Bill C-47: An Act regulating telecommunications facilities to support investigations

C-47 Second Session, Fortieth Parliament, 57-58 Elizabeth II, 2009 HOUSE OF COMMONS OF CANADA BILL C-47 An Act regulating telecommunications facilities to support investigations first reading, June 18, 2009 MINISTER OF PUBLIC SAFETY 90523 RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act regulating telecommunications facilities to support investigations”. SUMMARY This enactment requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province. Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca TABLE OF PROVISIONS AN ACT REGULATING TELECOMMUNICATIONS FACILITIES TO SUPPORT INVESTIGATIONS SHORT TITLE 1.       Technical Assistance for Law Enforcement in the 21st Century Act INTERPRETATION 2.       Definitions PURPOSE 3.       Purpose HER MAJESTY 4.       Act binding on Her Majesty APPLICATION 5.       Exclusions — Schedule 1 OBLIGATIONS Obligations Concerning Interceptions 6.       Obligation to have capabilities 7.       Operational requirements for transmission apparatus 8.       No degradation of capabilities 9.       Maintaining capabilities in respect of new services 10.       Beginning to operate transmission apparatus 11.       New software 12.       Global limit 13.       Order suspending obligations 14.       Ministerial orders 15.       Statutory Instruments Act does not apply Obligations Concerning Subscriber Information 16.       Provision of subscriber information 17.       Exceptional circumstances 18.       Creation of record by designated person 19.       Use of information 20.       Internal audit 21.       Entitlement to fee 22.       Preservation of existing authority 23.       Deemed nature of information Miscellaneous Provisions 24.       Facility and service information 25.       Obligation to assist — assessment and testing 26.       Notification of change 27.       Notification — simultaneous interception capability 28.       Persons engaged in interceptions 29.       Specialized telecommunications support 30.       Mandatory reporting — acquisition of transmission apparatus 31.       No redundant performance required EXEMPTIONS 32.       Exemption regulation ADMINISTRATION AND ENFORCEMENT 33.       Designation 34.       Authority to enter 35.       Warrant for dwelling-house 36.       Entry onto private property 37.       Use of force 38.       False statements or information ADMINISTRATIVE MONETARY PENALTIES Violations 39.       Violations 40.       Designation Notices of Violation 41.       Issuance and service Determination of Responsibility and Penalty 42.       Options 43.       Making representations Appeal to Minister 44.       Right of appeal Rules About Violations 45.       Vicarious liability — acts of employees, agents and mandataries 46.       Officers of corporations, etc. 47.       Defence of due diligence 48.       Continuing violation 49.       Limitation period or prescription 50.       Violation or offence 51.       Admissibility of documents Recovery of Penalties and Other Amounts 52.       Debts to Her Majesty 53.       Certificate OFFENCES AND PUNISHMENT 54.       Misleading statements and information 55.       Offence 56.       Offence 57.       Offence 58.       Consent of Attorney General of Canada required 59.       Due diligence 60.       Officers of corporations, etc. 61.       Continuing offence 62.       Limitation period or prescription 63.       Injunctions REGULATIONS 64.       Regulations APPROPRIATION 65.       Consolidated Revenue Fund REVIEW OF ACT 66.       Review TRANSITIONAL PROVISIONS 67.       Delayed application — s. 10 68.       Deemed to meet operational requirements 69.       Mandatory reporting — existing service providers COORDINATING AMENDMENT 70.       Investigative Powers for the 21st Century Act COMING INTO FORCE 71.       Order in council SCHEDULE 1 EXCLUSIONS FROM THE APPLICATION OF THE ACT SCHEDULE 2 PARTIAL APPLICATION OF THE ACT .vis1 {position: absolute;display:block;} .vis2 {position: static;} 2nd Session, 40th Parliament, 57-58 Elizabeth II, 2009 house of commons of canada BILL C-47 An Act regulating telecommunications facilities to support investigations Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title 1. This Act may be cited as the Technical Assistance for Law Enforcement in the 21st Century Act. INTERPRETATION Definitions 2. (1) The following definitions apply in this Act. “authorized”« autorisée » “authorized”, in relation to a person, means having authority, under the Criminal Code or the Canadian Security Intelligence Service Act, to intercept communications. “communication”« communication » “communication” means a communication effected by a means of telecommunication and includes any related telecommunications data or other ancillary information. “intercept”« intercepter » “intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport of the communication. “Minister”« ministre » “Minister” means the Minister of Public Safety and Emergency Preparedness. “person”« personne » “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. “prescribed” Version anglaise seulement “prescribed” means prescribed by the regulations. “telecommunications data”« données de télécommunication » “telecommunications 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. “telecommunications facility”« installation de télécommunication » “telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications. “telecommunications service”« service de télécommunication » “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”« télécommunicateur » “telecommunications service provider” means a person that, independently or as part of a group or association, provides telecommunications services. “transmission apparatus”« appareil de transmission » “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). Preservation of existing powers (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 provid- ers assist in such interceptions. PURPOSE 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 telecommunications service providers to provide subscriber and other information, without unreasonably impairing the privacy of individ- uals, the provision of telecommunications services to Canadians or the competitiveness of the Canadian