Excise Act, 2001 (S.C. 2002, c. 22)
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Assented to 2002-06-13
Records and Information
Marginal note:Keeping records — general
206. (1) The following persons shall keep all records that are necessary to determine whether they have complied with this Act:
(a) every licensee or registrant;
(b) every person who is required under this Act to file a return;
(c) every person who makes an application for a refund that may be obtained under this Act; and
(d) every person who transports non-duty-paid packaged alcohol or a tobacco product that is not stamped.
Marginal note:Keeping records — tobacco growers and provincial tobacco marketing boards
(2) Every tobacco grower and every body established under provincial law for the marketing of raw leaf tobacco grown in the province shall keep records that will enable the determination of the amount of raw leaf tobacco grown, received or disposed of by them.
Marginal note:Minister may specify information
(3) The Minister may specify in writing the form a record is to take and any information that the record must contain.
Marginal note:Language and location of record
(4) Unless otherwise authorized by the Minister, a record shall be kept in Canada in English or French.
Marginal note:Electronic records
(5) Every person required under this Act to keep a record who does so electronically shall ensure that all equipment and software necessary to make the record intelligible are available during the retention period required for the record.
Marginal note:Inadequate records
(6) If a person fails to keep adequate records for the purposes of this Act, the Minister may, in writing, require the person to keep any records that the Minister may specify and the person shall keep the records specified by the Minister.
Marginal note:Period for retention
(7) Every person who is required to keep records shall retain them until the expiry of six years after the end of the year to which they relate or for any other period that may be prescribed.
Marginal note:Objection or appeal
207. (1) If a person who is required under this Act to keep records serves a notice of objection or is a party to an appeal or reference under this Act, the person shall retain every record that pertains to the subject-matter of the objection, appeal or reference until the objection, appeal or reference is finally disposed of.
Marginal note:Demand by Minister
(2) If the Minister is of the opinion that it is necessary for the administration or enforcement of this Act, the Minister may, by a demand served personally or by registered or certified mail, require any person required under this Act to keep records to retain those records for any period that is specified in the demand and the person shall comply with the demand.
Marginal note:Permission for earlier disposal
(3) A person who is required under this Act to keep records may dispose of them before the expiry of the period in respect of which they are required to be kept if written permission for their disposal is given by the Minister.
Marginal note:Requirement to provide records or information
208. (1) Despite any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act, by notice served personally or by registered or certified mail, require any person to provide the Minister, within any reasonable time that is stipulated in the notice, with
(a) any information or additional information, including a return under this Act; or
(b) any record.
Marginal note:Unnamed persons
(2) The Minister shall not impose on any person (in this section referred to as a “third party”) a requirement to provide information or any record relating to one or more unnamed persons unless the Minister first obtains the authorization of a judge under subsection (3).
Marginal note:Judicial authorization
(3) On ex parte application by the Minister, a judge may, subject to any conditions that the judge considers appropriate, authorize the Minister to impose on a third party a requirement relating to an unnamed person or more than one unnamed person (in this section referred to as the “group”) if the judge is satisfied by information on oath that
(a) the person or group is ascertainable; and
(b) the requirement is made to verify compliance by the person or persons in the group with any duty or obligation under this Act.
Marginal note:Service of authorization
(4) If an authorization is granted, it shall be served together with the notice referred to in subsection (1).
Marginal note:Review of authorization
(5) If an authorization is granted, a third party on whom a notice is served may, within 15 days after the service of the notice, apply to the judge who granted the authorization or, if that judge is unable to act, to another judge of the same court for a review of the authorization.
Marginal note:Powers on review
(6) On hearing an application under subsection (5), a judge may
(a) cancel the authorization previously granted if the judge is not then satisfied that the conditions in paragraphs (3)(a) and (b) have been met; or
(b) confirm or vary the authorization if the judge is satisfied that those conditions have been met.
Marginal note:Compliance order
209. (1) On summary application by the Minister, a judge may, despite section 224, order a person to provide any access, assistance, information or record sought by the Minister under section 208 or 260 if the judge is satisfied that
(a) the person was required under section 208 or 260 to provide the access, assistance, information or record and did not do so; and
(b) in the case of information or a record, the information or record is not protected from disclosure by solicitor-client privilege.
Marginal note:Notice required
(2) An application must not be heard before the end of five clear days from the time the notice of application is served on the person against whom the order is sought.
Marginal note:Judge may impose conditions
(3) The judge making an order may impose any conditions in respect of the order that the judge considers appropriate.
Marginal note:Contempt of court
(4) If a person fails or refuses to comply with an order, a judge may find the person in contempt of court and the person is subject to the processes and the punishments of the court to which the judge is appointed.
