Foreign Publishers Advertising Services Act (S.C. 1999, c. 23)

Short Title

Marginal note:Short title

1 This Act may be cited as the Foreign Publishers Advertising Services Act.

Interpretation

Marginal note:Definitions

2 The definitions in this section apply in this Act.

advertising services

advertising services means the supply by a foreign publisher, for payment, of

• (a) advertising space in a periodical that the publisher produces or publishes, or the opportunity to have advertising material accompany such a periodical; and

• (b) access to a target market of consumers. (services publicitaires)

Canadian

Canadian means

• (a) a Canadian citizen;

• (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

• (c) a Canadian government, whether federal, provincial or local, or an agency of such a government;

• (d) a partnership, trust or joint venture in which a person or any combination of persons referred to in paragraph (a), (b), (c) or (e) beneficially owns or controls, directly or indirectly, interests representing in value more than half of the total value of the assets of the partnership, trust or joint venture, as the case may be;

• (e) a Canadian corporation; and

• (f) a non-profit organization in which more than half of its members are persons referred to in paragraph (a) or (b). (Canadien)

Canadian advertiser

Canadian advertiser means a person or an entity, whether an individual, a corporation, a partnership, a trust, a joint venture, a government, a government agency, an association or a non-profit organization, that

• (a) pays, directly or indirectly, for advertising services relating to their products and services;

• (b) has a place of business in Canada;

• (c) has at least one individual in Canada who is employed or self-employed in connection with their business; and

• (d) has assets in Canada that are used in carrying on their business. (annonceur canadien)

Canadian corporation

Canadian corporation means a corporation

• (a) that is incorporated under the laws of Canada or a province;

• (b) whose principal place of business is in Canada;

• (c) whose chairperson or other presiding officer and more than half of whose directors or other similar officers are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

• (d) in the case of a corporation with share capital, of which Canadians beneficially own or control, other than by way of shares held only as security, directly or indirectly, in the aggregate more than half of all the issued and outstanding voting shares representing more than half of the votes; and

• (e) in the case of a corporation without share capital, of which Canadians beneficially own or control, directly or indirectly, interests representing in value more than half of the total value of the assets. (société canadienne)

directed at the Canadian market

directed at the Canadian market, in relation to advertising services, means that the target market related to those advertising services consists primarily of consumers in Canada. (services publicitaires destinés au marché canadien)

foreign publisher

foreign publisher means a person who supplies advertising services by means of a periodical that they have the right to produce or publish and who is not a Canadian. (éditeur étranger)

Minister

Minister means the member of the Queen’s Privy Council for Canada that the Governor in Council designates as the Minister for the purposes of this Act. (ministre)

periodical

periodical means a printed publication that appears in consecutively numbered or dated issues, published under a common title, usually at regular intervals, not more than once every week, excluding special issues, and at least twice every year. It does not include a catalogue, a directory, a newsletter or a newspaper. (périodique)

voting share

voting share means a share of any class of shares of a corporation carrying voting rights under all circumstances or by reason of an event that has occurred and is continuing or by reason of a condition that has been fulfilled. It includes

• (a) a security that is convertible into such a share at the time of making a calculation of the percentage of shares owned or controlled by Canadians; and

• (b) an option or a right to acquire such a share, or the security referred to in paragraph (a), that is exercisable at the time of making the calculation referred to in that paragraph. (action avec droit de vote)

Prohibition

Marginal note:Supplying advertising services

• 3 (1) No foreign publisher shall supply advertising services directed at the Canadian market to a Canadian advertiser or a person acting on their behalf.

• Marginal note:Deemed foreign publisher — licensee

  (2) For the purpose of this Act, a person who produces or publishes a periodical or a substantial part of a periodical under licence or other authority granted, directly or indirectly, by a foreign publisher is deemed to be a foreign publisher.

