Evidence of meeting #77 for Industry, Science and Technology in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was businesses.
A recording is available from Parliament.
11 a.m.
Liberal
The Chair Liberal Dan Ruimy
Could I get everybody to take their seats, please.
Good morning. We have lots to do today. We really need to get this show on the road—“this show on the road”; I don't know how we say that in French.
Welcome, everybody, to meeting 77. We're continuing our—
October 19th, 2017 / 11 a.m.
Conservative
11 a.m.
Liberal
The Chair Liberal Dan Ruimy
—que le spectacle commence. I like that. Let the games begin.
We are continuing our study of the anti-spam motion. Today we have with us, as an individual, Stephanie Provato, associate Buchli Goldstein LLP. We have from the Canadian Marketing Association, David Elder, special digital privacy counsel; and Wally Hill, vice-president, government and consumer affairs. From Lighten CASL we have Andrew Schiestel, founder. From the Retail Council of Canada, we have Jason McLinton, vice-president, grocery division and regulatory affairs.
Before we begin, Mr. Sheehan, you have something.
11 a.m.
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
Thank you very much, Mr. Chair.
I just wanted to introduce a notice of motion to the committee. It's in both English and French. It's going to be distributed by the clerk. I'll just read it in.
11 a.m.
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
First of all, happy anniversary, everyone, on being elected. It's our two-year anniversary.
I'm just introducing this as a notice of motion to be dealt with later. The notice states,
That the Standing Committee on Industry, Science and Technology study the Canadian steel industry and make recommendations to the government for the implementation of a strategy for the Canadian steel industry.
11 a.m.
Liberal
11 a.m.
NDP
Brian Masse NDP Windsor West, ON
I would ask for a friendly amendment that the committee also consider additional meetings to make this motion possible.
11:05 a.m.
Liberal
The Chair Liberal Dan Ruimy
It's actually non-debatable because it's just a notice of motion. But when it does get introduced, you can put forward your friendly motion.
11:05 a.m.
NDP
Brian Masse NDP Windsor West, ON
Can I amend it before it actually is put forward?
Maybe I will talk with Mr. Sheehan, then.
I would prefer that we get on with studying the steel industry and not have to wait for business to come up. We could actually do this motion rather quickly by adding meetings as opposed to our regular business. I hope we've actually scheduled this as a priority coming up maybe for Tuesday. I'm just wondering when our next order of business is, as we have new orders. We could discuss this on Tuesday if possible.
11:05 a.m.
Liberal
The Chair Liberal Dan Ruimy
As it currently stands, we have witness testimony for anti-spam on Thursday and Tuesday. Tuesday is actually a full day. We could probably carve out 15 minutes on Thursday the 26th.
11:05 a.m.
Liberal
The Chair Liberal Dan Ruimy
Fair enough. Thank you. Let's carve out some time on the 26th.
Excellent. We're going to move on.
Stephanie Provato, you have eight minutes please.
11:05 a.m.
Stephanie Provato Associate, Buchli Goldstein LLP, As an Individual
Thank you, Mr. Chair, and committee members for giving me the opportunity to speak to you today.
By way of a brief introduction, my name is Stephanie Provato and I'm an associate lawyer at Buchli Goldstein in Toronto.
My involvement with CASL to date has been evaluating the legislation from a constitutional perspective. CASL has been on my radar since before it came into force. In 2014 my paper challenging the constitutional validity of the legislation was published in The John Marshall Journal of Information Technology & Privacy Law. I think it was the first academic paper to take this up, and it garnered a lot of attention. I have since been serving as an adviser with the Lighten CASL initiative, which aims to put forward recommendations to break down some of the, in our opinion, unclear and onerous aspects of the legislation.
However, I'm here today in my individual capacity because I've been advocating in favour of statutory review of the legislation. I think what the committee is doing is very important, and I believe that reform is necessary.
I'd like to present to the committee the position that CASL unjustifiably restricts the fundamental right to freedom of expression, which is protected by section 2(b) of the Charter of Rights. Consequently, the legislation would not withstand a charter challenge on the basis that it would fail the proportionality element of the section 1 Oakes test, particularly the branches of minimal impairment and proportionate impact and effect.
I have a quick charter crash course for the Oakes test branches to give to you today. Under the minimal impairment branch, a law that impairs a right protected by the charter will be deemed constitutional only if it impairs the charter right as minimally as possible. What is looked at is whether the limit being placed on this right is restricted to no greater an extent than what is necessary for the government to achieve its objective. When looking at the proportionate impact and effect branch, what is considered is whether proportionality exists between the government's objective of the law and the adverse effects of the law.
I'd like to establish right out the gate, which is important in a charter analysis, that the definition of “commercial electronic messages”, CEMs, includes commercial activity, which case law has established falls within the scope of “expression” protected in section 2(b). CEMs qualify as a type of expression that is protected by the charter.
