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.

Posted in: Regulatory regime in Canada, Uncategorized
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6 Responses to Clearly Unconstitutional Anti-Spam Law Declared Constitutional

  1. steve says:

    words please Allen even though you dont know me
    this is some kind of jest on your websiteLast
    they will take my last
    words out my
    cold dead voicebox
    and still in death
    I will complain
    through legal manipulation
    of the time of death
    he could have been
    alive when he said
    that according to
    hapus corpus

    In a past life I used
    cold call emails
    to generate
    sales and make
    the world better
    for my customers
    because they
    were ignorant
    and I imformed
    them bliindly
    and thats
    the way of the world
    you need to know
    new things
    and without
    by news
    you are
    to go
    which is a very
    good thing
    for everyone
    excpept the principles
    and the community
    but get used’
    to it its comming
    like a hurricane
    and Bob Dylan
    will sing a song
    and we will
    all celebrate
    getting out of jail
    but its like everything
    five years in the future
    but its comming
    a Star Trek
    where everthing
    at least on a Starship
    is free
    and when you get
    to port
    you trade for tribbles
    because there
    is always a chance
    that even the most
    starship captiian
    can be fooled
    by a living
    plush toy

    As I said before
    I made a difficult living
    sending out emails
    to fortune 538
    the AI I worked
    for had discoved
    a niche between
    500 and above
    and as
    Willy Loman
    the Salesman knew
    there was always
    a chance
    you would
    get sails from
    above and you
    could stop
    cleaning the window
    on your jelopy
    with newspaper
    and spring into
    like Clark
    we have a failing
    with postive
    cash flow
    I am there
    like the Whale
    just watch the
    cash flow
    when I blow
    excpet for the
    fact that whales
    take very deep breaths
    and its not likely\
    to be repeated
    in this lifecyle
    thats when
    we pump and dump
    and fleece the
    muppets ireoncily
    from tits
    to teeth
    in polar flecce
    plastic turned
    around again
    to make
    the climate

    Ape movies
    are instructive
    they are simple
    and if you
    occumas razor
    paraetoes law
    or any mathimatical
    the solulion
    is simple
    but if you
    factor in the human
    factor the end
    result is always
    the same
    of the numbers
    and the
    going to
    the insane
    people who
    dont care
    one fuck about

    • steve says:

      has no one who is musican
      never ala sugar sugaRsmith
      or people watching a carwash
      read your blog and wondered
      can this shit be real with
      a good sound system>?

  2. steve says:

    to put it another way
    if I lived on a beach
    those seagulls
    would be out
    of reach
    if I was
    I might fool
    them with
    a french fry
    if my game
    was on

  3. steve says:

    gold Jerry Pure Gold
    its better than Bitcoin
    cause you can
    hold it
    if wealth becomes
    we are all living
    on a cloud
    and at anytime
    the cloud
    might want
    to re idroduce

  4. Paul says:

    To me, this situation is akin to that scene in Office Space where the manager is asked: “What would you say that you do here?” I boil it down to this: CRTC: “We deal with the good damn spam so the people don’t have to. We have spam skills! We are great protecting people from spam! What the hell is wrong with you people!” Like you, I receive the same amount of spam and I believe this is the wrong approach to dealing with the issue.

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