• Marginal note:Deemed foreign publisher — control

  (3) For the purpose of this Act, a person who supplies advertising services by means of a periodical that they have the right to produce or publish and who is controlled in any manner by a person or entity that is not a Canadian that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, an agreement, an arrangement or otherwise, is deemed to be a foreign publisher.

• Marginal note:Members deemed non-Canadian

  (4) In a prosecution for an offence under subsection (1), each member of either of the following is deemed not to be a Canadian:

  • (a) a partnership, trust or joint venture that is non-Canadian by virtue of the application of paragraph (d) of the definition Canadian in section 2; or

  • (b) a non-profit organization that is non-Canadian by virtue of the application of paragraph (f) of the definition Canadian in section 2.

• Marginal note:Deemed acting on behalf of Canadian advertiser

  (5) For the purpose of subsection (1), an agent or a representative of a Canadian advertiser or a person or entity not dealing at arm’s length with a Canadian advertiser who obtains in their own name, in Canada or elsewhere, advertising services supplied by a foreign publisher is deemed to be acting on behalf of that Canadian advertiser.

• Marginal note:Arm’s length

  (6) For the purpose of subsection (5),

  • (a) related persons are deemed not to deal with each other at arm’s length; and

  • (b) it is a question of fact whether persons not related to each other deal with each other at arm’s length.

• Marginal note:Related persons

  (7) For the purpose of subsection (6), persons are related to each other if they are related persons within the meaning of subsections 251(2) to (6) of the Income Tax Act, except that

  • (a) references in those subsections to “corporation” are to be read as references to “corporation, partnership or joint venture”; and

  • (b) references in those subsections to “shares” and “shareholders”, in relation to a partnership or joint venture, are to be read as references to “rights” and “members”, respectively.

Investigations

Marginal note:Power to investigate

• 4 (1) The Minister may cause any investigation that the Minister considers necessary to be made into an alleged supply of advertising services in contravention of section 3.

• Marginal note:Designation of investigator

  (2) The Minister may designate any person to carry out an investigation under this section and shall furnish them with a certificate of that designation in a form that the Minister may specify. The investigator shall, on request, produce the certificate to any person in charge of a place under investigation.

Marginal note:Search warrant and powers of investigators

• 5 (1) An investigator may, under a warrant issued under section 487 of the Criminal Code with any modifications that the circumstances require, enter any place and make any investigation that the investigator considers necessary. For that purpose, the investigator may

  • (a) require any person to provide the investigator with any documents, whether in physical or electronic form, that the investigator believes may contain information that is relevant to the investigation in order that the investigator may examine or copy them;

  • (b) inquire into any negotiations, transactions, arrangements or operations related to the supply of advertising services to a Canadian advertiser that appear relevant to the investigation; and

  • (c) administer oaths and take and receive affidavits, declarations and solemn affirmations.

• Marginal note:Return of things obtained

  (2) Anything obtained by an investigator conducting an investigation under this section shall be returned as soon as practicable after it is no longer required for the investigation or any proceedings that may result from it.

Marginal note:Obstruction of investigator

6 No person shall obstruct or hinder, or make any false or misleading statement in a material respect to, an investigator who is carrying out functions under this Act.

Ministerial Demands and Judicial Proceedings

Marginal note:Ministerial demand

• 7 (1) The Minister may send a demand to a foreign publisher if the Minister believes that the foreign publisher

  • (a) has supplied advertising services in contravention of section 3 or otherwise contravened this Act; or

  • (b) has entered into a transaction or an arrangement that, if carried into effect, would or would be likely to lead to a contravention of this Act.

• Marginal note:Contents of demand

  (2) The Minister may, in the demand, require the foreign publisher, without delay or within a period specified in the demand,

  • (a) to stop supplying advertising services in contravention of section 3 or to otherwise stop contravening this Act;

  • (b) not to execute the transaction or finalize the arrangement; or

  • (c) to show cause why no contravention of this Act has occurred or will occur.

