[38] Bill 158 Royal Assent (PDF)
Bill 158 2005
An Act to replace
the Theatres Act and
to amend other Acts
in respect of film
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
PART I
INTERPRETATION AND ADMINISTRATION
Interpretation
Definitions
1. In this Act,
"classification" includes a rating; ("catégorie", "classement")
"content advisory" is a notice about the content of a film; ("indications complémentaires")
"distribute" means to distribute for direct or indirect gain, and includes to rent, lease, sell or distribute in another way prescribed; ("distribuer")
"exhibit" means to exhibit,
(a) for direct or indirect gain, or
(b) to the public; ("présenter")
"film" means a moving image, including an interactive moving image such as a video game, that may be generated for viewing from any thing including, but not limited to, video tapes, video discs, film or electronic files; ("film")
"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom administration for this Act is assigned under the Executive Council Act; ("ministre")
"prescribed" means prescribed by the regulations; ("prescrit")
"regulations" means the regulations made under this Act; ("règlements")
"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed. ("Tribunal")
Administration
Director and deputies
2. (1) The Deputy Minister shall appoint a director for the purposes of this Act and may appoint deputy directors.
Duties of deputy director
(2) A deputy director shall perform such duties as are assigned by the director and shall act as director in the director's absence.
Same
(3) Only one deputy director may act as director in the director's absence at any one time.
Registrar and deputies
3. (1) The Deputy Minister shall appoint a registrar for the purposes of this Act and may appoint deputy registrars.
Duties of registrar
(2) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director.
Duties of deputy registrar
(3) A deputy registrar shall perform such duties as are assigned by the registrar and shall act as registrar in the registrar's absence.
Same
(4) Only one deputy registrar may act as registrar in the registrar's absence at any one time.
Director cannot be registrar and vice versa
4. No person may simultaneously be appointed as director or deputy director under subsection 2 (1) and as registrar or deputy registrar under subsection 3 (1).
PART II
FILM
Regulations re Categories, Classification, Approval and Exemptions
Categories
5. The Lieutenant Governor in Council may, by regulation, prescribe categories of film by medium, content or both.
Classification using prescribed scheme
6. (1) The Lieutenant Governor in Council may, by regulation,
(a) prescribe a classification scheme that shall be used for classifying film in one or more categories of film;
(b) designate a person or body to review and classify films in one or more categories of film using a classification scheme prescribed under clause (a);
(c) prescribe criteria, if any, that a person or body designated under clause (b) shall use in classifying film;
(d) designate a person or body to hear an appeal of a classification decision made by a person or body designated under clause (b);
(e) designate a person or body to reconsider a classification decision made by a person or body designated under clause (b) or (d) when the director is of the opinion that the classification should be reconsidered.
Classifications by specified body
(2) Subject to subsection (3), the Lieutenant Governor in Council may, by regulation, provide that classification decisions made by a specified person or body with respect to films in one or more categories of film are classifications for the purposes of this Act.
Modified classifications
(3) A regulation made under subsection (2) may specify that the classifications in the classification scheme used by the person or body under subsection (2) apply with such modifications as the Lieutenant Governor in Council considers necessary or advisable and, where a regulation makes such a specification, the classifications shall apply as modified for all purposes of this Act.
Reconsideration body
(4) The Lieutenant Governor in Council may, by regulation, designate a person or body to reconsider a classification decision made by a person or body specified under subsection (2) when the director is of the opinion that the classification should be reconsidered.
Content advisory
(5) A person or body that classifies a film may issue a content advisory for that film.
Public access
(6) A regulation under clause (1) (b) that designates a person or body to review and classify films shall provide for public access to the classifications and any content advisories made by the designee in a manner that the Lieutenant Governor in Council considers appropriate.
Same
(7) A regulation under clause (1) (d) or (e) or subsection (4) that designates a person or body to hear an appeal of a classification decision or reconsider a classification decision shall provide for public access to the decisions of the designee in a manner that the Lieutenant Governor in Council considers appropriate.
Same
(8) A regulation under subsection (2) that provides that classification decisions made by a specified person or body are classifications for the purposes of this Act shall provide for public access to the classification decisions and any content advisories made by the person or body in a manner that the Lieutenant Governor in Council considers appropriate.
Approval
7. (1) The Lieutenant Governor in Council may, by regulation,
(a) designate one or more categories of film for the purposes of this section;
(b) designate a person or body to review and approve or refuse to approve films in a category designated under clause (a);
(c) prescribe the criteria that a person or body designated under clause (b) shall use in approving or refusing to approve films;
(d) designate a person or body to hear an appeal of a decision made by a person or body designated under clause (b) to refuse to approve a film;
(e) designate a person or body to reconsider a decision to approve a film made by a person or body designated under clause (b) or (d) when the director is of the opinion that the decision should be reconsidered.
Public access
(2) A regulation under clause (1) (b) that designates a person or body to review and approve or refuse to approve films shall provide for public access to the decisions of the designee in a manner that the Lieutenant Governor in Council considers appropriate.
Same
(3) A regulation under clause (1) (d) or (e) that designates a person or body to hear an appeal of a non-approval decision or reconsider an approval decision shall provide for public access to the decisions of the designee in a manner that the Lieutenant Governor in Council considers appropriate.