telecommunications industry. HER MAJESTY Act binding on Her Majesty 4. This Act is binding on Her Majesty in right of Canada or of a province. APPLICATION Exclusions — Schedule 1 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 that Schedule in respect of the activities specified in that Part for that class. Partial application — Schedule 2, Part 1 (2) This Act — other than sections 8, 9, 14, 15, 24 to 26, 28 and 32 to 64 — 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 that Part for that class. Partial application — Schedule 2, Part 2 (3) This Act, other than section 24, does not apply to the telecommunications service provid- ers in the classes listed in Part 2 of Schedule 2 in respect of the activities specified in that Part for that class. Amendment of Schedules (4) The Governor in Council may, by regulation, amend Schedule 1 or 2 by adding, deleting or changing a telecommunications service, an activity or a class of telecommunications service providers. OBLIGATIONS Obligations Concerning Interceptions Obligation to have capabilities 6. (1) For the purpose of enabling authorized persons to exercise their authority to intercept communications, every telecommunications service provider shall have the capa- bility to do the following: (a) provide intercepted communications to authorized persons; and (b) provide authorized persons 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 communications. Confidentiality and security measures (2) A telecommunications service provider, in connection with the interception of communications, shall comply with any prescribed confidentiality or security measures. Obligations for treated communications (3) If an intercepted communication is encoded, compressed, encrypted or otherwise treated by a telecommunications service provid- er, the service provider shall use the means in its control to provide the intercepted communication in the same form as it was before the communication was treated by the service provider. Exceptions (4) Despite subsection (3), a telecommunications service provider is not required to make the form of an intercepted communication the same as it was before the communication was treated if (a) the service provider would be required to develop or acquire decryption techniques or decryption tools; or (b) the treatment is intended only for the purposes of generating a digital signature or for certifying a communication by a prescribed certification authority, and has not been used for any other purpose. Providing information as requested (5) 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. Operational requirements for transmission apparatus 7. The operational requirements in respect of any transmission apparatus are that the telecommunications service provider operating the apparatus have the capability 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 service provider’s telecommunications services; (b) isolate the communication that is authorized to be intercepted from other information, including (i) isolating the communications of the person whose communications are authorized to be intercepted from those of other persons, and (ii) isolating the telecommunications data of the person whose communications are authorized to be intercepted from the rest of the person’s communications; (c) provide prescribed 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 — for the period that an agency requests. No degradation of capabilities 8. A telecommunications service provider that 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. Maintaining capabilities in respect of new services 9. A telecommunications service provider that 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. Beginning to operate transmission apparatus 10. (1) A telecommunications service provider that begins to operate any 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. Acquisition from another provider (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. New software 11. (1) When a telecommunications service provider installs new software for any 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. Other software licences or telecommunications facilities (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. Global limit 12. Subject to section 14, 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. Order suspending obligations 13. (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. Applications (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 ac- cordance with paragraph (a), (ii) describes any measures that the 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 the prescribed requirements relating to the content or form of the application or the manner in which it is to be made. Considerations (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. Notification of decision (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. Conditions and term of order (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. Obligation to comply with conditions of order (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. Notice of revocation (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. Amendment (8) The Minister may amend an order with the consent of the telecommunications service provider. Ministerial orders 14. (1) The Minister may, at the request of the Commissioner of the Royal Canadian Mounted Police or the Director of the Canadian Security Intelligence Service and if in the Minister’s opinion it is necessary to do so, order a telecommunications service provider (a) to comply with any obligation under subsections 6(1) and (2) 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 those referred to in subsection 6(2); (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. Limitation (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 for that class in Part 2 of Schedule 1 or Part 2 of Schedule 2, as the case may be. Compensation (3) The Commissioner of the Royal Canadian Mounted Police or the Director of the Canadian Security Intelligence Service, as the case may be, shall pay the telecommunications service provider an amount that the Minister considers reasonable towards the expenses that the Minister considers are necessary for the service provider to incur initially to comply with an order made under this