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Bill C-23

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49-50-51 ELIZABETH II

CHAPTER 16

An Act to amend the Competition Act and the Competition Tribunal Act

[Assented to 4th June, 2002]

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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

COMPETITION ACT

R.S., c. 19, (2nd Supp.), s. 24; 1999, c. 2, par. 37(d)

1. Paragraph 11(1)(b) of the Competition Act is replaced by the following:

    (b) produce to the Commissioner or the authorized representative of the Commissioner within a time and at a place specified in the order, a record, a copy of a record certified by affidavit to be a true copy, or any other thing, specified in the order; or

2. Section 18 of the Act is amended by adding the following after subsection (1):

Certified copies

(1.1) The Commissioner need not return any copy of a record produced pursuant to section 11.

2.1 (1) Subsection 29(1) of the Act is amended by striking out the word ``or'' at the end of paragraph (c), by adding the word ``or'' at the end of paragraph (d) and by adding the following after paragraph (d):

    (e) any information provided voluntarily pursuant to this Act.

R.S., c. 19 (2nd Supp.), s. 26

(2) Subsection 29(2) of the Act is replaced by the following:

Exception

(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.

3. The Act is amended by adding the following before the heading ``PART IV'':

PART III

MUTUAL LEGAL ASSISTANCE

Interpretation

Definitions

30. The definitions in this section apply in this Part.

``agreement'' « accord »

``agreement'' means a treaty, convention or other international agreement to which Canada is a party that provides for mutual legal assistance in competition matters, other than a matter in respect of which the Mutual Legal Assistance in Criminal Matters Act applies.

``conduct''
« comporteme nt »

``conduct'' means conduct or matters within the meaning of the relevant agreement in respect of which mutual legal assistance may be requested in accordance with this Part.

``data''
« données »

``data'' means representations, in any form, of information or concepts.

``foreign state''
« État étranger »

``foreign state'' means a country other than Canada, and includes any international organization of states.

``judge''
« juge »

``judge'' means

      (a) in Ontario, a judge of the Superior Court of Justice;

      (b) in Quebec, a judge of the Superior Court;

      (c) in Nova Scotia, British Columbia, Newfoundland, the Yukon Territory and the Northwest Territories, a judge of the Supreme Court, and in Nunavut, a judge of the Nunavut Court of Justice;

      (d) in New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen's Bench;

      (e) in Prince Edward Island, a judge of the trial division of the Supreme Court; and

      (f) in any province or territory, a judge of the Federal Court - Trial Division.

Functions of the Minister of Justice

Agreements respecting mutual legal assistance

30.01 Before Canada enters into an agreement, the Minister of Justice must be satisfied that

    (a) the laws of the foreign state that address conduct that is similar to conduct prohibited or reviewable under this Act are, in his or her opinion, substantially similar to the relevant provisions of this Act, regardless of whether the conduct is dealt with criminally or otherwise;

    (b) any record or thing provided by Canada under the agreement will be protected by laws respecting confidentiality that are, in his or her opinion, substantially similar to Canadian laws;

    (c) the agreement contains provisions in respect of

      (i) the circumstances in which Canada may refuse, in whole or in part, to approve a request, and

      (ii) the confidentiality protections that will be afforded to any record or thing provided by Canada;

    (d) the agreement contains the following undertakings by the foreign state, namely,

      (i) that it will provide assistance to Canada comparable in scope to that provided by Canada,

      (ii) that any record or thing provided by Canada will be used only for the purpose for which it was requested,

      (iii) that any record or thing provided by Canada will be used subject to any terms and conditions on which it was provided, including conditions respecting applicable rights or privileges under Canadian law,

      (iv) that, at the conclusion of the investigation or proceedings in respect of which any record or thing was provided by Canada, the foreign state will return the record or thing and any copies to Canada or, with the consent of Canada, return the record or thing to Canada and destroy any copies,

      (v) subject to subparagraph (ii), that it will, to the greatest extent possible consistent with its laws, keep confidential any record or thing obtained by it pursuant to its request, and oppose any application by a third party for disclosure of the record or thing, and

      (vi) that it will promptly notify the Minister of Justice in the event that the confidentiality protections contained in the agreement have been breached; and

    (e) the agreement contains a provision in respect of the manner in which it may be terminated.

Publication of Agreements

Publication in Canada Gazette

30.02 (1) An agreement must be published in the Canada Gazette no later than 60 days after the agreement comes into force, unless it has already been published under subsection (2).

Publication in Canada Treaty Series

(2) An agreement may be published in the Canada Treaty Series and, if so published, the publication must be no later than 60 days after the agreement comes into force.

Judicial notice

(3) Agreements published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.

Requests Made to Canada from Abroad

Requests

Requests

30.03 The Minister of Justice is responsible for dealing with a request made by a foreign state under an agreement, in accordance with the agreement and this Part.

Search and Seizure

Application of sections 15, 16 and 19

30.04 Sections 15, 16 and 19 apply, with any modifications that the circumstances require, in respect of a search or a seizure under this Part, except to the extent that those sections are inconsistent with this Part.

Approval of request for search and seizure

30.05 (1) If the Minister of Justice approves a request of a foreign state to have a search and seizure carried out in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for a search warrant.

