Bill C-73
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1st Session, 38th Parliament,
53-54 Elizabeth II, 2004-2005
house of commons of canada
BILL C-73
An Act to amend the Telecommunications Act (No. 2)
1993, c. 38
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2003, c. 22, par. 224(z.81)(E)
1. Subsections 39(3) and (4) of the Telecommunications Act are replaced by the following:
Persons who must not disclose information
(3) Subsection (2) applies to any person referred to in the following paragraphs who comes into possession of designated information while holding the office or employment described in that paragraph, whether or not the person has ceased to hold that office or be so employed:
(a) a member of, or person employed by, the Commission;
(b) in respect of information disclosed under paragraph (4)(b), the Commissioner of Competition appointed under the Competition Act or a person whose duties involve the carrying out of that Act and who is referred to in section 25 of that Act; and
(c) in respect of information provided under subsection 37(3), the Minister, the Chief Statistician of Canada and a person employed in the federal public administration.
Disclosure of information submitted in proceedings
(4) If designated information is submitted in the course of proceedings before the Commission
(a) the Commission may disclose or require its disclosure if it determines, after considering any representations from interested persons, that the disclosure is in the public interest; and
(b) the Commission may disclose or require its disclosure to the Commissioner of Competition if the Commission determines, after considering any representations from interested parties, that the information is relevant to competition issues being considered in the proceedings and that, despite the fact that it is not disclosed to other parties in the proceeding, its disclosure to the Commissioner is in the public interest.
Use of information disclosed to Commissioner of Competition
(4.1) Neither the Commissioner of Competition nor any person whose duties involve the carrying out of the Competition Act and who is referred to in section 25 of that Act shall use information disclosed under paragraph (4)(b) other than to facilitate the Commissioner’s participation in those proceedings.
2. The Act is amended by adding the following after section 72:
Administrative Monetary Penalties
Commission of violation
72.1 Every contravention of a provision of this Act, other than section 17 or 69.2, and every contravention of a regulation, or a decision, made by the Commission under this Act, other than a prohibition or a 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 not exceeding $25,000 and, for each subsequent contravention of the same provision of this Act or the same regulation or decision, not exceeding $50,000; or
(b) in the case of a corporation, to an administrative monetary penalty not exceeding $10,000,000 and, for each subsequent contravention of the same provision of this Act or the same regulation or decision, not exceeding $15,000,000.
Criteria for penalty
72.2 (1) The amount of the penalty is to be determined taking into account the following matters:
(a) the nature of the violation;
(b) the frequency and duration of the conduct constituting the violation;
(c) the history of compliance with this Act by the person who committed the violation;
(d) the financial position of the person who committed the violation;
(e) the question of whether any compensation has been made voluntarily to any affected party; and
(f) any other relevant factor.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Vicarious liability — acts of employees, agents and mandataries
72.3 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, agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Continuing violation
72.4 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
Issuance and service
72.5 (1) If the Commission believes on reasonable grounds that a person has committed a violation, the Commission may issue, and shall cause to be served on the person, a notice of violation.
Contents of notice
(2) The notice of violation must name the person believed to have committed a violation, identify the violation and include
(a) the penalty that the Commission proposes to impose for the violation;
(b) a statement as to the right of the person, within 30 days after the day on which the notice is served, or within any longer period that the Commission specifies, to pay the proposed penalty or to make representations to the Commission with respect to the violation and the proposed penalty, and the manner for doing so; and
(c) a statement indicating that, if the person does not pay the proposed penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commission may impose that penalty.
Payment
72.6 (1) If a person who is served with a notice of violation pays the penalty proposed in the notice, the person is deemed to have committed the violation and proceedings in respect of it are ended.
Representations to Commission
(2) If a person who is served with a notice of violation makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the person committed the violation and, if it so decides, it may impose the penalty proposed in the notice, a lesser penalty or no penalty.
Failure to pay or make representations
(3) If a person who is served with a notice of violation neither pays the proposed penalty nor makes representations in accordance with the notice, the person is deemed to have committed the violation and the Commission may impose that penalty.
Copy of decision and notice of rights
(4) The Commission shall 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.
Defence
72.7 (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.
Common law principles
(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 under a relevant provision of this Act applies in respect of a violation to the extent that the rule or principle is not inconsistent with this Act.
Evidence
72.8 In a proceeding in respect of a violation, a notice purporting to be served under subsection 72.5(1) or a copy of a decision purporting to be served under subsection 72.6(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Time limit
72.9 (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.
Certificate of secretary 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.
Debt to Her Majesty
72.91 (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.
Time limit
(2) No proceedings to recover such a debt may be commenced later than five years after the day on which the debt became payable.
Proceeds payable to Receiver General
(3) An administrative monetary penalty paid or recovered in relation to a violation is payable to and shall be remitted to the Receiver General.
Certificate of default
(4) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection (1).
