Bill C-37

53-54 ELIZABETH II

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CHAPTER 50

An Act to amend the Telecommunications Act

[Assented to 25th November, 2005]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. The Telecommunications Act is amended by adding the following after section 41:

41.1 Sections 41.2 to 41.7 create a legislative framework for a national do not call list.

41.2 The Commission may, for the purposes of section 41,

(a) administer databases or information, administrative or operational systems; and

(b) determine any matter, and make any order, with respect to the databases or the information, administrative or operational systems.

41.3 (1) The Commission may, in writing and on specified terms, delegate to any person, including any body created by the Commission for that purpose, any of its powers under section 41.2 and any of its powers to conduct investigations to determine whether there has been a contravention of any prohibition or requirement of the Commission under section 41.

(2) For the purposes of sections 62 and 63, a decision of a delegate is deemed to be a decision of the Commission.

(3) For greater certainty, a delegation of powers is a decision of the Commission.

(4) The Commission may, in writing, revoke a delegation of powers. A revocation is deemed not to be a decision of the Commission.

41.4 (1) A delegate may charge rates for exercising delegated powers.

(2) Despite the Financial Administration Act, money collected by a delegate is deemed not to be public money.

41.5 The Commission may regulate the rates charged by a delegate, whether by requiring pre-approval of the rates or otherwise, and the manner in which the delegate exercises any of the delegated powers.

41.6 (1) The Commission shall, within six months after the end of each fiscal year, deliver a report to the Minister on the operation of the national do not call list in that fiscal year.

(2) The report shall set out any costs or expenditures related to the list, the number of Canadians using the list, the number of telemarketers accessing the list, any incon­sistencies in the prohibitions or requirements of the Commission under section 41 that are applicable to the operation of the list, and an analysis of the effectiveness of the list.

(3) The Minister shall cause a copy of the report referred to in subsection (1) to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.

41.7 (1) An order made by the Commission that imposes a prohibition or requirement under section 41 that relates to information contained in any database or any information, administrative or operational system administered under section 41.2 for the purpose of a national do not call list does not apply in respect of a telecommunication

(a) made by or on behalf of a registered charity within the meaning of subsection 248(1) of the Income Tax Act;

(b) made to a person

(i) with whom the person making the telecommunication, or the person or or­ganization on whose behalf the telecommunication is made, has an existing business relationship, and

(ii) who has not made a do not call request in respect of the person or organization on whose behalf the telecommunication is made;

(c) made by or on behalf of a political party that is a registered party as defined in subsection 2(1) of the Canada Elections Act or that is registered under provincial law for the purposes of a provincial or municipal election;

(d) made by or on behalf of a nomination contestant, leadership contestant or candidate of a political party described in paragraph (c) or by or on behalf of the official campaign of such a contestant or candidate;

(e) made by or on behalf of an association of members of a political party described in paragraph (c) for an electoral district;

(f) made for the sole purpose of collecting information for a survey of members of the public; or

(g) made for the sole purpose of soliciting a subscription for a newspaper of general circulation.

(2) The following definitions apply in subsection (1).

“candidate” means a candidate as defined in subsection 2(1) of the Canada Elections Act or a candidate whose nomination has been confirmed, for the purposes of a provincial or municipal election, by a political party that is registered under provincial law.

“existing business relationship” means a business relationship that has been formed by a voluntary two-way communication between the person making the telecommunication and the person to whom the telecommunication is made, arising from

(a) the purchase of services or the purchase, lease or rental of products, within the eighteen-month period immediately preceding the date of the telecommunication, by the person to whom the telecommunication is made from the person or organization on whose behalf the telecommunication is made;

(b) an inquiry or application, within the six-month period immediately preceding the date of the telecommunication, by the person to whom the telecommunication is made in respect of a product or service offered by the person or organization on whose behalf the telecommunication is made; or

(c) any other written contract between the person to whom the telecommunication is made and the person or organization on whose behalf the telecommunication is made that is currently in existence or that expired within the eighteen-month period immediately preceding the date of the telecommunication.

“leadership contestant” means a leadership contestant as defined in subsection 2(1) of the Canada Elections Act or a contestant for the leadership of a political party that is registered under provincial law.

“nomination contestant” means a nomination contestant as defined in subsection 2(1) of the Canada Elections Act or a contestant for nomination by a political party that is registered under provincial law as its candidate in a provincial or municipal election.

(3) Any person making a telecommunication referred to in subsection (1) must, at the beginning of the telecommunication, identify the purpose of the telecommunication and the person or organization on whose behalf the telecommunication is made.

