Bill C-28

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GENERAL

Mandate

63. The Commission is responsible for the administration of sections 7 to 47.

Appointment of experts, etc.

64. (1) The Commission may, with the approval of the Governor in Council, engage experts or other persons to assist the Commission in any matter.

Remuneration

(2) The experts and other persons engaged by the Commission must be paid the remuneration, and are entitled to be paid the travel and living expenses incurred in providing assistance to the Commission, as may be fixed by the Governor in Council.

Remuneration and expenses payable out of appropriations

(3) The remuneration and expenses of the experts and other persons engaged by the Commission must be paid out of money appropriated by Parliament to defray the cost of administering this Act.

Regulations — Governor in Council

65. (1) The Governor in Council may make regulations

(a) specifying the circumstances in which consent is deemed to have been withdrawn for the purposes of section 7;

(b) defining “personal relationship” and “family relationship” for the purposes of paragraph 7(5)(a);

(c) specifying classes of commercial elec- tronic messages, or circumstances in which such messages are sent, for the purposes of paragraph 7(5)(c);

(d) specifying purposes of electronic messages for the purposes of paragraph 7(6)(g);

(e) specifying the use that may be made of a consent and the conditions on which a consent may be used for the purposes of paragraph 11(2)(b);

(f) specifying functions for the purposes of paragraph 11(5)(g);

(g) specifying operations for the purposes of subsection 11(6);

(h) specifying programs for the purposes of subparagraph 11(8)(a)(vi);

(i) specifying the circumstances mentioned in subsection 11(9) in which consent may be implied;

(j) defining “membership”, “club”, “association” and “voluntary organization” for the purposes of subsection 11(13);

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

(l) establishing additional factors to be taken into account in determining the amount payable under paragraph 52(1)(b); and

(m) generally, for carrying out the purposes and provisions of this Act.

Regulations — Commission

(2) The Commission may make regulations

(a) respecting the form of a request for consent for the purposes of subsections 11(1) and (3);

(b) respecting undertakings under subsection 22(1);

(c) respecting the service of documents required or authorized to be served under this Act including the manner and proof of service and the circumstances under which documents are to be considered to be served; and

(d) prescribing anything that is to be prescribed under this Act.

Review of Act by Parliamentary committee

66. Three years after the day on which this section comes into force, a review of the provisions and operation of this Act must be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.

TRANSITIONAL PROVISIONS

Existing business or non-business relationships

67. A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 7 comes into force, whichever is earlier, if, when that section comes into force,

(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 11(10) or (13), respectively, without regard to the period mentioned in that subsection; and

(b) the relationship includes the communication between them of commercial electronic messages.

Software updates and upgrades

68. If a computer program was installed on a person’s computer system before section 9 comes into force, the person’s consent to the installation of an update or upgrade to the program is implied until the person gives notification that they no longer consent to receiving such an installation or until three years after the day on which section 9 comes into force, whichever is earlier.

AMENDMENT TO THIS ACT

69. Subsection 7(8) of this Act is repealed.

R.S., c. C-22

AMENDMENT TO THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT

1993, c. 38, s. 85; 2001, c. 34, s. 31(E)

70. Subsection 12(2) of the Canadian Radio-television and Telecommunications Commission Act is replaced by the following:

Telecommunications

(2) The full-time members of the Commission and the Chairperson shall exercise the powers and perform the duties vested in the Commission and the Chairperson, respectively, by the Telecommunications Act or any special Act, as defined in subsection 2(1) of that Act, or by the Fighting Internet and Wireless Spam Act.

R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19

AMENDMENTS TO THE COMPETITION ACT

R.S., c. 19 (2nd Supp.), s. 20(3)

71. (1) The definition “record” in subsection 2(1) of the Competition Act is replaced by the following:

“record”
« document »

“record” means any information that is recorded on any medium and that is capable of being understood by a person or read by a computer system or other device;

(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“computer system”
« ordinateur »

“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code;

“data”
« données »

“data”, other than in Part III, means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system;

“electronic message”
« message électronique »

“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message;

“information”
« renseignement »

“information” includes data;

“locator”
« localisateur »

“locator” means a name or information used to identify a source of data on a computer system, and includes a URL;

“sender information”
« renseignements sur l’expéditeur »

“sender information” means the part of an electronic message — including the data relating to source, routing, addressing or signalling — that identifies or purports to identify the sender or the origin of the message;

“subject matter information”
« objet »

“subject matter information” means the part of an electronic message that purports to summarize the contents of the message or to give an indication of them;

R.S., c. 19 (2nd Supp.), s. 24

72. Subsection 16(6) of the Act is repealed.

R.S., c. 19 (2nd Supp.), s. 24

73. Subsection 20(2) of the Act is replaced by the following:

Copies

(2) Copies of any records referred to in subsection (1), made by any process of reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.

