Bill C-74

1st Session, 38th Parliament,

53-54 Elizabeth II, 2004-2005

house of commons of canada

BILL C-74

An Act regulating telecommunications facilities to facilitate the lawful interception of information transmitted by means of those facilities and respecting the provision of telecommunications subscriber information

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

SHORT TITLE

1. This Act may be cited as the Modernization of Investigative Techniques Act.

INTERPRETATION

2. (1) The following definitions apply in this Act.

“authorized” in relation to a person, means having authority, under the Criminal Code or the Canadian Security Intelligence Service Act, to intercept communications.

“communication” means a communication effected by means of telecommunications and includes any related transmission data or other ancillary information.

“intercept” includes listen to, record or acquire a communication.

“Minister” means the Minister of Public Safety and Emergency Preparedness.

“person” includes a partnership, an unincorporated organization, a government, a government agency and any other person or entity that acts in the name of or for the benefit of another such as a trustee, executor, administrator, liquidator of the succession, guardian, curator or tutor.

“prescribed” means prescribed by the regulations.

“telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications.

“telecommunications service” means a service, or a feature of a service, that is provided by means of telecommunications facilities, whether the provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service.

“telecommunications service provider” means a person who, independently or as part of a group or association, provides telecommunications services.

“transmission apparatus” means any apparatus of a prescribed class whose principal functions are one or more of the following:

(a) the switching or routing of communications;

(b) the input, capture, storage, organization, modification, retrieval, output or other processing of communications;

(c) the control of the speed, code, protocol, content, format, switching or routing or similar aspects of communications; or

(d) any other function that is similar to one described in paragraphs (a) to (c).

“transmission data” means data relating to the telecommunications functions of dialling, routing, addressing or signalling that identifies or purports to identify the origin, type, direction, date, time, duration, size, destination or termination of a telecommunication generated or received by means of a telecommunications facility or the type of telecommunications service used and includes any information that may be obtained under subsection 492.2(1) of the Criminal Code.

(2) Nothing in this Act derogates from any power in the Criminal Code, the Canadian Security Intelligence Service Act or the National Defence Act to intercept communications or to request that telecommunications service providers assist in such interceptions.

PURPOSE

3. The purpose of this Act is to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications, and to require service providers to provide subscriber and other information, without unreasonably impairing the privacy of individuals, the provision of telecommunications services to Canadians or the competitiveness of the Canadian telecommunications industry.

APPLICATION

4. This Act is binding on Her Majesty in right of Canada or of a province.

5. (1) This Act does not apply to telecommunications service providers in respect of the telecommunications services specified in Part 1 of Schedule 1 or to the telecommunications service providers in the classes listed in Part 2 of Schedule 1 in respect of the activities specified in it for that class.

(2) This Act — other than sections 8, 9, 15, 16, 23 to 25, 27 and 30 to 57 — does not apply to the telecommunications service providers in the classes listed in Part 1 of Schedule 2 in respect of the activities specified in it for that class.

(3) This Act, other than section 23, does not apply to the telecommunications service providers in the classes listed in Part 2 of Schedule 2 in respect of the activities specified in it for that class.

(4) The Governor in Council may, on the recommendation of the Minister, by order amend Schedule 1 or Schedule 2.

OBLIGATIONS

Obligations Concerning Interceptions

6. (1) Telecommunications service pro­viders, in connection with the interception of a communication, shall, in accordance with any regulations, have the capability to do — and, when requested to do so by an authorized person or by that person’s authority, do — the following:

(a) provide the intercepted communication to the authorized person;

(b) if the intercepted communication is encoded, compressed, encrypted or otherwise treated

(i) in cases where the service provider has applied the treatment, either remove the treatment or, if the treatment cannot readily be removed using the telecommunications facilities controlled by the service provider, provide the authorized person with the means to remove it; and

(ii) in cases where the treatment has been applied by another, either remove the treatment or, if the service provider does not control all the means necessary to remove it, provide the authorized person with the means — other than transmission apparatus — for removing the treatment that the service provider controls;

(c) provide the authorized person with the prescribed information that is in the possession or control of the service provider respecting the location of equipment used in the transmission of the communication; and

(d) comply with any prescribed confidentiality or security measures respecting interceptions.

(2) For greater certainty, a telecommunications service provider has no obligation under paragraph (1)(b) if any other person has applied the treatment and — either alone or with others, but to the exclusion of the service provider — controls the means for its removal.

