FINA Committee Meeting
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CANADA
Standing Committee on Finance
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EVIDENCE
Tuesday, November 7, 2006
[Recorded by Electronic Apparatus]
[English]
Order, please.
Welcome, Mr. Martin. Thank you for being here. I understand that you have some associates who will be joining us shortly, but we'll commence pursuant to the order of reference of Tuesday, October 24, 2006, Bill C-25, An Act to amend to Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act.
My colleagues will proceed. I will ask you whether various clauses that have no amendments attached to them shall carry, but I will stop the proceedings at the point of amendment. We also have an understanding with Mr. McCallum, who is currently drafting an amendment, that we will revert back to the appropriate clause. Even though it may have carried, we will revert back to it if that is indeed where it is determined that that amendment should be placed.
With that understanding, shall clause 1 carry?
Yes, Mr. McCallum?
Okay, it's for clause 38. We'll get to that one.
(Clauses 1 and 2 agreed to on division)
(On clause 3)
The Chair: Clause 3 has an amendment submitted by Mr. Pacetti; however, such an amendment is inadmissible, being beyond the scope of the bill. I can read the ruling if Mr. Pacetti would wish. Otherwise, we'll proceed.
Clause 3 proposes, among other things, to make an amendment to proposed paragraph 5(l) of the application section of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to include departments or agents of Her Majesty that sell prescribed precious metals. This amendment proposes to also include in this section persons in the business of money lending, including “payday lenders”, persons or entities in the business of selling new and used motorized vehicles, as well as persons in the business of buying and selling precious metals, stones, and jewellery. This broadens the scope of the application of the bill.
According to page 654 of Marleau and Montpetit, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.” In my view, this amendment goes beyond the scope of Bill C-25 and is therefore inadmissible.
Can I just go with L-3? Can I delete L-1 and L-2? We did speak about “persons and entities engaged in the business of buying and selling precious metals, stones and jewellery”.
Let me just quote from the bill. The bill deals with “departments and agents of Her Majesty...that sell...precious metals”, and your attempt is to broaden it to include other persons clearly outside of that mandate, so the amendment is out of order because it is outside the scope of the bill.
Clause 6 has amendments, and each of our members has these in front of them.
Amendment G-1 is a government amendment. I need a mover for this amendment.
under section 8 of the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism shall also make a
(Amendment agreed to on division)
(Clause 6 as amended agreed to on division)
(Clause 7 agreed to on division)
(On clause 8)
We now have a series of amendments, and in this particular instance we have a line conflict, with two amendments dealing with the same lines in the bill: Liberal amendment L-2 and government amendment G-2. If G-2 is adopted, L-2 cannot be proceeded with. In the interests of fairness, what I propose to do is to allow discussion on both amendments simultaneously, because to allow discussion on G-2 would preclude a discussion on L-2. You have those amendments in front of you now.
Monsieur Paquette, Monsieur St-Cyr.
Amendments G-2 and L-2 deal with the same lines in the bill. Under our rules we can only amend the lines once. If we proceed with a discussion on G-2, that will preclude a discussion on Liberal amendment 2; therefore, I am inviting discussion on the two amendments simultaneously.
I'll invite the government person to speak to G-2, if they wish.
But first, welcome to our guests who have arrived.
Mr. Chairman, clause 8 of the bill, for those of you who are following in the bill, has a new proposed subsection 9.4(3) containing a definition of “correspondent banking relationship”. This definition refers to certain services provided in the context of correspondent banking relationships, including the provision of foreign exchange services. Since most foreign exchange transactions between banks are conducted outside the correspondent banking relationship, clause 8 would be amended by this proposal to remove the reference to “foreign exchange services”, because they mostly take place outside of the correspondent banking relationship.
The definition is also amended to refer to a relationship created by a correspondent banking relationship.
So this is quite technical, but I think it makes sense. I see nods of agreement.
Is there a consensus in support of amendment G-2, as it also includes the provisions proposed in L-2?
Someone has to move the amendment.
What we're trying to accomplish here by replacing line 21 on page 6 with “section 2 of the Bank Act and for authorized foreign companies within the meaning of section 2 of the Insurance Companies Act” is to address a problem that insurance companies have. They want even foreign companies to be included within the meaning of the Insurance Companies Act. They felt we weren't being inclusive, I believe, but I have to check my notes.
Could we ask the officials?
