My colleague Jeremy deBeer has been the leading voice questioning whether anti-circumvention legislation – the legal protection for DRM that is often described as "para-copyright" – is constitutional, given that the potential rules arguably involve property rights (which falls under provincial jurisdiction) far more than traditional copyright (a federal matter). Interestingly, the same issue has arisen in Australia. Australia recently amended its copyright law under pressure from the U.S. and a law firm article (reg. required; try bugmenot) quotes High Court Justice Kirby – well known as the author of the Sony v. Stevens decision – as stating that the reforms appear to exceed the Australian federal governments powers. Moreover, the issue was brought to Kirby's attention by another High Court justice, suggesting that a constitutional challenge may find a sympathetic bench.
This places the spotlight on an interesting dilemma within the Canadian context – the tougher the anti-circumvention provision, the less likely it is to be constitutional. The government can therefore play it safe by introducing a WIPO-compliant, yet limited provision that can withstand constitutional scrutiny or follow the DCMA route and risk having the full provision declared unconstitutional. Yet another case of be careful what you wish for since you just might get it.