(3) A telecommunications service provider that is capable of providing intercepted communications to an authorized person in more than one form or manner that conforms with the regulations shall provide them in whichever of those forms or manners the authorized person requires.

7. The operational requirements in respect of transmission apparatus are that the telecommunications service provider operating the apparatus have the capability, in accordance with any regulations, to do the following:

(a) enable the interception of communications generated by or transmitted through the apparatus to or from any temporary or permanent user of the provider’s telecommunications services;

(b) isolate the communication that is authorized to be intercepted from other information and provide the intercepted communication to authorized persons, including

(i) isolating the communications of the person whose communications are authorized to be intercepted from those of other persons, and

(ii) isolating the transmission data of the person whose communications are authorized to be intercepted from the rest of the person’s communications;

(c) provide information that permits the accurate correlation of all elements of intercepted communications; and

(d) enable simultaneous interceptions by authorized persons from multiple national security and law enforcement agencies of communications of multiple users, including enabling

(i) at least the minimum number of those interceptions, and

(ii) any greater number of those interceptions — up to the maximum number and within the time provided for in the regulations — for the period that an agency requests in accordance with any regulations.

8. A telecommunications service provider who meets, in whole or in part, an operational requirement in respect of transmission apparatus that the service provider operates shall continue to so meet that operational requirement.

9. A telecommunications service provider who meets, in whole or in part, an operational requirement in respect of transmission apparatus that the service provider operates in connection with any of the service provider’s telecommunications services shall meet that operational requirement to the same extent in respect of any new service that the service provider begins to provide using that apparatus.

10. (1) A telecommunications service provider who begins to operate a transmission apparatus for the purpose of providing telecommunications services shall meet the operational requirements in respect of the apparatus, whether by means of the apparatus itself or by any other means.

(2) Subsection (1) does not apply in respect of transmission apparatus that a telecommunications service provider acquires from another telecommunications service provider and operates in order to continue to provide the same telecommunications service to approximately the same users. However, the acquiring service provider shall continue to meet any operational requirements in respect of the transmission apparatus that the service provider from whom it was acquired was obligated to meet.

11. (1) When a telecommunications service provider installs new software for a transmission apparatus that the service provider operates, the service provider shall meet the operational requirements in respect of that apparatus to the extent that would be enabled by the installation of the software in the form available from the software’s manufacturer that would most increase the service provider’s ability to meet those operational requirements.

(2) Subsection (1) applies even if the form of the software in question would require the telecommunications service provider to acquire additional software licences or telecommunications facilities to achieve that increased ability.

12. A telecommunications service provider who, together with any affiliated or associated telecommunications service provider as defined by the regulations, has fewer than 100,000 subscribers, without regard to the telecommunications service to which they subscribe, is considered — during the three years after this section comes into force — to meet any operational requirement in respect of transmission apparatus that the service provider is obligated to meet by virtue of section 10 or 11 if the service provider provides, in accordance with any regulations, a physical connection point for the transmission apparatus permitting an authorized person to effect an interception.

13. Subject to section 15, a telecommunications service provider is not required, under sections 8 to 11, to increase the service provider’s capability to enable simultaneous interceptions beyond the applicable global limit determined in accordance with the regulations.

14. (1) The Minister may, by order made on the application of a telecommunications service provider, suspend in whole or in part any obligation of the service provider to meet an operational requirement that would arise from the operation of section 10 or 11.

(2) The application must

(a) specify the operational requirement with respect to which an order is sought;

(b) set out the reasons for making the application;

(c) include a plan that

(i) sets out the measures by which and the time within which the telecommunications service provider proposes to meet the operational requirement specified in accord­ance with paragraph (a),

(ii) describes any measures that the telecommunications service provider proposes to take to improve the service provider’s capability to meet the operational requirements, even if they are not yet applicable, and

(iii) identifies the stages at which and methods by which the Minister can measure progress in the implementation of the plan and the time, manner and form for reports the service provider proposes to make to the Minister; and

(d) conform with any prescribed requirements relating to the content or form of the application or the manner in which it is to be made.

(3) In deciding whether to make an order, the Minister shall take into account the public interest in national security and law enforcement and the commercial interests of the telecommunications service provider as well as any other matter that the Minister considers relevant.