Sure. Briefly, I think what we would say is we would be prepared to accept this motion with one small change. Part (a) is acceptable as it makes a necessary technical change, in our opinion.
But on the last line of that motion, we would ask that it now read “with the requirements of sections 6, 6.1 and 9.6”. These refer to some of the requirements that are put on insurance companies in respect of their foreign operations. Proposed section 6 covers the record-keeping requirements, and proposed section 6.1 is the client ID requirement. Not having proposed section 6.1 in here would remove a client identification requirement on these companies, which is very important.
As part of the international standards, the Financial Action Task Force actually requires that financial institutions and intermediaries in the country have client identification and record-keeping requirements for their foreign branch subsidiaries.
The client identification portion is important as it allows the institutions to determine whether the activities of their clients may be suspicious, or may not be consistent with their profile. It can help them detect and determine suspicious behaviour and, eventually, potentially report transactions, so it's important to detect. It's part of the know-your-client practices.
I don't have anything here in my notes today, but does the rest of the bill require identification? I think it does, is that right?
[Inaudible--Editor]...or anyone else can propose to amend. I think you're simply saying that at proposed section 6.1, the last line--
[Translation]
I agree, but this is not an amendment, as there is nothing to amend. It's a matter of replacing 6, 6.1 and 9.6 with the same. Basically, it's question of deleting paragraph (b).
A member: 6.1 was added to paragraph (b)...
Mr. Thierry St-Cyr: Yes, but it's already in the bill.
Therefore, the purpose of Mr. McCallum's amendment is to delete paragraph(b) from the amendment.
[English]
Mr. McCallum is proposing an amendment to remove (b).
(Subamendment agreed to [See Minutes of Proceedings])
Basically what we're looking at here, if I recall, is the meaning of section 2 of the Bank Act on authorized foreign companies. We're adding again the Insurance Companies Act, which I believe is not there. It's not clear, again. It's for the authorized foreign companies that have to act within the meaning of section 2 and I think the Insurance Companies Act was not stated in the original bill. I think that's it, that's the extent of that amendment. It goes along the same lines as the previous amendment.
I'm not sure if the officials have a comment on that. Go ahead.
Similar to the previous amendment, we would recommend adding back in proposed section 6.1 for the client ID requirements at the end of that section.
Can we have an amendment from someone other than Mr. Pacetti on that? Mr. Savage, thank you.
(Subamendment agreed to [See Minutes of Proceedings])
(Amendment agreed to [See Minutes of Proceedings])
(Clause 8 as amended agreed to)
(Clauses 9 and 10 agreed to)
On clause 11)
It's the same thing, Mr. Chairman, just a technical amendment to note the change of nomenclature.
(Amendment agreed to [See Minutes of Proceedings]
(Clause 11 as amended agreed to on division)
(Clauses 12 to 16 inclusive agreed to on division)
(On clause 17)
Thank you.
(Amendment agreed to on division [See Minutes of Proceedings])
(Clause 17 as amended agreed to)
The Chair: It is unanimous. Thank you.
(Clauses 18 to 25 inclusive agreed to)
(On clause 26)
The Chair: On clause 26, we have amendment L-5, which is on page 13.
Mr. Pacetti.
Thank you, Mr. Chairman.
It looks like a long paragraph and a big amendment, but it's basically quite easy. The thrust of the bill is mainly for FINTRAC to be doing the analysis and then doing the reporting. Basically what I'm asking here is for Revenue Canada, every once in a while, to be allowed to request information from the centre, meaning FINTRAC. It's the same information that FINTRAC provides to CRA, but it's always based on the initiative of FINTRAC. In this clause, I want CRA to have the ability to ask FINTRAC under the same conditions, and if there's any doubt as to the information, they can also go to a court of law to ask for that permission. It's basically giving the same rules of play to CRA as it does to FINTRAC. It reads the same way as proposed paragraph 55(3)(b).
I'm not sure I'm stating it right, but basically it's on page 17, the top paragraph.
Thank you, Mr. Chairman.
Just to clarify for members of the committee, the Canada Revenue Agency right now is permitted under the law to submit a voluntary information report to FINTRAC where it is already investigating a case of potential tax evasion. FINTRAC then would do its own research within its database as to whether it had any information that was relevant, and if it did and if FINTRAC had reason to believe there was a case of money laundering or terrorist financing, they would then be allowed to disclose the information to the Canada Revenue Agency. But that test of money laundering and terrorist financing is a crucial one from a privacy and charter perspective, and I note that it is absent here.
