Happy Canada Day, eh? Not only is it Canada Day, it is the 6th anniversary of the coming into force of Canada’s Anti-Spam Law (CASL), the law that ended spam forever. Well except for the spam I screen-shotted above from yesterday that is freaking me out man, in the way it is turning a mirror on me and my little website’s 7-year-old posts and internet privacy. So what do you get a law that has everything? How about a decision from the Federal Court of Appeal that says you pass constitutional muster? Done and done, and it even came 3 weeks early. OK it’s not Friday afternoon anymore, so let’s read this fucking 250-paragraph thing already.
So earlier this month, the Federal Court of Appeal released its decision in 3510395 Canada Inc. v. Canada (Attorney General). Both parties have Canada in the name, how apropos for today! It is the appeal of a CRTC decision from November 2017 (justice takes time) that I conveniently wrote about in a post entitled Clearly Unconstitutional Anti-Spam Law Declared Constitutional. My last words in that post were as follows:
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.
And here we are! I am quite prescient. Except for the part where I said CASL is unconstitutional. You can ignore that part. For reference, CompuFinder is in fact the numbered Canada company in the case name and I will refer to them as such in this post because I don’t like numbers.
So to recap the facts, CompuFinder was fined under CASL for sending spam. Well technically they were fined for: (1) sending Commercial Electronic Messages (CEMs) without consent of the recipient; and (2) those CEMs not having working unsubscribe links, and holy crap those fines (ok ok, Administrative Monetary Penalties – AMPs – not fines) were big. CompuFinder complained to the CRTC, said the AMPs were too high and oh by the way, the law is unconstitutional. The CRTC (after actually reducing the AMPs) analysed the whole thing and said: (1) Parliament had the power to pass the law; and (2) while CASL clearly violated freedom of expression, it was “saved by section 1” as we law nerds like to say. Go back and read my 2017 post, I explain all that.
OK OK stop whining here’s a quick recap, because we’re gonna need it here: the Canadian Charter of Rights and Freedoms says the government can in fact violate the rights in the Charter (like freedom of expression) as long as those limits prescribed by law … can be demonstrably justified in a free and democratic society. That bolded phrase comes from section 1 of the Charter, hence the phrase “saved by section 1”. There is a test, the Oakes Test, to determine if a law is “saved by section 1”. Capisce? Yes? Mazel tov, you just got a B in Con Law 101.
So the CRTC told CompuFinder to F off, and they appealed to the Federal Court of Appeal (FCA). The FCA was tasked with answering the same question(s) as the CRTC, namely did Parliament have the power to pass CASL; and does CASL violate freedom of expression and if so is it saved by section 1. The FCA agreed with the CRTC, denying CompuFinder’s appeal. And we’re done!
We are not done. We have barely begun! All that was just intro. Now we actually read the 250 paragraphs. First, the FCA recaps the facts. Done! Then, the FCA recaps the CRTC’s decision. Already done! Hey this will go quick. Oh wait, maybe I should mention that the FCA in going over the CRTC decision states that the CRTC talked about a bunch of other constitutional considerations and other rights from the Charter (sections 7, 8, and 11 for those keeping score at home) which I haven’t mentioned. I am not even sure why I am mentioning it now.
Then the FCA goes over CompuFinder’s arguments. There’s a lot of legal crap. A lot of technical legal stuff about how the CRTC fucked up in its constitutional and Charter analyses. Many of the arguments are what I had mentioned in the 2017 post. I am not going over all this because it’s a holiday and you should be out eating Timbits and drinking beer. Too cliché?
Let’s tackle the actual decision part in Timbit-sized chunks, under the same headings as the FCA.
Division of Powers Analysis: Validity under Subsection 91(2)
This is about whether Parliament has the power to pass the law, under section 91(2) of the Constitution, which says Parliament can make laws regulating “trade and commerce”. SPOILER ALERT – Yes!
