Industry Committee on Oct. 19th, 2017

[Voices]

Oh, oh!

[Brian Masse, NDP, Windsor West, ON]

Mr. Schiestel, I really appreciate your website. It's very good, but I think we all need to understand some of the connections that we have going on here. I think perhaps it's evident. We had Mr. Sookman here earlier. He's also on your board. Is it a board of directors or advisers?

[Andrew Schiestel]

Yes. It's a set of advisers who advise the not-for-profit organization Lighten CASL.

[Brian Masse, NDP, Windsor West, ON]

Okay. It's a not-for-profit. I know that Ms. Provato is also here in that same capacity, so we have three witnesses from the same organization.

Your website says, “In 2014, lawyers Stephanie Provato (Buchli Goldstein LLP)”—Ms. Provato, you can correct me on the names later—“and Dr. Emir Crowne (KPA Lawyers) published a seminal paper that contends that Canada's Anti-Spam Legislation...is unconstitutional.”

You say, “This opinion is shared with many Canadian lawyers including Barry Sookman (McCarthy Tétrault LLP)”. Mr. Sookman was a witness here.

You continue, “A portion of all #LightenCASL membership dollars that #LightenCASL raises will be held in a fund to potentially support a charter legal proceeding which will challenge CASL's constitutional validity.”

Are you going to actually bring that forth? What's the status of this? That's been on there since 2014, so what's the status of the actual constitutional challenge that you're going to bring forth?

[Andrew Schiestel]

Lighten CASL was launched in May 2017, I believe. It wasn't 2014. At this time, there are no public announcements in terms of any funding that's going to be put towards a specific constitutional challenge. There's nothing public at this time.

[Brian Masse, NDP, Windsor West, ON]

Have you just been fundraising since 2017? The constitutional seminal paper was published in 2014. Is that correct?

[Andrew Schiestel]

I think that's right in terms of the date for the seminal paper. Stephanie would know better.

[Stephanie Provato]

Yes, that's correct.

[Brian Masse, NDP, Windsor West, ON]

What's the status of that? Is that happening? I think we know whether or not there is intent. What's the community out there saying? We're interested in knowing that if this is a serious issue that fundraising is going on for on the issues around CASL, is it to the point where that's really going to happen? I know it's speculation, but we're dealing with hypotheticals, just like the cousins scenario. How big a concern is it?

[Andrew Schiestel]

I might speak to it initially. To my understanding, there is a constitutional challenge currently in front of the CRTC, so you may want to defer to them to provide information regarding that.

Also, David might be able to speak more about the parameters on which he might suspect that a constitutional challenge would happen moving forward.

The sense I get in speaking to lawyers is that especially if private right of action had been implemented in July and if there were a legal proceeding against a company under private right of action, that probably would have been the appropriate time as the defence to take a run at a constitutional challenge under the Charter of Rights and Freedoms in Canada.

[Brian Masse, NDP, Windsor West, ON]

I'm trying to separate what's really serious and what's not. Tony Clement was the author of this legislation, and he used the situation of the census, saying that you would go to jail. There was a sensational element to that. He's used hyper language in the past related to legislation, but this is his legislation.

I've heard at the table here about girls running a lemonade stand being affected by this. Cousins,,,. Mr. Sookman brought in a not-for-profit association, and named one that I was a former board member of, that had no connection that has been brought up through this. That's not fair because that not-for-profit association didn't ask for that. It was separated.

I'm trying to separate the elements of what I consider unconstitutional. Is it...? This language over cousins, lemonade stands, and using not-for-profits without their consent, is that the appropriate way of being able to argue something here?

Ms. Provato.

[Stephanie Provato]

Fair enough. I think constitutional arguments are being put forward to the CRTC. I'm happy to provide more information on that after today's meeting, if that's something the committee wishes to look at further.

My point today is really to focus on—yes, I know it was not the priority of the lawmaker to run into these sorts of situations. It is to try to get it right and not create situations where the public is going to feel a charter challenge is necessary.

My point today is we don't want to see an increase in charter challenges. We don't want to create something that makes people feel as though their freedom of expression is being infringed in any way. Charter challenges shouldn't be used by the government to work out kinks in the legislation. We can't expect the public to undertake this and resort to this every time their rights are infringed or they feel that things are not working out fairly.

[Brian Masse, NDP, Windsor West, ON]

Fair enough. I'm trying to sort out which scenarios are real, what's hypothetical, and what's imagined.

In a memo you presented to the Canadian Chamber of Commerce, we have more overlap as well. The specific concerns that are raised, the legitimate ones that are out there.... I mentioned Compu.Finder and Plentyoffish, and the CRTC rulings against them and the fines versus that of Rogers saying they never got any notification.

Does anybody here have any opinions as to whether the CRTC overstepped its bounds on Compu.Finder, for example? I'm just throwing one out.

Mr. McLinton or Mr. Schiestel, anybody.

[David Elder]

I think Compu.Finder is an interesting case, because by all accounts they were what a lot of people would consider to be a spammer. They were sending out commercial electronic messages fairly indiscriminately and repeatedly ignoring requests to be taken off the list.

In a way, it's difficult to say if they went over the top on that within the confines of the legislation. They didn't go as far as they could have, but if there is this basic underlying constitutional issue.... To go back to your earlier question, charter challenges are very expensive. If you're an organization in the CRTC's sights, they've come forward to you and want to fine you, do you just pay your fine and try to get on with life, or do you run the gauntlet of taking it in front of the commission and eventually before the Federal Court, and maybe, probably, eventually in front of the Supreme Court?

That's all very expensive to do.

[Brian Masse, NDP, Windsor West, ON]

I agree, and I don't think that's the way to do legislation, but the reality is that happens all the time, unfortunately.

[The Chair, Liberal, Dan Ruimy]

Mr. Masse, I'm going to have to cut you off there. We're over time.

We're going to move to Mr. Longfield. You have seven minutes.

[Lloyd Longfield, Liberal, Guelph, ON]

Thanks, Mr. Chair.

Thanks, everybody, for coming here prepared. It's great to have actual suggestions for us to consider. A tough part of our job is coming up with recommendations.

I liked the line of questioning Mr. Masse was going down as well, in terms of consumers.

I want to table a motion for future consideration:

That, pursuant to Standing Order 108(2), the Committee undertake a study on the future of digital commerce in Canada, with the goal of examining best practices and opportunities for Canadian e-commerce, including the use of new commerce platforms such as fintech and blockchain, and that the Committee report its findings to the House.

My line of questioning has to do with fintech and e-commerce, and the changing nature of commerce.

Mr. Schiestel, you mentioned we're not in a bubble. We're in an international market. When it comes to—

[The Chair, Liberal, Dan Ruimy]

Go ahead, Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Mr. Chair, on a point of order, is that an official tabling right now during testimony?

[The Chair, Liberal, Dan Ruimy]

I am just getting this now. Yes, it is.

[Brian Masse, NDP, Windsor West, ON]

Can we suspend? I'll get a copy. Is that going to be taking time from me at the end, or is it going to be taking from...?

[The Chair, Liberal, Dan Ruimy]

For now, it's on Mr. Longfield's time.

[Lloyd Longfield, Liberal, Guelph, ON]

It's on my time. It's a notice of motion. That's all.

[Brian Masse, NDP, Windsor West, ON]

I just want to make sure that it's in both official languages.

[The Chair, Liberal, Dan Ruimy]

Yes, it is.