Earlier this morning the Supreme Court of Canada denied Compufinder leave to appeal the decision of the Federal Court of Appeal in the CASL Charter and constitutional challenge in 3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103. CASL is the unofficial name for Canada’s much maligned anti-spam (and malware) law, a law that many information technology and privacy lawyers believe should be scrapped.
The issues in the case were summarized by the Supreme Court as follows:
Constitutional law — Division of powers — Parliament’s general trade and commerce power — Charter of Rights and Freedoms — Freedom of expression — CRTC and Federal Court of Appeal finding anti‑spam legislation intra vires Parliament’s power and constitutional — Whether ubiquity of online commerce is a “constitutionally significant transformation” bringing regulation of all commercial electronic messages within Parliament’s general trade and commerce power under s. 91(2) of the Constitution Act, 1867 — What makes internet speech “commercial” for purposes of the freedom of expression guaranteed in s. 2(b) of the Charter — If commercial electronic message provisions under the anti-spam legislation are constitutionally valid, what is proper scope of exceptions to its prohibitions of commercial electronic messages sent without prior consent.
Canada’s anti-spam legislation came into force in 2014: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio‑television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (CASL ). It provides for the regulation of certain forms of commercial conduct relating to electronic commerce (e‑commerce), most notably the sending of commercial electronic messages (CEMs).
The applicant, 3510395 Canada Inc. was issued a Notice of Violation (NOV) under CASL alleging it had not obtained recipients’ consent prior to sending the CEMs in question. The NOV also alleged that some of the CEMs did not contain a functioning “unsubscribe” link. The NOV imposed a $1,100,000 administrative monetary penalty.
Two related constitutional and compliance and enforcement decisions of the Canadian Radio‑Television and Telecommunications Commission were issued. The CRTC determined that the CASL was intra vires Parliament’s trade and commerce power under s. 91(2) of the Constitution Act, 1867 and that its infringement of freedom of expression pursuant to s. 2 (b) of the Canadian Charter of Rights and Freedoms was justified under s. 1 . The CRTC also dismissed claims under ss. 7 , 8 and 11 of the Charter . In the second decision, the CRTC found that the applicant company had committed four violations under CASL and imposed a $200,000 penalty.
The applicant company appealed the CRTC’s decisions to the Federal Court of Appeal. Both appeals were dismissed.
For some of my views and criticisms about CASL including its constitutionality and its flawed approach to Internet regulation, see:
- CASL Spamaflop not constitutional
- CASL and Freedom of Expression –The Writing Is on the Wall
- Legislative and Judicial Approaches to Internet Regulation: CASL as a case study
- Michael Geist’s defense of Canada’s indefensible anti-spam law CASL
- COVID-19 and Canada’s anti-spam law CASL
- CRTC’s troubling guidelines on CASL accessorial liability
- CASL: my appearance before the INDU Committee
- CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline
- Evaluating the Industry Canada CASL regulations: how to assess them
The Compufinder Memorandum of Argument and Reply in support of granting leave to leave appeal can be accessed here and here.
Compufinder is represented by McCarthy Tetrault lawyers Barry Sookman, Dan Glover, Adam Goldenberg, Charles Morgan and Natalie Kolos.