There is some interesting preliminary stuff about whether CASL should be examined just about the spam stuff, or the other stuff that’s in there too (recall: spam law not just about spam). We’re ignoring that because it’s too law-geeky, but the conclusion is we should just look at the spam (sorry, CEM) stuff on its own, which they call the “CEM Scheme”. Oh it’s a scheme alright.
Then it’s on to a “pith and substance” analysis and good Lord you do not want to read about that on Canada Day. In brief – it is about the purpose of the law and its effects, and you analyse these to determine if in fact it falls under a Federal power, in this case whether it falls under trade and commerce. Actually it’s just part one of the determination, then you have to go a second bit which is the “General Motors Test”, which itself has 5 steps. Jebus! No wonder this decision is 250 paragraphs, and we’re not at the good part yet. Bottom line:
… I find CASL’s CEM scheme is a valid exercise of Parliament’s power over general trade and commerce affecting Canada as a whole pursuant to the second branch of subsection 91(2) of the Constitution Act.
Is CASL’s Infringement of Section 2(b) of the Charter Justified under Section 1?
This is the good part, such as it is. Important point to start off here. You may recall (you do not recall) from my 2017 post that the government just went ahead and admitted that duh, CASL violates freedom of expression (2(b) of the Charter). DUH! So the only questions is whether it is saved by section 1. In the 2017 post I quoted the CRTC who nicely summarized the steps in such analysis (the Oakes Test, see above, is steps 2-5), so let’s just cut and paste from that:
- the limit on the right or freedom is prescribed by law;
- the legislative goal is pressing and substantial;
- there is a rational connection between the limit and CASL’s objectives;
- the impairment of the right or freedom (or the degree of infringement) is minimal; and
- there is an overall proportionality between the salutary and deleterious effects of the limiting measure
The FCA goes through the same thing, so let’s do it using their headings.
(1) Is the Limit “Prescribed by Law”?
Yes. CASL is a law and it is “prescribed”. Hmmm the whole “prescribed” thing always confused me in law school so caveat emptor here. Here they say that to be prescribed, it must be “sufficiently precise” and not “impermissibly vague”. Everyone should basically be able to read the damn law and be able to understand what it says to do or not do. So the court reads the law, and yada yada “CASL is sufficiently precise to delineate an area or zone of risk, which is all that can be realistically expected and all that is constitutionally required of legislation.”
(2) Is the Object of the Infringing Measures Pressing and Substantial?
Sure, spam is bad. But as the appellant points out, the law doesn’t regulate spam, it regulates CEMs. Some CEMs should be good, no? Were trying to help the economy here dammit! Appellant says the law should just regulate (as a more narrow objective) “the most damaging and deceptive forms of spam”. They’ve got a point imho! Judge Nadon disagrees:
I make two observations of the appellant’s various statements in this regard. First, the statements are hyperbole
Oof. That’s gotta hurt, Barry! (Barry Sookman was one of CompuFunder’s attorneys here. I am sure that is why his blog post about this offers no details of this opinion whatsoever, that would be trouble, ethics-wise). The Court points out that:
…CASL’s objective [is] stated in section 3 of the Act. And there is no question, in my mind, that the objective of promoting the efficiency and adaptability of the Canadian economy by regulating CEMs,.. is sufficiently important to warrant limiting a constitutionally-protected right or freedom
Does banning all CEMs without consent of the recipient “promot(e) the efficiency and adaptability of the Canadian economy”? Fuck and no. But that’s a question for step 3. For right now, the judge shits on Barry’s suggestion a little more, then just moves on, saying spam is bad and this is a real problem. Step 2 met!
(3) Are the Impugned Measures Rationally Connected to the Objective?
The Judges starts off by agreeing with Barry!
The appellant is correct that an overinclusive prohibition is not rationally connected to its legislative objective to the extent of its overinclusiveness
Whoa dude! The problem is sure CASL is a little broad, but it doesn’t just ban something (CEMs) outright:
CASL does not create an absolute prohibition on electronic messages that aim to encourage participation in commercial activity. The legislation prescribes means of engaging in the regulated conduct, namely, where recipients’ consent has been obtained or can be implied and the Act’s content and unsubscribe requirements have been met.
