Excise Tax Act (R.S.C., 1985, c. E-15)

Marginal note:Warrant under Criminal Code

• 290.1 (1) For the purposes of this Part and subject to subsection (2), a warrant may be issued under subsection 487.01(1) of the Criminal Code to an authorized person even though that person is not a peace officer.

• Marginal note:Video surveillance not authorized

  (2) The warrant is not to authorize the observation of a person by means of a video camera or other similar electronic device.

Marginal note:Things seized

• 290.2 (1) Subsection (2) applies to an authorized person who has seized anything

  • (a) under a warrant issued under the Criminal Code;

  • (b) under section 487.11 or 489 of the Criminal Code; or

  • (c) in the execution of duties under this Part.

• Marginal note:Restitution of things seized and report

  (2) If the authorized person is satisfied that the circumstances set out in subparagraphs 489.1(1)(a)(i) and (ii) of the Criminal Code apply in respect of the thing seized, the authorized person is, as soon as practicable, to return the thing seized and report in accordance with paragraph 489.1(1)(a) of that Act.

Marginal note:Copies

• 291 (1) If any document is seized, inspected, audited, examined or provided under any of sections 276 and 288 to 290, the person by whom it is seized, inspected, audited or examined or to whom it is provided or any officer of the Canada Revenue Agency may make or cause to be made one or more copies of it and, in the case of an electronic document, make or cause to be made a print-out of the electronic document, and any document purporting to be certified by the Minister or an authorized person to be a copy of the document, or to be a print-out of an electronic document, made under this section is evidence of the nature and content of the original document and has the same probative force as the original document would have if it were proven in the ordinary way.

• Marginal note:Compliance

  (2) No person shall, physically or otherwise, do or attempt to do any of the following:

  • (a) interfere with, hinder or molest any official (in this subsection having the same meaning as in section 295) doing anything the official is authorized to do under this Part, or

  • (b) prevent any official from doing anything the official is authorized to do under this Part

  and every person shall, unless the person is unable to do so, do everything the person is required to do by or pursuant to subsection (1) or any of sections 288 to 290 and 292.

Marginal note:Meaning of foreign-based information or document

• 292 (1) For the purposes of this section, foreign-based information or document means any information or document that is available or located outside Canada and that may be relevant to the administration or enforcement of this Part, including the collection of any amount payable or remittable under this Part by any person.

• Marginal note:Requirement to provide foreign-based information

  (2) Despite any other provision of this Part, the Minister may, by a notice served or sent in accordance with subsection (3.1), require a person resident in Canada or a non-resident person that carries on business in Canada to provide any foreign-based information or document.

• Marginal note:Notice

  (3) A notice referred to in subsection (2) shall set out

  • (a) a reasonable period of time of not less than ninety days for the provision of the information or document;

  • (b) a description of the information or document being sought; and

  • (c) the consequences under subsection (8) to the person of the failure to provide the information or document being sought within the period of time set out in the notice.

• Marginal note:Notice

  (3.1) A notice referred to in subsection (2) may be

  • (a) served personally;

  • (b) sent by registered or certified mail; or

  • (c) sent electronically to a bank or credit union that has provided written consent to receive notices under subsection (2) electronically.

• Marginal note:Review of foreign information requirement

  (4) If a person is served or sent a notice of a requirement under subsection (2), the person may, within 90 days after the day on which the notice is served or sent, apply to a judge for a review of the requirement.

• Marginal note:Powers on review

  (5) On hearing an application under subsection (4) 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 document shall not be considered to be unreasonable because the information or document is under the control of or available to a non-resident person that is not controlled by the person on which the notice of the requirement under subsection (2) is served, or to which that notice is sent, if that person is related to the non-resident person.

• Marginal note:Time period not to count

  (7) The period of time between the day on which an application for the review of a requirement is made under subsection (4) and the day on which the application is finally disposed of shall not be counted in the computation of

  • (a) the period of time set out in the notice of the requirement; and

  • (b) the period of time within which an assessment may be made under section 296 or 297.

