An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)

Marginal note:Unsubscribe mechanism — section 6

• 11 (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must

  • (a) enable the person to whom the commercial electronic message is sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message or the person — if different — on whose behalf the message is sent, using

    • (i) the same electronic means by which the message was sent, or

    • (ii) if using those means is not practicable, any other electronic means that will enable the person to indicate the wish; and

  • (b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.

• Marginal note:Period of validity of contact information

  (2) The person who sends the commercial electronic message and the person — if different — on whose behalf it is sent must ensure that the electronic address or World Wide Web page referred to in paragraph (1)(b) is valid for a minimum of 60 days after the message has been sent.

• Marginal note:Additional requirement

  (3) The person who sent the commercial electronic message and the person — if different — on whose behalf the message was sent must ensure that effect is given to an indication sent in accordance with paragraph (1)(b) without delay, and in any event no later than 10 business days after the indication has been sent, without any further action being required on the part of the person who so indicated.

• Marginal note:Withdrawal of consent — section 7

  (4) A person who has the express consent of the sender or the person to whom a message is sent to do any act described in section 7 must

  • (a) for the period covered by the consent, ensure that the person who gave their consent is provided with an electronic address to which they may send notice of the withdrawal of their consent; and

  • (b) ensure that effect is given to a notice of withdrawal of consent sent in accordance with paragraph (a) without delay, but in any event no later than 10 business days after receiving it.

• Marginal note:Withdrawal of consent — section 8

  (5) A person who has the express consent of an owner or authorized user to do any act described in section 8 must

  • (a) for a period of one year after any computer program that performs one or more of the functions described in subsection 10(5) but not referred to in subsection 10(6) is installed under the consent, ensure that the person who gave their consent is provided with an electronic address to which they may, if they believe that the function, purpose or impact of the computer program installed under the consent was not accurately described when consent was requested, send a request to remove or disable that computer program; and

  • (b) if the consent was based on an inaccurate description of the material elements of the function or functions described in subsection 10(5), on receipt within that one-year period of a request to remove or disable that computer program, without cost to the person who gave consent, assist that person in removing or disabling the computer program as soon as feasible.

Marginal note:Contravention of section 6

• 12 (1) A person contravenes section 6 only if a computer system located in Canada is used to send or access the electronic message.

• Marginal note:Contravention of section 7

  (2) A person contravenes section 7 only if a computer system located in Canada is used to send, route or access the electronic message.

Marginal note:Burden of proof

13 A person who alleges that they have consent to do an act that would otherwise be prohibited under any of sections 6 to 8 has the onus of proving it.

Administrative Monetary Penalties

Designation

Marginal note:Designated persons

14 For the purposes of any of sections 15 to 46, the Commission may designate persons or classes of persons appointed under section 8 of the Canadian Radio-television and Telecommunications Commission Act to exercise powers in relation to any matter referred to in the designation.

Preservation Demand

Marginal note:Preservation demand

• 15 (1) A person who is designated for the purpose of this section may cause a demand to be served on a telecommunications service provider requiring it to preserve transmission data that is in, or comes into, its possession or control.

• Marginal note:Expiry and revocation

  (2) Subject to subsection (5), the demand expires 21 days after the day on which it is served unless, before its expiry, a notice extending the demand for an additional period of 21 days is served on the telecommunications service provider. A demand may not be extended more than once and a notice revoking the demand may be served on the telecommunications service provider at any time.

• Marginal note:Purpose of demand

  (3) A person who is designated for the purpose of this section may make or extend a demand only for the purpose of one or more of the following:

  • (a) verifying compliance with this Act;

  • (b) determining whether any of sections 6 to 9 has been contravened; and

  • (c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

• Marginal note:Conditions to prevent disclosure

  (4) The designated person causing a demand to be served may impose conditions in the demand to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of

  • (a) an investigation under this Act; or

  • (b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

• Marginal note:Expiry and revocation of conditions

  (5) A condition imposed to prevent disclosure expires six months after the day on which the demand is served on the telecommunications service provider unless, before its expiry, a notice extending the condition for an additional period of six months is served on the telecommunications service provider. A condition may not be extended more than once and a notice revoking the condition may be served on the telecommunications service provider at any time.

• Marginal note:Preservation and destruction of transmission data

  (6) A telecommunications service provider that is served with a demand must

  • (a) subject to subsections 16(2) and (3), preserve the data until the demand expires or is revoked; and

  • (b) destroy the data that would not be retained in the normal course of business and any document that is prepared for the purpose of preserving data under this section as soon as the demand expires or is revoked, unless a notice requiring the production of a document based on that data has been served on it under section 17.

Marginal note:Application for review

• 16 (1) Within five business days after the day on which a demand is served, a telecommunications service provider may apply in writing to the Commission either for a review of the demand on the grounds that preservation of some or all of the data would place an undue burden on it or for a review of the conditions imposed to prevent disclosure.

• Marginal note:Powers of Commission

  (2) After considering any representations made by the telecommunications service provider and by the person designated for the purposes of section 15, the Commission may

  • (a) allow the application;

  • (b) deny the application; or

  • (c) vary, in any manner that the Commission considers reasonable in the circumstances,

    • (i) the requirement to preserve transmission data, or

    • (ii) any condition imposed in the demand.

