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The Liberal Tech Law Record: 2004-05

Appeared in the Toronto Star on December 5, 2005 as Liberals Leave Raft of Unfinished E-Business

Prime Minister Paul Martin used day one of this election campaign – Canada' s longest in 25 years – to focus on the Liberal' s record while in office.  Whereas Martin chose to concentrate on balanced budgets and health care funding (and the opposition on the sponsorship scandal), the government' s record on technology law issues merits close examination.  

Hot button concerns such as education and the environment naturally garner the lion share of attention, yet for the past 17 months of minority rule, the government has been remarkably active on the technology front, generating a long list of legislative proposals and policy initiatives.

Much like the underlying policies themselves, the record is a mixed bag.  It falls into three groups of developments: (i) completed policies; (ii) policies that stalled when the government fell late last month; and (iii) policies that never quite got off the ground.

Bill C-37, which creates a Canadian do-not-call list, is the only major completed piece of legislation.  The statute, which received Senate approval just minutes before the upper chamber shut down for the election, should stand as a widely supported achievement.  Unfortunately, potential bragging rights are undermined by the inclusion of a laundry list of exceptions that permit marketing calls notwithstanding the registration of a phone number on the do-not-call list.  With polling companies, charities, newspapers, businesses with a prior relationship, and political parties all qualifying for these exceptions, the resulting do-not-call list is of only marginal value.

In addition to Bill C-37, the government upheld the Canadian Radio-television and Telecommunications Commission controversial satellite radio decision over the objection of a collection of loud lobby groups.  As a result, satellite radio launched in Canada just last week.  Industry Minister David Emerson also committed to nationwide broadband implementation, allocating millions of dollars to ensure that all Canadians have access to high-speed Internet connectivity.

Given the relatively short lifespan of a minority government, it is not surprising that the list of bills that died on the order paper is far longer than those enacted into law.  Leading the way is Bill C-60, the government' s much-discussed copyright reform package. Introduced in June of this year, the bill, which never made it past first reading, addressed a range of digital copyright issues, including legal protection for digital locks and limitations on liability for Internet service providers, though it contained few provisions focused on the needs of individual Canadians.

Weeks before the government fell, it introduced two additional bills of note.  Bill C-74, the Modernization of Investigative Techniques Act, better known as "lawful access", mandated the implementation of new Internet surveillance technologies and granted law enforcement the power to compel disclosure of Internet subscriber information without a warrant.  Bill C-83 was introduced with little fanfare and addressed the contentious Internet pharmacy issue by granting the Minister of Health the right to ban pharmaceutical exports.  Neither bill proceeded past first reading, though each will likely return should the Liberals again form the government.

Another issue awaiting the next government is the Canadian policy approach to Internet telephony.  The CRTC' s spring VoIP decision was appealed to Cabinet by leading telecommunications companies, yet the issue remains unresolved.

Joining policies in limbo are the issues that never made it beyond an initial introduction or a public consultation. For example, the National Spam Task Force released its final report in May, calling for tough, new anti-spam legislation.  The government responded favourably to the report, but did not unveil a Canadian anti-spam law before the election call last week.

The government also launched two significant consultations.  Earlier this year, it opened the door to merging the roles of the Privacy Commissioner of Canada and the Information Commissioner, tasking former Supreme Court Justice Gerard LaForest with studying the issue.  The LaForest report, quietly released last week, slammed the merger door shut and called on the government to demonstrate a renewed commitment to privacy.

The telecommunications policy review, which covered everything from Internet connectivity to phone privacy (an issue made more relevant by the recent disclosure of the Privacy Commissioner of Canada' s phone records), generated dozens of responses.  The final report is expected before year-end.

The government also promised a series of copyright consultations on thorny issues such as educational use of the Internet and the private copying levy.  Those consultations might still see the light of day in the near future.

Of course, it is the many issues that remain unaddressed that ultimately comprise the largest group of policy questions – from potential consultations to the scheduled review of Canada' s national privacy legislation to the need for protection against invasive copy-controls such as those secretly used by Sony BMG.  The ongoing election campaign will undoubtedly focus on that future, as will this column, which next week turns to the technology law questions that need answers during this winter campaign.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at

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