1999, c. 2, s. 10; 2002, c. 16, s. 5

74. Subsections 33(1) to (7) of the Act are replaced by the following:

Interim injunction

33. (1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under Part VI — other than an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53 — or under section 66, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, if it appears to the court that

(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence; and

(b) if the offence is committed or continued,

(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or

(ii) serious harm is likely to ensue unless the injunction is issued and the balance of convenience favours issuing the injunction.

Injunction — offences involving telecommunication

(1.1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, if it appears to the court that

(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;

(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and

Injunction against third parties — offences involving telecommunication

(1.2) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction ordering any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to commit or continue an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, or to do any act or thing that it appears to the court could prevent the commission or continuation of such an offence, if it appears to the court that

(a) a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;

(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and

Notice of application

(2) Subject to subsection (3), at least 48 hours’ notice of an application for an injunction under subsection (1), (1.1) or (1.2) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.

Ex parte application

(3) If a court to which an application is made under subsection (1), (1.1) or (1.2) is satisfied that subsection (2) cannot reasonably be complied with, or that the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest, it may proceed with the application ex parte but any injunction issued under subsection (1), (1.1) or (1.2) by the court on ex parte application has effect only for the period, not exceeding 10 days, that is specified in the order.

Terms of injunction

(4) An injunction issued under subsection (1), (1.1) or (1.2)

(a) shall be in the terms that the court that issues it considers necessary and sufficient to meet the circumstances of the case; and

(b) subject to subsection (3), has effect for the period that is specified in the order.

Extension or cancellation of injunction

(5) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, on at least 48 hours’ notice of the application to all other parties to the injunction, a court that issues an injunction under subsection (1), (1.1) or (1.2) may, by order,

(a) despite subsections (3) and (4), continue the injunction, with or without modification, for any definite period that is specified in the order; or

(b) revoke the injunction.

Duty of applicant

(6) If an injunction is issued under subsection (1), (1.1) or (1.2), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the acts or things on the basis of which the injunction was issued.

Punishment for disobedience

(7) A court may punish any person who contravenes an injunction issued by it under subsection (1), (1.1) or (1.2) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.

1999, c. 2, s. 12(1)

75. (1) Subsection 52(1.2) of the Act is replaced by the following:

Permitted representations

(1.2) For greater certainty, in this section and in sections 52.01, 52.1, 74.01, 74.011 and 74.02, the making or sending of a representation includes permitting a representation to be made or sent.

1999, c. 2, s. 12(1)

(2) Paragraph 52(2)(d) of the Act is replaced by the following:

(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or

76. The Act is amended by adding the following after section 52:

False or misleading representation — sender or subject matter information

52.01 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.

False or misleading representation — electronic message

(2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.

False or misleading representation — locator

(3) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly make or cause to be made a false or misleading representation in a locator.

Proof of deception not required

(4) For greater certainty, in establishing that any of subsections (1) to (3) was contravened, it is not necessary to prove that any person was deceived or misled.

General impression to be considered

(5) In a prosecution for a contravention of any of subsections (1) to (3), the general impression conveyed by a representation as well as its literal meaning are to be taken into account.

Offence and punishment

(6) Any person who contravenes any of subsections (1) to (3) is guilty of an offence and

(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or

(b) liable on summary conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.

Reviewable conduct

(7) Nothing in Part VII.1 is to be read as excluding the application of this section to the making of a representation that constitutes reviewable conduct within the meaning of that Part.

Where application made under Part VII.1

(8) No proceedings may be commenced under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which an order against that person is sought under Part VII.1.

Interpretation

(9) For the purposes of this section,

(a) an electronic message is considered to have been sent once its transmission has been initiated; and

(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.

Assisting foreign states

52.02 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct prohibited under section 52, 52.01, 52.1, 53, 55 or 55.1,

(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act or the Criminal Code to investigate an offence under any of those sections; and

(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that

(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and

(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.

Mutual assistance

(2) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).