Application for search warrant

(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte for a search warrant to a judge.

Warrant for entry of premises

30.06 (1) A judge to whom an application is made under subsection 30.05(2) may issue a search warrant authorizing the person named in it to execute it anywhere in Canada where the judge is satisfied by information on oath or solemn affirmation that there are reasonable grounds to believe that

    (a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place;

    (b) evidence in respect of the conduct referred to in paragraph (a) will be found in any premises; and

    (c) it would not, in the circumstances, be appropriate to make an order under subsection 30.11(1).

Authoriza-
tion

(2) A search warrant issued under subsection (1) authorizes the person named in it to enter the premises specified in the warrant, subject to any conditions that may be specified in the warrant, and to search the premises for any record or thing specified in the warrant and to examine and seize it.

Hearing re execution

(3) A judge who issues a search warrant under subsection (1) shall fix a time and place for a hearing to consider the execution of the warrant as well as the report referred to in section 30.07.

Contents of warrant

(4) A search warrant issued under subsection (1) must

    (a) set out the time and place for the hearing mentioned in subsection (3);

    (b) state that, at that hearing, an order will be sought for the sending to the foreign state of the records or things seized in execution of the warrant; and

    (c) state that every person from whom a record or thing is seized in execution of the warrant and any person who claims to have an interest in a record or thing so seized may make representations at the hearing before any order is made concerning the record or thing.

Duty of persons in control of premises

(5) Every person who is in possession or control of any premises, record or thing in respect of which a search warrant is issued under subsection (1) shall, on presentation of the warrant, permit the person named in the warrant to enter the premises, search the premises and examine the record or thing and seize it.

Where admission or access refused

(6) Where a person, in executing a search warrant issued under subsection (1), is refused access to any premises, record or thing or where the Commissioner believes on reasonable grounds that access will be refused, the judge who issued the warrant or a judge of the same court, on the ex parte application of the Commissioner or the authorized representative of the Commissioner, may by order direct a peace officer to take any steps that the judge considers necessary to give access to the person named in the warrant.

Report

30.07 (1) The person who executes a search warrant shall, at least five days before the time of the hearing to consider its execution, file with the court of which the judge who issued the warrant is a member a written report concerning the execution of the warrant that includes a general description of the records or things seized.

Copy to Minister of Justice

(2) The person who files the report under subsection (1) shall send a copy of it to the Minister of Justice promptly after its filing.

Sending abroad

30.08 (1) At the hearing referred to in subsection 30.06(3), after having considered any representations of the Minister of Justice, the Commissioner, the person from whom a record or thing was seized and any person who claims to have an interest in the record or thing, the judge who issued the search warrant or another judge of the same court may

    (a) where the judge is not satisfied that the warrant was executed according to its terms and conditions or where the judge is satisfied that an order should not be made under paragraph (b), order that a record or thing seized be returned to

      (i) the person from whom it was seized, if possession of it by that person is lawful, or

      (ii) the lawful owner or the person who is lawfully entitled to its possession, if the owner or that person is known and possession of the record or thing by the person from whom it was seized is unlawful; or

    (b) in any other case, order that a record or thing seized be sent to the foreign state mentioned in subsection 30.05(1) and include in the order any terms and conditions that the judge considers desirable, including terms and conditions

      (i) necessary to give effect to the request mentioned in that subsection,

      (ii) in respect of the preservation and return to Canada of any record or thing seized, and

      (iii) in respect of the protection of the interests of third parties.

Requiring record, etc., at hearing

(2) At the hearing mentioned in subsection (1), the judge may require that a record or thing seized be brought before him or her.

Terms and conditions

30.09 No record or thing seized that has been ordered under section 30.08 to be sent to a foreign state shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.

Evidence for Use Abroad

Approval of request to obtain evidence

30.1 (1) If the Minister of Justice approves a request of a foreign state to obtain, by means of an order of a judge, evidence in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.

Application for order

(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the gathering of evidence.

Evidence-gath ering order

30.11 (1) A judge to whom an application is made under subsection 30.1(2) may make an order for the gathering of evidence where the judge is satisfied that there are reasonable grounds to believe that

    (a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and

    (b) there will be found in Canada evidence in respect of the conduct referred to in paragraph (a).

Provisions of order

(2) An order made under subsection (1) must provide for the manner in which the evidence is to be obtained in order to give effect to the request mentioned in subsection 30.1(1) and may

    (a) order the examination, on oath or otherwise, of a person named in the order, order the person to attend at the place fixed by the person designated under paragraph (c) for the examination and to remain in attendance until he or she is excused by the person so designated, order the person so named, where appropriate, to make a copy of a record or to make a record from data and to bring the copy or record with him or her, and order the person so named to bring with him or her any record or thing in his or her possession or control, in order to produce them to the person before whom the examination takes place;

    (b) order a person named in the order to make a copy of a record or to make a record from data and to produce the copy or record to the person designated under paragraph (c), order the person to produce any record or thing in his or her possession or control to the person so designated and provide, where appropriate, for any affidavit or certificate that, pursuant to the request, is to accompany any copy, record or thing so produced; and

    (c) designate a person before whom the examination referred to in paragraph (a) is to take place or to whom the copies, records, things, affidavits and certificates mentioned in paragraph (b) are to be produced.

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