Exemptions
8. (1) The Lieutenant Governor in Council may, by regulation, designate a person or body to review a film to determine whether it is exempt under the regulations from a provision of this Act or the regulations when the director is of the opinion that an exemption determination should be made.
Public access
(2) A regulation under subsection (1) that designates a person or body to make an exemption determination shall provide for public access to the determinations of the designee in a manner that the Lieutenant Governor in Council considers appropriate.
Rules of designee
9. (1) A designee that reviews film for the purposes of clause 6 (1) (b), (d) or (e), subsection 6 (4), clause 7 (1) (b), (d) or (e) or section 8 may make rules that require a person who submits film to the designee for a purpose under this Act to,
(a) submit the film in one or more formats specified by the designee; and
(b) provide any information relating to the film that the designee requests in such form as the designee specifies.
Certificate
(2) A designee under clause 6 (1) (b), (d) or (e), subsection 6 (4) or clause 7 (1) (b), (d) or (e) may, on classifying or approving a film, issue a certificate that indicates the classification or approval of the film, as the case may be.
Prohibitions
Unclassified film
10. (1) No person shall distribute, offer to distribute or exhibit a film unless,
(a) the film has been classified by the appropriate person or body designated or specified under section 6; or
(b) an exemption under the regulations applies.
Indication of classification
(2) No person shall distribute, offer to distribute or exhibit a film that has been classified unless the classification is indicated as prescribed.
Film requiring approval
11. (1) No person shall distribute, offer to distribute or exhibit a film that belongs to a category of film designated under clause 7 (1) (a) unless,
(a) the film has been approved by the appropriate person or body designated under section 7; or
(b) an exemption under the regulations applies.
Indication of approval
(2) No person shall distribute, offer to distribute or exhibit a film that has been approved unless the approval is indicated as prescribed.
Restriction
12. Where a classification indicates a restriction on the distribution or exhibition of a film, no person shall distribute or exhibit a film of that classification except in accordance with the restriction unless an exemption under the regulations applies.
Licence required
13. No person shall distribute, offer to distribute, exhibit or offer to exhibit a film unless the person holds the appropriate licence for the type of distribution or exhibition the person engages in unless an exemption under the regulations applies.
Person's Right to Appeal Classification
or Non-Approval
Right to appeal classification
14. (1) Where a person has submitted a film to a person or body designated under clause 6 (1) (b) for the purposes of reviewing and classifying film, that person may appeal the classification decision of the designee to a person or body designated under clause 6 (1) (d) for the purposes of hearing appeals.
No stay of decision
(2) An appeal under subsection (1) does not stay the operation of the decision under appeal.
Power of designee
(3) On an appeal under subsection (1), the designee under clause 6 (1) (d) may confirm the classification decision or may substitute its own classification decision.
Duties of designee
(4) In making a decision on an appeal, the designee under clause 6 (1) (d) shall,
(a) use the classification scheme used by the person or body that made the decision under appeal; and
(b) use the criteria, if any, that the person or body that made the decision under appeal was required to use.
New individuals
(5) No individual who participated in a classification decision that is being appealed under this section shall participate in the appeal.
Determination final
(6) A decision made by a designee on an appeal under this section is final, subject to the right of the director to require a reconsideration under section 16.
Right to appeal non-approval
15. (1) Where a person has submitted a film to a person or body designated under clause 7 (1) (b) for the purposes of reviewing and approving or refusing to approve films, that person may appeal a decision of the designee to refuse to approve the film to a person or body designated under clause 7 (1) (d) for the purposes of hearing appeals.
No stay of decision
(2) An appeal under subsection (1) does not stay the operation of the decision under appeal.
Power of designee
(3) On an appeal under subsection (1), the designee under clause 7 (1) (d) may confirm the refusal to approve the film or may substitute its own decision to approve the film.
Duty of designee
(4) In making a decision on an appeal, the designee under clause 7 (1) (d) shall use the criteria that the person or body that made the decision under appeal was required to use.
New individuals
(5) No individual who participated in a non-approval decision that is being appealed under this section shall participate in the appeal.
Determination final
(6) A decision made by a designee on an appeal under this section is final, subject to the right of the director to require a reconsideration under section 16.
Director's Right to Require Reconsideration
of Classification or Approval
Reconsideration of classification
16. (1) Where the director is of the opinion that the classification of a film should be reconsidered, he or she may,
(a) by written notice, require a person who distributes, offers to distribute, exhibits or offers to exhibit the film to submit it to a person or body designated under clause 6 (1) (e) or subsection 6 (4) for the purposes of reconsidering a classification; or
(b) submit the film to the designee under clause 6 (1) (e) or subsection 6 (4).
Reconsideration of approval
(2) Where a film has been approved and the director is of the opinion that the approval should be reconsidered, he or she may,
(a) by written notice, require a person who distributes, offers to distribute or exhibits the film to submit it to a person or body designated under clause 7 (1) (e) for the purposes of reconsidering an approval decision; or
(b) submit the film to the designee under clause 7 (1) (e).
Film to be submitted
(3) A person who is served with notice under clause (1) (a) or (2) (a) shall submit the film for review to the relevant designee within seven days.
Presumed possession
(4) A person who is served with notice under clause (1) (a) or (2) (a) is presumed to be in possession of the film or to be able to obtain possession of the film unless the person is able to prove otherwise.
No stay of decision
(5) A reconsideration under this section does not stay the operation of the classification or approval decision under reconsideration.
