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Agreement between the Government of Canada and the Government of the United Kingdom of Great Britain and Northern Ireland regarding the Sharing of Forfeited or Confiscated Assets or their Equivalent Funds [2001] CATSer 8 (21 February 2001)

E103846 - CTS 2001 No. 9

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND REGARDING THE SHARING OF FORFEITED OR CONFISCATED ASSETS OR THEIR EQUIVALENT FUNDS

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND hereinafter referred to as “the Parties”,

CONSIDERING the commitment of the Parties to co-operate on the basis of the Treaty between the Government of Canada and the Government of the United Kingdom of Great Britain and Northern Ireland on Mutual Assistance in Criminal Matters, signed at Ottawa on June 22 1988, as amended by the Exchange of Notes signed at London on March 26 1992, as well as on the basis of the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on December 20, 1988; Recommendations 38 and 39 of the Financial Action Task Force’s 40 Recommendations; and Article 28 of The Harare Scheme on Mutual Assistance in Criminal Matters;

DESIRING to improve the effectiveness of law enforcement in both countries in the investigation, prosecution and suppression of crime and in the tracing, freezing, seizure and forfeiture or confiscation of assets related to crime; and

DESIRING also to create a framework for sharing the proceeds of disposition of such assets;

HAVE AGREED as follows:

ARTICLE I

Interpretation

In this Agreement:

(a) references to “forfeiture” or “confiscation” shall be taken to be references to any procedure under national law resulting in:

(i) in the case of Canada, an order of forfeiture of assets related to crime or an order for the payment of funds equivalent to a forfeiture, made on behalf of Her Majesty the Queen in right of Canada; and

(ii) in the case of the United Kingdom of Great Britain and Northern Ireland, a confiscation order which is made by a court and which is not, or is no longer, capable of being the subject of any form of appeal proceedings;

(b) references to “co-operation” (other than references in the title of the Judicial Co-operation Unit of the Home Office) shall be taken to be references to any assistance, including intelligence, operational, legal or judicial assistance, which has been given by one Party and which has contributed to, or significantly facilitated, forfeiture or confiscation in the territory of the other Party;

(c) references to “assets” shall be taken to be references to assets which are in the possession of a Party, and which comprise the net proceeds realised as a result of forfeiture or confiscation, after deduction of the costs of realisation;

and the provisions of this Agreement are to be interpreted accordingly.

ARTICLE 2

Circumstances in which Assets may be Shared

In any case in which a Party is in possession of assets, and it appears to that Party (‘the Holding Party’) that co-operation has been given by the other Party, the Holding Party may, at its discretion and in accordance with its domestic laws, share those assets with that other Party (‘the Co-operating Party’).

ARTICLE 3

Requests for Asset Sharing

1. A request for asset sharing may be made by a Party which has co-operated with the Holding Party, and shall be made in accordance with the provisions of this Agreement.

2. A request made under paragraph 1 of this Article shall set out the circumstances of the co-operation to which it relates, and shall include sufficient details to enable the Holding Party to identify the case, the assets, and the agency or agencies involved.

3. On receipt of a request for asset sharing made in accordance with the provisions of this Article, the Holding Party shall:

(a) consider whether to share assets as set out in Article 2 of this Agreement, and

(b) inform the Party making the request of the outcome of that consideration.

ARTICLE 4

Allocation of Shares

Where the Holding Party proposes to share assets with the Co-operating Party, it shall:

(a) determine, at its discretion and in accordance with its domestic law, the proportion of the assets to be shared which, in its view, represents the extent of the co-operation given by the Co-operating Party, and

(b) pay a sum equivalent to that proportion to the Co-operating Party in accordance with Article 5 of this Agreement.

ARTICLE 5

Payment of Shared Assets

1. Any sum paid pursuant to Article 4 (b) of this Agreement shall be paid:

(a) in the currency of the Holding Party, and

(b) by means of an electronic funds transfer or cheque,

unless the Parties decide otherwise.

2. Payment of any such sum shall be made:

(a) in any case in which Canada is the Co-operating Party, to the Receiver General of Canada (Proceeds Account), and sent to the Director of the Seized Property Management Directorate, and

(b) in any case in which the United Kingdom of Great Britain and Northern Ireland is the Co-operating Party, to the Home Office Accounting Officer, and sent to the Head of the Confiscation Policy Section, Judicial Co­operation Unit, Home Office;

or to such other recipient or recipients as the Co-operating Party may from time to time specify by notification for the purposes of this Article.

ARTICLE 6

Imposition of Conditions

Where it pays any sum pursuant to Article 4 (b) of this Agreement, the Holding Party may not impose on the Co-operating Party any conditions as to the use of that sum, and in particular may not require the Co-operating Party to share the sum with any other state, government, organisation or individual.

ARTICLE 7

Channels of Communication

Save where otherwise indicated by this Agreement, all communications between the Parties pursuant to the provisions of this Agreement shall be conducted:

(a) on the part of Canada, by the Director of the Strategic Prosecution Policy Section, and

(b) on the part of the United Kingdom of Great Britain and Northern Ireland, by the United Kingdom Central Authority, Judicial Co-operation Unit, Home Office

or by such other nominees as the Parties may from time to time for their own part specify by notification for the purposes of this Article.

ARTICLE 8

Territorial Application

This Agreement shall apply:

(a) in relation to the United Kingdom:

(i) to England and Wales, Scotland and Northern Ireland; and

(ii) to any territory for the international relations of which the United Kingdom is responsible and to which this Agreement shall have been extended, subject to any modifications agreed between the Parties. Such extension may be terminated by either Party by giving six months written notice to the other through the diplomatic channel;

(b) to the territory of Canada.

ARTICLE 9

Entry into Force

This Agreement shall enter into force upon signature by both Parties.

ARTICLE 10

Termination of Agreement

Either Party may terminate this Agreement, at any time, by giving written notice to the other Party. Termination shall become effective six months after receipt of the notice.

IN WITNESS WHEREOF the undersigned, being duly authorised by their respective governments, have signed this Agreement.

DONE in duplicate at London, this 21st day of February 2001, in the English and French languages, each text being equally authentic.

FOR THE GOVERNMENT OF CANADA

Robert Rochon

FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

Patricia Scotland