section. Equipment (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. Non-application of ss. 8 and 9 (5) Sections 8 and 9 do not apply in respect of any equipment or other thing provided by the Minister under subsection (4). However, the telecommunications service provider shall provide notice to the Minister of any problems with the equipment or other thing provided and provide assistance in resolving the problem. Order prevails (6) An order made by the Minister under subsection (1) prevails over any regulations, to the extent of any inconsistency. Delegation (7) The Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service may delegate his or her power to pay amounts 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. Statutory Instruments Act does not apply 15. The Statutory Instruments Act does not apply in respect of an order made under section 13 or 14. Obligations Concerning Subscriber Information Provision of subscriber information 16. (1) Every telecommunications service provider shall provide a person designated under subsection (3), on his or her written request, with any information in the service provider’s possession or control respecting the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address, mobile identification number, electronic serial number, local service provider identifier, international mobile equipment identity number, international mobile subscriber identity number and subscrib- er identity module card number that are associated with the subscriber’s service and equipment. Purpose of the request (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. Designated persons (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. Limit on number of designated persons (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 per cent of the total number of employees of that agency. Delegation (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. Exceptional circumstances 17. (1) A police officer may request a telecommunications service provider to provide the officer with the information referred to in subsection 16(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 that subsection; (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. Obligation of telecommunications service provider (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 16(1). Communication (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 of the information relating to the request that would be necessary if it had been made under subsection 16(1) and inform that person of the circumstances referred to in paragraphs (1)(a) to (c). Notice (4) On receiving the information, the designated person shall in writing inform the telecommunications service provider that the request was made in exceptional circumstances under the authority of subsection (1). Creation of record by designated person 18. (1) A designated person who makes a request under subsection 16(1), or who receives information under subsection 17(3), shall create a record that (a) in the case of a request under subsection 16(1), identifies the duty or function referred to in subsection 16(2) in the performance of which the request is made, describes the relevance of the information requested to that duty or function and includes any other information that justifies the request and any other prescribed information; and (b) in the case where the designated person receives information under subsection 17(3), includes the information referred to in paragraph (a) as well as the circumstances referred to in paragraphs 17(1)(a) to (c). Retention of records and dealing with information (2) The agency that employs the designated person shall retain records created under subsection (1) and deal with the information provided in response to requests made under subsection 16(1) or 17(1). Use of information 19. Information that is provided in response to a request made under subsection 16(1) or 17(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. Internal audit 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 16(3) shall cause internal audits to be regularly conducted of the practices of his or her agency to ensure compliance with sections 16 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 16 and 17. Report to responsible minister (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. Copy of report (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 appointed under section 53 of the Privacy Act; (b) if it concerns the Canadian Security Intelligence Service, to the Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act; 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. Audit — Privacy Commissioner (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 16 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 16 and 17. 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. Audit — Security Intelligence Review Committee (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 16, 18 and 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 section 16. Report concerning provincial audit capability (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. Records of service provider (7) A person conducting an internal audit under this section may require a telecommunications service provider to give the person access to any records in the possession or control of the service provider that are relevant to the audit. Definition of “responsible minister” (8) For the purposes of this section, “responsible minister” means (a) in relation to 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) in relation to the Commissioner of Competition, the Minister of Industry; and (c) in relation to the chief or head of a police service constituted under the laws of a province, the Attorney General of that province. Entitlement to fee 21. (1) A telecommunications service pro- vider that provides information to a person under section 16 or 17 is entitled to be paid the prescribed fee for providing the information. Payment of fee by designating authority (2) If the information is requested by a designated person under section 16, the fee is to be paid by the designating authority. Payment of fee by police service (3) If the information is requested by a police officer under section 17, the fee is to be paid by the chief or head of