Marginal note:Appeal
(5) An order by a judge may be appealed to a court having appellate jurisdiction over decisions of the court to which the judge is appointed. An appeal does not suspend the execution of the order unless it is so ordered by a judge of the court to which the appeal is made.
Marginal note:Scope of solicitor-client privilege
(6) For the purposes of paragraph (1)(b), an accounting record of a legal counsel and any invoice, voucher or cheque that relates to the record is deemed not to be protected from disclosure by solicitor-client privilege.
Meaning of “foreign-based information or record”
210. (1) In this section, “foreign-based information or record” means any information or record that is available or located outside Canada and that may be relevant to the administration or enforcement of this Act.
Marginal note:Requirement to provide foreign-based information
(2) Despite any other provision of this Act, the Minister may, by notice served personally or by registered or certified mail, require a person resident in Canada or a non-resident person who carries on business in Canada to provide any foreign-based information or record.
Marginal note:Notice
(3) The notice shall set out
(a) a reasonable period of not less than 90 days for the provision of the information or record;
(b) a description of the information or record being sought; and
(c) the consequences under subsection (8) to the person of the failure to provide the information or record being sought within the period set out in the notice.
Marginal note:Review of foreign information requirement
(4) The person on whom a notice of a requirement is served may, within 90 days after the service of the notice, apply to a judge for a review of the requirement.
Marginal note:Powers on review
(5) On hearing an application in respect of a requirement, a judge may
(a) confirm the requirement;
(b) vary the requirement if satisfied that it is appropriate in the circumstances; or
(c) set aside the requirement if satisfied that it is unreasonable.
Marginal note:Requirement not unreasonable
(6) For the purposes of subsection (5), a requirement to provide information or a record shall not be considered to be unreasonable because the information or record is under the control of or available to a non-resident person that is not controlled by the person served with the notice of the requirement if that person is related to the non-resident person.
Marginal note:Time during consideration not to count
(7) The period between the day on which an application for the review of a requirement is made and the day on which the review is decided shall not be counted in the computation of
(a) the period set out in the notice of the requirement; and
(b) the period within which an assessment may be made under section 188 or 189.
Marginal note:Consequence of failure
(8) If a person fails to comply substantially with a notice served under subsection (2) and the notice is not set aside under subsection (5), any court having jurisdiction in a civil proceeding relating to the administration or enforcement of this Act shall, on the motion of the Minister, prohibit the introduction by that person of any foreign-based information or record described in that notice.
Marginal note:Definitions applicable to confidentiality provisions
211. (1) The definitions in this subsection apply in this section.
“authorized person”
« personne autorisée »
“authorized person” means a person who is engaged or employed, or who was formerly engaged or employed, by or on behalf of Her Majesty to assist in carrying out the provisions of this Act.
“business number”
« numéro d’entreprise »
“business number” means the number (other than a Social Insurance Number) used by the Minister to identify
(a) a licensee or a registrant for the purposes of this Act; or
(b) an applicant for a refund under this Act.
“confidential information”
« renseignement confidentiel »
“confidential information” means information of any kind and in any form that relates to one or more persons and that is
(a) obtained by or on behalf of the Minister for the purposes of this Act; or
(b) prepared from information referred to in paragraph (a).
It excludes information that does not directly or indirectly reveal the identity of the person to whom it relates.
“court of appeal”
« cour d’appel »
“court of appeal” has the same meaning as in section 2 of the Criminal Code.
“official”
« fonctionnaire »
“official” means a person who is employed in the service of, who occupies a position of responsibility in the service of, or who is engaged by or on behalf of, Her Majesty or Her Majesty in right of a province, or a person who was formerly so employed, who formerly occupied such a position or who formerly was so engaged.
Marginal note:Provision of information
(2) Except as authorized under this section, no official shall knowingly
(a) provide, or allow to be provided, to any person any confidential information;
(b) allow any person to have access to any confidential information; or
(c) use any confidential information other than in the course of the administration or enforcement of this Act.
Marginal note:Confidential information evidence not compellable
(3) Despite any other Act of Parliament or other law, no official shall be required, in connection with any legal proceedings, to give or produce evidence relating to any confidential information.
Marginal note:Communications if proceedings have been commenced
(4) Subsections (2) and (3) do not apply to
(a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament; or
(b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan, the Employment Insurance Act, the Unemployment Insurance Act or any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty.
Marginal note:Authorized provision of information
(5) The Minister may provide appropriate persons with any confidential information that may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual or to the environment in Canada or any other country.
