Bill C-51, An Act
to amend the Criminal Code, the Competition Act and the Mutual
Legal Assistance in Criminal Matters Act (short title:
Investigative Powers for the 21st Century Act) was re-introduced in
the House of Commons on November 1st, 2010. As the short title of
Bill C-51 implies, the bill aims to
extend the current investigative powers of national law enforcement
and security agencies for computer-related crimes to take into
account the use of new communications technologies. While many of
the proposed changes relate to the Criminal
Code, they have an impact on the Competition
Act and the investigative powers of the
Commissioner of Competition.
Two other bills, Bill C-50, An Act
to amend the Criminal Code (interception of private communications
and related warrants and orders) and Bill C-52, An Act
regulating telecommunications facilities to support
investigations, were also introduced in October and November
of last year. These three complimentary bills had previously been
introduced under the former Liberal government in 2005, and under
the Conservative government in 2009, but were killed by elections
Bill C-51 provides for new provisions of the Code relating to a
"preservation" demand or order, to recognize the
fact that information in electronic form can be easily and quickly
destroyed or altered. A preservation demand or order would direct a
person, such as a telecommunications service provider (TSP), to
preserve "computer data" that is "in
their possession or control" when they receive the demand
or order. Such a demand or order would generally be in effect long
enough to allow a law enforcement agency to obtain a search warrant
or production order. The bill also provides for new specific orders
in the Code for the production of transmission data (data that
indicate the origin, destination, date, time, duration, type and
volume of a telecommunication, but not the content of the
telecommunication) and banking information to apply to certain
investigations under the Act. As a result, the Commissioner will
have at her disposal new investigative tools to obtain electronic
evidence relating to deceptive marketing practices and restrictive
trade practices under the Act.
Another change that would result from the adoption of Bill C-51
is the modernization of certain deceptive marketing practices
offences under the Act. More specifically, the bill would replace
the reference to "telephone" as the means of
committing these offences with "any means of
telecommunication" used for communicating orally, which
would broaden the scope of application of the provisions relating
to telemarketing and deceptive marketing practices of the Act.
With respect to proposed changes to the Mutual Legal
Assistance in Criminal Matters Act (the MLA Act), which aims
to promote cooperation among states by establishing a system for
exchanging information and evidence, Bill C-51 would allow the
Commissioner to execute search warrants issued under the MLA Act,
and would provide that production orders described in the Code may
be used by Canadian authorities who receive assistance requests
from their international partners.
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The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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