Clearly Unconstitutional Anti-Spam Law Declared Constitutional

Clearly free expression

I’ve got some catching up to do in my posts. I’m on fire now! Three in two weeks! (-ish).

So a couple of weeks ago (ok maybe 3 or 4 at this point, I’m working through a backlog, bear with me) the CRTC came down with a couple of Compliance  and Enforcement Decisions. They are, unlike many CRTC decisions, important! Here they are:

• 2017-367: 3510395 Canada Inc., operating as Compu.Finder – Constitutional challenge to Canada’s Anti-Spam Legislation
• 2017-368: 3510395 Canada Inc., operating as Compu.Finder – Violations of Canada’s Anti-Spam Legislation

Now normally I would tell you that if two decisions had consecutive numbers, you might think they are related. But in this case you noticed right away that they have the same stupid numbered company, so you’re smart enough to know they are related! However, maybe you need to tell me that the lower number one is important in the sense that the CRTC needed to decide that one before they could move on to the next one. So I’m good for something!

So before we really discuss what I want to discuss (the -367) one, let’s quickly summarize the other one (-368). Basically the CRTC said that the original Administrative Monetary Penalty (“AMP”, what you and me and every person would call a “fine”) of $1.1 million imposed on CompuFinder should be reduced to $200,000. Uh, good? If you are interested in the nuts and bolts of CASL, there is actually a lot of good stuff in there, especially as it relates to the B2B exception in the law. If you want details, my friends at Fasken have you covered. You can go read them.

I, however, am much more interested in the other decision (-367) in which the CRTC takes on the question of whether CASL violates your rights under the Canadian Charter of Rights and Freedoms. For those of you new to the law, the Charter has rights ‘n stuff. Lawyers smarter than me have been saying that CASL violates your Charter right to free expression (section 2(b) of the Charter) for a while now.  Let’s see what the CRTC says!

Uh, it does?

in this case, the Attorney General conceded that section 6 of CASL, which prohibits the sending of unsolicited CEMs, infringes section 2(b) of the Charter. In the Commission’s view, this concession is appropriate

Case closed! Even the Attorney General says it violates free expression. We can all go home now. HAHAHAHA. This decision is 233 paragraphs long and closes with:

the Commission dismisses the constitutional challenge raised by CompuFinder and denies its requested relief.

Hmm, how is that possible? Well you are about to get a lesson in Constitutional Law 101. Let’s do this Q&A style.

So what does the unconstitutional section 6 of CASL say?

Look, how many times have I written about CASL? Many! You should know this by now! OK OK here goes:

6 (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

(a) the person to whom the message is sent has consented to receiving it…;

There’s a lot more to section 6, but that’s enough.

Why is that unconstitutional?

Look, the Attorney General says it is! Seriously, you don’t need someone’s permission to say something. You can say what you want! (for the most part) So by CASL saying you need permission to say something to someone in a commercial electronic message (“CEM”, like an email), it violates your right to free expression guaranteed in section 2(b) of the Charter.

So why does the CRTC dismiss the constitutional challenge if  everyone agrees the law is so obviously unconstitutional?

Get ready for Con Law 101, as the first year law students call it.

Before you answer that, why is the CRTC deciding if a law is constitutional? Isn’t that a court’s job? The CRTC is not a court!

Boy, you are asking smart questions! And you are right. The CRTC is a regulatory body, but it does sort of have some judiciary functions. But even the CRTC recognizes this whole thing sounds kinda dodgy, so they spend 12 paragraphs answering your exact question! Basically there is a test that comes from the Supreme Court, and the CRTC goes through the test and they say it’s cool. CASL itself says the questions of law about CASL will be decided by the CRTC, so that is enough to give them this power.

Please get back to Con Law 101

OK here goes. The Charter lists all your rights, but it also has this bit, right up top!

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

See that bolded portion? It’s important! It says that even if a law violates a right, that law may still be cool if it is a “reasonable limit” that can be “demonstrably justified”.