(4) Every person or organization that, by virtue of subsection (1), is exempt from the application of an order made by the Commission that imposes a prohibition or requirement under section 41 shall maintain their own do not call list and shall ensure that no telecommunication is made on their behalf to any person who has requested that they receive no telecommunication made on behalf of that person or organization.

(5) Subsections (3) and (4) do not apply in respect of a person making a telecommunication referred to in paragraph (1)(f).

2. The Act is amended by adding the following after section 72:

Administrative Monetary Penalties

72.01 Every contravention of a prohibition or requirement of the Commission under section 41 constitutes a violation and the person who commits the violation is liable

(a) in the case of an individual, to an administrative monetary penalty of up to $1,500; or

(b) in the case of a corporation, to an administrative monetary penalty of up to $15,000.

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

72.03 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.

72.04 (1) The Commission may

(a) designate persons, or classes of persons, who are authorized to issue notices of violation; and

(b) establish, in respect of each violation, a short-form description to be used in notices of violation.

(2) A person designated under paragraph (1)(a) shall be provided with a certificate of designation, which certificate must be presented at the request of any person appearing to be in charge of any place entered by the designated person.

72.05 A person authorized to issue notices of violation who believes that a person is in possession of information that the authorized person considers necessary for the administration of section 41 may require that person to submit the information to the authorized person in periodic reports or in any other form and manner that the authorized person specifies.

72.06 (1) A person authorized to issue notices of violation may

(a) subject to subsection (2), enter and inspect, at any reasonable time, any place in which he or she believes on reasonable grounds there is any document, information or thing relevant to the enforcement of section 41, and examine the document, information or thing or remove it for examination or reproduction;

(b) make use of or cause to be made use of any data processing system at the place to examine any data contained in or available to the system;

(c) reproduce any record or cause it to be reproduced from the data in the form of a print-out or other intelligible output and take the print-out or other output for examination or copying; and

(d) make use of any copying equipment or means of communication located at the place.

(2) A person authorized to issue notices of violation may not enter a dwelling-place except with the consent of the occupant or under the authority of a warrant issued under subsection (3).

(3) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a person authorized to issue notices of violation and who is named in the warrant to enter and inspect a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath

(a) that the dwelling-place is a place described in paragraph (1)(a);

(b) that entry to the dwelling-place is necessary for the enforcement of section 41; and

(c) that entry has been refused, there are reasonable grounds for believing that entry will be refused, or consent to entry cannot be obtained from the occupant.

(4) A person executing a warrant issued under subsection (3) shall not use force unless he or she is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

72.07 (1) A person authorized to issue notices of violation who believes on reasonable grounds that a person has committed a violation may issue, and shall cause to be served on that person, a notice of violation.

(2) The notice of violation must name the person believed to have committed a violation, identify the violation and set out

(a) the penalty for the violation as set out in section 72.01;

(b) the right of the person, within 30 days after the notice is served, or within any longer period that the Commission specifies, to pay the penalty or to make representations to the Commission with respect to the violation, and the manner for doing so; and

(c) the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commission may impose the penalty.

72.08 (1) If the person pays the penalty set out in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.

(2) If the 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 it so decides, it may impose the penalty.

(3) A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Commission may impose the penalty.

(4) The Commission must cause a copy of any decision made under subsection (2) or (3) to be issued and served on the person together with a notice of the person’s right to apply for a review under section 62 and to appeal under section 64.

72.09 (1) An administrative monetary penalty constitutes a debt due to Her Majesty in right of Canada that may be recovered as such in the Federal Court.

(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

(3) An administrative monetary penalty paid or recovered in relation to a violation is payable to and shall be remitted to the Receiver General.

(4) The unpaid amount of any debt referred to in subsection (1) may be certified by the Commission.

(5) Registration in the Federal Court of a certificate made 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.

72.1 (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.

(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence in relation to a contravention of a prohibition or requirement of the Commission under section 41 applies in respect of a violation to the extent that the rule or principle is not inconsistent with this Act.

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

72.12 (1) No proceedings in respect of a violation may be commenced later than two years after the day on which the subject-matter of the proceedings became known to the Commission.

(2) A document appearing to have been issued by the secretary to the Commission, certifying the day on which the subject-matter of any proceedings became known to the Commission, 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.

72.13 The Commission may make public the nature of a violation, the name of the person who committed it, and the amount of the administrative monetary penalty.

72.14 If a contravention of a prohibition or a requirement of the Commission under section 41 can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

72.15 Section 12 does not apply in respect of any decision of the Commission under subsection 72.08(2) or (3).

2.1 Three years after this Act comes into force, a committee of the House of Commons, of the Senate or of both Houses of Parliament is to be designated or established for the purpose of reviewing the administration and operation of the provisions enacted by this Act.

3. This Act comes into force on a day to be fixed by order of the Governor in Council.