Telecommunications Act (S.C. 1993, c. 38)

Marginal note:Obligation to notify

15.22 The Minister must, within 90 days after an order that includes a provision prohibiting the disclosure of its existence, or some or all of its contents, is made under section 15.1 or 15.2, notify the National Security and Intelligence Committee of Parliamentarians and the National Security and Intelligence Review Agency of the making of the order.

Marginal note:Contravention of unpublished order

• 15.3 (1) No person shall be convicted of an offence consisting of a contravention of an order made under section 15.1 or 15.2 unless it is proved that, at the time of the alleged contravention, the person had been notified of the order.

• Marginal note:Certificate

  (2) A certificate appearing to have been signed by the Minister and stating that a notice containing the order made under section 15.1 or 15.2 was given to persons likely to be affected by it is, in the absence of evidence to the contrary, proof that notice was given to those persons.

• Marginal note:Statutory Instruments Act

  (3) The Statutory Instruments Act does not apply to an order made under section 15.1 or 15.2.

• Marginal note:Incorporation by reference

  (4) An order made under section 15.1 or 15.2 may incorporate any document by reference, in whole or in part, regardless of its source and as it exists on a particular date or as it is amended from time to time.

Marginal note:Provision of information

15.4 The Minister may require any person to provide to the Minister or any person designated by the Minister, within any time and subject to any conditions that the Minister may specify, any information that the Minister believes on reasonable grounds is reasonable to provide in relation to the gravity of the threat and necessary for the purpose of making, amending or revoking an order under section 15.1 or 15.2 or a regulation under paragraph 15.8(1)(a), or of verifying compliance or preventing non-compliance with such an order or regulation.

Marginal note:Confidential information — designation

• 15.5 (1) A person who provides any of the following information under section 15.4 may designate it as confidential:

  • (a) information that is a trade secret;

  • (b) financial, commercial, scientific or technical information that is confidential and that is treated consistently in a confidential manner by the person who provided it;

  • (c) information the disclosure of which could reasonably be expected to

    • (i) result in material financial loss or gain to any person,

    • (ii) prejudice the competitive position of any person, or

    • (iii) affect contractual or other negotiations of any person; or

  • (d) personal information and de-identified information.

• Marginal note:Definitions

  (2) The following definitions apply in paragraph (1)(d).

  de-identify

  de-identify means to modify personal information so that an individual cannot be directly identified from it, though a risk of the individual being identified remains. (dépersonnaliser)

  personal information

  personal information has the same meaning as in section 3 of the Privacy Act. (renseignements personnels)

• Marginal note:Information deemed confidential

  (2.1) Personal information and de-identified information that is not designated as confidential under subsection (1) is deemed, for the purposes of this Part, to be designated as such.

• Marginal note:Prohibition

  (3) Subject to subsections (4) and (5), no person shall knowingly disclose or knowingly permit to be disclosed any information that is designated as confidential.

• Marginal note:Exception

  (4) Information referred to in any of paragraphs (1)(a) to (c) that is designated as confidential may be disclosed, or be permitted to be disclosed, if

  • (a) the disclosure is authorized or required by law;

  • (b) the person who designated the information as confidential consents to its disclosure;

  • (c) the disclosure is necessary, in the Minister’s opinion, given the gravity of the threat, to secure the Canadian telecommunications system, including against the threat of interference, manipulation or disruption; or

  • (d) in the case of information referred to in paragraph (1)(d), the person to whom the information relates consents to its disclosure.

• Marginal note:Exception — paragraph (1)(d)

  (5) Information referred to in paragraph (1)(d) that is designated as confidential may be disclosed, or be permitted to be disclosed, if

  • (a) the disclosure is required by law; or

  • (b) in the Minister’s opinion, the disclosure is necessary to secure the Canadian telecommunications system, including against the threat of interference, manipulation or disruption, and the information, in scope and substance, is reasonable in relation to the gravity of any threat.

