Telecommunications Act (S.C. 1993, c. 38)

Marginal note:Compliance agreements

• 72.137 (1) If a person designated under paragraph 72.134(a) offers to enter into a compliance agreement with the person believed to have committed the violation, the agreement is subject to any terms that the designated person considers appropriate, including the reduction, in whole or in part, of the penalty set out in the notice of violation.

• Marginal note:Representations

  (2) If a compliance agreement is entered into, the person who entered into it cannot make any representations under paragraph 72.135(2)(b).

• Marginal note:Deeming

  (3) A person who enters into a compliance agreement with a designated person is deemed to have committed the violation in respect of which the compliance agreement was entered into.

• Marginal note:Notice of compliance

  (4) If the designated person is of the opinion that a person who has entered into a compliance agreement has complied with it, the designated person must serve a notice to that effect on the person and, on the service of that notice, the proceedings in respect of the violation are ended.

• Marginal note:Notice of default

  (5) If the designated person is of the opinion that a person who has entered into a compliance agreement has not complied with it, the designated person must cause the person to be served with a notice of default informing them that they are liable to pay, within the time and in the manner set out in the notice of default, the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, less any amount they paid under the compliance agreement.

• Marginal note:Payment

  (6) If a person pays the penalty in accordance with the notice of default, the proceedings in respect of the violation are ended.

Marginal note:Officer, director or agent or mandatary of corporations

72.138 An officer, director or agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.

Marginal note:Debt due to His Majesty

• 72.139 (1) A penalty and any interest due in respect of the penalty constitute a debt due to His Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.

• Marginal note:Limitation period or prescription

  (2) A proceeding to recover such a debt may not be commenced later than five years after the day on which the debt becomes payable.

• Marginal note:Receiver General

  (3) A penalty paid or recovered in relation to a violation is payable to the Receiver General.

• Marginal note:Certificate of default

  (4) The Minister may issue a certificate for the unpaid amount of any debt referred to in subsection (1).

• Marginal note:Registration in Federal Court

  (5) Registration in the Federal Court of a certificate issued under subsection (4) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.

Marginal note:Limitation period or prescription

• 72.1391 (1) A proceeding in respect of a violation may not be commenced later than three years after the day on which the subject-matter of the proceeding becomes known to the Minister.

• Marginal note:Minister — certificate

  (2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

Marginal note:Publication

72.1392 The Minister may make public

• (a) the name of a person who enters into a compliance agreement, the nature of the agreement, the conditions included in that agreement and, if applicable, the scope of any non-compliance with the compliance agreement and the amount of the penalty; and

• (b) the name of a person who committed a violation, the nature of the violation, including the acts or omissions and provisions or decisions at issue, and the amount of the penalty.

Marginal note:Regulations

72.1393 The Governor in Council may make regulations

• (a) exempting from the application of section 72.131 any provision of an order made under section 15.1 or 15.2 or a regulation made under paragraph 15.8(1)(a);

• (b) for the purpose of paragraph 72.133(1)(e), establishing other factors to be considered in determining the amount of the penalty; and

• (c) respecting compliance agreements entered into under subsection 72.137(1).

Provisions Common to Administrative Monetary Penalties Schemes

Marginal note:Evidence

72.14 In a proceeding in respect of a violation, a notice appearing to be served under subsection 72.005(1), 72.07(1) or 72.135(1) or a copy of a decision appearing to be served under subsection 72.007(4), 72.08(4) or 72.136(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Defence

• 72.15 (1) It is a defence for a person in a proceeding in relation to a violation to establish that the person exercised due diligence to prevent the violation.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence under this Act or Division 1.1 of Part 16.1 of the Canada Elections Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Vicarious liability — acts of employees, agents and mandataries

72.16 A person is liable for a violation that is committed by an employee of the person acting in the course of the employee’s employment, or by an agent or mandatary of the person acting within the scope of the agent’s or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against.

Marginal note:How act or omission may be proceeded with

72.17 If an act or omission can be proceeded with either as a violation or as an offence under this Act or Division 1.1 of Part 16.1 of the Canada Elections Act, proceeding in one manner precludes proceeding in the other.