(4) The Minister shall, within 120 days after the day on which the Minister receives the application, notify the applicant of the Minister’s decision to accept or refuse it and, if no notification has been received by the applicant at the end of that period, the Minister is deemed to have refused the application.

(5) In the order, the Minister may include any conditions that the Minister considers appropriate and shall fix its term for a period of not more than three years.

(6) The telecommunications service provider shall comply with the conditions of the order as soon as the service provider begins to operate the telecommunications apparatus or installs the new software, as the case may be.

(7) The Minister may revoke an order on written notice to the telecommunications service provider if

(a) the service provider has contravened this Act, the regulations or the conditions of the order; or

(b) the order was obtained through misrepresentation.

(8) The Minister may amend an order with the consent of the telecommunications service provider.

15. (1) The Minister may, if in the Minister’s opinion it is necessary to do so, order a telecommunications service provider

(a) to comply with any obligation under subsection 6(1) in a manner or within a time that the Minister specifies;

(b) to enable, in a manner or within a time that the Minister specifies, a number of simultaneous interceptions greater than any maximum or limit that would otherwise apply;

(c) to comply, in a manner or within a time that the Minister specifies, with any confidentiality or security measures respecting interceptions that the Minister specifies in addition to any that are prescribed;

(d) to meet an operational requirement in respect of transmission apparatus operated by the service provider that the service provider would not otherwise be required to meet; or

(e) to meet an operational requirement in respect of transmission apparatus operated by the service provider in a manner or within a time that the Minister specifies.

(2) The Minister may not make an order under subsection (1) in respect of a telecommunications service provider in relation to a telecommunications service specified in Part 1 of Schedule 1 or in respect of a telecommunications service provider in a class listed in Part 2 of Schedule 1 or Part 2 of Schedule 2 in relation to the activities specified there for that class.

(3) The Minister shall pay the telecommunications service provider an amount that the Minister considers reasonable towards the prescribed expenses that the Minister considers are necessary for the service provider to incur initially to comply with an order made under this section.

(4) The Minister may provide the telecommunications service provider with any equipment or other thing that the Minister considers the service provider needs to comply with an order made under this section.

(5) Sections 8 and 9 do not apply in respect of any equipment or other thing provided by the Minister under subsection (4).

(6) An order made by the Minister under subsection (1) prevails over any orders made by the Governor in Council under section 30 and over the regulations, to the extent of any inconsistency.

16. The Statutory Instruments Act does not apply in respect of an order made under section 14 or 15.

Obligations Concerning Subscriber Information

17. (1) Every telecommunications service provider shall, in accordance with the regulations, provide to a person designated under subsection (3), on his or her written request, any information in the service provider’s possession or control respecting the name and address of any subscriber to any of the service provider’s telecommunications services and respecting any other identifiers associated with the subscriber.

(2) A designated person shall ensure that he or she makes a request under subsection (1) only in performing, as the case may be, a duty or function

(a) of the Canadian Security Intelligence Service under the Canadian Security Intelligence Service Act;

(b) of a police service, including any related to the enforcement of any laws of Canada, of a province or of a foreign jurisdiction; or

(c) of the Commissioner of Competition under the Competition Act.

(3) The Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Service, the Commissioner of Competition and the chief or head of a police service constituted under the laws of a province may designate for the purposes of this section any employee of his or her agency, or a class of such employees, whose duties are related to protecting national security or to law enforcement.

(4) The number of persons designated under subsection (3) in respect of a particular agency may not exceed the greater of five and the number that is equal to five percent of the total number of employees of that agency.

(5) The Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service may delegate his or her power to designate persons under subsection (3) to, respectively, a member of a prescribed class of senior officers of the Royal Canadian Mounted Police or a member of a prescribed class of senior officials of the Canadian Security Intelligence Service.

(6) A designated person shall, with respect to requests made by the person under subsection (1),

(a) keep, in accordance with the regulations, a record that

(i) identifies the duty or function referred to in subsection (2) in the performance of which the request is made,

(ii) describes the relevance of the information requested to that duty or function and includes any other information that is necessary to know the reason for the request; and

(b) deal with the information provided in response to those requests in accordance with the regulations.

18. (1) A police officer may request a telecommunications service provider to provide to the officer the information referred to in subsection 17(1) in the following circumstances:

(a) the officer believes on reasonable grounds that the urgency of the situation is such that the request cannot, with reasonable diligence, be made under subsection 17(1);

(b) the officer believes on reasonable grounds that the information requested is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and

(c) the information directly concerns either the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The police officer shall inform the telecommunications service provider of his or her name, rank, badge number and the agency in which he or she is employed and state that the request is being made in exceptional circumstances and under the authority of this subsection.