Powers of designee
(6) On a reconsideration, a designee may,
(a) if the reconsideration is of a classification made by a person or body designated under clause 6 (1) (b) or (d), confirm the classification decision or substitute its own classification decision;
(b) if the reconsideration is of a classification made by a specified person or body under subsection 6 (2), substitute its own classification decision; and
(c) if the reconsideration is of a decision to approve a film, confirm the approval or substitute its own decision to refuse to approve the film.
Duties of designee
(7) On a reconsideration, a designee shall,
(a) if the reconsideration is of a classification made by a person or body designated under clause 6 (1) (b) or (d), use the classification scheme used by that person or body and use the criteria, if any, that the person or body was required to use;
(b) if the reconsideration is of a classification made by a specified person or body under subsection 6 (2), use a classification scheme prescribed under clause 6 (1) (a) for the category that the film belongs to and use the criteria, if any, prescribed under clause 6 (1) (c); and
(c) if the reconsideration is of a decision to approve a film, use the criteria that the person or body that approved the film was required to use.
New individuals
(8) No individual who participated in a classification or approval decision that is being reconsidered under this section shall participate in the reconsideration.
Determination final
(9) A determination made by a designee under this section is final.
Director's Right to Require
Determination of Exemption
Determination of exemption
17. (1) Where the director is of the opinion that a film should be reviewed to determine whether it is exempt from a provision of this Act or the regulations, he or she may,
(a) by written notice, require a person who distributes, offers to distribute, exhibits or offers to exhibit the film to submit it to a person or body designated under section 8 for the purposes of determining whether a film is exempt; or
(b) submit the film to the designee under section 8.
Film to be submitted
(2) A person who is served with notice under clause (1) (a) shall submit the film for review to the designee within seven days.
Presumed possession
(3) A person who is served with notice under clause (1) (a) is presumed to be in possession of the film or able to obtain possession of the film unless the person is able to prove otherwise.
Powers of designee
(4) On a determination of exemption under this section, a designee may determine that the film is exempt from a provision of this Act or the regulations or determine that the film is not exempt from a provision of this Act or the regulations.
Determination final
(5) A determination made by a designee under this section is final.
PART III
LICENSING
Application for licence
18. (1) A person may apply to the registrar for the issuance or renewal of a licence in the form and manner required by the registrar.
Prescribed requirements
(2) If an applicant does not meet the prescribed requirements, the registrar shall refuse to grant or renew the licence.
Notice of refusal
(3) The registrar shall give the applicant written notice of a refusal under subsection (2), setting out the reasons for the refusal.
No right to hearing
(4) An applicant is not entitled to a hearing in respect of the registrar's refusal under this section.
Disentitlement
19. (1) An applicant that meets the prescribed requirements is entitled to the issuance or renewal of a licence unless,
(a) the applicant is carrying on activities,
(i) that are in contravention of this Act, the regulations or a municipal by-law, or
(ii) that will be in contravention of this Act, the regulations or a municipal by-law if the applicant is issued a licence;
(b) the past conduct of the applicant affords reasonable grounds to believe that the applicant will not carry on business in accordance with this Act or the regulations;
(c) the application includes a false statement;
(d) where the applicant is a corporation,
(i) one or more of its officers or directors or such other persons as may be prescribed are carrying on activities that are in contravention of this Act, the regulations or a municipal by-law,
(ii) one or more of its officers or directors or such other persons as may be prescribed are carrying on activities that will be in contravention of this Act, the regulations or a municipal by-law if the applicant is issued a licence, or
(iii) the past conduct of one or more of its officers or directors or such other persons as may be prescribed affords reasonable grounds for belief that its business will not be carried on in accordance with this Act or the regulations; or
(e) the applicant is a licensee and is in breach of a condition of the licence.
Additional information
(2) The registrar may require an applicant to provide, in the form and within the time period specified by the registrar,
(a) information specified by the registrar that, in the registrar's opinion, is relevant to determining whether the applicant is entitled to a licence under subsection (1); and
(b) verification, by affidavit or otherwise, of any information described in clause (a).
Refusal to issue or renew licence
20. The registrar may propose to refuse to issue or renew a licence if, in his or her opinion,
(a) the applicant is not entitled to a licence under subsection 19 (1); or
(b) the applicant fails to provide anything required by the registrar under subsection 19 (2).
Suspension or revocation of licence
21. The registrar may propose to suspend or revoke a licence for any reason that he or she could propose to refuse to issue or renew the licence under clause 20 (a).
Conditions
22. (1) A licence is subject to such conditions as are consented to by the applicant or licensee, applied by the registrar under subsection (2), ordered by the Tribunal or prescribed.
Same
(2) On issuing or renewing a licence, or at any other time, the registrar may propose to apply such conditions to the licence as he or she considers appropriate.
Right to hearing when licence refused, revoked, etc.
23. (1) An applicant or licensee is entitled to a hearing before the Tribunal if the registrar proposes to,
(a) refuse to issue or renew a licence under section 20;
(b) suspend or revoke a licence under section 21; or
(c) apply conditions to a licence under subsection 22 (2) to which the applicant or licensee has not consented.
Notice of registrar's proposed action
(2) If the registrar proposes to take any action described in clauses (1) (a) to (c), he or she shall serve written notice on the applicant or licensee setting out the reasons for the proposed action and informing the person of the right to a hearing before the Tribunal.