1999, c. 2, s. 13

77. (1) Subsection 52.1(1) of the Act is replaced by the following:

Definition of “telemarketing”

52.1 (1) In this section, “telemarketing” means the practice of communicating orally by any means of telecommunication for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product.

1999, c. 2, s. 13

(2) Paragraph 52.1(2)(a) of the Act is replaced by the following:

(a) disclosure is made, in a fair and reasonable manner at the beginning of each communication, of the identity of the person on behalf of whom the communication is made, the nature of the business interest or product being promoted and the purposes of the communication;

1999, c. 2, s. 13

(3) Subsection 52.1(5) of the Act is replaced by the following:

Time of disclosure

(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the communication.

78. The Act is amended by adding the following after section 74.01:

False or misleading representation — sender or subject matter information

74.011 (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.

False or misleading representation — electronic message

(2) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent in an electronic message a representation that is false or misleading in a material respect.

False or misleading representation — locator

(3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, makes or causes to be made a false or misleading representation in a locator.

General impression to be considered

(4) In proceedings under this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the person who made the representation engaged in the reviewable conduct.

Interpretation

(5) For the purposes of this section,

(a) an electronic message is considered to have been sent once its transmission has been initiated; and

(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.

Assisting foreign states

74.012 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct that is reviewable under section 74.01, 74.011, 74.02, 74.04, 74.05 or 74.06,

(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act to investigate conduct that is reviewable under any of those sections; and

(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and

(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.

Limitation

(2) Subsection (1) does not apply if the contravention of the laws of the foreign state has consequences that would be considered penal under Canadian law.

Mutual assistance

(3) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).

1999, c. 2, s. 22

79. Paragraph 74.03(1)(d) of the Act is replaced by the following:

(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or

80. The Act is amended by adding the following after section 74.1:

Deduction from administrative monetary penalty

74.101 (1) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under section 74.011 and orders the person to pay an administrative monetary penalty under paragraph 74.1(1)(c), then the court shall deduct from the amount of the penalty that it determines any amount that the person

(a) has been ordered to pay under paragraph 52(1)(b) of the Fighting Internet and Wireless Spam Act in respect of the same conduct; or

(b) has agreed in a settlement agreement to pay on account of amounts referred to in paragraph 52(1)(b) of that Act in respect of the same conduct.

Restitution and interim injunction

(2) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under subsection 74.011(2), it may order the person to pay an amount under paragraph 74.1(1)(d), and may issue an interim injunction under section 74.111, as if the conduct were conduct that is reviewable under paragraph 74.01(1)(a).

1999, c. 2, s. 22; 2002, c. 16, s. 10(1)

81. Subsections 74.11(1) to (4) of the Act are replaced by the following:

Temporary order

74.11 (1) On application by the Commissioner, a court may order a person who it appears to the court is engaging in conduct that is reviewable under this Part not to engage in that conduct or substantially similar reviewable conduct if it appears to the court that

(a) serious harm is likely to ensue unless the order is issued; and

(b) the balance of convenience favours issuing the order.

Temporary order — supply of a product

(1.1) On application by the Commissioner, a court may order any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to engage in conduct that is reviewable under this Part, or to do any act or thing that it appears to the court could prevent a person from engaging in such conduct, if it appears to the court that

(a) serious harm is likely to ensue unless the order is issued; and

(b) the balance of convenience favours issuing the order.

Duration

(2) Subject to subsection (5), an order made under subsection (1) or (1.1) has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.

Notice of application

(3) Subject to subsection (4), at least 48 hours’ notice of an application referred to in subsection (1), (1.1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.

Ex parte application

(4) The court may proceed ex parte with an application made under subsection (1) or (1.1) if it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.

1999, c. 2, s. 22

82. Section 74.16 of the Act is replaced by the following:

Where proceedings commenced under section 52 or 52.01

74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.

2000, c. 5

AMENDMENTS TO THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

83. The Personal Information Protection and Electronic Documents Act is amended by adding the following after section 7:

Definitions

7.1 (1) The following definitions apply in this section.

“access”
« utiliser »

“access” means to program, to execute programs on, to communicate with, to store data in, to retrieve data from, or to otherwise make use of any resources, including data or programs on a computer system or a computer network.

“computer program”
« programme d’ordinateur »

“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“computer system”
« ordinateur »

“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“electronic address”
« adresse électronique »

“electronic address” means an address used in connection with

(a) an electronic mail account;

(b) an instant messaging account; or

Collection of electronic addresses, etc.