the police service that employs the police officer. Preservation of existing authority 22. Nothing in this Act derogates from any other authority under law to obtain the information referred to in subsection 16(1) from a telecommunications service provider. Deemed nature of information 23. Personal information, as defined in subsection 2(1) of the Personal Information Protection and Electronic Documents Act, that is provided under subsection 16(1) or 17(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 other provisions of Part 1 of that Act. Miscellaneous Provisions Facility and service information 24. (1) A telecommunications service pro- vider 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 serv- ices the service provider offers to subscrib- ers; 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. Obligation to provide information to authorized persons (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. Obligation to assist — assessment and testing 25. 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 all reasonable assistance to permit the police officer or employee to assess or to test the service provider’s telecommunications facilities that may be used to intercept communications. Notification of change 26. 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 Canadian Security Intelligence Service or law enforcement agency, as the case may be, of the change. Notification — simultaneous interception capability 27. A telecommunications service provider shall notify the Minister when (a) in respect of any 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 12. Persons engaged in interceptions 28. (1) A telecommunications service pro- vider shall, on the request of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service, provide a list of the names of the persons who are employed by or carrying out work for the service provider who may assist in the interception of communications. Changes to the list (2) A telecommunications service provider shall provide any changes to the list to the agency who made the request. Security assessments (3) 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. Specialized telecommunications support 29. (1) If the prescribed conditions are met, a telecommunications service provider that provides under this Act prescribed specialized telecommunications support to the Canadian Security Intelligence Service or a law enforcement agency is entitled, on request, to be paid an amount determined in accordance with the regulations for providing that support. Payment (2) The amount shall be paid by the agency that received the specialized telecommunications support. Mandatory reporting — acquisition of transmission apparatus 30. (1) A telecommunications service pro- vider that acquires transmission apparatus 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 following information: (a) the prescribed information concerning the extent to which the service provider meets operational requirements in respect of the transmission apparatus; and (b) any prescribed information relevant to the administration of this Act. Other reporting (2) A telecommunications service provider shall, at the request of the Minister, 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 paragraphs (1)(a) and (b) and any additional related information that the Minister specifies. Statement (3) Every report submitted under this section must include 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. Signator of statement (4) The statement must be signed (a) if the telecommunications service provid- er 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 telecommunications service provider or by an officer or a director of a corporation that is an owner of the telecommunications service provider. No redundant performance required 31. 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 Exemption regulation 32. (1) The Governor in Council may, on the recommendation of the Minister and the Minister of Industry, by regulation, exempt any class of telecommunications service providers from all or part of the obligations under any of sections 6, 9 to 11, 16, 17 and 30 or under any regulations made for the purposes of those sections. Considerations (2) Before making or amending such a regulation, 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. Conditions and term of regulation (3) In the regulation, 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. Exemptions related to ss. 10 or 11 (4) When a regulation under which a telecommunications service provider is exempted from an obligation under section 10 or 11 expires or is repealed, section 10 or 11, as the case may be, applies to the telecommunications service provider that was exempted as of the date of expiry or repeal as if the exemption had never been made. ADMINISTRATION AND ENFORCEMENT Designation 33. (1) For the purposes of the administration of this Act, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation. Certificate of designation (2) Designated persons 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. Authority to enter 34. (1) A person who is designated to verify compliance with this Act may, for that purpose, enter any place owned by, or under the control of, any telecommunications service provider in which that person has reasonable grounds to believe there is any document, information, transmission apparatus, telecommunications facility or any other thing to which this Act applies. Powers on entry (2) The designated person may, for the purpose of verifying compliance with this Act, (a) examine any document, information or thing found in the place and open or cause to be opened any container or other thing; (b) examine or test or cause to be tested any telecommunications facility or transmission apparatus or related equipment found in the place; (c) 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; (d) 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 (e) use, or cause to be used, any copying equipment or means of telecommunication at the place. Assistance and information (3) The owner or person in charge of the place and every person who is in the place shall give all assistance that is reasonably required to enable the designated person to verify compliance with this Act and