• Marginal note:Consequence of failure

  (8) If a person fails to comply substantially with a notice served or sent under subsection (2) and if 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 Part shall, on motion of the Minister, prohibit the introduction by that person of any foreign-based information or document covered by that notice.

Marginal note:Definitions

• 293 (1) In this section,

  custodian

  custodian means a person in whose custody a package is placed under subsection (3); (gardien)

  judge

  judge means a judge of a superior court having jurisdiction in the province where the matter arises or a judge of the Federal Court; (juge)

  lawyer

  lawyer means, in the Province of Quebec, an advocate, lawyer or notary and, in any other province, a barrister or solicitor; (avocat)

  officer

  officer means a person acting under the authority conferred by any of sections 276 and 288 to 291; (fonctionnaire)

  solicitor-client privilege

  solicitor-client privilege means the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person’s lawyer in professional confidence, except that, for the purposes of this section, an accounting record of a lawyer, including any supporting invoice, voucher or cheque, shall be deemed not to be such a communication. (privilège des communications entre client et avocat)

• Marginal note:Solicitor-client privilege defence

  (2) Where a lawyer is prosecuted for failure to comply with a requirement under section 289 with respect to information or a document, the lawyer shall be acquitted if the lawyer establishes to the satisfaction of the court that the lawyer

  • (a) believed on reasonable grounds that a client of the lawyer had a solicitor-client privilege in respect of the information or document; and

  • (b) communicated to the Minister, or to a person duly authorized to act for the Minister, the lawyer’s refusal to comply with the requirement, together with a claim that a named client of the lawyer had a solicitor-client privilege in respect of the information or document.

• Marginal note:Seizure where privilege claimed

  (3) Where, under section 290, an officer is about to seize a document in the possession of a lawyer and the lawyer claims that a named client of the lawyer has a solicitor-client privilege in respect of the document, the officer shall, without inspecting, examining or making copies of the document,

  • (a) seize the document and place it, together with any other document in respect of which the lawyer at the same time makes the same claim on behalf of the same client, in a package and suitably seal and identify the package; and

  • (b) place the package in the custody of the sheriff of the district or county in which the seizure was made or, if the officer and the lawyer agree in writing on a person to act as custodian, in the custody of that person.

• Marginal note:Retention where privilege claimed

  (4) If, under section 288, an officer is about to inspect or examine a document in the possession of a lawyer or if, under section 289, the Minister has required the provision of a document by a lawyer, and the lawyer claims that a named client of the lawyer has a solicitor-client privilege in respect of the document, no officer shall inspect or examine the document and the lawyer shall

  • (a) place the document, together with any other document in respect of which the lawyer at the same time makes the same claim on behalf of the same client, in a package and suitably seal and identify the package or, if the officer and the lawyer agree, allow the pages of the document to be initialed and numbered or otherwise suitably identified; and

  • (b) retain it and ensure that it is preserved until it is produced to a judge as required under this section and an order is issued under this section in respect of the document.

• Marginal note:Application to judge

  (5) Where a document is seized and placed in custody under subsection (3) or is retained under subsection (4), the client, or the lawyer on behalf of the client, may

  • (a) within fourteen days after the day the document was so placed in custody or began to be so retained apply, on three clear days notice of motion to the Deputy Attorney General of Canada, to a judge for an order

    • (i) fixing a day, not later than twenty-one days after the date of the order, and a place for the determination of the question whether the client has a solicitor-client privilege in respect of the document, and

    • (ii) requiring the production of the document to the judge at that time and place;

  • (b) serve a copy of the order on the Deputy Attorney General of Canada and, where applicable, on the custodian within six days after the day it was made and, within the same time, pay to the custodian the estimated expenses of transporting the document to and from the place of hearing and of safeguarding it; and

  • (c) if the client or lawyer has proceeded as authorized by paragraph (b), apply at the appointed time and place for an order determining the question.