(2) Paragraphs 7(1)(a), (c) and (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

(a) the collection of an individual’s electron- ic address, if the address is collected by the use of a computer program that is designed or marketed primarily for use in generating or searching for, and collecting, electronic addresses; or

(b) the use of an individual’s electronic address, if the address is collected by the use of a computer program described in paragraph (a).

Accessing a computer system to collect personal information, etc.

(3) Paragraphs 7(1)(a) to (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

(a) the collection of personal information, through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed in contravention of an Act of Parliament; or

(b) the use of personal information that is collected in a manner described in paragraph (a).

84. Section 12 of the Act is replaced by the following:

Examination of complaint by Commissioner

12. (1) The Commissioner shall conduct an investigation in respect of a complaint, unless the Commissioner is of the opinion that

(a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province; or

(c) the complaint was not filed within a reasonable period after the day on which the subject matter of the complaint arose.

Exception

(2) Despite subsection (1), the Commissioner is not required to conduct an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 7 to 10 of the Fighting Internet and Wireless Spam Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

Notification

(3) The Commissioner shall notify the complainant and the organization that the Commissioner will not investigate the complaint or any act alleged in the complaint and give reasons.

Compelling reasons

(4) The Commissioner may reconsider a decision not to investigate under subsection (1), if the Commissioner is satisfied that the complainant has established that there are compelling reasons to investigate.

Powers of Commissioner

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

(b) administer oaths;

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

(d) at any reasonable time, enter any prem- ises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;

(e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and

(f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.

Dispute resolution mechanisms

(2) The Commissioner may attempt to resolve complaints by means of dispute resolution mechanisms such as mediation and conciliation.

Delegation

(3) The Commissioner may delegate any of the powers set out in subsection (1) or (2).

Return of records

(4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within 10 days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.

Certificate of delegation

(5) Any person to whom powers set out in subsection (1) are delegated shall be given a certificate of the delegation and the delegate shall produce the certificate, on request, to the person in charge of any premises to be entered under paragraph (1)(d).

Discontinuance of Investigation

Reasons

12.2 (1) The Commissioner may discontinue the investigation of a complaint if the Commissioner is of the opinion that

(a) there is insufficient evidence to pursue the investigation;

(b) the complaint is trivial, frivolous or vexatious or is made in bad faith;

(d) the matter is already the object of an ongoing investigation under this Part;

(e) the matter has already been the subject of a report by the Commissioner;

(f) any of the circumstances mentioned in paragraph 12(1)(a), (b) or (c) apply; or

(g) the matter is being or has already been addressed under a procedure referred to in paragraph 12(1)(a) or (b).

Other reason

(2) The Commissioner may discontinue an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 7 to 10 of the Fighting Internet and Wireless Spam Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

Notification

(3) The Commissioner shall notify the complainant and the organization that the investigation has been discontinued and give reasons.

85. Subsection 13(2) of the Act is repealed.

86. Subsections 14(1) and (2) of the Act are replaced by the following:

Application

14. (1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.

Time of application

(2) A complainant must make an application within 45 days after the report or notification is sent or within any further time that the Court may, either before or after the expiry of those 45 days, allow.

87. (1) Subsection 20(1) of the Act is replaced by the following:

Confidentiality

20. (1) Subject to subsections (2) to (6), 12(3), 12.2(3), 13(3), 19(1), 23(3) and 23.1(1) and section 25, the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part.

(2) Section 20 of the Act is amended by adding the following after subsection (5):

Disclosure under Fighting Internet and Wireless Spam Act

(6) The Commissioner may disclose information, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information, in the course of proceedings in which the Commissioner has intervened under paragraph 51(c) of the Fighting Internet and Wireless Spam Act or in accord- ance with subsection 59(3) or 61(1) of that Act.

88. Section 23 of the Act is replaced by the following:

Consultations with provinces

23. (1) If the Commissioner considers it appropriate to do so, or on the request of an interested person, the Commissioner may, in order to ensure that personal information is protected in as consistent a manner as possible, consult with any person who, under provincial legislation, has functions and duties similar to those of the Commissioner with respect to the protection of such information.

Agreements or arrangements with provinces

(2) The Commissioner may enter into agreements or arrangements with any person referred to in subsection (1) in order to

(a) coordinate the activities of their offices and the office of the Commissioner, including to provide for mechanisms for the handling of any complaint in which they are mutually interested;

(b) undertake and publish research or develop and publish guidelines or other instruments related to the protection of personal information;

(c) develop model contracts or other instruments for the protection of personal information that is collected, used or disclosed interprovincially or internationally; and

(d) develop procedures for sharing information referred to in subsection (3).