To begin the charter analysis, I want to look at the definitions of “family relationships” and “personal relationships” within CASL. The definition of “family relationships” in the regulations is extremely limited. It includes only individuals related to one another through marriage, common-law partnership, or a legal parent-child relationship. This definition ignores the true reach of who in reality is family. It turns family into strangers. It ends up making completely valid communication between completely acceptable parties illegal. Basically, you can't do something like send an email to a second cousin—who many would consider to be family—offering to sell something like a hand-me-down baby crib. The other thing is that messages sent to relatives who are more than a distant lineal descendant, which is only what the act allows, are unlikely to be the electronic—quote, unquote—“threats” that the legislation was intended to target.
I'll move to the “personal relationship” definition in the act. It focuses on factors such as the frequency of communication, the length of time since the parties communicated, and whether the parties have met in person. This is problematic because it's also very limiting. It shuts out and is naive to the reality of what people consider to be personal relationships, which includes colleagues, friends of friends, people you've been out of touch with, people you connect with online, people you have just met, and acquaintances. All of these could be personal relationships, all in different degrees.
Looking at these two definitions shows the problematic nature of the way CASL dictates who can communicate with one another. Dictating who can communicate isn't an issue if you're talking about restricting communication between malicious spammers and an innocent person. However, that's not all that's happening here. There is a restriction on expression here, because CASL casts the net so wide that it is catching and restricting harmless communication that it doesn't need to and didn't intend to in order to achieve its objective. That can't be said to be proportional to fighting spam.
In effect, it will discourage people from communicating and using electronic means to do so, and it will stunt social networking, especially since penalties for non-compliance are so high. It is difficult to fathom how these effects on expression are justifiably reasonable, minimally impairing, and proportionate to pass a charter challenge.
I want to move to CASL's definition of “existing business relationship” for implied consent. It is also an example of how the legislation can have the unjustified and disproportionate effect of infringing on the freedom of expression, this time on small and medium-sized businesses.
These businesses cannot rely on the existing business relationship exemption because, unlike larger and more established businesses, they don't have existing or ongoing business relationships to leverage. Therefore, in effect, they are being restricted from communicating with and reaching the public. This is putting them at a competitive disadvantage. They are hindered from being able to start up, grow, compete, and participate in the marketplace. It may even hinder their ability to provide better and more customized products and services for their clients, thus reducing innovation.
Additionally, the onerous burdens to comply with CASL, along with the high monetary risk and price to pay for non-compliance, may discourage these businesses from participating in the marketplace at all, or in the way they want to, which ends up silencing their voice and their overall impact in the economy. This negative and hindering effect, both on these businesses and the Canadian economy as a whole, can hardly be seen as minimally impairing, especially since small and medium-sized businesses make up a significant portion of the Canadian economy.
These examples highlight the importance of having intelligible standards when it comes to definitions within CASL. Failure to provide clear notice to the public as to which conduct is the subject of legal restrictions is often raised in charter challenges, and it has been held that restrictive law must provide intelligible standards that delineate the risk zone, allowing for legal guidance and accountability.
At the end of the day, CASL has set out these categories of permitted and acceptable commercial speech, which has a chilling effect of restricting legitimate expression and beneficial commercial speech and reducing the free flow of information and ideas. CASL is a disproportionate response to fighting spam, when its adverse effects are compared to the government's objective. CASL cannot be said to be restricting the freedom of expression as minimally as possible. It restricts expression to a greater extent than what is necessary in order for it to achieve its objective. In a nutshell, CASL is inefficient. This is problematic, because an effective law is an efficient law. Even the name itself isn't efficient: “an act to promote the efficiency and adaptability of the Canadian economy...blah blah blah”. That's my eight minutes right there.
On top of that, a charter infringement is too high a price to pay for the benefit of the law. It is important for the committee to consider the fact that CASL needs to be recalibrated so that it delineates clear standards, both on paper and in practice, because, as of right now, its effects are disproportionate to its objective in a way that cannot be justified to override what is protected in the charter.
11:10 a.m.
Liberal
The Chair Liberal Dan Ruimy
Thank you very much for that. It's too bad we can't just call it “an act to blah blah blah”.
We're going to move to Mr. Hill for eight minutes.
11:10 a.m.
Liberal
Mary Ng Liberal Markham—Thornhill, ON
Mr. Chair, I have a quick question.
Before others start, I want to get a point of clarification about the list. It's so wonderful to have everyone here. This committee, like all our parliamentary committees, looks to hear from a range of voices.
I know, Ms. Provato, that you are speaking on your own behalf, but you are part of the Lighten CASL organization as well. I just want to be sure that we actually have two individuals speaking from the same organization, just so we know whom we have in front of us today.
11:10 a.m.
Associate, Buchli Goldstein LLP, As an Individual
Correct, I serve as an adviser with the Lighten CASL committee, but I believe that Andrew's submissions today—
11:10 a.m.
Andrew Schiestel Founder, Lighten CASL Inc.
I can speak to it. Stephanie is not speaking in an official capacity on behalf of Lighten CASL. She is an adviser. There are lots of advisers to Lighten CASL.
I am speaking as an official representative of Lighten CASL.
11:15 a.m.
NDP
Brian Masse NDP Windsor West, ON
On this note, we had that happen in the last meeting, too. We should probably have a special notation in our notes, because it's important for these things to be very clear so that the crossovers aren't misinterpreted.