• Marginal note:Nature of proceedings

  (3) The demand shall indicate the nature of proceedings under this Act that may be taken against the foreign publisher if the foreign publisher fails to comply with the demand.

Marginal note:Application for court order

• 8 (1) The Minister may apply to a superior court of a province or the Federal Court for an order against a foreign publisher who fails to comply with a demand.

• Marginal note:Orders

  (2) If a court concludes, after hearing an application, that the Minister’s demand was justified and that the foreign publisher has failed to comply with it, the court may make any order that it considers appropriate in the circumstances, including

  • (a) an order to stop supplying advertising services in contravention of section 3 or to otherwise comply with this Act on any terms and conditions that the court considers appropriate; and

  • (b) an order not to take certain specified actions relating to advertising services that might prejudice the ability of a court, on a subsequent application for an order under paragraph (a), to issue an effective order.

• Marginal note:Urgency

  (3) A court that is satisfied as to the urgency of the situation may, on ex parte application, make an order referred to in subsection (2), but that order may have effect for no more than 10 days.

• Marginal note:Extension or revocation of order

  (4) A court that issues an order under subsection (3) may, on application by the Minister or by any person to whom the order is directed, by order,

  • (a) extend the duration of that order, with or without modification, for any specified period; or

  • (b) revoke that order.

• Marginal note:Contempt of court

  (5) Every person who fails to comply with the requirements or directions of any order made by a court under this section may be cited and punished by the court that made the order, as for other contempts of that court.

• Marginal note:Rights of appeal

  (6) For greater certainty, all rights of appeal provided by law apply in the case of any decision or order made by a superior court under this section, as in the case of other decisions or orders made by that court.

Marginal note:Action to enjoin not prejudiced by prosecution

9 Despite the commencement of a prosecution for an offence under this Act, the Minister may bring an application under section 8.

Offences and Punishment

Marginal note:Offence

• 10 (1) Every person who contravenes section 3 is guilty of an offence and liable

  • (a) on summary conviction, to a fine of not more than $20,000 for a first offence and to a fine of not more than $50,000 for a subsequent offence; or

  • (b) on conviction on indictment,

    • (i) in the case of a corporation, to a fine of not more than $250,000, and

    • (ii) in the case of an individual, to a fine of not more than $100,000.

• Marginal note:Other summary offence

  (2) Every person who contravenes section 6 is guilty of an offence and liable on summary conviction to a fine of not more than $20,000.

Marginal note:Offences by corporate officers, etc.

11 If a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.

Marginal note:Offences by employees or agents

12 In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission.

Marginal note:Additional fine

13 If a person is convicted of an offence under this Act and the court is satisfied that as a result of committing it the person acquired monetary benefits, the court may, despite the maximum amount of any other fine imposed under this Act, order the person to pay an additional fine in an amount equal to the court’s finding of the amount of those monetary benefits.

Marginal note:Other orders

14 If a person is convicted of an offence under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make one or more of the following orders:

• (a) an order prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

• (b) an order directing the person to compensate the Minister, in whole or in part, for the costs of any action taken by or on behalf of the Minister in investigating the commission of the offence; and

• (c) an order requiring the person to comply with any other conditions that the court considers appropriate to prevent the repetition of the offence.

Marginal note:Presumption — offence outside Canada

• 15 (1) In a proceeding for a contravention of section 3, a foreign publisher who commits an act outside Canada that, if committed in Canada, would be an offence under that section is deemed to commit that act in Canada.

• Marginal note:Jurisdiction

  (2) Proceedings for an offence that is deemed to have been committed in Canada may, whether or not the foreign publisher is in Canada, be commenced in any territorial division in Canada and the foreign publisher may be tried and punished for that offence in the same manner as if the offence had been committed in that territorial division.

• Marginal note:Appearance of accused at trial

  (3) For greater certainty, in a proceeding commenced in any territorial division under subsection (2), the provisions of the Criminal Code relating to requirements that an accused appear at and be present during proceedings and any exceptions to those requirements apply.