Also, I would add that under the current legislation the Canada Revenue Agency can obtain a court order in order to get additional information for FINTRAC that might be relevant for an investigation.
Mr. Chairman, I don't disagree with what the officials are saying, but this is just to make it easier. I think the voluntary disclosure takes a little bit more time. From what we heard from FINTRAC, there is more emphasis on larger transactions, whereas CRA may be looking at smaller transactions. It's sometimes easier for CRA to request the information.
I am in no way requesting in this amendment that CRA have an open rein and just go crazy on the access to information. It is just to give an extra avenue for CRA to ask for information from FINTRAC. We're tying the hands of the agencies, and I'm just trying to alleviate some of the work that both these agencies have to do so that information is more easily accessible by the two agencies.
[Translation]
To my way of thinking, this amendment creates a loophole in the privacy mechanism provided for in the original legislation. As I recall, witnesses who testified about FINTRAC, the Financial Transactions and Reports Analysis Centre of Canada, explained the black box principle which restricts access to information to FINTRAC officials. If a voluntary statement is produced, FINTRAC officials analyse the data and, if there is any relevant information to report, then they report it.
I don't quite understand why the Canada Revenue Agency could directly request information about certain designated persons, when neither the RCMP nor the provincial police has the authority to do so.
Why is CRA the only agency with that authority? If the feeling is that the privacy protection mechanism doesn't work well, then everyone should be allowed to request information directly. Conversely, if the feeling is that this is a sound mechanism—and I believe that's the case—then it should apply to all agencies.
[English]
From questioning, because of the limited amount of time we had with FINTRAC—and we didn't have CRA appear—and from what I understood from FINTRAC, the materiality limit
[Translation]
the threshold is not the same for FINTRAC as it is for the CRA.
[English]
Sometimes the Revenue Agency is going to be testing certain transactions, and it will be easier for them to determine which ones they would like to see investigated, rather than the other way around.
[Translation]
That's even worse. If their threshold is even lower, then all the more reason not to provide them with information that otherwise they would not be able to access. If their criteria for using this information are even lower than those of the RCMP or some other agency, then there is even less justification for allowing them direct access to it.
The evidence will be the same, except that the threshold, in dollar terms, will be lower. FINTRAC will only analyse transactions exceeding $1 million or $2 million. In other words, perhaps Revenue Canada will analyse transactions of a lesser value than those analysed by FINTRAC.
I see that Ms. Lafleur is reacting to these comments. I'd like to hear more from her on the subject.
FINTRAC analyses all reported transactions; there is no $1 million threshold and some such thing. I repeat, FINTRAC analyses all reported transactions, and there is no threshold in place.
Perhaps CRA officials can respond directly to your question.
[English]
I'm sorry, Mr. Chair. I'm Denis Meunier. I'm the director general of enforcement and disclosures at the Canada Revenue Agency.
[Translation]
Thank you.
As Ms. Lafleur so clearly stated, in the case of transactions reported to FINTRAC, no threshold applies. Therefore, a FINTRAC official to whom a transaction is disclosed may find himself dealing with either small or large transactions. The information disclosed can vary widely. For example, CRA may receive information about a large number of individuals and several transactions. The threshold is no different for us than it is for a law enforcement agency to whom a disclosure has been made. All disclosures made to CRA are also made to law enforcement agencies because FINTRAC's main concern is money laundering or terrorist financing. CRA does not conduct criminal investigations into money laundering, but rather investigates cases of tax evasion.
There is no mention of a threshold in the amendment, or of money laundering, a key consideration in the drafting of this bill. As you also mentioned, Ms. Lafleur, CRA can also present what is known as a voluntary information report in cases where a criminal investigation has been launched into a particular matter. CRA can pass along this information to FINTRAC. If FINTRAC discovers information in its database about the target of the investigation, it has a duty to share that information—information about money laundering and tax evasion—not only with law enforcement officials, but with CRA as well.
I hope I've shed some light on this issue, Mr. Chairman.
In your opinion, does this amendment add anything here? If so, and if I understand correctly, we would need to change it to clearly include money laundering.