Sharing of information with provinces

(3) The Commissioner may, in accordance with any procedure established under paragraph (2)(d), share information with any person referred to in subsection (1), if the information

(a) could be relevant to an ongoing or potential investigation of a complaint or audit under this Part or provincial legislation that has objectives that are similar to this Part; or

(b) could assist the Commissioner or that person in the exercise of their functions and duties with respect to the protection of personal information.

Purpose and confidentiality

(4) The procedures referred to in paragraph (2)(d) shall

(a) restrict the use of the information to the purpose for which it was originally shared; and

(b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the Commissioner.

Disclosure of information to foreign state

23.1 (1) Subject to subsection (3), the Commissioner may, in accordance with any procedure established under paragraph (4)(b), disclose information referred to in subsection (2) that has come to the Commissioner’s knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part to any person or body who, under the legislation of a foreign state, has

(a) functions and duties similar to those of the Commissioner with respect to the protection of personal information; or

(b) responsibilities that relate to conduct that is substantially similar to conduct that would be in contravention of this Part.

Information that can be shared

(2) The information that the Commissioner is authorized to disclose under subsection (1) is information that the Commissioner believes

(a) would be relevant to an ongoing or potential investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct that would be in contravention of this Part; or

(b) is necessary to disclose in order to obtain from the person or body information that may be useful to an ongoing or potential investigation or audit under this Part.

Written arrangements

(3) The Commissioner may only disclose information to the person or body referred to in subsection (1) if the Commissioner has entered into a written arrangement with that person or body that

(a) limits the information to be disclosed to that which is necessary for the purpose set out in paragraph (2)(a) or (b);

(b) restricts the use of the information to the purpose for which it was originally shared; and

(c) stipulates that the information be treated in a confidential manner and not be further disclosed without the express consent of the Commissioner.

Arrangements

(4) The Commissioner may enter into arrangements with one or more persons or bodies referred to in subsection (1) in order to

(a) provide for cooperation with respect to the enforcement of laws protecting personal information, including the sharing of information referred to in subsection (2) and the provision of mechanisms for the handling of any complaint in which they are mutually interested;

(b) establish procedures for sharing information referred to in subsection (2);

(c) develop recommendations, resolutions, rules, standards or other instruments with respect to the protection of personal information;

(d) undertake and publish research related to the protection of personal information;

(e) share knowledge and expertise by different means, including through staff exchanges; or

(f) identify issues of mutual interest and determine priorities pertaining to the protection of personal information.

1993, c. 38

AMENDMENTS TO THE TELECOMMUNICATIONS ACT

89. (1) Subsection 39(2) of the Telecommunications Act is replaced by the following:

Information not to be disclosed

(2) Subject to subsections (4), (5), (5.1) and (6), where a person designates information as confidential and the designation is not withdrawn by that person, no person described in subsection (3) shall knowingly disclose the information, or knowingly allow it to be disclosed, to any other person in any manner that is calculated or likely to make it available for the use of any person who may benefit from the information or use the information to the detriment of any person to whose business or affairs the information relates.

(2) Section 39 of the Act is amended by adding the following after subsection (5):

Disclosure authorized by Fighting Internet and Wireless Spam Act

(5.1) The Commission may disclose designated information obtained by it in the performance or exercise of its duties or powers related to section 41, in respect of conduct carried out by electronic means, in accordance with subsection 59(1) or 61(1) of the Fighting Internet and Wireless Spam Act.

90. (1) Section 41 of the Act is renumbered as subsection 41(1) and is amended by adding the following:

Exception — Fighting Internet and Wireless Spam Act

(2) Despite subsection (1), the Commission may not prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is

(a) a commercial electronic message to which section 7 of the Fighting Internet and Wireless Spam Act applies; or

(b) a commercial electronic message referred to in subsection 7(5) of that Act, except to the extent that it is one referred to in subsection 7(8) of that Act.

(2) Subsection 41(2) of the Act, as enacted by subsection (1), is replaced by the following:

Exception — Fighting Internet and Wireless Spam Act

(2) Despite subsection (1), the Commission may not prohibit — or, except to the extent provided by subsection (3), regulate — the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is a commercial electronic message to which the Fighting Internet and Wireless Spam Act applies or a commercial electron- ic message referred to in subsection 7(5) of that Act.