Marginal note:For greater certainty

72.18 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Section 12 does not apply

72.19 Section 12 does not apply in respect of any decision of the Commission made under subsection 72.007(2) or (3) or 72.08(2) or (3) or the portion of the decision made under section 72.003 relating to the finding of a contravention and the imposition of a penalty.

Marginal note:Group considered corporation

72.2 For the purposes of sections 71 and 72.01 to 72.19, a group as defined in section 348.01 of the Canada Elections Act is considered to be a corporation.

Offences

Marginal note:Offences

• 73 (1) Every person who contravenes subsection 16(4) or 16.1(1) or (2) or section 17 is guilty of an offence punishable on summary conviction and liable

  • (a) in the case of an individual, to a fine not exceeding fifty thousand dollars for a first offence, or one hundred thousand dollars for a subsequent offence; or

  • (b) in the case of a corporation, to a fine not exceeding five hundred thousand dollars for a first offence, or one million dollars for a subsequent offence.

• Marginal note:Idem

  (2) Every person who

  • (a) contravenes section 25, subsection 27(1) or (2) or section 69.2,

  • (b) contravenes any condition referred to in section 9 or 24 or subsection 34(1) or (2),

  • (c) contravenes any prohibition or requirement of the Commission under section 41,

  • (d) knowingly makes a material misrepresentation of fact or omits to state a material fact to the Minister, the Commission, a person appointed under section 70 or an inspector appointed under section 71, or a person designated under section 72.004 or 72.04, or

  • (e) contravenes any provision of Division 1.1 of Part 16.1 of the Canada Elections Act

  is guilty of an offence punishable on summary conviction and liable, in the case of an individual, to a fine not exceeding ten thousand dollars for a first offence or twenty-five thousand dollars for a subsequent offence, and in the case of a corporation, to a fine not exceeding one hundred thousand dollars for a first offence or two hundred and fifty thousand dollars for a subsequent offence.

• Marginal note:Idem

  (3) Every person who

  • (a) contravenes any other provision of this Act or any special Act or any regulation or decision made under this Act, other than a regulation made under paragraph 15.8(1)(a), or

  • (b) fails to do anything required or does anything prohibited under a provision, regulation or decision referred to in paragraph (a)

  is guilty of an offence punishable on summary conviction and liable, in the case of an individual, to a fine not exceeding five thousand dollars for a first offence or ten thousand dollars for a subsequent offence, and in the case of a corporation, to a fine not exceeding fifty thousand dollars for a first offence or one hundred thousand dollars for a subsequent offence.

• Marginal note:Idem

  (3.1) Every person who contravenes an order made under section 15.1 or 15.2 or a regulation made under paragraph 15.8(1)(a) is guilty of an offence punishable on summary conviction and liable,

  • (a) in the case of an individual, to a fine in an amount that is at the discretion of the court or to imprisonment for a term of not more than two years less a day or to both; and

  • (b) in the case of a corporation, to a fine in an amount that is at the discretion of the court.

• Marginal note:Officer, director or agent or mandatary

  (3.2) An officer, director or agent or mandatary of a person who commits an offence under subsection (3.1) is a party to and guilty of the offence and is liable to the punishment provided for that offence in respect of an individual if they directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the person has been prosecuted or convicted.

• Marginal note:Offence by employee or agent or mandatary

  (3.3) In a prosecution for an offence under subsection (3.1), it is sufficient proof of the offence to establish that it was committed by an employee, acting within the scope of their employment, or by an agent or a mandatary of the accused, acting within the scope of their authority, whether or not the employee or agent or mandatary is identified or proceeded against.

• Marginal note:Defence of due diligence

  (3.4) No person shall be convicted of an offence under any of subsections (1) to (3.1), other than for a contravention of paragraph (2)(d), if the person establishes that they exercised all due diligence to prevent the commission of the offence.

• Marginal note:Consent not required

  (3.5) No consent is required to prosecute an offence under subsection (3.1).

• Marginal note:Consent of Minister required

  (4) A prosecution may not be commenced under this section in respect of a contravention of any provision of Part I, of section 17 or of any regulations made under subsection 22(2), or in respect of a material misrepresentation of fact or an omission to state a material fact to the Minister, without the consent of the Minister.