Affected person's response
(3) A person who is entitled to a hearing may request a hearing before the Tribunal within 15 days after service of a notice under subsection (2).
Form of request
(4) A request under subsection (3) shall be in writing and the applicant shall provide a copy of it to the registrar at the same time as it is given to the Tribunal.
If no hearing requested
(5) If a person entitled to a hearing does not request one in accordance with subsection (3), the registrar may take the proposed action.
If hearing requested
(6) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposed action or substitute its opinion for that of the registrar and may attach conditions to its order or to a licence.
Parties
(7) The registrar, the applicant or licensee and such other persons as the Tribunal may specify are parties to a hearing under this section.
Immediate effect
(8) If a licensee appeals an order of the Tribunal, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.
Immediate suspension
24. (1) If the registrar proposes to suspend or revoke a licence under section 21 and he or she considers it in the public interest to do so, the registrar may by order suspend the licence and any such order takes effect immediately.
Expiry of order
(2) If a hearing is requested under subsection 23 (3), an order made under subsection (1) expires 15 days after the written request for a hearing is received by the Tribunal.
Same
(3) Despite subsection (2), the Tribunal may extend an order made under subsection (1),
(a) if the hearing commences within the 15-day period referred to in subsection (2), until the Tribunal makes its order; and
(b) if the hearing does not commence within the 15-day period and the Tribunal is satisfied that the conduct of the licensee delayed the commencement of the hearing,
(i) until the hearing commences, and
(ii) once the hearing commences, until the Tribunal makes its order.
Further application
25. A person whose licence is refused, revoked or refused renewal may reapply to the registrar for a licence only if,
(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and
(b) the person satisfies the registrar that new or other evidence is available or that material circumstances have changed.
Licences - general rules
Voluntary cancellation
26. (1) The registrar may cancel a licence on the request in writing of the licensee and, in such circumstances, the licensee is not entitled to a hearing.
Continuation pending renewal
(2) If, within the time prescribed or, if no time is prescribed, before the expiry of a licence, a licensee has applied for renewal of a licence and paid the required fee, the licence shall be deemed to continue,
(a) until the renewal is granted;
(b) until the registrar gives the licensee written notice under subsection 18 (3) of his or her refusal to renew the licence; or
(c) if the licensee is served notice that the registrar proposes to refuse to renew the licence under section 20, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.
Non-transferable
(3) A licence is not transferable.
PART IV
INSPECTIONS
Inspection by registrar
27. (1) The registrar or a person designated as an inspector in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a licensee, for the purpose of,
(a) ensuring compliance with this Act and the regulations; or
(b) ensuring that the licensee remains entitled to be licensed.
Limitations on power to enter
(2) An inspector shall not,
(a) use force to enter and inspect premises under this section; or
(b) enter any part of premises that are being used as a dwelling.
Identification
(3) An inspector shall produce, on request, evidence of his or her designation as an inspector.
Powers on inspection of licensee
(4) An inspector conducting an inspection in the premises of a licensee may,
(a) examine all documents, records, films and other things that are relevant to the inspection;
(b) require a person on the premises being inspected to produce a document, record, film or other thing that is relevant to the inspection;
(c) use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or a record in any form; and
(d) subject to subsection (5), on giving a receipt for it, remove any thing relevant to the inspection including a document, a record, a data storage disk or a retrieval device needed to produce information.
Film not included
(5) A film may not be removed under clause (4) (d).
Obligation to produce and assist
(6) A person who is required to produce a document, record, film or other thing under clause (4) (b) shall produce it and shall, on request by the inspector, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce information or a record in any form.
Obstruction prohibited
(7) No person shall obstruct an inspector executing his or her duties or withhold from him or her or conceal, alter or destroy any document, record, film or other thing that is relevant to the inspection.
Copy and return of removed things
(8) An inspector who removes any document, record or other thing under clause (4) (d) may make a copy of it and shall promptly return it to the person being inspected.
Admissibility of copies
(9) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.
Order to Turn Over Film
Order to turn over
28. (1) An inspector who is lawfully present in a place and who believes on reasonable grounds that film in the place is being distributed, offered for distribution, exhibited or offered for exhibition in contravention of this Act or the regulations may order, orally or in writing, a person in the place to turn the film over to the inspector.
Obligation to retain film
(2) A person who fails to immediately comply with an order issued under subsection (1) shall retain and preserve the film that was the subject of the order in the place for 10 days.
Inspector to inform director
(3) When an inspector issues an order under subsection (1), he or she shall promptly inform the director and, where the order is in writing, provide him or her with a copy of the order.
Warrant to Seize Film
Warrant
29. (1) On application made without notice by an inspector designated under subsection 27 (1), a justice of the peace may issue a warrant if he or she is satisfied on information under oath that there is reasonable ground for believing that,
(a) an inspector issued an order to turn over film under subsection 28 (1);
(b) the person who was issued the order failed to comply with it; and
(c) the film was being distributed, offered for distribution, exhibited or offered for exhibition in contravention of this Act or the regulations.
Powers under warrant
(2) Subject to any conditions contained in the warrant, a warrant issued under subsection (1) authorizes an inspector designated under subsection 27 (1) to,
(a) enter or access the place in which a person is required to retain and preserve film under subsection 28 (2);
(b) require a person to produce the film in question; and
(c) seize the film in question.
