Bill C-438

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First Reading

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	2nd Session, 36th Parliament, 48-49 Elizabeth II, 1999-2000
	The House of Commons of Canada
	BILL C-438
	An Act to amend the Competition Act (game of chance)
R.S., c. C-34; R.S., c. 27 (1st Supp.), c. 19 (2nd Supp.), c. 34 (3rd Supp.), cc. 1, 10 (4th Supp.); 1990, c. 37; 1991, cc. 45, 46, 47; 1992, cc. 1, 14; 1993, c. 34; 1995, c. 1; 1999, cc. 2, 28, 31	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
	*1. (1) Paragraph 33(1)(b) of the Competition Act* is replaced by the following:**
	(b) in the case of an offence under section 52.1 or 52.2 , 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, as the case may be, under section 52.2 has not been committed, was not about to be committed and was not likely to be committed.
	(2) Section 33 of the Act is amended by adding the following after subsection (1.1):
Game of chance	(1.2) An injunction issued in respect of an offence under section 52.2 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 52.2 or an offence under section 52 in respect of conduct prohibited by section 52.2; 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. The Act is amended by adding the following after section 52.1:
Game of chance	52.2 (1) Subject to subsection (2), no person shall, 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, cause to be delivered, by mail or through any other system of delivery, printed material that conveys the general impression that the recipient of the printed material has won a prize or advantage, and the distribution of such prize or advantage or any request for information regarding them is conditional on the prior payment of a sum of money or specific telephone charges.
For greater certainty	(2) Where the printed material indicates that it is necessary to make a telephone call in order to obtain information regarding the prizes to be won or how to obtain them and specific charges apply to the telephone call, such charges are deemed to be specific telephone charges for the purposes of subsection (1).
Due diligence	(3) No person shall be convicted of an offence under this section who establishes that the person exercised due diligence to prevent the commission of the offence.
Offences by employees or agents	(4) Notwithstanding subsection (3), in the prosecution of a corporation for an offence under this section, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the corporation, whether or not the employee or agent is identified, unless the corporation establishes that the corporation exercised due diligence to prevent the commission of the offence.
Liability of officers and directors	(5) Where a corporation commits an offence under this section, any officer or director of the corporation who is in a position to direct or influence the policies of the corporation in respect of conduct prohibited by this section is a party to and guilty of the offence and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted, unless the officer or director establishes that the officer or director exercised due diligence to prevent the commission of the offence.
Offence and punishment	(6) Any person who contravenes subsection (1) is guilty of an offence and liable
	(a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding five years, or to both; or
	(b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.
Sentencing	(7) In sentencing a person convicted of an offence under this section, the court shall consider, among other factors, the following aggravating factors:
	(a) the use of lists of persons previously victimized by those convicted of fraud under the Criminal Code or of an offence under section 52 or 52.1 of this Act;
	(b) characteristics of the persons to whom the printed material was directed, including classes of persons who are especially vulnerable to misleading advertising;
	(c) the amount of the proceeds realized by the person from the offence under this section; and
	(d) previous convictions of the person under this section or section 52.1, or under section 52 in respect of conduct prohibited by this section.
	3. Subsection 73(1) of the Act is replaced by the following:
Jurisdiction of Federal Court	73. (1) Subject to this section, the Attorney General of Canada may institute and conduct any prosecution or other proceedings under section 34, any of sections 45 to 51 and section 61 or, where the proceedings are on indictment, under section 52, 52.1, 52.2, 55, 55.1 or 66, in the Federal Court - Trial Division, and for the purposes of the prosecution or other proceedings, the Federal Court - Trial Division has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act.
	4. Subsection 74.07(2) is replaced by the following:
Non-applicati on	(2) Sections 74.01 to 74.06 do not apply in respect of conduct prohibited by sections 52.1, 52.2, 55 and 55.1.

Bill C-438

BILL C-438