• Marginal note:Consent of Commission required

  (5) A prosecution may not be commenced in respect of any other offence without the consent of the Commission.

• Marginal note:Time limit

  (6) A prosecution may not be commenced under this Act later than two years after the occurrence of the act or omission that is the subject-matter of the proceedings.

• Marginal note:Injunctions

  (7) If a court of competent jurisdiction is satisfied, on application by the Minister, that a contravention of an order made under section 15.1 or 15.2 or a regulation made under paragraph 15.8(1)(a) or a contravention of section 69.2 is being or is likely to be committed, the court may grant an injunction, subject to any conditions that the court considers appropriate, ordering any person to cease or refrain from any activity related to that offence.

• Marginal note:Federal Court

  (8) For the purposes of subsection (7), the Federal Court is a court of competent jurisdiction.

• Marginal note:Group considered corporation

  (9) For the purposes of this section, a group as defined in section 348.01 of the Canada Elections Act is considered to be a corporation.

Marginal note:Continuing offence

74 Where an offence under section 73 is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Forfeiture

Marginal note:Forfeiture of telecommunications apparatus

• 74.1 (1) In the case of a conviction for an offence arising out of a contravention of subsection 69.2(1) or (2), any telecommunications apparatus in relation to which or by means of which the offence was committed may be forfeited to Her Majesty in right of Canada by order of the Minister for the disposition, subject to subsections (2) to (6), that the Minister may direct.

• Marginal note:Notice of forfeiture

  (2) If apparatus is ordered to be forfeited under subsection (1), the Minister shall cause a notice of the forfeiture to be published in the Canada Gazette.

• Marginal note:Application by person claiming interest or right

  (3) Any person, other than a party to the proceedings that resulted in a forfeiture under subsection (1), who claims an interest or right in the apparatus as owner, mortgagee, hypothecary creditor, lien holder, holder of a prior claim or holder of any like interest or right may, within ninety days after the making of the order of forfeiture, apply to any superior court of competent jurisdiction for an order under subsection (6), in which case the court shall fix a day for the hearing of the application.

• Marginal note:Notice

  (4) The court may find the application abandoned if the applicant does not, at least thirty days before the day fixed for the hearing of the application, serve a notice of the application and of the hearing on the Minister and on all other persons claiming an interest or right in the apparatus that is the subject-matter of the application as owner, mortgagee, hypothecary creditor, lien holder, holder of a prior claim or holder of any like interest or right of whom the applicant has knowledge.

• Marginal note:Notice of intervention

  (5) Every person, other than the Minister, who is served with a notice under subsection (4) must, in order to appear at the hearing of the application, file an appropriate notice of intervention in the record of the court and serve a copy of that notice on the Minister and on the applicant at least ten days before the day fixed for the hearing or any shorter period that the court may allow.

• Marginal note:Order declaring nature and extent of interests or rights

  (6) An applicant or intervener is entitled to an order declaring that their interest or right is not affected by the forfeiture and declaring the nature and extent of their interest or right and the ranking of their interest or right in relation to other interests or rights recognized under this subsection, and the court may, in addition, order that the apparatus to which the interests or rights relate be delivered to one or more of the persons found to have an interest or right in the apparatus, or that an amount equal to the value of each of the interests or rights so declared be paid to the persons found to have those interests or rights, if, on the hearing of an application under this section, the court is satisfied that the applicant or intervener

  • (a) is innocent of any complicity and collusion in any conduct that caused the apparatus to be subject to forfeiture; and

  • (b) in the case of owners, exercised all reasonable care in respect of the persons permitted to obtain possession and use of the apparatus to satisfy themselves that it was not likely to be used in the commission of an offence arising out of a contravention of section 69.2.

• Marginal note:Liability for costs

  (7) Any persons convicted in respect of the forfeited apparatus are jointly and severally, or solidarily, liable for all the costs of inspection, seizure, forfeiture or disposition incurred by Her Majesty that exceed any proceeds of the disposition of the apparatus that have been forfeited to Her Majesty under this section.