(2) The telecommunications service provider shall provide the information to the police officer as if the request were made by a designated person under subsection 17(1).

(3) The police officer shall, within 24 hours after making a request under subsection (1), communicate to a designated person employed in the same agency as the officer all the information relating to the request that would be necessary if it had been made under subsection 17(1) and inform that person of the grounds referred to in paragraphs (1)(a) and (b). The designated person shall in writing confirm to the telecommunications service provider the particulars of the request, including noting that it was made in exceptional circumstances under the authority of subsection (1), and shall, under paragraph 17(6)(a), keep a record of the request that includes those grounds.

19. Information that is provided in response to a request made under subsection 17(1) or 18(1) shall not, without the consent of the individual to whom it relates, be used by the agency in which the designated person or police officer is employed except for the purpose for which the information was obtained or for a use consistent with that purpose.

20. (1) The Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Service, the Commissioner of Competition and any chief or head of a police service constituted under the laws of a province who makes a designation under subsection 17(3) shall cause internal audits to be regularly conducted of the practices of his or her agency to ensure compliance with sections 17 to 19 and the regulations made for the purposes of those sections and of the internal management and information systems and controls concerning requests made under sections 17 and 18.

(2) The person who causes an internal audit to be conducted shall, without delay, make a report to the responsible minister of anything arising out of the audit that in his or her opinion should be brought to the attention of that minister including any corrective action proposed or taken.

(3) A copy of the report is to be provided by that person

(a) if it concerns the Royal Canadian Mounted Police or the Commissioner of Competition, to the Privacy Commissioner;

(b) if it concerns the Canadian Security Intelligence Service, to the Security Intelligence Review Committee; and

(c) if it concerns a police service constituted under the laws of a province, to the public officer for that province whose duties include investigations relating to the protection of privacy.

(4) The Privacy Commissioner may, on reasonable notice, conduct an audit of the practices of the Royal Canadian Mounted Police or the Commissioner of Competition to ensure compliance with sections 17 to 19 and the regulations made for the purposes of those sections and of the internal management and information systems and controls concerning requests made under sections 17 and 18. The provisions of the Privacy Act apply, with any necessary modifications, in respect of the audit as if it were an investigation under that Act.

(5) For greater certainty, the functions of the Security Intelligence Review Committee under section 38 of the Canadian Security Intelligence Service Act include the power to conduct an audit of the practices of the Canadian Security Intelligence Service to ensure compliance with sections 17 to 19 and the regulations made for the purposes of those sections and of the internal management and information systems and controls concerning requests made under sections 17 and 18.

(6) The Privacy Commissioner shall, in the report made to Parliament for each financial year, identify the public officers to whom copies of reports are to be provided under paragraph (3)(c) and report on the powers that they have to conduct audits similar to those referred to in subsection (4) with respect to the police services constituted under the laws of their province.

(7) For the application of this section, the responsible minister is,

(a) for the Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service, the Minister of Public Safety and Emergency Preparedness;

(b) for the Commissioner of Competition, the Minister of Industry; and

(c) for the chief or head of a police service constituted under the laws of a province, the Attorney General of that province.

21. Nothing in this Act derogates from any other authority under law to obtain the information referred to in subsection 17(1) from a telecommunications service provider.

22. Personal information, within the meaning of that expression in the Personal Information Protection and Electronic Documents Act, that is provided under subsection 17(1) or 18(1) is deemed, for the purposes of subsections 9(2.1) to (2.4) of that Act, to be disclosed under subparagraph 7(3)(c.1)(i) or (ii), and not under paragraph 7(3)(i), of that Act. This section operates despite the provisions of Part 1 of that Act.

Miscellaneous

23. (1) A telecommunications service pro­vider shall, on the request of a police officer or of an employee of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service,

(a) provide the prescribed information relating to the service provider’s telecommunications facilities;

(b) indicate what telecommunications services the service provider offers to subscribers; and

(c) provide the name, address and telephone number of any telecommunications service providers from whom the service provider obtains or to whom the service provider provides telecommunications services, if the service provider has that information.