Marginal note:Exchange of information

• 15.6 (1) Despite section 15.5, to the extent that is reasonable in relation to the gravity of the threat and necessary for any purpose related to the making, amending or revoking of an order under section 15.1 or 15.2 or a regulation under paragraph 15.8(1)(a) — or to verifying compliance or preventing non-compliance with such an order or regulation — the following persons and entities may collect information from and disclose information to each other, including confidential information:

  • (a) the Minister;

  • (b) the Minister of Public Safety and Emergency Preparedness;

  • (c) the Minister of Foreign Affairs;

  • (d) the Minister of National Defence;

  • (e) the Chief of the Defence Staff;

  • (f) the Chief or an employee of the Communications Security Establishment;

  • (g) the Director or an employee of the Canadian Security Intelligence Service;

  • (h) the Chairperson or an employee of the Commission;

  • (i) a person designated under section 15.4; and

  • (j) any other prescribed person or entity.

• Marginal note:Limitation

  (1.1) For the purposes of subsection (1), information referred to in paragraph 15.5(1)(d) must not be collected or disclosed unless its scope and substance is reasonable in relation to the gravity of the threat.

• Marginal note:Confidential information

  (2) Any confidential information that is collected under subsection (1) must be treated as confidential.

Marginal note:Disclosure of information

• 15.7 (1) Any information collected or obtained under this Act, other than information designated as confidential under subsection 15.5(1), may be disclosed by the Minister under an agreement, a memorandum of understanding or an arrangement in writing between the Government of Canada and the government of a province or of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, if

  • (a) the Minister believes that the information may be relevant to securing the Canadian telecommunications system or the telecommunications system of a foreign state, including against the threat of interference, manipulation or disruption; and

  • (b) the agreement, memorandum of understanding or arrangement provides for the disposal of that information once it is no longer necessary for the purpose for which it was disclosed.

• Marginal note:Restriction — use

  (2) If the agreement, memorandum of understanding or arrangement allows for the sharing of information that may be relevant to an investigation or proceeding in respect of a contravention of this Act, an order made under section 15.1 or 15.2 or a regulation made under paragraph 15.8(1)(a) — or a law of a foreign state that addresses conduct that is substantially similar to conduct that would be in contravention of this Act, of an order made under section 15.1 or 15.2 or of a regulation made under paragraph 15.8(1)(a) — the agreement, memorandum of understanding or arrangement must restrict the use of that information to purposes relevant to contraventions of the laws of a foreign state that have consequences that would not be considered penal under Canadian law.

Marginal note:Disposal of information

15.701 Any person who collects or obtains information referred to in paragraph 15.5(1)(d) under this Part, with the exception of section 15.7, must dispose of that information if it is no longer necessary for any purpose related to the making, amending or revoking of an order under section 15.1 or 15.2 or a regulation under paragraph 15.8(1)(a) — or to verifying compliance or preventing non-compliance with such an order or regulation — or in accordance with any requirement under the Privacy Act that applies to that information.

Marginal note:Privacy Act not affected

15.71 For greater certainty, nothing in sections 15.1, 15.2 and 15.4 to 15.7 affects the provisions of the Privacy Act.

Marginal note:Prohibition

15.72 A person who performs or has performed duties or functions in the administration or enforcement of this Act must not disclose or permit to be disclosed to any other person, except to a Canadian law enforcement agency or for the purposes of the administration or enforcement of this Act, the identity of any individual who provided information on their own initiative to the Minister to achieve the objectives of this Act that relate to securing the Canadian telecommunications system and who has requested confidentiality.

Marginal note:Regulations

• 15.8 (1) The Governor in Council may make regulations

  • (a) containing any provision that may be contained in an order made under section 15.2; and

  • (b) prescribing persons and entities for the purposes of paragraph 15.6(1)(j).

• Marginal note:Conflict

  (2) In the event of any inconsistency between a regulation made under paragraph (1)(a) and a decision of the Commission made under this Act or an order made or an authorization issued by the Minister under this Act or the Radiocommunication Act, the regulation prevails to the extent of the inconsistency.

Marginal note:Annual report

• 15.81 (1) The Minister must, within three months after the end of each fiscal year, prepare a report respecting any orders referred to in sections 15.1 and 15.2 that were made during that fiscal year and must cause the report to be laid before each House of Parliament within the first 15 days on which that House is sitting after the report is completed.

• Marginal note:Contents

  (2) The report must include the number of orders that were made in that fiscal year.

• Marginal note:Contents of report — conflicts

  (3) The report must also state the number of times that an order prevailed over a decision of the Commission made under this Act during the previous fiscal year.

• Marginal note:Publication of summary

  (4) The Minister must publish a summary of the report on the website of the Department of Industry within 10 days after the day on which it is tabled in both Houses of Parliament.