Registration in Federal Court
(5) When registered in the Federal Court, the certificate has the same effect as if it were a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
How act or omission may be proceeded with
72.92 If a contravention of this Act or of any regulation, or decision, made by the Commission under this Act can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
Section 12 does not apply
72.93 Section 12 does not apply in respect of any decision of the Commission made under subsection 72.6(2) or (3).
1998, c. 8, ss. 9(1) to (3)
3. Subsections 73(1) to (3) of the Act are replaced by the following:
Offences
73. (1) Every person is guilty of an offence punishable on summary conviction and liable, in the case of an individual, to a fine not exceeding $75,000 for a first offence or $150,000 for a subsequent offence, and in the case of a corporation, to a fine not exceeding $20,000,000 for a first offence or $30,000,000 for a subsequent offence who
(a) contravenes subsection 16(4) or 16.1(1) or (2), section 17 or 25, subsection 27(1) or (2), subsection 43(2) or (3) or section 69.2;
(b) contravenes a decision made under section 9 or 24, subsection 34(1) or (2), section 42, subsection 43(4) or (5) or section 44 or 51; or
(c) 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 paragraph 69.3(1)(h) or section 71.
Offences
(2) Every person who contravenes any other provision of this Act or any other decision made under this Act, or any special Act or any regulation made under this Act, is guilty of an offence punishable on summary conviction and liable, in the case of an individual, to a fine not exceeding $50,000 for a first offence or $100,000 for a subsequent offence, and in the case of a corporation, to a fine not exceeding $15,000,000 for a first offence or $20,000,000 for a subsequent offence.
Bill C-37
4. (1) Subsections (2) and (3) apply if Bill C-37, introduced in the 1st session of the 38th Parliament and entitled An Act to amend the Telecommunications Act (the “other Act”), receives royal assent.
Bill C-37
(2) If the other Act comes into force before this Act receives royal assent, then, on the day on which this Act receives royal assent,
(a) the heading before section 72.01 of the Telecommunications Act is replaced by the following:
Administrative Monetary Penalties for Unsolicited Telecommunications
(b) section 2 of this Act is replaced by the following:
2. The Act is amended by adding the following after section 72.15:
General Administrative Monetary Penalties
Commission of violation
72.2 Every contravention of a provision of this Act, other than section 17 or 69.2, and every contravention of a regulation, or a decision, made by the Commission under this Act, other than a prohibition or a 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 not exceeding $25,000 and, for each subsequent contravention of the same provision of this Act or the same regulation or decision, not exceeding $50,000; or
(b) in the case of a corporation, to an administrative monetary penalty not exceeding $10,000,000 and, for each subsequent contravention of the same provision of this Act or the same regulation or decision, not exceeding $15,000,000.
Criteria for penalty
72.3 (1) The amount of the penalty is to be determined taking into account the following matters:
(a) the nature of the violation;
(b) the frequency and duration of the conduct constituting the violation;
(c) the history of compliance with this Act by the person who committed the violation;
(d) the financial position of the person who committed the violation;
(e) the question of whether any compensation has been made voluntarily to any affected party; and
(f) any other relevant factor.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Vicarious liability — acts of employees, agents and mandataries
72.4 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, agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Continuing violation
72.5 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
Issuance and service
72.6 (1) If the Commission believes on reasonable grounds that a person has committed a violation, the Commission may issue, and shall cause to be served on the person, a notice of violation.
Contents of notice
(2) The notice of violation must name the person believed to have committed a violation, identify the violation and include
(a) the penalty that the Commission proposes to impose for the violation;
(b) a statement as to the right of the person, within 30 days after the day on which the notice is served, or within any longer period that the Commission specifies, to pay the proposed penalty or to make representations to the Commission with respect to the violation and the proposed penalty, and the manner for doing so; and
(c) a statement indicating that, if the person does not pay the proposed penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commission may impose that penalty.
Payment
72.7 (1) If a person who is served with a notice of violation pays the penalty proposed in the notice, the person is deemed to have committed the violation and proceedings in respect of it are ended.
Representations to Commission
(2) If a person who is served with a notice of violation makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the person committed the violation and, if it so decides, it may impose the penalty proposed in the notice, a lesser penalty or no penalty.
Failure to pay or make representations
(3) If a person who is served with a notice of violation neither pays the proposed penalty nor makes representations in accordance with the notice, the person is deemed to have committed the violation and the Commission may impose that penalty.
Copy of decision and notice of rights
(4) The Commission shall 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.
Defence
72.8 (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.
Common law principles
(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 under a relevant provision of this Act applies in respect of a violation to the extent that the rule or principle is not inconsistent with this Act.
Evidence
72.9 In a proceeding in respect of a violation, a notice purporting to be served under subsection 72.6(1) or a copy of a decision purporting to be served under subsection 72.7(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Time limit
72.91 (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.
Certificate of secretary 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.
Debt to Her Majesty
72.92 (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.
Time limit
(2) No proceedings to recover such a debt may be commenced later than five years after the day on which the debt became payable.
Proceeds payable to Receiver General
(3) An administrative monetary penalty paid or recovered in relation to a violation is payable to and shall be remitted to the Receiver General.