(2) A telecommunications service provider shall, on the request of an authorized person, provide the prescribed information concerning

(a) telecommunications services that are provided by the service provider to a person whose communications are the subject of a court order authorizing their interception; and

(b) telecommunications facilities that are used by the service provider in providing those telecommunications services.

24. A telecommunications service provider shall, on the request of a police officer or of an employee of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service, provide in accordance with any regulations the assistance that the police officer or employee reasonably requires to permit him or her to assess or to test the service provider’s telecommunications facilities for the purpose of an interception.

25. If the Canadian Security Intelligence Service or a law enforcement agency has provided a telecommunications service provider with any equipment or other thing for intercepting communications, the service provider shall, before making any change to the service provider’s telecommunications facilities that is likely to impair or reduce the interception capability of the equipment or other thing, notify the Service or law enforcement agency, as the case may be, of the change.

26. A telecommunications service provider shall notify the Minister if

(a) in respect of a particular transmission apparatus, the increased number of simultaneous interceptions that the service provider is required, as a result of a request referred to in subparagraph 7(d)(ii), to be capable of enabling is 75% or more of the maximum number that is applicable under that subparagraph; or

(b) the number of simultaneous interceptions that the service provider is required, under sections 8 to 11, to be capable of enabling is 75% or more of the global limit that is applicable under section 13.

27. (1) A telecommunications service pro­vider shall, on the request of a police officer or of an employee of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service, provide the names of the persons who are employed by or carrying out work for the service provider and who may assist in the interception of communications.

(2) The Royal Canadian Mounted Police or the Canadian Security Intelligence Service may conduct an investigation for the purposes of a security assessment of any of those persons who consent to the investigation.

28. (1) Every telecommunications service provider that is providing telecommunications services on the day this section comes into force shall submit a report to the Minister within six months after that day, in the prescribed form and manner, containing

(a) the prescribed information concerning the extent to which the service provider meets operational requirements in respect of transmission apparatus; and

(b) any prescribed information relevant to the administration of this Act.

(2) A telecommunications service provider that acquires transmission apparatus that is referred to in subsection 10(2) shall, before using it in providing telecommunications services, submit to the Minister a report in the prescribed form and manner containing the prescribed information referred to in subsection (1).

(3) The Minister may, at any time, require a telecommunications service provider to submit a report or further report in the form and manner, and within the period, that the Minister specifies containing the information referred to in subsection (1) and any additional related information that the Minister specifies.

(4) Every report submitted under this section must be accompanied by a written statement certifying that it does not contain any untrue statements or omissions of material facts, that it fairly presents the telecommunications service provider’s operations at the time of submission and that the signator has taken steps to ensure the report’s accuracy and promises to correct any material error that is detected in the report after its submission and to submit a revised report to the Minister as soon as possible, with another similar written statement accompanying it.

(5) The statement must be signed

(a) if the telecommunications service pro­vider is a corporation, by one of its officers or directors; and

(b) in any other case, by an individual who is an owner of the service provider or by an officer or a director of a corporation that is an owner of the service provider.

29. If two or more telecommunications service providers have, in effect, the same obligation under this Act in connection with any given transmission apparatus or a given interception and any one of them performs that obligation, it is deemed to be performed by all.

EXEMPTIONS

30. (1) The Governor in Council may, on the recommendation of the Minister and the Minister of Industry, make an order exempting any class of telecommunications service providers from all or part of the obligations under any of sections 6, 9 to 11, 17, 18 and 28 or under any regulations made for the purposes of those sections.

(2) Before making an order, the Governor in Council shall consider

(a) the extent to which the exemption would adversely affect national security or law enforcement;

(b) whether the telecommunications service providers can comply with the obligations from which they would be exempted;

(c) whether the costs of compliance with those obligations would have an unreasonable adverse effect on the business of the telecommunications service providers; and

(d) whether compliance with those obligations would unreasonably impair the provision of telecommunications services to Canadians or the competitiveness of the Canadian telecommunications industry.

(3) In the order, the Governor in Council may include any conditions that the Governor in Council considers appropriate and shall fix its term for a period of not more than two years.

(4) When an order under which a telecommunications service provider is exempted from an obligation under section 10 or 11 expires or is revoked, those sections apply to the telecommunications service provider who was exempted as of the date of expiry or revocation as if the exemption had never been made.