Obligation to produce and assist
(3) A person who is required to do so by an inspector under clause (2) (b) shall produce the film in question.
Entry of dwelling
(4) Despite subsection (2), an inspector shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,
(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and
(b) the justice of the peace authorizes the entry into the dwelling.
Conditions on search warrant
(5) A warrant shall contain such conditions as the justice of the peace considers advisable to ensure that any entry and seizure authorized by the warrant is reasonable in the circumstances.
Assistance
(6) A warrant may authorize persons who have special, expert or professional knowledge, and such other persons as may be necessary, to accompany and assist the inspector in respect of the execution of the warrant.
Time of execution
(7) An entry or access under a warrant shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.
Expiry of warrant
(8) A warrant shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may, on application without notice by the inspector, extend the date of expiry for an additional period of no more than 30 days.
Use of force
(9) An inspector may call upon police officers for assistance in executing a warrant and the inspector may use whatever force is reasonably necessary to execute the warrant.
Obstruction
(10) No person shall obstruct an inspector executing a warrant.
Inspector to inform director
(11) When an inspector seizes film under this section, he or she shall promptly inform the director.
Release or Forfeiture of Film
Application of section
30. (1) This section applies in respect of film that,
(a) was turned over to an inspector in response to an order issued under subsection 28 (1); or
(b) was seized by an inspector under a warrant issued under subsection 29 (1).
Application for release of film
(2) Within 10 days of film being turned over or seized, a person who claims an interest in the film may apply to the director for the release of the film.
Hearing
(3) Subject to subsection (4), a person who applies for the release of film within the time permitted under subsection (2) is entitled to a hearing before the director.
Director may refuse hearing
(4) The director may refuse to hold a hearing if the person who applies for the release of film is not the person who turned over the film or the person from whom the film was seized and the director is not satisfied that the person has an interest in the film.
Director's determination
(5) After a hearing, the director may,
(a) release to the person film that he or she determines was not distributed, exhibited, offered for distribution or offered for exhibition in contravention of this Act or the regulations; or
(b) direct that film that he or she determines was distributed, exhibited, offered for distribution or offered for exhibition in contravention of this Act or the regulations is forfeited to the Crown.
Forfeiture in other circumstances
(6) The director may direct that film is forfeited to the Crown if,
(a) no person applies for the release of the film within the time permitted under subsection (2);
(b) the director refuses to hold a hearing under subsection (4); or
(c) the person who applied for the release of the film does not appear at the hearing.
Decision final
(7) Any determination or direction made by the director under this section is final.
PART V
INVESTIGATIONS
Investigators
Appointment of investigators
31. (1) The director may appoint persons to be investigators for the purpose of conducting investigations.
Identification
(2) An investigator shall produce, on request, evidence of his or her appointment as an investigator.
Search Warrants
Search warrant
32. (1) On application made without notice by an investigator appointed under subsection 31 (1), a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that,
(a) a person has contravened or is contravening this Act or the regulations or has committed an offence that is relevant to the person's fitness for holding a licence under this Act; and
(b) there is,
(i) in any building, dwelling, receptacle or place any thing relating to the contravention of this Act or the regulations or to the person's fitness for holding a licence, or
(ii) information or evidence relating to the contravention of this Act or the regulations or the person's fitness for holding a licence that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.
Powers under warrant
(2) Subject to any conditions contained in the warrant, a warrant issued under subsection (1) authorizes an investigator appointed under subsection 31 (1) to,
(a) enter or access the building, dwelling, receptacle or place specified in the warrant, and examine and seize any thing described in the warrant;
(b) use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or evidence described in the warrant, in any form;
(c) require a person to produce the information or evidence described in the warrant and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce, in any form, the information or evidence described in the warrant; and
(d) use any investigative technique or procedure described in the warrant or do anything described in the warrant.
Obligation to produce and assist
(3) A person who is required to do so by an investigator under clause (2) (c) shall produce information or evidence described in the warrant and shall provide whatever assistance is reasonably necessary to produce the information or evidence in any form.
Entry of dwelling
(4) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,
(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and
(b) the justice of the peace authorizes the entry into the dwelling.
Conditions on search warrant
(5) A warrant shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.
Assistance
(6) A warrant may authorize persons who have special, expert or professional knowledge, and such other persons as may be necessary, to accompany and assist the investigator in respect of the execution of the warrant.
Time of execution
(7) An entry or access under a warrant shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.
Expiry of warrant
(8) A warrant shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may, on application without notice by the investigator, extend the date of expiry for an additional period of no more than 30 days.
Use of force
(9) An investigator may call upon police officers for assistance in executing a warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.
Obstruction
(10) No person shall obstruct an investigator executing a warrant or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.
Return of seized thing
(11) Subject to subsection (12), an investigator who seizes any thing under this section may make a copy of it and shall return it within a reasonable time.
Return of seized items not required
(12) An investigator is not required to return a film seized under this section where the investigator believes on reasonable grounds that the film was distributed, offered for distribution, exhibited or offered for exhibition in contravention of this Act or the regulations.
Admissibility
(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.
No warrant required in exigent circumstances
33. (1) Although a warrant issued under subsection 32 (1) would otherwise be required, an investigator may exercise any of the powers described in subsection 32 (2) without a warrant if the conditions for obtaining the warrant exist but because of exigent circumstances it would be impracticable to obtain the warrant.
Dwellings
(2) Subsection (1) does not apply to any part of a building that is being used as a dwelling.
Use of force
(3) An investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.
Application of other provisions
(4) Subsections 32 (6), (10), (11), (12) and (13) apply, with necessary modifications, to the exercise of powers under this section.
Seizure of things in plain view
34. (1) An investigator who is lawfully present in a place under a warrant may seize any thing that is in plain view if the investigator believes on reasonable grounds that the thing will afford evidence of a contravention of this Act or the regulations.
Return of seized thing
(2) Subsections 32 (11), (12) and (13) apply, with necessary modifications, to any thing seized under this section.
Release or Forfeiture of Seized Film
Where no proceeding will commence
35. (1) This section applies when an investigator is in possession of seized film that he or she is not required to return under subsection 32 (12), 33 (4) or 34 (2), and,
(a) a decision is made by a person with the authority to do so that no proceeding will be commenced under this Act in respect of the seized film; or
(b) the time within which a proceeding may be commenced under this Act has expired.
Notice of no proceeding
(2) When clause (1) (a) or (b) applies, the investigator in possession of the film shall, within a reasonable time, notify in writing the person from whom the film was seized that no proceeding will be commenced in respect of the film.
Application for return of film
(3) Within 10 days of notice being given under subsection (2), a person who claims an interest in the film may apply to the director for the release of the film.
Hearing
(4) Subject to subsection (5), a person who applies for the release of the film within the time permitted under subsection (3) is entitled to a hearing before the director.
Director may refuse hearing
(5) The director may refuse to hold a hearing if the person who applies for the release of the film is not the person from whom the film was seized and the director is not satisfied that the person has an interest in the film.
Director's determination
(6) After a hearing, the director may,
(a) release to the person film that he or she determines was not distributed, exhibited, offered for distribution or offered for exhibition in contravention of this Act or the regulations; or
(b) direct that film that he or she determines was distributed, exhibited, offered for distribution or offered for exhibition in contravention of this Act or the regulations is forfeited to the Crown.
Forfeiture in other circumstances
(7) The director may direct that film is forfeited to the Crown if,
(a) no person applies for the release of the film within the time permitted under subsection (3);
(b) the director refuses to hold a hearing under subsection (5); or
(c) the person who applied for the release of the film does not appear at the hearing.
Decision final
(8) Any determination or direction made by the director under this section is final.
PART VI
GENERAL
Report to be made to registrar
36. The registrar may require a licensee who possesses or has control of films to provide a written report to the registrar that includes,
(a) the title of each film in the person's possession;
(b) the quantity of each title possessed; and
(c) any other information that the registrar requires for the purposes of this Act.
Display of licence
37. No licensee shall engage in the activity permitted by the licence unless the licence is displayed in a conspicuous spot at or near the main entrance to the business premises of the licensee.
Offence
38. (1) A person is guilty of an offence if the person,
(a) provides false information in an application under this Act or in any statement or report required under this Act;
(b) fails to comply with an order, direction or other requirement under this Act; or
(c) contravenes or fails to comply with any provision of this Act or the regulations.
Officers or directors
(2) An officer or director of a licensee that is a corporation is guilty of an offence who fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1).
Limitation
(3) No proceeding under this section shall be commenced more than two years after the events on which the proceeding is based occurred.
Penalties
Individuals
39. (1) Every individual convicted of an offence under this Act is liable to a fine of not more than $50,000, to imprisonment for a term of not more than two years less a day, or both.
Corporations
(2) Every corporation convicted of an offence under this Act is liable to a fine of not more than $250,000.
Forfeiture
(3) A court that convicts a person of an offence under this Act may, in addition to any other penalty imposed by the court, if the conviction is in relation to an offence in connection with a film that has been lawfully seized under this Act, order that the film be forfeited to the Crown.
Same
(4) Subsection (3) applies, with necessary modifications, in respect of a person that a court finds guilty of an offence under this Act.
Default in payment of fines
40. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director or a person designated by him or her may disclose to a consumer reporting agency within the meaning of the Consumer Reporting Act the name of the defaulter, the amount of the fine and the date the fine went into default.
If payment made
(2) Within 10 days after receiving notice that the fine has been paid in full, the director or his or her designee shall inform the consumer reporting agency of the payment.
Transition
(3) If a fine is payable as a result of a conviction under the Theatres Act, despite the repeal of that Act, the director or his or her designee may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.
Certificate as evidence
41. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,
(a) the licensing or non-licensing of any person;
(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;
(c) the classification, non-classification, approval or non-approval of a film;
(d) anything that is ancillary to a matter referred to in clause (a), (b) or (c).
Classification as evidence
(2) For all purposes in any proceeding, a classification that is indicated in the manner prescribed by the regulations or is attached to a film, on a film's packaging or on a container used for the storage or transport of a film is admissible in evidence, as proof in the absence of evidence to the contrary, of the classification of the film.
Title as evidence
(3) For all purposes in any proceeding, a title that is attached to a film, on a film's packaging or on a container used for the storage or transport of a film is admissible in evidence, as proof in the absence of evidence to the contrary, that the film is the film of that title.
Proof of document
(4) Any document made under this Act that purports to be signed by the registrar or a certified copy of the document is proof, in the absence of evidence to the contrary, that the document is signed by the registrar without proof of the office or signature of the registrar.