Marginal note:Limitation period

16 A prosecution for a summary conviction offence under this Act may not be instituted more than one year after the offence was committed.

Recovery of Fines by Civil Judgment

Marginal note:Recovery of fines by civil judgment

17 The conviction for an offence under this Act of a person who does not, when required, pay a fine imposed in relation to that offence may be filed by the prosecutor in the superior court of the province in which the trial was held. When so filed, the conviction is entered as a judgment for a debt in the amount of the fine and costs, if any, and is enforceable against the person in the same manner as if it were a judgment obtained by Her Majesty in right of Canada against the person in that court in civil proceedings.

Evidence

Marginal note:Certificates and reports

• 18 (1) In a proceeding under this Act, a report of an investigator appearing to have been signed by the investigator or a certificate, as the case may be, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is evidence of the matters asserted in it.

• Marginal note:Copies or extracts

  (2) In a proceeding under this Act, a copy of or an extract from any book, record, electronic data or document, made by an investigator under this Act and appearing to have been certified under the investigator’s signature as a true copy or extract, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the copy or extract and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.

Marginal note:Presumption of advertising services for Canadian advertiser

19 In a prosecution against a foreign publisher for an offence under section 3, proof that advertising content bears the name, trade-name or trademark of a Canadian advertiser or an address or a telephone number that appears to be that of a Canadian advertiser is proof, in the absence of evidence to the contrary, that advertising services were supplied by the foreign publisher to the Canadian advertiser or to a person acting on their behalf.

Regulations

Marginal note:Regulations

20 The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations respecting

• (a) qualifications for investigators;

• (b) how investigations are to be conducted; and

• (c) criteria to determine whether advertising services are directed at the Canadian market.

Marginal note:Regulations defining certain expressions

20.1 The Governor in Council may make regulations defining, for the purpose of section 21.1, the expressions “revenues generated by supply of advertising services directed at the Canadian market” and “revenues generated by the total supply of advertising services”.

Non-application of Act

Marginal note:Exception — extent of grandfathering

21 This Act does not apply so as to prevent a foreign publisher who lawfully supplied advertising services directed at the Canadian market by means of a periodical during the year before the day on which this Act was introduced in the House of Commons from continuing to supply advertising services directed at the Canadian market by means of that periodical.

Marginal note:Exception — percentage of permitted advertising revenue

21.1 This Act does not apply to a foreign publisher who supplies advertising services directed at the Canadian market by means of an issue of a periodical, if the revenues generated by the supply of advertising services directed at the Canadian market represent, in comparison to the revenues generated by the total supply of advertising services, by means of any of those issues

• (a) during the period of 18 months beginning on the day on which this Act comes into force, not more than 12 per cent;

• (b) during the period of 18 months immediately following the period referred to in paragraph (a), not more than 15 per cent; and

• (c) after the period referred to in paragraph (b), not more than 18 per cent.

Marginal note:Exception — paragraph 15(a) Investment Canada Act

• 21.2 (1) This Act does not apply to a foreign publisher who, after the coming into force of this Act, makes an investment in periodical publishing that has been prescribed under paragraph 15(a) of the Investment Canada Act as a specific type of business activity related to Canada’s cultural heritage or national identity and that has been reviewed under Part IV of that Act by the Minister responsible for it and for which that Minister is satisfied or is deemed to have been satisfied that the investment is likely to be of net benefit to Canada.

• Marginal note:When no exception

  (2) Subsection (1) does not apply in relation to a foreign publisher referred to in that subsection who is subject to an order made under paragraph 40(2)(e) or (f) of the Investment Canada Act.

• Marginal note:Exception tied to investment

  (3) This Act applies to a foreign publisher referred to in subsection (1), other than in relation to the foreign publisher’s investment referred to in that subsection.

Coming into Force

Marginal note:Order in Council

Footnote ^*22 This Act comes into force on a day to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Act in force July 1, 1999, see SI/99-72.]