcement powers, investigators may enter on and pass through or over private property.


Disposition Of Things Seized

Notice of reason for seizure

25. An investigator or a peace officer who seizes rough diamonds or other things must, as soon as is practicable, advise their owner, or the person having the possession, care or control of them at the time of the seizure, of the reason for the seizure and that an application may be made for their return under subsection 27(4).

Storage or removal

26. The investigator or peace officer may store the rough diamonds or other things seized at the place where they were seized or remove them to a secure place for storage.

Duration of detention

27. (1) Subject to subsection (3), rough diamonds or other things seized may not be detained after

(a) an investigator determines that they meet the requirements of this Act; or

(b) the expiry of a period of 180 days after the day of their seizure.

Return of rough diamonds if no proceedings

(2) If no prosecution under this Act has been instituted on the expiry of the 180-day period, the rough diamonds or other things seized must be returned to their owner or the person having the possession, care or control of them at the time of their seizure.

Exception

(3) If a prosecution under this Act is instituted, the rough diamonds and other things seized may be detained until the proceedings are concluded.

Application for return

(4) If a prosecution under this Act is instituted and rough diamonds or other things have been seized but not forfeited, their owner or the person having the possession, care or control of them at the time of their seizure may apply to the court before which the proceedings are being held for an order that the rough diamonds or other things be returned.

Order

(5) After hearing the application, the court may order the rough diamonds or other things seized to be returned if the court is satisfied that sufficient evidence exists or may reasonably be obtained without further detaining them.

Return of rough diamonds on acquittal

(6) If the accused is acquitted, the court may order that the rough diamonds or other things seized be returned to their owner or the person having the possession, care or control of them at the time of their seizure.


Forfeiture

Forfeiture of rough diamonds and other things

28. If a person is convicted of an offence under this Act, the convicting court may, on its own motion or at the request of any party to the proceedings, in addition to any punishment imposed, order the forfeiture to Her Majesty in right of Canada of rough diamonds or other things seized, by means of or in relation to which the offence was committed.

Consensual forfeiture

29. If the owner of rough diamonds or other things seized consents at any time to their forfeiture, they are forfeited to Her Majesty in right of Canada.

Forfeiture certificate

30. If rough diamonds or other things are forfeited under this Act, the Minister shall provide their former owner or the person having the possession, care or control of them at the time they were seized with a forfeiture certificate.

Disposition of rough diamonds forfeited

31. Rough diamonds or other things forfeited under this Act must be disposed of in the manner prescribed by the regulations.

Return of things seized if no forfeiture

32. (1) If rough diamonds or other things seized are not forfeited under this Act, they must be returned to their owner or the person having the possession, care or control of them at the time of their seizure.

Exception

(2) If the owner of rough diamonds or other things seized or the person having the possession, care or control of them at the time of their seizure is convicted of an offence under this Act and a fine is imposed, the rough diamonds or other things may be retained until the fine is paid.


Liability For Costs

Liability for costs

33. (1) Persons convicted of an offence under this Act are jointly and severally, or solidarily, liable for all the costs relating to the seizure, detention or forfeiture of rough diamonds or other things incurred by Her Majesty in right of Canada in excess of the net proceeds of disposition, if any.

Debt due to Her Majesty

(2) The costs referred to in subsection (1) are debts due to Her Majesty, and proceedings to recover them may be instituted in a court of competent jurisdiction at any time within five years after the time they were incurred.


Regulations

Regulations

34. The Governor in Council may make any regulations that are necessary for carrying out the purposes or provisions of this Act, including regulations

(a) prescribing the fees payable for the issuance or replacement of a Canadian Certificate; and

(b) designating any place as a point of entry for importing rough diamonds or as a point of exit for exporting them.

Ministerial regulations

35. The Minister may make regulations

(a) prescribing the classes of diamonds to be excluded from the definition “rough diamond” in section 2;

(a.1) respecting the manner of submitting an application under subsection 9(1) or section 11 and specifying the information that must be included in it and the documents that must accompany it;

(b) specifying the content of Canadian Certificates and the period of their validity;

(c) respecting the place and manner of submitting a report under subsection 13(1) and specifying the information that must be included in it;

(d) respecting the place and manner of submitting a report under subsection 16(1) and specifying the information that must be included in the report and documents that must accompany it;

(e) prescribing the requirements for containers to be used for the export or import of rough diamonds;

(f) prescribing the records, books of account or other documents or data to be kept by persons who export or import rough diamonds, their form and content and the period during which they must be kept; and

(g) respecting the disposition of rough diamonds or other things that are forfeited under this Act, the persons to be notified of their disposition and the manner of the notification.

2002, c. 25, s. 35; 2005, c. 51, s. 6.

Previous Version

Offences And Punishment

False or misleading information, and misrepresentation

36. No person shall wilfully furnish any false or misleading information or knowingly make any misrepresentation in an application for a Canadian Certificate or in connection with any subsequent use of the certificate or the export or disposition of the rough diamonds to which it relates.