• Marginal note:Disposition of application

  (6) An application made under paragraph (5)(c) shall be heard in camera and, on the application, the judge

  • (a) may, if the judge considers it necessary to determine the question, inspect the document and, if the judge does so, the judge shall ensure that it is repackaged and resealed; and

  • (b) shall decide the matter summarily, and if the judge is of the opinion that the client

    • (i) has a solicitor-client privilege in respect of the document, the judge shall order the release of the document to the lawyer, and

    • (ii) does not have a solicitor-client privilege in respect of the document, the judge shall order that

      • (A) the custodian deliver the document to the officer or some other person designated by the Commissioner in the case of a document that was seized and placed in custody under subsection (3), or

      • (B) the lawyer make the document available for inspection or examination by the officer or other person designated by the Commissioner in the case of a document that was retained under subsection (4),

      and shall, at the same time, deliver concise reasons in which the document shall be identified without divulging any of its details.

• Marginal note:Order on application

  (7) Where a document is seized and placed in custody under subsection (3) or is retained under subsection (4) and a judge, on the application of the Attorney General of Canada, is satisfied that neither the client nor the lawyer has made an application under paragraph (5)(a) or, having made such an application, that neither the client nor the lawyer has made an application under paragraph (5)(c), the judge shall order that

  • (a) the custodian deliver the document to the officer or some other person designated by the Commissioner in the case of a document that was seized and placed in custody under subsection (3); or

  • (b) the lawyer make the document available for inspection or examination by the officer or other person designated by the Commissioner in the case of a document that was retained under subsection (4).

• Marginal note:Delivery by custodian

  (8) The custodian shall deliver the document

  • (a) to the lawyer

    • (i) in accordance with a consent executed by the officer or by or on behalf of the Deputy Attorney General of Canada or the Commissioner, or

    • (ii) in accordance with an order of a judge under this section; or

  • (b) to the officer or some other person designated by the Commissioner

    • (i) in accordance with a consent executed by the lawyer or the client, or

    • (ii) in accordance with an order of a judge under this section.

• Marginal note:Continuation by another judge

  (9) Where the judge to whom an application is made under paragraph (5)(a) cannot for any reason act or continue to act in the application under paragraph (5)(c), the application under paragraph (5)(c) may be made to another judge.

• Marginal note:Costs

  (10) No costs may be awarded on the disposition of any application under this section.

• Marginal note:Directions

  (11) Where any question arises as to the course to be followed in connection with anything done or being done under this section, other than subsection (2), (3) or (4), and there is no direction in this section with respect thereto, a judge may give such direction with regard thereto as, in the judge’s opinion, is most likely to carry out the object of this section of allowing solicitor-client privilege for proper purposes.

• Marginal note:Prohibition

  (12) The custodian shall not deliver a document to any person except in accordance with an order of a judge or a consent under this section or except to any officer or servant of the custodian for the purposes of safeguarding the document.

• Marginal note:Idem

  (13) No officer shall inspect, examine or seize a document in the possession of a lawyer without giving the lawyer a reasonable opportunity to make a claim under this section.

• Marginal note:Copies

  (14) At any time while a document is in the custody of a custodian under this section, a judge may, on ex parte application of the lawyer, by order, authorize the lawyer to examine or make a copy of the document in the presence of the custodian or the judge, which order shall contain such provisions as may be necessary to ensure that the document is repackaged and that the package is resealed without alteration or damage.

• Marginal note:Waiver of privilege

  (15) Where, for the purpose of subsection (2), (3) or (4), a lawyer makes a claim that a named client of the lawyer has a solicitor-client privilege in respect of information or a document, the lawyer shall at the same time communicate to the Minister or to a person duly authorized to act for the Minister the address of the client last known to the lawyer so that the Minister may endeavour to advise the client of the claim of privilege that has been made on the client’s behalf and thereby give the client an opportunity, if it is practicable within the time limited by this section, to waive the claim of privilege before the matter is to be decided by a judge or other tribunal.

• Marginal note:Compliance

  (16) No person shall hinder, molest or interfere with any person doing anything that the person is authorized to do under this section or prevent or attempt to prevent any person doing any such thing and, notwithstanding any other Act or law, every person shall, unless the person is unable to do so, do everything the person is required to do under this section.