shall provide any documents, data and information that are reasonably required for that purpose. Designated person may be accompanied (4) The designated person, when entering a place referred to in subsection (1), may be accompanied by any person chosen by the designated person. Warrant for dwelling-house 35. (1) If the place referred to in subsection 34(1) is a dwelling-house, the designated person may not enter it without the consent of the occupant except under the authority of a warrant issued under subsection (2). Authority to issue warrant (2) On ex parte application, a justice of the peace may issue a warrant authorizing a designated person who is named in it to enter a dwelling-house, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that (a) the dwelling-house is a place referred to in subsection 34(1); (b) entry to the dwelling-house is necessary for the purpose of verifying compliance with this Act; and (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant. Entry onto private property 36. (1) For the purpose of gaining entry to a place referred to in subsection 34(1), a designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for entry onto the property unless the property is a dwelling-house. Persons accompanying designated persons (2) A person may, at the designated person’s request, accompany the designated person to assist them to gain entry to the place referred to in subsection 34(1) and is not liable for doing so. Use of force 37. In executing a warrant to enter a dwelling-house, a designated person shall not use force unless they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant. False statements or information 38. (1) No person shall knowingly make a false or misleading statement or provide false or misleading information, in connection with any matter under this Act, to a designated person who is carrying out their functions under section 34. Obstruction (2) No person shall obstruct or hinder a designated person who is carrying out their functions under section 34. ADMINISTRATIVE MONETARY PENALTIES Violations Violations 39. Every person who contravenes a provision, order, requirement or condition designated under subparagraph 64(1)(p)(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. Designation 40. For the purposes of any of sections 39 and 41 to 53, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation. Notices of Violation Issuance and service 41. (1) A designated person may issue a notice of violation and cause it to be served on a person if they believe on reasonable grounds that the person has committed a violation. Contents of notice (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 person is liable to pay; (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 set out in the notice or make representations with respect to the alleged violation or 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 penalty will be imposed. Criteria for penalty (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 nature and scope of the violation; (c) 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; (d) the cumulative amount of the penalties that may be imposed for any violation in respect of which section 48 applies; (e) any prescribed criteria; and (f) any other relevant matter. Determination of Responsibility and Penalty Options 42. (1) A person who is served with a notice of violation shall, in accordance with the notice, pay the penalty set out in the notice or make representations with respect to the amount of the penalty or the acts or omissions that constitute the alleged violation. Deemed violation (2) A person is deemed to have committed the violation if they either pay the penalty in accordance with the notice of violation or do not pay the penalty and do not make representations in accordance with the notice of violation. Making representations 43. (1) The person alleged to have committed a violation may make representations to a designated person other than the one who issued the notice of violation. Compliance agreement or decision (2) The designated person 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 set out in the notice of violation, a lesser penalty or no penalty, taking into account the matters mentioned in subsection 41(3). The designated person 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 44(1). Terms of compliance agreements (3) A compliance agreement (a) may include any terms that the designated person considers appropriate including a requirement that the person alleged to have committed a violation give reasonable security — in a form and an amount that the designated person considers satisfactory — for the person’s performance of the agreement; and (b) must provide for payment by the person alleged to have committed a violation to the Receiver General of a specified amount not greater than the penalty set out in the notice of violation if the person does not comply with the agreement. Agreement ends proceedings (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. If agreement not complied with (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 any security for the person’s performance of the agreement. Appeal to Minister Right of appeal 44. (1) A person served with notice of a decision made under paragraph 43(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 the regulations, appeal the decision to the Minister. Powers of Minister (2) On an appeal, the Minister may confirm, set aside or vary the decision of the designated person. Rules About Violations Vicarious liability — acts of employees, agents and mandataries 45. A person is liable for a violation that is committed by the person’s employee acting in the course of his or her 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. Officers of corporations, etc. 46. An officer, director, agent or mandatary of a person other than an individual that commits a violation 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 41 to 43. 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. Defence of due diligence 47. A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation. Continuing violation 48. 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. Limitation period or prescription 49. 