REGULATIONS

31. (1) The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Act and prescribing anything that is to be prescribed under this Act, including regulations

(a) respecting obligations under subsection 6(1), including specifying the time, manner and form in which they must be performed and the circumstances in which they do not apply or need not be performed;

(b) requiring telecommunications service providers to specify the locations where intercepted communications will be provided and governing which locations may be so specified;

(c) respecting the operational requirements referred to in section 7, including matters of time, manner and form in relation to them and the circumstances in which they do not apply or need not be met and, for the purposes of paragraph 7(d),

(i) providing for the minimum number and maximum number of simultaneous interceptions or the manner of determining them,

(ii) prescribing what is to be counted as a single interception,

(iii) governing requests to increase the number of those interceptions, including the circumstances in which requests may be made, the manner of making them and the duration of the increases, and

(iv) respecting the maximum number of agencies for which a telecommunications service provider is to simultaneously enable interceptions;

(d) for the purposes of subsection 15(3), prescribing matters that the Minister is to consider in deciding what amount is reasonable or what expenses are necessary;

(e) for the purposes of sections 17 and 18, respecting the making of requests and the provision of information under those sections, including

(i) specifying information that is to be provided with respect to name, address or other identifiers, the manner of — and time for — providing it and the circumstances under which particular information is to be provided,

(ii) prescribing those other identifiers, and

(iii) prescribing any confidentiality or security measures with which the telecommunications service provider must comply in providing that information;

(f) for the purposes of section 24, respecting the assessment and testing of telecommunications facilities and transmission apparatus; and

(g) for carrying out sections 34 to 49, including

(i) designating any provision of this Act or of any regulation, or any order or class of orders made under this Act or any requirement or condition of such a provision or order or class of orders — or class of such requirements or conditions — as a provision, order, requirement or condition whose contravention may be proceeded with as a violation,

(ii) prescribing the maximum administrative monetary penalty for a particular violation, which maximum may not exceed $50,000, in the case of an individual, and $250,000, in any other case,

(iii) prescribing criteria to be taken into account in determining the amount of a proposed penalty,

(iv) respecting compliance agreements referred to in subsection 38(3),

(v) respecting the service of notices referred to in those sections, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served, and

(vi) respecting procedure on appeals, which procedure must provide for a reasonable opportunity for the appellant to present written evidence and make representations in writing.

(2) Regulations made under subsection (1) may apply generally or to particular classes of telecommunications service providers and may vary by class of telecommunications service provider, by class of telecommunications service provided, by class of telecommunications facility or according to the population of the region in which a telecommunications facility of a given class is located.

INSPECTION

32. (1) The Minister may designate any qualified person as an inspector for the purpose of verifying compliance with this Act.

(2) Inspectors are to receive a certificate attesting to their designation and shall, on request, present the certificate to any person appearing to be in charge of any place that they enter in the course of an inspection.

33. (1) An inspector may, for the purposes for which the inspector is designated,

(a) enter and inspect, at any reasonable time, any place owned by, or under the control of, any telecommunications service provider in which the inspector believes on reasonable grounds there is any document, information, transmission apparatus, telecommunications facility or other thing relevant to the enforcement of this Act;

(b) examine any document, information or thing found in the place and open or cause to be opened any container or other thing for those purposes;

(c) examine or test or cause to be tested any telecommunications facility or transmission apparatus or related equipment found in the place;

(d) use, or cause to be used, any computer system at the place to search and examine any information contained in or available to the system;

(e) reproduce, or cause to be reproduced, any information in the form of a printout, or other intelligible output, and remove the printout, or other output, for examination or copying; or

(f) use, or cause to be used, any copying equipment or means of telecommunications at the place.

(2) An inspector carrying out an inspection may be accompanied by any other person chosen by the inspector.

(3) Despite paragraph (1)(a), an inspector may not enter a dwelling-place except with the consent of the occupant or under the authority of a warrant issued under subsection (4).

(4) A justice, as defined in section 2 of the Criminal Code, or a judge, as defined in section 2 of the Canadian Security Intelligence Service Act, may issue a warrant authorizing an inspector named in it to enter a dwelling-place, subject to any conditions specified in the warrant, if, on an ex parte application, the justice or judge is satisfied by information on oath that

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

(b) entry into the dwelling-place is necessary for the enforcement of this Act; and

(c) 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.

(5) An inspector who executes a warrant issued under subsection (4) shall not use force unless the use of force has been specifically authorized in the warrant and the inspector either is a peace officer or is accompanied by one.

