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: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.

Violations

Marginal note:Violations

• 20 (1) Every person who contravenes any of sections 6 to 9 commits a violation for which they are liable to an administrative monetary penalty.

• Marginal note:Purpose of penalty

  (2) The purpose of a penalty is to promote compliance with this Act and not to punish.

• Marginal note:Factors for penalty

  (3) The following factors must be taken into account when determining the amount of a penalty:

  • (a) the purpose of the penalty;

  • (b) the nature and scope of the violation;

  • (c) the person’s history with respect to any previous violation under this Act, any previous conduct that is reviewable under section 74.011 of the Competition Act and any previous contravention of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act;

  • (d) the person’s history with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;

  • (e) any financial benefit that the person obtained from the commission of the violation;

  • (f) the person’s ability to pay the penalty;

  • (g) whether the person has voluntarily paid compensation to a person affected by the violation;

  • (h) the factors established by the regulations; and

  • (i) any other relevant factor.

• Marginal note:Maximum penalties

  (4) The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.

• Marginal note:Regulations

  (5) The Governor in Council may make regulations

  • (a) designating provisions whose contravention constitutes a separate violation in respect of each day during which it continues; and

  • (b) establishing factors for the purposes of paragraph (3)(h).

Undertakings

Marginal note:Entry into undertaking

• 21 (1) A person may enter into an undertaking at any time.

• Marginal note:Contents

  (2) An undertaking

  • (a) must be accepted by a person who is designated for the purpose of this section;

  • (b) must identify every act or omission committed that constitutes a contravention of any of sections 6 to 9 and that is covered by the undertaking;

  • (c) must identify every provision at issue;

  • (d) may contain any conditions that the designated person considers appropriate; and

  • (e) may include a requirement to pay a specified amount.

• Marginal note:Undertaking before notice of violation

  (3) If a person enters into an undertaking, no notice of violation may be served on them in connection with an act or omission referred to in the undertaking.

• Marginal note:Undertaking after notice of violation

  (4) If a person enters into an undertaking after a notice of violation is served on them, the proceeding commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.

Notices of Violation

Marginal note:Notice of violation

• 22 (1) A person who is designated for the purpose of this section may issue a notice of violation and cause it to be served on a person if they believe on reasonable grounds that the person has committed a violation.

• Marginal note:Contents of notice

  (2) The notice of violation must

  • (a) name the person believed to have committed the violation;

  • (b) identify every act or omission for which the notice is served and every provision at issue;

  • (c) set out the administrative monetary penalty that the person is liable to pay and the time and manner of payment;

  • (d) inform the person that they may make representations to the Commission within 30 days after the day on which the notice is served or any longer period set out in the notice, and set out the manner for making the representations;

  • (e) inform the person that, if they do not pay the penalty or make representations in accordance with the notice, they will be deemed to have committed the violation and that the penalty set out in the notice will be imposed; and

  • (f) inform the person that if they are found or are deemed to have committed a violation they may be made the subject of an order requiring them to do what this Act requires them to do, or forbidding them to do what this Act prohibits them from doing, and that the order can be enforced as an order of a court of competent jurisdiction.

Marginal note:Limitation period

• 23 (1) No proceeding in respect of a violation may be commenced later than three years after the day on which the subject matter of the proceeding became known to a person designated under section 14.

• Marginal note:Certificate

  (2) A document that appears to have been issued by the secretary to the Commission, certifying the day on which the subject matter of any proceeding became known to a person designated under section 14, is admissible in evidence without proof of the signature or official character of the person who appears to have signed the document and is proof of the matter asserted in it in the absence of evidence to the contrary.

Determination of Responsibility

Marginal note:Options

• 24 (1) A person who is served with a notice of violation must, in accordance with the notice, pay the penalty set out in the notice or make representations with respect to the amount of the penalty or the acts or omissions that constitute the alleged violation.

• Marginal note:Deemed violation

  (2) A person is deemed to have committed the violation if they either pay the penalty in accordance with the notice of violation or do not pay the penalty and do not make representations, in accordance with the notice of violation.

Marginal note:Representations

• 25 (1) If a person makes representations in accordance with the notice, the Commission must decide, on a balance of probabilities, whether the person committed the violation and, if so, may impose the penalty set out in the notice of violation, may reduce or waive the penalty, or may suspend payment of the penalty subject to any conditions that the Commission considers necessary to ensure compliance with this Act.

• Marginal note:Notice of decision

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