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. Violation or offence 50. (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. Violation not an offence (2) For greater certainty, a violation is not an offence. Non-application of s. 126 of Criminal Code (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. Admissibility of documents 51. In any proceeding, in the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 41(1) or 43(2) or (5) or a certificate issued under subsection 53(1) is presumed to be authentic and is proof of its contents. Recovery of Penalties and Other Amounts Debts to Her Majesty 52. (1) A penalty imposed under this Act and an amount referred to in subsection 43(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. Limitation period or prescription (2) No proceedings to recover such a debt may be commenced later than five years after the day on which the debt became payable. Proceeds payable to Receiver General (3) Each such debt is payable to the Receiver General. Certificate 53. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 52(1). Registration in Federal Court (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 AND PUNISHMENT Misleading statements and information 54. 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. Offence 55. Every person who wilfully contravenes subsection 6(1) or (2), any of sections 8 to 11, an order made under subsection 14(1) or any regulations made under paragraph 64(1)(a) 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. Offence 56. (1) Every person who contravenes subsection 13(6), section 26, 30 or 54 or a condition referred to in subsection 32(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. Obstruction of designated person (2) Every person who contravenes subsection 34(3) or 38(1) or (2) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $15,000. Offence 57. Every person who contravenes any provision of this Act or a regulation made under this Act, except in the case of an offence referred to in sections 55 and 56, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $250,000. Consent of Attorney General of Canada required 58. A prosecution may not be commenced in respect of an offence referred to in section 55 or subsection 56(1) without the consent of the Attorney General of Canada. Due diligence 59. A person shall not be convicted of an offence under this Act, other than for a contravention of subsection 38(1) or section 54 or an offence referred to in section 55, if they establish that they exercised due diligence to prevent the commission of the offence. Officers of corporations, etc. 60. 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. Continuing offence 61. 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. Limitation period or prescription 62. 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. Injunctions 63. (1) If a court of competent jurisdiction is satisfied that a contravention of subsection 10(1) or section 11 is being or is likely to be committed, the court may, on application by the Minister, grant an injunction, subject to any conditions that it considers appropriate, ordering any 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. Federal Court (2) For the purposes of subsection (1), the Federal Court is a court of competent jurisdiction. REGULATIONS Regulations 64. (1) The Governor in Council may make regulations (a) respecting the obligations to be performed under subsections 6(1) and (2), including specifying the circumstances in which those obligations do not apply or need not be performed; (b) respecting the time, manner and form in which the information referred to in paragraph 6(1)(b) is to be provided to an authorized person; (c) respecting the time, manner and form in which an intercepted communication is to be provided to an authorized person; (d) requiring telecommunications service providers to specify the locations where intercepted communications will be provided, respecting the time, manner and form in which the locations are specified and respecting which locations may be so specified; (e) requiring telecommunications service providers to create and keep records with respect to interceptions; (f) 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; (g) for the purposes of paragraph 7(a), specifying what is a communication; (h) 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) respecting the time, manner and form in which a request to increase the number of those interceptions is to be made, the circumstances in which such a request may be made, the time within which the increase is to be made and the duration of the increase, and (iv) respecting the maximum number of agencies for which a telecommunications service provider is to simultaneously enable interceptions; (i) providing for the global limit referred to in section 12, or the manner of determining it, respecting the circumstances in which it does not apply or need not be met and prescribing what is to be counted as a single interception; (j) for the purposes of subsection 14(3), prescribing expenses and prescribing matters that the Minister is to consider in deciding what amount is reasonable or what prescribed expenses are necessary; (k) for the purposes of subsection 14(5), respecting the provision of notice and assistance; (l) for the purposes of sections 16 and 17, respecting requests made under those sections and the provision of information under those sections, including (i) specifying the form of that information, the manner of — and time for — providing it and the circumstances under which particular information is to be provided, and (ii) prescribing any confidentiality or security measures with which the telecommunications service provider must comply; (m) for the purposes of section 18, respecting the creation and retention of records and the dealing with information; (n) for the purposes of section 25, respecting the assistance to be provided in the assessment and testing of telecommunications facilities; (o) for the purposes of section 29, respecting requests for payment and the making of payments; (p) for carrying out sections 39 to 53, 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) respecting compliance agreements referred to in subsection 43(3), (iv) 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 (v) respecting