Indeed, but it's very clear that given the way in which the amendment is worded, it changes the whole spirit of the clause. CRA would have an advantage over law enforcement agencies, which would be somewhat inequitable. The aim of the amendment, namely to facilitate the exchange of information between the parties, is indeed sound. However,under the circumstances, CRA would have an advantage and that would, in my view, go against the very essence of the legislation.
[English]
I think what Thierry and others are saying is that this amendment would actually expand the ambit of FINTRAC beyond what it was meant to have. So I think we wouldn't want to do that without some pretty careful discussion and consultation. They are not a tax evasion body; they're a money laundering body, and I think we should leave it that way.
Are you ready for the vote?
(Amendment negatived on division)
(Clause 26 agreed to)
(Clauses 27 to 37 inclusive agreed to)
(On clause 38)
Now, Mr. McCallum has presented an amendment.
Mr. McCallum, I am going to rule your amendment out of order because it contradicts the Crown recommendations, which say specifically...and I could read them, but suffice it to say, in the manner and for the purposes set out in the measure....
Now, does everyone have Mr. McCallum's amendment? I want to explain my ruling, Mr. McCallum, to you and to committee members.
Mr. McCallum's amendment asked that clause 38 be amended by adding after line 3 on page 30:
The Security Intelligence Review Committee established by subsection...shall undertake a review
That review would clearly cost money, it would not be done for free, and because of that, Mr. McCallum, you're offending the royal recommendation in the preamble to the bill we received. On that basis, I will rule your amendment out of order.
My understanding is that this would be within the mandate of the Security Intelligence Review Committee and would not necessarily cost additional resources, so I don't agree with that point.
Well, I think if it costs money, it would be a minimal amount, and in return we're getting an amendment. All this does is this. The Security Intelligence Review Committee already reviews CSIS. It would also be asked to review FINTRAC, and there would be an annual report to Parliament to increase parliamentary scrutiny.
Actually, you're speaking now, sir, to your motion. If you wish to challenge my ruling, you're well within your right to do so. I invite you to do so, but we're not here to discuss your motion, which I've already ruled out of order.
There's no discussion on that.
Shall the chair's ruling stand?
(Chair's ruling overturned)
The Chair: The chair's ruling is defeated.
Mr. Pacetti, you can come and take over now.
Mr. McCallum, you may now speak to your motion.
Thank you, Mr. Chair.
Perhaps I already explained it, but I'll briefly do it again.
Just prior to my amendment, the bill says there will be a review of FINTRAC every five years. What I'm saying in this amendment is that the Security Intelligence Review Committee shall have an annual review of the operations of FINTRAC. This brings it under the ambit of this civilian oversight committee, which currently does something similar for CSIS and then does an annual report to Parliament. So there would be an increase in the degree of parliamentary oversight of FINTRAC.
As we heard from witnesses such as Senator Grafstein, this is what the Senate committee recommended. I also think it was agreed that with FINTRAC, as we discussed earlier, there always has to be a balance between privacy concerns and security concerns. The bill increases the powers of FINTRAC on the security side. To balance security against privacy, I think it's a good move to increase also the civilian surveillance.
I think it's positive to have parliamentary scrutiny. It wouldn't have a major negative effect on the ability of FINTRAC to carry out its operations, but it would allow parliamentarians, through the civilian oversight committee, to have a better handle on what FINTRAC was doing, and I think it would reduce the chances of abuses to privacy rights. We've seen recently that these can happen. I think this is a positive addition to the bill.
Thank you, Mr. Chair.
I didn't vote to overturn your ruling, Mr. Chair, although I did want it to be overturned, because I wanted to speak to this.
But I want to speak against this amendment. Just to give some quick history, this is the wrong group to be sending this to. In the last Parliament we did an extensive review of oversight of all of our intelligence agencies, including FINTRAC. This was in an ad hoc committee of both the Senate and the House established under the PCO. There was a bill before the House just before the election was called that set out a mechanism and a committee—again a joint committee of both Houses—that would have provided oversight not just to a single agency but to all of our intelligence agencies. We have about 12 of those in the country, FINTRAC being one of them.
I think it's a mistake to look to SIRC. They have a very limited mandate. Quite frankly, when you see some of the files that have gone through and then been reviewed by them.... Take the Air India one, for instance. You then have other agencies, or in that case a court, pointing out all of the deficiencies there were in front of CSIS. They simply don't have a broad enough mandate to take on the responsibilities that legislation would have provided. The current minister has indicated that once Justice O'Connor comes down with his second report, which is scheduled for the end of this month or early in December, either that bill or a similar bill will be reintroduced.