(6) The owner or person in charge of a place entered or to be entered by an inspector shall give the inspector

(a) all reasonable assistance to enable the inspector to carry out his or her duties under this Act; and

(b) any information that he or she reasonably requests.

(7) When an inspector is carrying out his or her duties under this Act, no person shall

(a) wilfully resist or obstruct the inspector; or

(b) knowingly make a false or misleading statement to the inspector or knowingly provide false or misleading information to him or her.

ADMINISTRATIVE MONETARY PENALTIES

Violations

34. Every person who contravenes a provision, order, requirement or condition designated under subparagraph 31(1)(g)(i) commits a violation and is liable to an administrative monetary penalty not exceeding the prescribed maximum or, if no maximum has been prescribed, to a penalty not exceeding $50,000, in the case of an individual, and $250,000, in any other case.

Enforcement Officers

35. (1) The Minister may designate as enforcement officers for the purposes of this Act persons or classes of persons that the Minister considers qualified.

(2) Enforcement officers are to receive a certificate attesting to their designation and shall, on request, present the certificate to any person appearing to be in charge of any place that they enter in the course of carrying out their duties or functions.

(3) Every enforcement officer is, in carrying out his or her duties and functions, an inspector.

Notices of Violation

36. (1) If an enforcement officer believes on reasonable grounds that a person has committed a violation, the officer may issue, and shall cause to be served on the person, a notice of violation.

(2) The Minister may establish the form and content of notices of violation, but each notice of violation must

(a) set out the name of the person believed to have committed the violation;

(b) identify the violation;

(c) set out the penalty that the enforcement officer proposes to impose;

(d) inform the person that they may, within 30 days after the day on which the notice is served or within any longer period specified in it, either pay the penalty proposed in the notice or make representations with respect to the alleged violation or proposed penalty — including any representations about entering into a compliance agreement — and set out the manner for doing so; and

(e) inform the person that, if they fail to pay the penalty or make representations in accordance with the notice, they will be considered to have committed the violation and the proposed penalty will be imposed in respect of it.

(3) The amount of a penalty is, in each case, to be determined taking into account the following matters:

(a) that administrative monetary penalties have as their purpose to encourage compliance rather than to punish;

(b) the degree of intention or negligence on the part of the person who committed the violation;

(c) the harm done by the violation;

(d) the person’s history of prior violations or convictions — or compliance agreements entered into — under this Act during the five-year period immediately before the violation;

(e) the cumulative amount of the penalties that may be imposed for any violation in respect of which section 44 applies;

(f) any prescribed criteria; and

(g) any other relevant matter.

Determination of Responsibility and Penalty

Payment of Penalty

37. If the person pays the penalty proposed in the notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.

Making Representations

38. (1) The person alleged to have committed a violation may make representations to an enforcement officer other than the one who issued the notice of violation.

(2) The enforcement officer to whom the representations are made shall either

(a) enter into a compliance agreement with the person on behalf of the Minister; or

(b) decide on a balance of probabilities whether the person committed the violation and, if so, impose the penalty proposed, a lesser penalty or no penalty, taking into account the matters mentioned in subsection 36(3).

The enforcement officer shall cause notice of any decision made under paragraph (b) to be issued and served on the person together with written reasons for the decision and notice of the person’s right of appeal under subsection 40(1).

(3) A compliance agreement

(a) may include any terms that the officer considers appropriate including a requirement to give reasonable security, in a form and an amount that the officer considers satisfactory, for the person’s performance of the agreement; and

(b) must provide for payment by the person to the Receiver General of a specified amount not greater than the penalty proposed in the notice of violation if the person does not comply with the agreement.

(4) Entry into a compliance agreement ends the violation proceedings and precludes any further violation or offence proceedings in relation to the act or omission in question.

(5) The Minister may issue and serve a notice of default on a person who has entered into a compliance agreement but has not complied with it. On service of the notice, the person is liable to pay without delay the amount provided for in the agreement, failing which, the Minister may realize or enforce any security for the person’s performance of the agreement.

Failure to Act

39. A person who neither pays the penalty nor makes representations in accordance with the notice of violation is considered to have committed the violation, and the enforcement officer shall impose the penalty proposed and notify the person of it.

Appeal to Minister

40. (1) A person served with notice of a decision made under paragraph 38(2)(b) may, within 30 days after the day on which the notice is served or within any longer period that the Minister allows in accordance with any regulations, appeal the decision to the Minister.