Certificate of default
(4) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection (1).
Registration in Federal Court
(5) When registered in the Federal Court, the certificate has the same effect as if it were a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
How act or omission may be proceeded with
72.93 If a contravention of this Act or of any regulation, or decision, made by the Commission under this Act can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
Section 12 does not apply
72.94 Section 12 does not apply in respect of any decision of the Commission made under subsection 72.7(2) or (3).
Bill C-37
(3) If this Act receives royal assent before the other Act comes into force, then, on the day on which the other Act comes into force,
(a) the heading before section 72.01 of the Telecommunications Act is replaced by the following:
Administrative Monetary Penalties for Unsolicited Telecommunications
(b) the heading before section 72.1 and sections 72.1 to 72.93 of the Act, as enacted by section 2 of this Act, are replaced by the following:
General Administrative Monetary Penalties
Commission of violation
72.2 Every contravention of a provision of this Act, other than section 17 or 69.2, and every contravention of a regulation, or a decision, made by the Commission under this Act, other than a prohibition or a 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 not exceeding $25,000 and, for each subsequent contravention of the same provision of this Act or the same regulation or decision, not exceeding $50,000; or
(b) in the case of a corporation, to an administrative monetary penalty not exceeding $10,000,000 and, for each subsequent contravention of the same provision of this Act or the same regulation or decision, not exceeding $15,000,000.
Criteria for penalty
72.3 (1) The amount of the penalty is to be determined taking into account the following matters:
(a) the nature of the violation;
(b) the frequency and duration of the conduct constituting the violation;
(c) the history of compliance with this Act by the person who committed the violation;
(d) the financial position of the person who committed the violation;
(e) the question of whether any compensation has been made voluntarily to any affected party; and
(f) any other relevant factor.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Vicarious liability — acts of employees, agents and mandataries
72.4 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, agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Continuing violation
72.5 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
Issuance and service
72.6 (1) If the Commission believes on reasonable grounds that a person has committed a violation, the Commission may issue, and shall cause to be served on the person, a notice of violation.
Contents of notice
(2) The notice of violation must name the person believed to have committed a violation, identify the violation and include
(a) the penalty that the Commission proposes to impose for the violation;
(b) a statement as to the right of the person, within 30 days after the day on which the notice is served, or within any longer period that the Commission specifies, to pay the proposed penalty or to make representations to the Commission with respect to the violation and the proposed penalty, and the manner for doing so; and
(c) a statement indicating that, if the person does not pay the proposed penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commission may impose that penalty.
Payment
72.7 (1) If a person who is served with a notice of violation pays the penalty proposed in the notice, the person is deemed to have committed the violation and proceedings in respect of it are ended.
Representations to Commission
(2) If a person who is served with a notice of violation makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the person committed the violation and, if it so decides, it may impose the penalty proposed in the notice, a lesser penalty or no penalty.
Failure to pay or make representations
(3) If a person who is served with a notice of violation neither pays the proposed penalty nor makes representations in accordance with the notice, the person is deemed to have committed the violation and the Commission may impose that penalty.
Copy of decision and notice of rights
(4) The Commission shall 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.
Defence
72.8 (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.
Common law principles
(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 under a relevant provision of this Act applies in respect of a violation to the extent that the rule or principle is not inconsistent with this Act.
Evidence
72.9 In a proceeding in respect of a violation, a notice purporting to be served under subsection 72.6(1) or a copy of a decision purporting to be served under subsection 72.7(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Time limit
72.91 (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.
Certificate of secretary 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.
Debt to Her Majesty
72.92 (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.
Time limit
(2) No proceedings to recover such a debt may be commenced later than five years after the day on which the debt became payable.
Proceeds payable to Receiver General
(3) An administrative monetary penalty paid or recovered in relation to a violation is payable to and shall be remitted to the Receiver General.
Certificate of default
(4) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection (1).
Registration in Federal Court
(5) When registered in the Federal Court, the certificate has the same effect as if it were a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
How act or omission may be proceeded with
72.93 If a contravention of this Act or of any regulation, or decision, made by the Commission under this Act can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
Section 12 does not apply
72.94 Section 12 does not apply in respect of any decision of the Commission made under subsection 72.7(2) or (3).
Published under authority of the Speaker of the House of Commons
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Available from:
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Explanatory Notes
Clause 1: Existing text of subsections 39(3) and (4):
(3) Subsection (2) applies to
(a) any member of, or person employed by, the Commission, and
(b) in respect of information provided under subsection 37(3), the Minister, the Chief Statistician of Canada and any person employed in the federal public administration,
who comes into possession of designated information while holding that office or being so employed, whether or not the person has ceased to hold that office or be so employed.
(4) Where designated information is submitted in the course of proceedings before the Commission, the Commission may disclose or require its disclosure where it determines, after considering any representations from interested persons, that the disclosure is in the public interest.
Clause 2: New.
Clause 3: Existing text of subsections 73(1) to (3):
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.
(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, or
(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 paragraph 69.3(1)(h) or section 71
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.
(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, 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.