• Marginal note:No obligation to preserve new data

  (3) If a telecommunications service provider applies for review on the grounds that preservation of some or all of the data would place an undue burden on it and the Commission does not make a decision in respect of that matter within five business days after the day on which the application was made, the telecommunications service provider is not required to preserve any data to which the application relates that comes into the telecommunications service provider’s possession or control after the expiry of the five days.

• Marginal note:Notice of decision

  (4) The Commission must cause a copy of its decision to be served on the telecommunications service provider together with a notice of their right to appeal.

Notice to Produce

Marginal note:Notice for production

• 17 (1) A person who is designated for the purpose of this section may cause a notice to be served on a person requiring them to produce a copy of a document that is in their possession or control, or to prepare a document based on data, information or documents that are in their possession or control and to produce that document.

• Marginal note:Purpose of notice

  (2) The designated person may issue the notice only for the purpose of one or more of the following:

  • (a) verifying compliance with this Act;

  • (b) determining whether any of sections 6 to 9 has been contravened; and

  • (c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

• Marginal note:Particulars of notice

  (3) The notice must require the document to be produced to a person named in the notice within the time, at the place and in the form specified in the notice.

• Marginal note:Conditions

  (4) The designated person may impose conditions in the notice to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of

  • (a) an investigation under this Act; or

  • (b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

• Marginal note:Expiry and revocation of conditions

  (5) A condition imposed to prevent disclosure expires six months after the day on which the notice is served on the person unless, before its expiry, a notice extending the condition for an additional period of six months is served on them. A condition may not be extended more than once and a notice revoking the condition may be served on the person at any time.

• Marginal note:Return of documents not required

  (6) Documents and copies of documents that are produced under this section need not be returned to the person who produced them.

Marginal note:Application for review

• 18 (1) At any time before they are required to produce a document, a person may apply in writing to the Commission either for a review of the notice on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances or that the production would disclose privileged information or for a review of the conditions imposed to prevent disclosure.

• Marginal note:No obligation to produce

  (2) If a person applies for review on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances, they are not required to prepare or produce the document.

• Marginal note:Powers of Commission

  (3) After considering any representations made by the applicant and by the person designated for the purposes of section 17, the Commission may

  • (a) allow the application;

  • (b) deny the application; or

  • (c) vary, in any manner that the Commission considers reasonable in the circumstances,

    • (i) the requirement to produce, or prepare and produce, a document, or

    • (ii) any condition imposed in the notice.

• Marginal note:Particulars

  (4) If the Commission decides to confirm the requirement to produce a document, it must specify in its decision that the document be produced to a person named in the decision within the time, at the place and in the form set out in the decision.

• Marginal note:Notice of decision

  (5) The Commission must cause a copy of its decision to be served on the person together with a notice of their right to appeal.

Warrants

Marginal note:Warrant

• 19 (1) On an ex parte application, a justice of the peace may issue a warrant authorizing a person who is designated for the purpose of this section and who is named in the warrant to enter a place if the justice is satisfied by information on oath that

  • (a) entry to the place is necessary to

    • (i) verify compliance with this Act,

    • (ii) determine whether any of sections 6 to 9 has been contravened, or

    • (iii) assist an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9; and

  • (b) if the place is a dwelling-house, entry has been refused or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

• Marginal note:Conditions in warrant

  (2) The warrant may contain any conditions that the justice considers appropriate, including conditions to protect privileged information.

• Marginal note:Powers in execution of warrant

  (3) Subject to the conditions specified in the warrant, in executing the warrant, the designated person may, for any purpose set out in subparagraphs (1)(a)(i) to (iii),

  • (a) examine anything that is found in the place;

  • (b) use any means of communication found in the place or cause it to be used;

  • (c) use any computer system found in the place — or cause it to be used — to examine data contained in, or available to, the system;

  • (d) prepare a document — or cause it to be prepared — based on the data;

  • (e) use any copying equipment — or cause it to be used — to make copies of documents;

  • (f) remove anything found in the place for examination or copying; and

  • (g) prohibit or limit access to all or part of the place.

• Marginal note:Assistance to designated persons

  (4) The owner of the place, the person in charge of the place and every person found in the place must give all assistance that is reasonably required to enable the designated person to execute the warrant and must provide any documents, data and information — including information establishing their identity — that are reasonably required for that purpose.

• Marginal note:Execution of warrant

  (5) A warrant must be executed between six o’clock in the morning and nine o’clock in the evening unless the justice authorizes its execution at another time.

• Marginal note:Entry onto private property

  (6) For the purpose of gaining entry to the place referred to in the warrant issued under subsection (1), the designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has the right to object to that use of the property and no warrant is required for entry onto the property, other than for entry to a dwelling-house.

• Marginal note:Persons accompanying designated person

  (7) A person may, at the designated person’s request, accompany the designated person to assist the designated person to gain entry to the place referred to in the warrant and is not liable for doing so.

• Marginal note:Use of force

  (8) In executing a warrant, a designated person must not use force unless they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.