There are also exceptions to the consent requirement, blah blah blah. So it’s not a total ban, so there is some connection to the objective. But isn’t jumping through hoops to get consent pretty fucking onerous when it comes to sending some emails? That’s a question for step 4.
I would like to point out one thing from this analysis which pissed me off. The Judge shits on Barry some more when Barry suggests (btw I keep mentioning Barry as a proxy for the appellant but only because it’s shorter to type than “the Appellant” or “CompuFinder” or “3510395 Canada Inc.”) you should just be allowed to send a goddamn coupon by email to a consumer. Seems reasonable! But the Judge states:
The more appropriate inquiry is whether an inundation of emails offering an array of coupons, which a recipient did not consent to, and which the recipient is powerless to bring to an end, can impair the efficiency or optimal use of, or undermine a recipient’s confidence in, email as a means of carrying out commercial activities
The recipient can absolutely end the emails. It’s called an unsubscribe mechanism. It’s what the U.S. uses, and it works fine thankyouverymuch. (Though the Court shits on that approach in the next step). And seriously do you think people are not being inundated by email already? Most spam that you and I know as spam comes from Russia, or Cyprus, or lord knows where and nothing will stop it except technology. Anyway.
(4) Are the Impugned Measures Minimally Impairing?
I had a real problem with this step when the CRTC did it in 2017, maybe the FCA will do better! The problem is the cases say that this step requires the law to only impair the Charter right no more than reasonably necessary. That reasonable standard is trouble. Sure there is some impairment, but the Court says it seems reasonable to us! Then the Court shits on Barry some more.
(5) Is There Proportionality Between the Benefits and Deleterious Effects of the Impugned Measures?
The Court foreshadows its decision here with this:
The constitutionally protected expression implicated by CASL is therefore not banned, but regulated.
Hint hint, the deleterious effects are not so bad fucker! I’m getting tired so let’s jump to the end here:
I cannot accept the appellant’s submission that CASL has any substantial deleterious effect on forms of expression other than commercial expression and find that the Act’s impact on commercial expression is mitigated by numerous exceptions and a prescribed method of compliance.
If the consumers want spam, they can have it!
Consumers also always have the option of consenting to receive CEMs about economic choices concerning which they desire more information.
Well actually that ain’t so easy! How about the fact that sending an email to ask for consent is itself a CEM requiring consent? The Court does not mention this. I am, as it is the part of CASL that makes me the most angry.
The Court cites a bunch of stats from the government about how CASL has reduced spam from Canada (by 37%!) and the digital economy is working great, thanks! CASL rulezzzz!!!! Barry points out “correlation is not causation” (I am paraphrasing). The Court says meh, all the steps are met, Oakes Test met, CASL saved by section 1.
Does CASL Violate Section 11 of the Charter? Does CASL Violate Section 7 of the Charter? Does CASL Violate Section 8 of the Charter?
No, no, and no. Boy my posts always peter out by the end. Quickly: (1) s. 11 – CASL is not criminal /penal in nature, it’s regulatory; (2) s. 7 – still no penal proceedings, not to mention appellant is a corporation so 7 doesn’t apply; (3) s. 8 – hmm, the search and seizure seems reasonable to us!
I knew I mentioned those Charter rights higher up in this post for a reason. “Wait Allen, you didn’t even tell us what those section 7, 8, and 11 Charter rights were!” you say. You’re right. You can always look ’em up. I’m ready for a beer.
There are some crappy arguments by Appellant at the end I am ignoring because it’s beer o’clock. There are some good bits in there from the Court about some of the CASL requirements (specifically the B2B exemption and conspicuous publication implied consent), and if you send CEMs you should read it, or here is an excellent summary. And we’re done!
Superterrific Happy Hour Analysis
All hail our constitutional CASL overlords. See you in the Supreme Court. Happy
Canada CASL Day everyone!