So how do courts (and the CRTC apparently) determine if the limit is justified? The legal phrase we use is “is the law justified under section 1?”. There is something called the Oakes Test, which was established by the Supreme Court in a case called R. v. Oakes.

But is there something a court must decide before it does the Oakes Test?

Yes! Glad you asked. The first constitutional question you should answer as a court is to determine if the law is intra vires. Fancy Latin time! That just means the court should ask if Parliament (n this case) has the power to pass the law – whether in “pith and substance” it falls under federal powers, not provincial ones. It’s sort of a two-step test, and the details are boring. Suffice it to say:

the Commission finds that CASL falls under the general federal trade and commerce head of power of subsection 91(2) of the Constitution Act, 1867; therefore, the law is intra vires Parliament.

Get back to the Oakes test! It sounds exciting!

It is not, but here goes. Let’s just have the CRTC explain the test for you:

the onus is on the Attorney General to demonstrate, on a balance of probabilities, that

1. the limit on the right or freedom is prescribed by law;
2. the legislative goal is pressing and substantial;
3. there is a rational connection between the limit and CASL’s objectives;
4. the impairment of the right or freedom (or the degree of infringement) is minimal; and
5. there is an overall proportionality between the salutary and deleterious effects of the limiting measure

See, not really exciting. The CRTC goes through the entire Oakes test step by step. Am I going to do that? I am not. First of all, I have no problem with steps 1, 2, and 3 of the Oakes Test. No real problem there, even I think CASL passes those (though If I wanted to I could attack 3, but I have bigger fish to fry). That 4th step, however, the CRTC royally fucked up on.

Does CASL “minimally impair” the right to Freedom of Expression? (the 4th step)

Fuck and no. It is ridiculously broad. It prohibits the sending of CEMs to just about anyone. It has a few very limited exceptions. Like for example you can send a CEM to your “familiar relationships”, but that doesn’t include your cousin. The “business relationship” exception allows you to send CEMs if someone has a contract with you in the last two years. That is pretty narrow. And what about small and startup businesses? They don’t really have a lot of existing contracts. They are fucked under CASL, and their freedom of expression is way more than “minimally impaired”. Here’s what they say about the exceptions:

the Commission agrees with the Attorney General that the expression limited by CASL is substantially lessened as a result of its exceptions and exemptions. These exceptions, when taken as a whole, significantly narrow the application of section 6

The exceptions are ridiculously narrow. They do not “significantly narrow” the application of section 6. They narrow it by the tiniest little bit. And nowhere near enough to help startups and small businesses. The entire purpose of the law is allegedly to promote efficiency of the economy. It is not doing that, it’s hindering it. See the next question.

Here’s my real issue though – CASL says that an email asking for consent to send a CEM is in and of itself a CEM. So you can’t even send that!! How is that “minimally impairing”??? Jesus. CASL is ridiculously over-broad, and should have failed this step.

Is there proportionality? (the 5th step)

Hmm. iffy at best. CompuFinder says:

CASL has had a generalized chilling effect on electronic communication in Canada including, but not limited to, commercial expression. In short, CASL has as its purpose to promote the efficiency and adaptability of the Canadian economy, but it actually has the opposite effect.

Exactly! I see that in my practice every day. That’s what I was saying before. Small companies are fucked. Anyway, the Commission doesn’t agree with me at all:

The Commission considers that, on balance, these deleterious effects are not so severe as to outweigh the benefits to the greater public good in this case. In particular, the evidence on the record shows lower spam rates in the wake of CASL, without an attendant material lessening of the effectiveness of electronic marketing. These effects are consistent with the government’s objective in enacting CASL – namely, to benefit the economy as a whole by increasing confidence in using the Internet for commercial purposes.

Meh, we’re gonna have to agree to disagree on that. That bolded part is a joke. I get as much spam as I always did, and my clients are suffering in their electronic marketing practices every day.

Any last words?

Between you, me and the lamppost, this probably won’t be the last word on this. These CRTC decisions can be appealed to the Federal Court of Appeal, and I expect CompuFinder might keep going with this. The CRTC did a fine, complete analysis. I just disagree with several parts of it.