Regulation — Fighting Internet and Wireless Spam Act

(3) For the purposes of subsection (2), the Commission may regulate, with respect to the types of telecommunications described in subsection (4),

(a) the hours during which the telecommunications facilities of a Canadian carrier may be used by any person;

(b) the contact information to be provided by a person referred to in subsection (2) and the circumstances in which and persons to whom it must be provided;

(d) telecommunications where a live operator is not immediately available when the recipient of the telecommunication connects to it.

Types of telecommunications

(4) For the purposes of subsection (3), the types of telecommunications are those that are

(a) in whole or in part, interactive two-way voice communications between individuals;

(b) sent by means of a facsimile to a telephone account; or

2005, c. 50, s. 1

91. Sections 41.1 to 41.7 of the Act are repealed.

COMING INTO FORCE

Order in council

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

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Canadian Radio-television and Telecommunications Commission Act

Clause 70: Existing text of subsection 12(2):

Competition Act

Clause 71: (1) Existing text of the definition:

“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy or portion thereof;

(2) New.

Clause 72: Existing text of subsection 16(6):

(6) In this section, “computer system” and “data” have the meanings set out in subsection 342.1(2) of the Criminal Code.

Clause 73: Existing text of subsection 20(2):

(2) Copies of any records referred to in subsection (1), including copies by any process of photographic reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.

Clause 74: Existing text of subsections 33(1) to (7):

33. (1) A court may, on application by or on behalf of the Attorney General of Canada or the attorney general of a province, issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, where it appears to the court, that the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under Part VI or section 66, and that

(a) if the offence is committed or continued

(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or

(ii) a person is likely to suffer, from the commission of the offence, damage for which the person cannot adequately be compensated under any other provision of this Act and that will be substantially greater than any damage that a person named in the application is likely to suffer from an injunction issued under this subsection in the event that it is subsequently found that an offence under Part VI or section 66 has not been committed, was not about to be committed and was not likely to be committed; or

(b) in the case of an offence under section 52.1 or 53, if the offence is committed or continued,

(i) injury to competition will result, or

(ii) one or more persons are likely to suffer damage from the commission of the offence that will be substantially greater than any damage that persons named in the application are likely to suffer from an injunction issued under this subsection in the event that it is subsequently found that an offence under section 52.1 or 53 has not been committed, was not about to be committed and was not likely to be committed.

(1.1) An injunction issued in respect of an offence under section 52.1 or 53 may forbid any person from supplying to another person a product that is or is likely to be used for the commission or continuation of such an offence, where the person being supplied or, in the case of a corporation, any of its officers or directors was previously

(a) convicted of an offence under section 52.1 or 53 or an offence under section 52 in respect of conduct prohibited by section 52.1 or 53; or

(b) punished for the contravention of an order made under this section or section 34 in respect of the commission, continuation or repetition of an offence referred to in paragraph (a).

(2) Subject to subsection (3), at least forty-eight hours notice of an application for an injunction under subsection (1) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.

(3) Where a court to which an application is made under subsection (1) is satisfied that

(a) subsection (2) cannot reasonably be complied with, or

(b) the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest,

it may proceed with the application ex parte but any injunction issued under subsection (1) by the court on ex parte application shall have effect only for such period, not exceeding ten days, as is specified in the order.

(4) An injunction issued under subsection (1)

(a) shall be in such terms as the court that issues it considers necessary and sufficient to meet the circumstances of the case; and

(b) subject to subsection (3), shall have effect for such period of time as is specified therein.

(5) A court that issues an injunction under subsection (1), at any time and from time to time on application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, notice of which application has been given to all other parties thereto, may by order,

(a) notwithstanding subsections (3) and (4), continue the injunction, with or without modification, for such definite period as is stated in the order; or

(b) revoke the injunction.

(6) Where an injunction is issued under subsection (1), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the actions on the basis of which the injunction was issued.

(7) A court may punish any person who contravenes an injunction issued by it under subsection (1) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.

Clause 75: (1) Existing text of subsection 52(1.2):

(1.2) For greater certainty, a reference to the making of a representation, in this section or in section 52.1, 74.01 or 74.02, includes permitting a representation to be made.

(2) Relevant portion of subsection 52(2):

(2) For the purposes of this section, a representation that is

...

