An Act to amend the Criminal Code and the Cultural Property Export and Import Act

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An Act to amend the Criminal Code and the Cultural Property Export and Import Act

S.C. 2005, c. 40

Assented to 2005-11-25

An Act to amend the Criminal Code and the Cultural Property Export and Import Act

SUMMARY

This enactment amends the Criminal Code to prohibit certain offences, including theft, robbery, mischief and arson against cultural property protected under the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. Those amendments allow for the prosecution of such offences when committed outside Canada by Canadians.

It also amends the Cultural Property Export and Import Act to prohibit Canadians from illegally exporting or otherwise removing protected cultural property from an occupied territory. Those amendments allow for the prosecution of such offences when committed outside Canada by Canadians and provide for a mechanism for the restitution of cultural property.

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

R.S., c. C-46 CRIMINAL CODE

Marginal note:2001, c. 41, s. 2(1)

1. (1) Paragraph (a) of the definition “Attorney General” in section 2 of the Criminal Code is replaced by the following:

(a) subject to paragraphs (b.1) to (f), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy,

(2) The definition “Attorney General” in section 2 of the Act is amended by adding the following after paragraph (b):

(b.1) with respect to proceedings in relation to an offence under subsection 7(2.01), means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,

2. Section 7 of the Act is amended by adding the following after subsection (2):

Marginal note:Offences in relation to cultural property

(2.01) Despite anything in this Act or any other Act, a person who commits an act or omission outside Canada that if committed in Canada would constitute an offence under section 322, 341, 344, 380, 430 or 434 in relation to cultural property as defined in Article 1 of the Convention, or a conspiracy or an attempt to commit such an offence, or being an accessory after the fact or counselling in relation to such an offence, is deemed to have committed that act or omission in Canada if the person

(a) is a Canadian citizen;

(b) is not a citizen of any state and ordinarily resides in Canada; or

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is, after the commission of the act or omission, present in Canada.

Definition of “Convention”

(2.02) For the purpose of subsection (2.01), “Convention” means the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954. Article 1 of the Convention is set out in the schedule to the Cultural Property Export and Import Act.

3. Section 430 of the Act is amended by adding the following after subsection (4.1):

Marginal note:Mischief in relation to cultural property

(4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

R.S., c. C-51 CULTURAL PROPERTY EXPORT AND IMPORT ACT

4. The Cultural Property Export and Import Act is amended by adding the following after section 36:

CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT AND ITS PROTOCOLS

Marginal note:Definitions

36.1 (1) The following definitions apply in this section.

“Convention”

« convention »

“Convention” means the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954. Article 1 of the Convention is set out in the schedule.

“First Protocol”

« premier protocole »

“First Protocol” means the first protocol, done at The Hague on May 14, 1954, to the Convention.

“Second Protocol”

« deuxième protocole »

“Second Protocol” means the second protocol, done at The Hague on March 26, 1999, to the Convention.

“State Party”

« État partie »

“State Party” means a state that is a party to the Convention and the First or Second Protocol.

Marginal note:Export or removal of cultural property

(2) No person shall knowingly export or otherwise remove cultural property as defined in subparagraph (a) of Article 1 of the Convention from an occupied territory of a State Party to the Second Protocol, unless the export or removal conforms with the applicable laws of that territory or is necessary for the property’s protection or preservation.

Marginal note:Offence outside Canada deemed in Canada

(3) Despite anything in this Act or any other Act, a person who commits an act or omission outside Canada that if committed in Canada would constitute an offence under subsection (2), or a conspiracy or an attempt to commit such an offence, or being an accessory after the fact or counselling in relation to such an offence, is deemed to have committed that act or omission in Canada if the person

(a) is a Canadian citizen;

(b) is not a citizen of any state and ordinarily resides in Canada; or

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is, after the commission of the act or omission, present in Canada.

Marginal note:Action for recovery of cultural property

(4) If the government of a State Party submits a request in writing to the Minister for the recovery and return of any cultural property that has been exported from an occupied territory of that State Party and that is in Canada in the possession of or under the control of any person, institution or public authority, the Attorney General of Canada may institute an action in the Federal Court or in a superior court of a province for the recovery of the property by the State Party.

Marginal note:Notice

(5) Notice of the commencement of an action under this section on behalf of a State Party shall be served by the Attorney General of Canada on such persons and given in such manner as is provided by the rules of the court in which the action is taken, or, if the rules do not so provide, served on such persons and given in such manner as is directed by a judge of the court.

Marginal note:Order for recovery of cultural property

(6) The court in which an action has been taken under this section may, after affording all persons that it considers to have an interest in the action a reasonable opportunity to be heard, make an order for the recovery of the property in respect of which the action has been taken or any other order sufficient to ensure the return of the property to the State Party, if the court is satisfied that the property was exported in contravention of the applicable laws of the occupied territory of the State Party or was imported into Canada for its protection or preservation and that the amount fixed under subsection (7), if any, has been paid.

Marginal note:Compensation

(7) The court in which an action has been taken under this section may fix any amount that it considers just in the circumstances to be paid as compensation by the State Party to a person, institution or public authority that establishes to the satisfaction of the court that the person, institution or public authority is a bona fide purchaser for value or has a valid title to the property in respect of which the action has been taken and had no knowledge at the time the property was purchased or the title to the property was acquired that the property

(a) had been exported in contravention of the applicable laws of the occupied territory of the State Party; or

(b) had been imported into Canada for its protection or preservation.

Marginal note:Safe-keeping

(8) The court may, at any time in the course of an action under this section, order that the property in respect of which the action has been taken be turned over to the Minister for safe-keeping and conservation pending final disposition of the action.

Marginal note:Permit to export

(9) The Minister shall, on receipt of a copy of a court order made under subsection (6), issue a permit authorizing any person authorized by the State Party on behalf of which the action was taken to export the property in respect of which the order was made to that State.

Marginal note:Limitations inapplicable

(10) Section 39 of the Federal Courts Act does not apply in respect of any action taken under this section.

5. The portion of subsection 45(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Offences and punishment

45. (1) Every person who contravenes any of the provisions of subsection 36.1(2) and sections 40 to 44 is guilty of an offence and liable

6. The Act is amended by adding, after section 52, the schedule set out in the schedule to this Act.

COORDINATING AMENDMENT

Marginal note:2004, c. 3

7. On the later of the coming into force of this Act and the coming into force of section 1 of An Act to amend the Criminal Code (capital markets fraud and evidence-gathering), chapter 3 of the Statutes of Canada, 2004, paragraph (a) of the definition “Attorney General” in section 2 of the Criminal Code is replaced by the following:

(a) subject to paragraphs (b.1) to (g), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy,

SCHEDULE(Section 6)

SCHEDULE(Subsection 36.1(1))ARTICLE 1 OF THE CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT DONE AT THE HAGUE ON MAY 14, 1954

Article 1
Definition of Cultural Property

For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership:

(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in subparagraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);

(c) centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as “centres containing monuments”.

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