procedure on appeals, which procedure must provide for a reasonable opportunity for the appellant to present written evidence and make representations in writing; (q) prescribing anything that is to be prescribed under this Act; and (r) generally, for carrying out the purposes and provisions of this Act. Regulations may be limited or vary (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 serv- ice provided, by class of telecommunications facility, according to the population of the region in which a telecommunications facility of a given class is located or by the manner in which information is provided. Incorporation by reference (3) Regulations made under subsection (1) that incorporate documents by reference may incorporate them as amended from time to time. APPROPRIATION Consolidated Revenue Fund 65. There shall be paid out of the Consolidated Revenue Fund the sums required to meet the monetary obligations of Her Majesty in right of Canada under subsections 14(3), 21(1) and 29(1). REVIEW OF ACT Review 66. Five years after the day on which this section comes into force, a committee of the House of Commons, of the Senate or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act. TRANSITIONAL PROVISIONS Delayed application — s. 10 67. (1) The application of section 10 with respect to transmission apparatus that a telecommunications service provider begins to operate in the 18-month period beginning on the day on which that section comes into force is suspended for the duration of that period. Delayed application — s. 11 (2) The application of section 11 with respect to transmission apparatus for which a telecommunications service provider installs new software in the 18-month period beginning on the day on which that section comes into force is suspended for the duration of that period. Deemed to meet operational requirements 68. (1) A telecommunications service provider that, together with any affiliated or associated telecommunications service pro- vider, has fewer than 100,000 subscribers, without regard to the telecommunications service to which they subscribe, is considered — during the three years after the day on which section 10 or 11 comes into force, as the case may be — to meet any operational requirement in respect of transmission apparatus that the service provider is obligated to meet by virtue of that section if the service provider provides a physical connection point for the transmission apparatus permitting an authorized person to effect an interception. Regulations (2) For the purposes of subsection (1), the Governor in Council may make regulations defining the expression “affiliated or associated telecommunications service provider” and respecting the provision of a physical connection point. Mandatory reporting — existing service providers 69. Every telecommunications service provider that is providing telecommunications services on the day on which section 30 comes into force shall, within six months after that day, submit a report to the Minister in accordance with that section. COORDINATING AMENDMENT Investigative Powers for the 21st Century Act 70. If a Bill entitled the Investigative Powers for the 21st Century Act is introduced in the 2nd session of the 40th Parliament and receives royal assent, then, on the first day on which both section 21 of that Act and subsection 2(1) of this Act are in force, the definition “telecommunications data” in subsection 2(1) of this Act is replaced by the following: “telecommunications data”« données de télécommunication » “telecommunications 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. It also means any transmission data that may be obtained under subsection 492.2(1) of the Criminal Code. COMING INTO FORCE Order in council 71. The provisions of this Act, other than section 70, come into force on a day or days to be fixed by order of the Governor in Council. SCHEDULE 1 (Subsections 5(1) and (4) and 14(2)) EXCLUSIONS FROM THE APPLICATION OF THE ACT PART 1 1. A telecommunications service intended principally for the use of its provider and the provider’s household or employees and not by the public. 2. A telecommunications service intended principally for the sale or purchase of goods or services other than telecommunications services to the public. 3. A telecommunications service provided by a financial institution, as defined in section 2 of the Bank Act, that enables the business of banking, the trust, loan or insurance business, the business of a cooperative credit society or the business of dealing in securities or other business primarily related to the business of providing financial services. PART 2 1. Telecommunications service providers whose principal function is operating a registered charity within the meaning of the Income Tax Act, other than any service provider in a class listed in Schedule 2, or operating an educational institution other than a post-secondary institution, or operating a hospital, a place of worship, a retirement home or a telecommunications research network, only in respect of telecommunications services that they provide ancillary to their principal function. 2. Telecommunications service providers that are also broadcasting undertakings, as defined in subsection 2(1) of the Broadcasting Act, only in respect of broadcasting. SCHEDULE 2 (Subsections 5(2) to (4) and 14(2) and Schedule 1) PARTIAL APPLICATION OF THE ACT PART 1 1. Telecommunications service providers that transmit communications on behalf of other telecommunications service providers, that do not modify particular communications transmitted and that do not authenticate the end users of the telecommunications services of those other service providers, only in respect of the telecommunications services provided to the other service providers. PART 2 1. Telecommunications service providers whose principal business or function is operating a post-secondary educational institution, a library, a community centre, a restaurant or an establishment that provides lodgings or residential accommodations, such as a hotel, an apartment building or a condominium, only in respect of telecommunications services that they provide ancillary to their principal business or function. Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada