Radiocommunication Act Exemption Order (Jammers — Department of National Defence and Canadian Forces): SOR/2024-7

Canada Gazette, Part II, Volume 158, Number 4

Registration
SOR/2024-7 January 24, 2024

RADIOCOMMUNICATION ACT

The Minister of Industry makes the annexed Radiocommunication Act Exemption Order (Jammers — Department of National Defence and Canadian Forces) under subsection 14(1)footnote a of the Radiocommunication Act footnote b.

Ottawa, January 23, 2024

François-Philippe Champagne
Minister of Industry

Radiocommunication Act Exemption Order (Jammers — Department of National Defence and Canadian Forces)

Definition

Definition of Act

1 In this Order, Act means the Radiocommunication Act.

Exemptions

Persons to whom exemption applies

2 (1) Subject to any applicable conditions set out in sections 4 to 11, the following persons are exempt from the application of subsection 4(4) and paragraph 9(1)(b) of the Act:

Purposes — paragraph (1)(a), (b) or (c)

(2) The exemption is granted under paragraph (1)(a), (b) or (c) for the following purposes:

Purposes — paragraph (1)(d)

(3) The exemption is granted under paragraph (1)(d) for the following purposes:

Suppliers to Department of National Defence

3 (1) Subject to any applicable conditions set out in sections 7 to 12, the following persons or entities are exempt from the application of subsection 4(4) and paragraph 9(1)(b) of the Act:

Purpose

(2) The exemption is granted under subsection (1) for the purpose of national defence or international relations.

Conditions

Information to be provided to Minister

4 (1) A person referred to in paragraph 2(1)(a) or (b) must not install, use, possess, manufacture, import, distribute or lease a jammer unless the Minister has received, in relation to this Order, a written notice from the Department of National Defence or the Canadian Forces containing the following information:

Obligation to update information

(2) If any of the information in the notice provided under subsection (1) changes, the Department of National Defence or the Canadian Forces, as the case may be, must, as soon as feasible, provide the new information to the Minister.

Training — paragraph 2(1)(a) or (b)

5 (1) A person referred to in paragraph 2(1)(a) or (b) must not install, use, possess, manufacture, import, distribute or lease a jammer unless they have received, or are receiving, training in relation to each activity that they carry out.

Training — paragraph 2(1)(d)

(2) A person referred to in paragraph 2(1)(d) must not install, use, possess, import or distribute a jammer unless they have received, or are receiving, training in relation to each activity that they carry out.

Directives and instructions — Department of National Defence

6 (1) The Department of National Defence must take reasonable measures to ensure that any directives or instructions that relate to the installation, use, possession, manufacture, importation, distribution or lease of a jammer, whether published in paper or electronic format, are reasonably accessible to the employees of the Department of National Defence who are referred to in paragraph 2(1)(a).

Directives, orders and instructions — Canadian Forces

(2) The Canadian Forces must take reasonable measures to ensure that any directives, orders or instructions that relate to the installation, use, possession, manufacture, importation, distribution or lease of a jammer, whether published in paper or electronic format, are reasonably accessible to the officers and non-commissioned members of the Canadian Forces who are referred to in paragraph 2(1)(a).

Restriction of interference or obstruction

7 A person referred to in paragraph 2(1)(a), (b) or (d) or a person or entity referred to in paragraph 3(1)(b) must make every reasonable effort to restrict as much as possible the jammer’s interference with or obstruction of radiocommunication to the smallest physical area, the fewest number of radio frequencies, the appropriate power level and the minimum duration required to accomplish the intended purposes.

Minimal emissions and exposure

8 A person referred to in paragraph 2(1)(a), (b) or (d) or a person or entity referred to in paragraph 3(1)(b) must install or use a jammer in a manner that minimizes unwanted emissions and the exposure of any person to radiofrequency fields.

Adjustments to radiofrequencies

9 A person referred to in paragraph 2(1)(a), (b) or (d) or a person or entity referred to in paragraph 3(1)(b) must ensure that any jammer for which they are responsible allows for adjustments to the radiofrequencies that it can interfere with or obstruct.

Prevention of non-authorized access and storage

10 A person referred to in paragraph 2(1)(a), (b) or (d) or a person or entity referred to in paragraph 3(1)(b) must take reasonable measures to ensure that any jammer for which they are responsible

Record relating to use

11 The Department of National Defence or the Canadian Forces, as the case may be, must maintain a record of each instance in which a jammer is used by a person referred to in paragraph 2(1)(a), (b) or (d) or a person or entity referred to in paragraph 3(1)(b) and the record must contain the following information:

Suppliers to Department of National Defence

12 A person or entity referred to in paragraph 3(1)(b) must not use a jammer except in the following circumstances:

Cessation of Effect

Five years after coming into force

13 This Order ceases to have effect on the fifth anniversary of the day on which it comes into force.

Coming into Force

Registration

14 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

To meet its lawful mandate and ensure the safety of its employees and the general public, the Department of National Defence (DND) and the Canadian Forces (CF) require the ability to use radiocommunication jammers lawfully. The Radiocommunication Act (the RA) prohibits jammer-related activities in Canada, but provides the Minister of Industry (the Minister) with the authority to exempt persons or entities from these prohibitions.

Background

Jammers are devices that transmit, emit or radiate electromagnetic energy and are designed to cause or are capable of causing interference or obstruction of radiocommunication, other than devices for which technical standards have been established under paragraph 5(1)(d) or 6(1)(a) of the RA or for which an authorization has been issued.

In December 2014, amendments were made to the RA, which included the addition of prohibitions specific to jammers. As a result, the installation, use, possession, manufacture, import, distribution, leasing, offering for sale or the sale of jammers is now prohibited under subsection 4(4). However, recognizing that in some instances a legitimate need for the use of a jammer may exist, the amendments also provided the Minister with the authority under subsection 14(1) of the RA to issue orders to exempt any person, class of persons or entity from the jammer-related prohibitions for such purposes as the preservation of public safety and national security.

Objective

The objective of this Exemption Order (the Order) is to exempt certain DND employees and CF members, as well as certain persons under their supervision, from the jammer-related prohibitions found in the RA for specific purposes and subject to prescribed conditions.

Description

In accordance with subsection 14(1) of the RA, the Order exempts classes of persons and entities from the application of prohibitions in relation to jammers found under subsection 4(4) and paragraph 9(1)(b) of the RA. The exemption applies to DND employees and CF members who are required to install, use, possess, manufacture, import, distribute or lease a jammer as a part of their duties or training. This exemption also extends to other government employees as well as foreign military personnel present in Canada under an international arrangement and operating under the supervision of exempted DND employees and CF members in certain situations. It also applies to other government employees that are required to procure goods and services related to jammers on DND and CF’s behalf. The exemption also extends to suppliers and subcontracted suppliers of goods and services related to jammers to DND and CF in certain situations. Lastly, the exemption also applies to His Majesty in Right of Canada in certain cases where DND employees and CF members as well as the other government employees mentioned above may be acting on the Crown’s behalf.

The Order only allows jammer-related activities to be carried out for certain purposes identified in subsection 14(1) of the RA, such as national defence, international relations, and the protection of property, or the prevention of serious harm to any person. Moreover, to ensure that unintended interference with the radiofrequency spectrum is minimized and that Innovation, Science and Economic Development Canada (ISED or the Department) retains the ability to effectively manage the spectrum for the benefit of all Canadians, this Order provides that DND employees and CF members, as well as those under their supervision, must meet conditions in order to benefit from the exemption. Among these conditions are those that require that every reasonable effort be made to restrict the jammer’s interference with or obstruction of radiocommunication in specific ways. There are also conditions that require the minimization of emissions and exposure from jammer use and the secure storage of jammers.

In addition, there is a requirement for DND or CF to provide ISED with the contact information (e.g. address, telephone number, and email) of the person who has responsibility for its jammers, as well as the contact information of persons responsible for responding to inquiries made by ISED’s representatives. Having this information allows ISED inspectors to know who to contact in the context of (a) radio interference investigations; and (b) verifications of compliance with the conditions set out in the Order.

The manufacturing of jammers in Canada by suppliers and subcontracted suppliers of jammers and related services is exempted under this Order only in relation to specific contracts with DND or CF. ISED continues to investigate associated considerations and will work with stakeholders to develop a framework for jammer-related activities, such as manufacturing, outside of such contracts.

Regulatory development

Consultation

Public consultations on the general use of radiocommunication jamming devices were held in March 2001. The consultation elicited over 200 submissions from individual Canadians and some 30 submissions by Canadian companies and industry associations. The results of those consultations demonstrated clear public support for restricting the use of jammers in Canada. At that time, the Department indicated it would support public safety needs with respect to the use of jammers. The results of those consultations supported the amendments to the RA in 2014, which provide clear prohibitions of jammers in Canada and the current framework for limited, regulated exemptions from these prohibitions.

The need to effectively regulate technologies that may adversely affect the use of spectrum, such as jammers, was also highlighted in a recommendation developed following an expansive Broadcasting and Telecommunications Legislative Review held between 2018 and 2020. The recommendation noted that the Minister of Industry should have the authority to set conditions of use, to limit the use of, or prohibit some technologies if their use unduly impacted the use of spectrum. The recommendation also included that the definitions and prohibitions in the RA should be reviewed to ensure that all types of apparatus, systems, or any other thing that affect safe, secure, reliable, and interference-free radiocommunication in Canada are included in the RA’s scope.

Lastly, DND was consulted on this regulatory exemption to ensure that the Order enables it to carry out its mandate and includes the appropriate safeguards to minimize unwanted interference, recognizing the importance that Canadians attribute to having interference-free wireless communications.

On March 9, 2023, the Government of Canada announced that it would be acquiring counter uncrewed aircraft systems as part of urgent operational requirements to improve the self-protection of military members deployed in Eastern Europe as part of Operation REASSURANCE. This is currently the CF’s largest overseas mission, through which Canada contributes to North Atlantic Treaty Organization (NATO) assurance and deterrence measures in Central and Eastern Europe. In light of the exceptional circumstances with respect to the urgent need for this equipment, the Order was not prepublished in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

An initial assessment was conducted that examined the geographical scope and subject matter of the initiative in relation to modern treaties in effect and did not identify any potential modern treaty impacts. The initiative will take effect in modern treaty areas, but does not pertain to the key rights areas. As a result, a detailed assessment is not required.

Instrument choice

An Order under subsection 14(1) of the RA is the mechanism used to exempt persons and entities from the jammer-related prohibitions under subsection 4(4) and paragraph 9(1)(b) of the RA. Therefore, it is the most appropriate instrument to achieve the objective of exempting certain DND employees and CF members, as well as certain persons under their supervision, from the jammer-related prohibitions found in the RA for specific purposes and subject to prescribed conditions.

Amendments to the RA were made in 2014 to explicitly prohibit jammer-related activities in Canada and create the authority for the Minister to issue exemptions from the application of these specific prohibitions by Order. A process currently allows DND and CF to carry out testing of electronic countermeasure equipment, such as jammers, that was procured before changes to the RA. ISED is now transitioning DND and CF to an exemption framework to align with the current structure of the RA, allow DND and CF to benefit from this more agile regulatory process, and provide additional transparency with respect to the conditions under which they would operate.

An Order by the Governor in Council (GIC) under subsection 3(2) of the RA is another instrument that could be used to exempt DND and CF from the jammer-related provisions in the RA. This type of GIC Order was used for similar purposes prior to the 2014 amendments to the RA. However, this GIC Order relies on a broader authority that does not target the persons to be exempted, the prohibited equipment that they will be using, or the purposes that they would be using it for as directly as an Order under subsection 14(1). Therefore, this type of instrument would not provide the necessary regulatory framework to ensure that potential impacts from these devices on the spectrum environment are sufficiently mitigated.

Regulatory analysis

Benefits and costs

This exemption facilitates the ability of DND and CF to carry out their lawful mandates while continuing to comply with Canadian laws and regulations. All Canadians are expected to benefit from this exemption’s contribution to DND and CF’s ability to conduct modern and effective operations at home and abroad.

The Mandate of National Defence and the Canadian Armed Forces is, in part, to implement Government decisions regarding the defence of Canadian interests at home and abroad, to undertake missions for the protection of Canada and Canadians and to maintain international peace and stability. In modern conflict scenarios, jamming activities are essential to counter an adversary’s ability to navigate, communicate, detect, target, and bring to bear weapons against Canadian and friendly personnel and assets. Such jammer use must be exercised regularly in order to maintain and enhance capability and readiness.

Jammer-related activities could also be undertaken as a part of projects related to defence innovation and contribute to the Minister of National Defence’s 2022 mandate commitment to ensure that CF is a 21st-century military with the capabilities, equipment and culture to implement Canada’s defence policy and anticipate and respond to the full range of current and emerging threats. For example, DND previously hosted a Counter Unmanned Aerial Systems (CUAS) challenge in 2019 and a CUAS sandbox in 2022 in collaboration with the Royal Canadian Mounted Police (RCMP). The RCMP received a jammer related exemption order in June 2019 which enabled them to support DND in hosting these initiatives. An exemption order specific to DND and CF facilitates their ability to independently use jammers as a part of these exercises.

This Order is cost neutral for the federal government. Costs related to compliance and enforcement of the conditions of the Order are expected to be offset by the decrease in resources needed to administer the prior regulatory process that allowed DND and CF to carry out the testing of electronic countermeasure equipment.

Businesses acting as suppliers or subcontracted suppliers that provide goods and services related to jammers to DND and CF would be affected by this Order. There is a lack of readily available information related to the potential costs and benefits that could be experienced by these businesses. Quantitative estimates on the magnitude of these costs and benefits and the number or type of businesses that could be impacted are unavailable at this time. This lack of information is in part because the extent of the costs or benefits would depend on the goods or services that would be provided by the supplier or subcontracted supplier, which could vary depending on the contract that they are entering into. The number of businesses impacted could also vary depending on DND and CF’s needs with respect to jammer-related goods and services.

Suppliers and subcontracted suppliers may experience costs to comply with the conditions of the Order. ISED expects that costs experienced by suppliers will be minor compared to the financial benefits they may derive from an ability to provide specific jammer-related goods and services that they would otherwise not be able to engage in.

Small business lens

Analysis under the small business lens concluded that the Order has the potential for low-cost impacts to small businesses. Small businesses in Canada may be impacted should they provide goods or services to DND and CF pursuant to this Exemption Order. Associated costs would be as a result of compliance with certain conditions of the Exemption Order, such as the requirement to store jammers securely. Estimates of the number of small businesses in Canada that may be impacted is unavailable at this time and may depend on DND and CF’s needs with respect to jammer-related goods and services and the extent to which they participate in related solicitations. The needs of small businesses have been accounted for in the design of this Order by crafting straightforward conditions and avoiding the imposition of complex record-keeping or reporting requirements.

One-for-one rule

The one-for-one rule does not apply to this Order, as there is no change in administrative costs to businesses.

Regulatory cooperation and alignment

Canada is not a party to any international agreement whose obligations would need to be satisfied as part of implementing the Order. This Order is not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

All Canadians are expected to benefit from this exemption’s contribution to DND and CF’s ability to carry out their mandates. Jammer-related activities carried out by CF members and DND employees can be expected to be predominantly carried out by men between 30 and 60 age group. Less information is available with respect to suppliers or subcontracted suppliers that may provide jammer-related goods and services to DND or CF pursuant to this exemption because they could be domestic or international businesses and have differing circumstances. No generational or income-distributional impacts are expected as a result of this exemption and no direct barriers to access and participation in the benefits of this exemption, or negative impacts, are expected.

Implementation, compliance and enforcement, and service standards

The Order will come into force on the day on which it is registered and will apply for a five-year duration.

Apart from the classes of persons and entities identified in the Order who will be exempted from the application of subsection 4(4) and paragraph 9(1)(b) of the RA, as per its purposes and conditions, jammer-related activities will remain a contravention of the RA and subject to the applicable enforcement provisions provided for in the RA. Compliance activities related to this Order will be incorporated into ISED’s existing compliance and enforcement strategies. Further information on the prohibition on jammers in Canada can be found on the Jammers are Prohibited in Canada: That’s the Law webpage, while information on compliance and enforcement can be found on ISED’s website.

There are no service standards with respect to exemption orders related to jammers under the RA.

Contact

Suzanne Macdonald
Director
Broadcast, Coordination and Planning
Spectrum Management Operations Branch
Innovation, Science and Economic Development Canada
235 Queen Street, 6th Floor
Ottawa, Ontario
K1A 0H5
Telephone: 613‑608‑1645
Email: spectrumregulatory-reglementationduspectre@ised-isde.gc.ca