Marginal note:Disclosure of personal information
(6) An official may
(a) provide any confidential information to any person that may reasonably be regarded as necessary for the purpose of the administration or enforcement of this Act, solely for that purpose;
(b) provide a person with confidential information that can reasonably be regarded as necessary for the purposes of determining any liability or obligation of the person or any refund or other payment to which the person is or may become entitled under this Act;
(c) provide, allow to be provided, or allow inspection of or access to any confidential information to or by any person, or any person within a class of persons, that the Minister may authorize, subject to any conditions that the Minister may specify;
(d) provide any person who is legally entitled under an Act of Parliament to confidential information with, or access to, that information, solely for the purposes for which the person is entitled to the information;
(e) provide confidential information
(i) to an official of the Department of Finance solely for the purpose of the formulation or evaluation of fiscal policy,
(ii) to an official solely for the purpose of the initial implementation of a fiscal policy or for the purposes of the administration or enforcement of the Canada Pension Plan, the Employment Insurance Act, the Unemployment Insurance Act or an Act of Parliament that provides for the imposition or collection of a tax or duty,
(iii) to an official solely for the purposes of the administration or enforcement of a law of a province that provides for the imposition or collection of a tax or duty,
(iv) to an official of the government of a province solely for the purpose of the formulation or evaluation of fiscal policy,
(v) to an official of a department or agency of the Government of Canada or of a province as to the name, address, occupation, size or type of business of a person, solely for the purpose of enabling the department or agency to obtain statistical data for research and analysis,
(vi) to an official solely for the purpose of setting off, against any sum of money that may be due or payable by Her Majesty, a debt due to
(A) Her Majesty, or
(B) Her Majesty in right of a province on account of taxes payable to the province, if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province, or
(vii) to an official solely for the purposes of section 7.1 of the Federal-Provincial Fiscal Arrangements Act;
(f) provide confidential information solely for the purposes of sections 23 to 25 of the Financial Administration Act;
(g) use confidential information to compile information in a form that does not directly or indirectly reveal the identity of the person to whom the information relates;
(h) use, or provide any person with, confidential information solely for a purpose relating to the supervision, evaluation or discipline of an authorized person by Her Majesty in respect of a period during which the authorized person was employed by or engaged by or on behalf of Her Majesty to assist in the administration or enforcement of this Act, to the extent that the information is relevant for that purpose;
(i) use confidential information relating to a person to provide that person with information;
(j) provide the business number, name, address, telephone number and facsimile number of a holder of a business number to an official of a department or agency of the Government of Canada or of a province solely for the purposes of the administration or enforcement of an Act of Parliament or a law of a province, if the holder of the business number is required under that Act or that law to provide the information (other than the business number) to the department or agency; or
(k) provide confidential information to a police officer (within the meaning assigned by subsection 462.48(17) of the Criminal Code) solely for the purpose of investigating whether an offence has been committed under the Criminal Code, or the laying of an information or the preferring of an indictment, if
(i) the information can reasonably be regarded as being relevant for the purpose of ascertaining the circumstances in which an offence under the Criminal Code may have been committed, or the identity of the person or persons who may have committed an offence, with respect to an official, or with respect to any person related to that official,
(ii) the official was or is engaged in the administration or enforcement of this Act, and
(iii) the offence can reasonably be considered to be related to that administration or enforcement.
Marginal note:Measures to prevent unauthorized use or disclosure
(7) The person presiding at a legal proceeding relating to the supervision, evaluation or discipline of an authorized person may order any measures that are necessary to ensure that confidential information is not used or provided to any person for any purpose not relating to that proceeding, including
(a) holding a hearing in camera;
(b) banning the publication of the information;
(c) concealing the identity of the person to whom the information relates; and
(d) sealing the records of the proceeding.
Marginal note:Disclosure to person or on consent
(8) An official may provide confidential information relating to a person
(a) to that person; and
(b) with the consent of that person, to any other person.
Marginal note:Appeal from order or direction
(9) An order or direction that is made in the course of or in connection with any legal proceedings and that requires an official to give or produce evidence relating to any confidential information may, by notice served on all interested parties, be appealed immediately by the Minister or by the person against whom it is made to
(a) the court of appeal of the province in which it is made, in the case of an order or direction made by a court or other tribunal established under the laws of the province, whether that court or tribunal is exercising a jurisdiction conferred by the laws of Canada; or
(b) the Federal Court of Appeal, in the case of an order or direction made by a court or other tribunal established under the laws of Canada.
Marginal note:Disposition of appeal
(10) The court to which an appeal is taken may allow the appeal and quash the order or direction appealed from or may dismiss the appeal, and the rules of practice and procedure from time to time governing appeals to the courts shall apply, with any modifications that the circumstances require, in respect of the appeal.
Marginal note:Stay
(11) An appeal shall stay the operation of the order or direction appealed from until judgment is pronounced.
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