Judicial Review

Marginal note:Rules

• 15.9 (1) The following rules apply to judicial review proceedings in respect of an order made under section 15.1 or 15.2 or a regulation made under paragraph 15.8(1)(a):

  • (a) if the judge determines that evidence or other information provided by the Minister is not relevant or if the Minister withdraws the evidence or other information, the decision of the judge must not be based on that evidence or other information and the judge must return it to the Minister; and

  • (b) the judge must ensure the confidentiality of all evidence and other information that the Minister withdraws.

• Marginal note:Definition of judge

  (2) In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

Marginal note:Protection of information on appeal

15.91 Section 15.9 applies to any appeal of a decision made by the judge in relation to the judicial review proceedings referred to in that section and to any further appeal, with any necessary modifications.

PART IIEligibility to Operate

Canadian Ownership and Control

Marginal note:Definitions

• 16 (1) The following definitions apply in this section.

  entity

  entity means a corporation, partnership, trust or joint venture. (entité)

  joint venture

  joint venture means an association of two or more entities, if the relationship among those associated entities does not, under the laws in Canada, constitute a corporation, a partnership or a trust and if all the undivided ownership interests in the assets of the Canadian carrier or in the voting interests of the Canadian carrier are or will be owned by all the entities that are so associated. (coentreprise)

  voting interest

  voting interest, with respect to

  • (a) a corporation with share capital, means a voting share;

  • (b) a corporation without share capital, means an ownership interest in the assets of the corporation that entitles the owner to rights similar to those enjoyed by the owner of a voting share; and

  • (c) a partnership, trust or joint venture, means an ownership interest in the assets of the partnership, trust or joint venture that entitles the owner to receive a share of the profits and to share in the assets on dissolution. (intérêt avec droit de vote)

• Marginal note:Eligibility

  (2) A Canadian carrier is eligible to operate as a telecommunications common carrier if

  • (a) it is an entity incorporated, organized or continued under the laws of Canada or a province and is Canadian-owned and controlled;

  • (b) it owns or operates only a transmission facility that is referred to in subsection (5); or

  • (c) it has annual revenues from the provision of telecommunications services in Canada that represent less than 10% of the total annual revenues, as determined by the Commission, from the provision of telecommunications services in Canada.

• Marginal note:Canadian ownership and control

  (3) For the purposes of paragraph (2)(a), an entity is Canadian-owned and controlled if

  • (a) in the case of a corporation, not less than 80% of the members of the board of directors are individual Canadians;

  • (b) Canadians beneficially own, directly or indirectly, in the aggregate and otherwise than by way of security only, not less than 80% of the entity’s voting interests; and

  • (c) the entity is not otherwise controlled by persons that are not Canadians.

• Marginal note:Prohibition

  (4) No Canadian carrier shall operate as a telecommunications common carrier unless it is eligible under this section to operate as such.

• Marginal note:Exemption

  (5) Paragraph (2)(a) and subsection (4) do not apply in respect of the ownership or operation of

  • (a) international submarine cables;

  • (b) earth stations that provide telecommunications services by means of satellites; or

  • (c) satellites.

• Marginal note:Exception

  (6) A Canadian carrier that is eligible to operate under paragraph (2)(c) remains eligible to operate even if it has annual revenues from the provision of telecommunications services in Canada that represent 10% or more of the total annual revenues from the provision of telecommunications services in Canada as long as the increase in its annual revenues from the provision of telecommunications services in Canada to 10% or more of the total annual revenues from the provision of telecommunications services in Canada did not result from the acquisition of control of another Canadian carrier or from the acquisition of assets used by another Canadian carrier to provide telecommunications services.

• Marginal note:Acquisition

  (7) A Canadian carrier to which subsection (6) applies is not authorized to acquire control of a Canadian carrier or acquire assets used by another Canadian carrier to provide telecommunications services.

• Marginal note:Notice

  (8) A Canadian carrier that is eligible to operate under paragraph (2)(c) shall notify the Commission when it acquires control of another Canadian carrier or acquires assets used by another Canadian carrier to provide telecommunications services.

• Marginal note:Affiliates

  (9) For the purposes of determining annual revenues from the provision of telecommunications services in Canada under this section, the annual revenues of a Canadian carrier include the annual revenues from the provision of telecommunications services in Canada of its affiliates as defined in subsection 35(3).