(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or

...

is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2.1).

Clause 76: New.

Clause 77: (1) Existing text of subsection 52.1(1):

52.1 (1) In this section, “telemarketing” means the practice of using interactive telephone communications for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest.

(2) Relevant portion of subsection 52.1(2):

(2) No person shall engage in telemarketing unless

(a) disclosure is made, in a fair and reasonable manner at the beginning of each telephone communication, of the identity of the person on behalf of whom the communication is made, the nature of the product or business interest being promoted and the purposes of the communication;

(3) Existing text of subsection 52.1(5):

(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a telephone communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the telephone communication.

Clause 78: New.

Clause 79: Relevant portion of subsection 74.03(1):

74.03 (1) For the purposes of sections 74.01 and 74.02, a representation that is

...

(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or

...

is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2).

Clause 80: New.

Clause 81: Existing text of subsections 74.11(1) to (4):

74.11 (1) Where, on application by the Commissioner, a court finds a strong prima facie case that a person is engaging in reviewable conduct under this Part, the court may order the person not to engage in that conduct or substantially similar reviewable conduct if the court is satisfied that

(a) serious harm is likely to ensue unless the order is issued; and

(b) the balance of convenience favours issuing the order.

(2) Subject to subsection (5), the order has effect, or may be extended on application by the Commissioner, for such period as the court considers necessary and sufficient to meet the circumstances of the case.

(3) Subject to subsection (4), at least forty-eight hours notice of an application referred to in subsection (1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.

(4) The court may proceed ex parte with an application made under subsection (1) where it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.

Clause 82: Existing text of section 74.16:

74.16 No application may be made by the Commissioner for an order under this Part against a person where proceedings have been commenced under section 52 against that person on the basis of the same or substantially the same facts as would be alleged in proceedings under this Part.

Personal Information Protection and Electronic Documents Act

Clause 83: New.

Clause 84: Existing text of section 12:

12. (1) The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may

(b) administer oaths;

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

(d) at any reasonable time, enter any premises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;

(e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and

(f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.

(2) The Commissioner may attempt to resolve complaints by means of dispute resolution mechanisms such as mediation and conciliation.

(3) The Commissioner may delegate any of the powers set out in subsection (1) or (2).

(4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within ten days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.

Clause 85: Existing text of subsection 13(2):

(2) The Commissioner is not required to prepare a report if the Commissioner is satisfied that

(a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province;

(c) the length of time that has elapsed between the date when the subject-matter of the complaint arose and the date when the complaint was filed is such that a report would not serve a useful purpose; or

(d) the complaint is trivial, frivolous or vexatious or is made in bad faith.

If a report is not to be prepared, the Commissioner shall inform the complainant and the organization and give reasons.

Clause 86: Existing text of subsections 14(1) and (2):

14. (1) A complainant may, after receiving the Commissioner’s report, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.

(2) The application must be made within forty-five days after the report is sent or within any further time that the Court may, either before or after the expiry of those forty-five days, allow.

Clause 87: (1) Existing text of subsection 20(1):

20. (1) Subject to subsections (2) to (5), 13(3) and 19(1), the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part.

(2) New.

Clause 88: Existing text of section 23:

23. (1) If the Commissioner considers it appropriate to do so, or on the request of an interested person, the Commissioner may, in order to ensure that personal information is protected in as consistent a manner as possible, consult with any person who, under provincial legislation that is substantially similar to this Part, has powers and duties similar to those of the Commissioner.

(2) The Commissioner may enter into agreements with any person with whom the Commissioner may consult under subsection (1)

(a) to coordinate the activities of their offices and the office of the Commissioner, including to provide for mechanisms for the handling of any complaint in which they are mutually interested;

(b) to undertake and publish research related to the protection of personal information; and

(c) to develop model contracts for the protection of personal information that is collected, used or disclosed interprovincially or internationally.

Telecommunications Act

Clause 89: (1) Existing text of subsection 39(2):

(2) Subject to subsections (4), (5) and (6), where a person designates information as confidential and the designation is not withdrawn by that person, no person described in subsection (3) shall knowingly disclose the information, or knowingly allow it to be disclosed, to any other person in any manner that is calculated or likely to make it available for the use of any person who may benefit from the information or use the information to the detriment of any person to whose business or affairs the information relates.

(2) New.

Clause 90: (1) New.

Clause 91: (1) Existing text of sections 41.1 to 41.7:

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).