Names of and information concerning licensees
42. (1) Where required by the regulations, the registrar shall make available to the public the names of licensees and any other information that is prescribed.
Same
(2) The names of licensees shall be made available in the prescribed form and manner and with such information as is prescribed.
Disclosure of personal information
43. Where a person who exercises powers or carries out duties in relation to this Act considers it necessary or advisable for the purposes of the administration or enforcement of this Act, the person shall disclose personal information to an entity engaged in the administration of legislation of a jurisdiction prescribed for the purposes of this section where the legislation governs the distribution, exhibition or classification of film.
Testimony
44. Except in a proceeding under this Act, no person shall be required to give testimony in a civil proceeding with regard to information obtained in the course of exercising a power or carrying out a duty related to the administration of this Act or the regulations.
Notice of address change
45. Every licensee shall, within five days after the event, notify the registrar in writing of a change in its address for service.
PART VII
ORDERS AND REGULATIONS
Orders
Orders - fees
46. (1) The Minister may by order establish fees that are payable under this Act in respect of,
(a) review of film for the purposes of classifying it or making an approval or non-approval decision;
(b) appeals of classification or non-approval under sections 14 and 15, respectively;
(c) reconsiderations of classification or approval under section 16;
(d) determinations of exemption under section 17;
(e) indications of classification or approval that are required under the regulations;
(f) issuance and renewal of licences;
(g) issuance of permits;
(h) issuance of certificates and duplicates.
Same
(2) An order under this section shall specify the person to whom the fee shall be paid.
Same
(3) Where the fee is to be paid to a person other than the Crown, the Minister may delegate the power to set the fee to the person specified in the order.
Non-application of Regulations Act
(4) An order made under this section is not a regulation for the purposes of the Regulations Act.
Regulations
Regulations - film
47. (1) The Lieutenant Governor in Council may make regulations,
(a) respecting permits for the exhibition of film including, but not limited to, issuance of permits, specifying when a permit is required for the exhibition of film and attaching terms and conditions to a permit;
(b) prescribing the manner and location in which a film's classification, content advisory or approval shall be indicated including, but not limited to, on the film's packaging, on containers used for the storage or transport of film, in a place in which the film is exhibited or distributed or otherwise;
(c) respecting advertising in connection with the distribution or exhibition of film, including regulations requiring the inclusion of a film's classification, content advisory or approval in advertising;
(d) governing issues that may arise when more than one person or body is authorized to classify or approve film in the same category of film, whether by specifying that the decisions of one person or body prevail over the decisions of another, or otherwise.
Regulations - licensing
(2) The Lieutenant Governor in Council may make regulations,
(a) prescribing classes of licence for the purposes of this Act and conditions that apply to each class and requiring licensees to comply with those conditions;
(b) prescribing requirements for the purposes of subsection 18 (2), having regard to the fact that an applicant who is refused the issuance or renewal of a licence for lack of a requirement is not entitled to a hearing in respect of the refusal;
(c) prescribing the term of validity and expiry of licences;
(d) requiring licensees to provide, on request and in the prescribed circumstances, proof of licensing and prescribing the nature of the proof and the manner in which it is to be provided;
(e) prescribing other persons for the purposes of clause 19 (1) (d);
(f) prescribing information that must be provided by a corporate applicant or licensee and specifying a time period within which such information shall be provided;
(g) governing the documents, records and information that must be kept by licensees, including the manner and location at which they are kept and authorizing the registrar to specify the location at which they must be kept.
Regulations - general
(3) The Lieutenant Governor in Council may make regulations,
(a) authorizing the director to conduct quality assurance programs in relation to the administration of this Act or the regulations and to use information collected under this Act for the purpose of those programs;
(b) requiring the registrar to make available to the public the names of licensees, prescribing the form and manner in which the names of licensees are made available and prescribing other information that shall be made available to the public;
(c) requiring that any information required under this Act be in a form approved by the Minister, director or registrar, as specified in the regulations;
(d) providing for exemptions from any provision of this Act or the regulations in respect of film, persons, licensees or any other thing;
(e) defining, for the purposes of this Act and the regulations, any word or expression that is used in this Act but not defined in this Act;
(f) prescribing rules relating to service under this Act;
(g) providing for rules of procedure for any process under this Act including, but not limited to, rules respecting costs and fees;
(h) prescribing any matter or thing that is referred to as prescribed in this Act;
(i) respecting any matter that the Lieutenant Governor in Council considers advisable to carry out effectively the intent and purpose of this Act;
(j) providing for any transitional matter that the Lieutenant Governor in Council considers necessary or advisable for the effective implementation of this Act or the regulations or to facilitate transition from provisions of the Theatres Act and regulations under it to provisions of this Act and the regulations.
Regulations - transitional
(4) Without limiting the generality of clause (3) (j), a regulation made under that clause may,
(a) provide that one or more provisions of the Theatres Act or the regulations under it apply, with or without modifications, for the purposes or in the circumstances specified in the regulation; and
(b) provide that one or more provisions of this Act or the regulations apply, with or without modifications, for the purposes or in the circumstances specified in the regulation.