(2) On an appeal, the Minister may confirm, set aside or vary the decision of the enforcement officer.

Rules about Violations

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

42. An officer, director, agent or mandatary of a person other than an individual that commits a violation under this Act is a party to the violation if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the violation and is liable to the administrative monetary penalty provided for that violation whether or not the person that committed the violation has been proceeded against under sections 36 to 39. For greater certainty, an officer or director, or any agent or mandatary who is an individual, is liable only to the penalty provided in respect of an individual.

43. Due diligence is a defence in a proceeding in relation to a violation.

44. A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

45. Any proceedings in respect of a violation may be instituted at any time within, but not later than, two years after the day on which the subject-matter of the proceedings arose.

46. (1) If it is possible to proceed with any act or omission as a violation and it is also possible to proceed with it as an offence, proceeding in one manner precludes proceeding in the other.

(2) For greater certainty, a violation is not an offence.

(3) Section 126 of the Criminal Code does not apply in respect of any obligation or prohibition under this Act whose contravention is a violation under this Act.

47. In any proceeding, in the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 36(1) or 38(2) or (5) or given under section 39 or a certificate issued under subsection 49(1) is presumed to be authentic and is proof of its contents.

Recovery of Penalties and Amounts

48. (1) A penalty imposed under this Act and an amount referred to in subsection 38(5) each constitute a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.

(2) No proceedings to recover such a debt may be commenced later than five years after the day on which the debt became payable.

(3) Each such debt is payable to the Receiver General.

49. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 48(1).

(2) Registration in the Federal Court or in any other court of competent jurisdiction of the certificate 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.

OFFENCES

50. No person shall do any of the following things in performing any obligation under this Act or in any application, declaration or report made under it:

(a) knowingly make a false or misleading statement or knowingly provide false or misleading information; or

(b) knowingly omit to state a material fact or to provide material information.

51. Every person who wilfully contravenes subsection 6(1), any of sections 8 to 11 or an order made under section 15 commits an offence and is liable on prosecution by summary conviction

(a) in the case of an individual, to a fine not exceeding $100,000; or

(b) in any other case, to a fine not exceeding $500,000.

52. (1) Every person who contravenes subsection 14(6), section 25, 28 or 50 or a condition referred to in subsection 30(3) is guilty of an offence punishable on summary conviction and liable

(a) in the case of an individual, to a fine not exceeding $25,000 for a first offence, or $50,000 for a subsequent offence; or

(b) in any other case, to a fine not exceeding $100,000 for a first offence, or $250,000 for a subsequent offence.

(2) Every person who contravenes subsection 33(6) or (7) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $15,000.

(3) Every person who contravenes any other provision of this Act or a regulation made under this Act is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $250,000.

(4) A prosecution may not be commenced in respect of a contravention referred to in subsection (1) or section 51 without the consent of the Attorney General of Canada.

53. Due diligence is a defence in a prosecution for an offence under this Act.

54. If a person other than an individual commits an offence under this Act, every officer, director, agent or mandatary of the person 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 liable on conviction to the punishment provided for the offence whether or not the person that committed the offence has been prosecuted or convicted. For greater certainty, an officer or director, or any agent or mandatary who is an individual, is liable only to the punishment provided in respect of an individual.

55. If an offence under this Act 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.

56. Proceedings in respect of an offence under this Act may be instituted at any time within, but not later than, two years after the day on which the subject-matter of the proceedings arose.

57. (1) If a court of competent jurisdiction is satisfied, on application by the Minister, that a contravention of subsection 10(1) or section 11 is being or is likely to be committed, the court may grant an injunction, subject to any conditions that it considers appropriate, ordering the person to cease or refrain from operating the transmission apparatus referred to in subsection 10(1) or to refrain from acquiring, installing or operating the new software referred to in section 11.

(2) For the purposes of subsection (1), the Federal Court is a court of competent jurisdiction.

TRANSITIONAL PROVISION

58. (1) The application of section 10 with respect to transmission apparatus that a telecommunications service provider begins to operate in the year beginning on the day on which this section comes into force is suspended for the duration of that year.

(2) The application of section 11 with respect to transmission apparatus for which a telecommunications service provider installs new software in the year beginning on the day on which this section comes into force is suspended for the duration of that year.

COMING INTO FORCE

59. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.