Are Canada’s Digital Laws Unconstitutional?

One of the first Canadian digital-era laws was the Uniform Electronic Commerce Act, a model law created by the Uniform Law Conference of Canada in the late 1990s. The ULCC brings together officials from federal, provincial, and territorial governments to work on model laws that can be implemented in a similar manner across all Canadian jurisdictions.
While a federal e-commerce law may have been preferable, the constitutional division of powers meant that it fell to the provinces to enact those laws.

The provinces took the lead on e-commerce legislation in the late 1990s, but over the past decade it has been the federal government that has led on most other digital rules, including privacy legislation, the anti-spam statute, and proposed digital copyright reform. Those efforts are now in constitutional limbo following the Supreme Court of Canada’s recent ruling that plans to create a single securities regulator are unconstitutional.

The December securities regulator decision concluded that the national approach to securities regulation stretches the federal trade and commerce clause too far into provincial jurisdiction. The court ruled that most of the securities regulatory activities deal with day-to-day contractual regulation within the provinces and that “these matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole.”

My weekly technology law column (Toronto Star version, homepage version) notes the repercussions of that decision may be felt far beyond just securities regulation. For example, federal privacy law may now be particularly vulnerable to challenge since it relies on the same trade and commerce provision.

There have been questions about the constitutionality of PIPEDA, Canada’s private sector privacy law, since its inception. Quebec launched a constitutional challenge in 2003, pointing to its longstanding provincial privacy statute and the constitutional limitations on a federal privacy statute. The Quebec challenge has remained dormant for many years, but State Farm Insurance revived the issue in a privacy case in 2010.

The Supreme Court decision seems likely to stoke the fires for a constitutional challenge, particularly given the Privacy Commissioner’s call for stronger enforcement powers. Indeed, the prospect of a challenge may hamper the Commissioner’s enforcement efforts as companies reluctant to comply with Commissioner findings may opt to challenge the validity of the legislation instead.

PIPEDA is not the only digital law placed at risk by the Supreme Court decision. Anti-spam legislation, which is still awaiting final regulations before taking effect, may face similar questions since it too relies heavily on the trade and commerce clause.

The decision also places the spotlight on the constitutional questions that have dogged Bill C-11, the copyright reform bill. Those questions do not arise from the trade and commerce clause, but rather involve similar questions about whether the digital lock rules move too far away from conventional copyright law (a federal power) by encroaching into provincial jurisdiction over property and civil rights.

The government’s own analysis of the bill obtained under the Access to Information Act confirms that the digital lock rules envision potential violations of copyright even when there is no copyright infringement. By removing the link to actual copyright infringement (breach of the digital lock rules may occur without a copyright infringement and without regard for traditional copyright defences), the law ventures into the provincial domain over property and civil rights.

The Supreme Court decision throws a monkey wrench into more than just plans to create a single securities regulator.  It may also hamper the development of a single national digital legal strategy. This suggests a need to rethink the digital lock rules, and engage the provinces on digital legal issues sooner rather than later.


  1. I would certainly be interested to see if someone would challenge the constitutionality of the digital lock provision once C-11 becomes law because of this.

    Of course, that just means that big business will start lobbying provincial governments to enact laws like that should it be found unconstitutional.

  2. The bigger question is, are Canadian digital laws enforceable and would they stand up in court? One has to remember, a law that is not enforced is worth less than the paper it’s printed on and destined to fall in to obscurity. I read an article the other day about SOPA. One of the targeted applications likely to become illegal under SOPA is likely to be TOR. Now TOR is not like bit-torrent there is no file sharing, and it’s primary use is NOT piracy. In fact, sharing files over TOR would be painfully slow. BUT is it a very effective anonymizing tool and very good at circumventing censorship regimes. So in making it illegal, the US is saying one of two things, or both, “You have no right to privacy.” or “You have no right to see things we don’t want you to see.” Both have chilling undertones. Can anyone say, China?

    It should be noted that TOR was developed by the US Navy and promoted by the State Department as part of the solution to allowing for free communications in repressive regimes. How’s that for irony? LOL

  3. TOR … solution to allowing for free communications in repressive regimes
    Repressive regimes? I can name a few.

    Seems what’s good for the citizens of Iran is not so much for the good ol’ folks of the USA.

    Funny that.

  4. On the topic of digital laws …
    Here is a great link from the Colbert report on SOPA, but even more interesting is a video link just below it from the Independent FILMMAKER magazine.

    Hmm, creators against SOPA, who du’ thunk it?

  5. Seems the people at the top are listening after all?

    The White house has just come out pretty strongly against SOPA & PIPA, which is fairly good news. The bills are still out there and being pushed by big content but the mounting public awareness and push back seems to be taking effect. It is nice to see that regular people still have a voice and that sometimes it is heard.

    Litigation, termination threats, trolling and lobbying has not worked out well for the **AAs yet. Those darn new business models are enabling new players (often the creators themselves) to take advantage of the new economy. As those successes continue to mount the **AAs are going to start running out of wool.

    The more the government tries to resist and control, the more rebelliousness they will get. They are digging a hole they will never get out of if they try to bring this kind of freedom violation to North America. The government should not have anything to do with business in the first place it should be considered a major conflict of interest. Ever since they have been regulating everything, it all has gotten worse. But the internet cannot be truely controlled, what they are trying to do is almost like trying to control the air we breathe. Its ether and anyone can access anything, actually if they do put this through, it might even make it easier and they might actually lose whatever censorship control they do have already. People will probably end up accessing the internet for free and all kinds of stuff will come out, just watch.