Same
(5) Without limiting the generality of clause (3) (j) or of subsection (4), a regulation made under that clause may,
(a) provide that a licence under the Theatres Act shall be deemed, for the purposes specified in the regulation, to be a licence issued under this Act;
(b) provide that a film classification or approval under the Theatres Act or a predecessor of that Act shall be deemed, for the purposes specified in the regulation, to be a classification or approval made under this Act; and
(c) provide for how and when a deeming referred to in clause (a) or (b) is terminated.
Limited, general or particular
(6) A regulation under this section may be,
(a) limited as to time or place, or both; and
(b) general or particular in its application.
Classes
(7) A regulation may apply in respect of any class of activity, matter, person or thing.
Same
(8) A class under this Act or the regulations may be defined with respect to any attribute, quality or characteristic or combination thereof and may be defined to consist of or to include or exclude any specified member whether or not with the same attributes, qualities or characteristics.
PART VIII
ONTARIO FILM
REVIEW BOARD
Board continued
48. (1) The Ontario Film Review Board is continued under the name Ontario Film Review Board in English and Commission de contrôle cinématographique de l'Ontario in French and shall consist of a chair of the Board and such other persons as the Lieutenant Governor in Council may appoint.
Application of Theatres Act
(2) Subsections 3 (2), (3), (4), (5), (6) and (11) of the Theatres Act, as they read immediately before the repeal of that Act, continue to apply.
Repeal
(3) This section is repealed on a day to be named by proclamation of the Lieutenant Governor.
PART IX
CONSEQUENTIAL AMENDMENTS
Licence Appeal Tribunal Act, 1999
49. Section 11 of the Licence Appeal Tribunal Act, 1999, as amended by the Statutes of Ontario, 2002, chapter 30, Schedule E, section 8, 2002, chapter 33, section 143 and 2004, chapter 19, section 14, is amended by adding "Film Classification Act, 2005".
Safety and Consumer Statutes Administration Act, 1996
50. The Schedule to the Safety and Consumer Statutes Administration Act, 1996, as amended by the Statutes of Ontario, 1998, chapter 15, Schedule E, section 46, 2000, chapter 16, section 46, 2002, chapter 30, Schedule E, section 19, 2002, chapter 33, section 152 and 2004, chapter 19, section 21, is amended by adding "Film Classification Act, 2005".
PART X
REPEAL, COMMENCEMENT
AND SHORT TITLE
Repeal of Theatres Act
51. The Theatres Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, 1994, chapter 27, section 61, 1998, chapter 18, Schedule E, sections 269 to 288, 2000, chapter 26, Schedule B, section 19, 2001, chapter 9, Schedule D, sections 13 and 14, 2002, chapter 17, Schedule F, Table and 2004, chapter 19, section 22, is repealed.
Commencement
52. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
53. The short title of this Act is the Film Classification Act, 2005.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 158 and does not form part of the law. Bill 158 has been enacted as Chapter 17 of the Statutes of Ontario, 2005.
The Bill repeals the Theatres Act and enacts a new Act entitled the Film Classification Act, 2005.
The Act governs the classification and approval of film and the exhibition and distribution of film. The Act provides for the offices of director, deputy director, registrar and deputy registrar.
The Act authorizes the Lieutenant Governor in Council to, by regulation, prescribe categories of film, prescribe classification schemes to be used in classifying film and designate categories of film that may not be distributed unless they have been approved. The Lieutenant Governor in Council is authorized to designate persons or bodies to carry out various enumerated functions, including: reviewing film for the purpose of classifying it, reconsidering a classification decision, determining whether a film should be approved, reconsidering an approval decision and determining whether a film is exempt under the regulations from a provision of the Act.
The Act places various prohibitions on the distribution and exhibition of film, including prohibitions related to unclassified film, unapproved film that belongs to a category of film for which approval is required and film that does not indicate its classification or approval.
The Act requires persons distributing or exhibiting film to be licensed and it establishes a licensing application process that affords an applicant the right to request a hearing before the Licence Appeal Tribunal when that person's application may be refused. The right to request a hearing is also available when a licence may be suspended, revoked or have conditions attached to it.
The designation of inspectors is provided for. Inspectors have general powers to inspect the business premises of a licensee without a warrant and may order a person to turn over film that the inspector has reasonable grounds to believe is being distributed or exhibited in contravention of the Act. If a person does not comply with the order, the inspector may apply for a warrant to seize film that is not turned over. A person who has turned film over or had film seized may apply to the director for the release of the film. The director may release the film if he or she determines there was no contravention or may direct that the seized film is forfeited to the Crown if there was a contravention and in other specified circumstances.
The appointment of investigators is provided for. Investigators may apply for warrants to search premises when they reasonably believe a contravention of the Act or regulations has occurred. Investigators may seize a thing named in the warrant and anything else in plain view if the investigator believes it will afford evidence of a contravention. Where the investigator seizes film that he or she believes was distributed or exhibited in contravention of the Act and no proceeding is commenced in respect of the film, a person may apply to the director for the release of the film. The director may release the film or direct that the seized film is forfeited to the Crown.
The Act deals with various general matters and contains provisions that establish offences and penalties.
The Minister is authorized to establish various fees under the Act, including fees that are payable by a person who submits film for classification or approval.
The Lieutenant Governor in Council may make regulations dealing with a range of matters under the Act.
The Act continues the Ontario Film Review Board.
The Act amends the Licence Appeal Tribunal Act, 1999 and the Safety and Consumer Statutes Administration Act, 1996.