That's where the responsibility should go. Passing it over to SIRC I think generally would be useless, but more importantly, it would be saying that maybe it is the agency we should be using, and I don't believe it is. The parliamentary oversight should be done by parliamentarians, including the work that needs to be done with respect to FINTRAC.
Mr. McCallum's point is well taken; all the points he made about the need for that oversight are well taken. This just isn't the body it should go to.
Thank you.
In addition to that, I think the committee will know that FINTRAC is not an investigative body. SIRC oversees investigative bodies such as the RCMP and CSIS, but FINTRAC is not an investigative body.
In addition to that, FINTRAC has to table reports in the House of Commons and the Senate each year. It also tables an annual report on its operations. It is subject to audits by the Auditor General and also by the Treasury Board.
I can also point out that since FINTRAC was set up in November 2001 there have not been any unauthorized disclosures of information from FINTRAC either inside or outside of Canada, which I think suggests that the present regime is working very well.
I just have a question for you, Mr. Chair. One of the issues we dealt with earlier on, when FINTRAC was at committee to present a number of questions that went around the table, was with respect to trying to delve into some of the detailed analysis we would have liked to have, only to find out that a lot of this falls under disclosure and freedom of information and is therefore not accessible by the committee. I wondered how this motion would actually allow SIRC to access the varied materials or the very research and work that FINTRAC does that we are actually not allowed to see.
I listened very carefully to Mr. Comartin, and I agree with what he said, basically, but I'm still sticking with my proposed amendment because it's better than nothing. Right now on the table we have nothing. As and when something better and more powerful comes along, then I think one might amend this bill. Until such time as there is the kind of oversight you described, which may be better than what I am proposing, we don't have that, and there's no guarantee that we will have that.
So I continue to believe that this is better than the status quo. If something better comes along, maybe we'll revisit my proposal. But I would like my proposal to stand and to have us vote on it.
[Translation]
Following up on Mr. McCallum's comments, I'm not convinced either. I take my NDP colleague's arguments very seriously—I always take him very seriously—but at the same time, I have to admit that I don't have all the information I need.
So, we will vote in favour of the amendment, and if ever we see at the report stage that there is a better approach or that we are clearly off course, then we'll adjust our position. We prefer to clear the way for the amendment to be tabled and debated at the report stage. However, I have to say that we are not convinced. More than anything else, we're voting this way so as not to delay the debate.
[English]
Merci.
(Amendment agreed to on division [See Minutes of Proceedings])
(Clause 38 as amended agreed to on division)
(Clauses 39 to 47 inclusive agreed to on division)
Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
The Chair: Shall I report the bill to the House?
Mr. Comartin.
It's about how best to deal with this. We did hear from the credit union movement about the difficulty a number of their agencies are having in dealing with the complexity of this bill around reporting and doing identification, even. It's really quite demanding for small branches of the credit union movement.
Mr. Chair, my question around the point of order is whether it would be appropriate that this committee do a side report on that, recommending to the House that FINTRAC, or perhaps some other government department, take on the responsibility of providing additional resources to the--
You don't have a point of order. There are other means you might choose to utilize if you wish to raise this issue, but during debate on this bill is not one of them.
Shall the bill carry?
Some hon. members: Agreed.
The Chair: Shall I report the bill to the House as amended?
Some hon. members: Agreed.
Thank you, colleagues.
Some confusion has arisen in a couple of offices about the times of meetings. I encourage all members and their staff to make regular consultation with the clerk's office a part of their regime. I wish to avoid confusion at all costs. We do, as you know, sometimes change times and in the past have changed locations of meetings. I want to make sure that everyone is here whenever they possibly can be.
When's our next meeting, Madam Clerk?
It is Thursday from 10 o'clock to 1 o'clock. That's the next meeting.
Mr. Chair, just as a matter of general practice, can we do our very best not to change plans within a 24-hour window? Just where it is possible, try to provide 24 hours' notice.
We can, but how is that pertinent to anything? I notified everybody on Thursday of last week as to the time of this meeting.
I'm not suggesting it for anything that has transpired to this point. I mean moving forward. It's fine that we may have to check regularly with the clerk's office, but where possible, try to give 24 hours' notice.