Forging or altering a Canadian Certificate

37. No person shall forge a Canadian Certificate or erase or alter information appearing on one.

Transfer, sale, etc., of a Canadian Certificate

38. No person shall transfer, assign, give, barter or sell a Canadian Certificate if the person knows or ought to know that it will be used for the export of rough diamonds other than those in respect of which it was issued.

Failing to maintain or falsifying records

39. No person shall, in order to avoid compliance with this Act,

(a) destroy, alter, mutilate, secrete or dispose of records, books of account or other documents or data that they are required to keep under the regulations;

(b) make false or deceptive entries in those records, books, documents or data; or

(c) omit a material particular from those records, books, documents or data.

Obstruction

40. No person shall interfere with an inspector who is doing, or hinder or prevent an inspector from doing, anything that the inspector is authorized to do under this Act.

Summary conviction offence

40.1 (1) Every person who contravenes subsection 13(1) or (2) or 16(1) or (2) or section 22 or 40 is guilty of an offence punishable on summary conviction.

Limitation period

(2) A prosecution under subsection (1) may be instituted not later than three years after the time when the subject-matter of the complaint arose.

Punishment

41. (1) Subject to subsection (2), every person who contravenes section 8 or 14 or any of sections 36 to 39 is guilty of

(a) an indictable offence and liable to a fine in an amount that is in the discretion of the court or to imprisonment for a term not exceeding 10 years, or to both; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding $25,000 or to imprisonment for a term not exceeding 12 months, or to both.

Defence

(2) No person may be convicted of an offence for contravening section 14 in relation to rough diamonds that the Minister has ordered returned under subsection 15(1).

Limitation period

(3) A prosecution under paragraph (1)(b) may be instituted not later than three years after the time when the subject-matter of the complaint arose.

Factors to be considered when imposing sentence

(4) If an offender is convicted or discharged, under section 730 of the Criminal Code, of an offence under this Act, the court sentencing or discharging the offender shall, in addition to considering any other relevant factors, consider the nature and value of the exported or imported rough diamonds that are the subject-matter of the offence.

Additional fine

(5) If a person has been convicted of an offence under this Act and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence, the court may order the person to pay an additional fine in an amount equal to the court’s determination of the amount of the monetary benefits.

Officers, etc., of corporations

42. If a corporation commits an offence under this Act, any officer or director of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

Applicant for Certificate for non-resident

43. If a Canadian Certificate is issued to a person who has applied for it for, on behalf of or for the use of another person who is not a resident of Canada and that other person commits an offence under this Act, the person who applied for the certificate is, whether or not the non-resident person has been prosecuted or convicted, guilty of the like offence and liable, on conviction, to the punishment provided for the offence, on proof that the act or omission constituting the offence took place with the knowledge or consent of the person who applied for the certificate or that the person who applied for it failed to exercise due diligence to prevent the commission of the offence.

Venue

44. Any proceeding in respect of an offence under this Act may be instituted, tried or determined in the province where the offence was committed or in the province in which the person charged with the offence is, resides or has an office or place of business at the time the proceedings are instituted.

Evidence

45. (1) The original or a copy of a bill of lading, customs form, commercial invoice or other document, in this section called a “shipping document”, is admissible in evidence in any prosecution under this Act in respect of rough diamonds if it appears from the shipping document that

(a) the rough diamonds were sent or shipped from Canada or came into Canada;

(b) a person, as shipper, consignor or consignee, sent or shipped the rough diamonds from Canada or brought the rough diamonds into Canada; or

(c) the rough diamonds were sent or shipped to a particular destination or person.

Proof of the facts

(2) In the absence of evidence to the contrary, a shipping document that is admissible in evidence under subsection (1) is proof of any of the facts set out in paragraph (1)(a), (b) or (c).

Review

45.1 (1) Three years after its coming into force, the Minister shall cause a review of the provisions and operation of this Act to be undertaken.

Report

(2) The Minister shall, within six months after causing a review to be undertaken pursuant to subsection (1), submit a report on the review to Parliament. If Parliament is not then sitting, the Minister shall submit the report to Parliament within the first 15 sitting days thereafter.


Coming Into Force

Coming into force

Schedule

(Sections 2 and 3)

Participants

Angola

Armenia

Australia

Bangladesh

Belarus

Botswana

Brazil

Canada

Central African Republic

China

Croatia

Democratic Republic of the Congo

European Community

Ghana

Guinea

Guyana

India

Indonesia

Israel

Japan

Laos

Lebanon

Lesotho

Liberia

Malaysia

Mauritius

Mexico

Namibia

New Zealand

Norway

Republic of the Congo

Russia

Sierra Leone

Singapore

South Africa

South Korea

Sri Lanka

Switzerland

Tanzania

Thailand

The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

Togo

Turkey

Ukraine

United Arab Emirates

United States of America

Vietnam

Zimbabwe

2002, c. 25, Sch.; SOR/2003-16, 25, 166, 335; SOR/2004-194; SOR/2006-177; SOR/2009-107.

Previous Version


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