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Canada's Anti-Spam Law Is a Recipe For the Abuse of Power

08/21/2014 09:15 EDT | Updated 10/21/2014 05:59 EDT

Once Canada's Anti-Spam Law came into effect on July 1 2014, the government went on a media blitz in support of the new law. CASL -- it was said -- will protect Canadians from criminal activities like online fraud by prohibiting unsolicited "commercial electronic messages." Ignoring the concerns raised by businesses, charities, and lawyers, the government blithely asserted that CASL had received the support of all parties in Parliament and that businesses would have ample time to bring their practices into compliance.

CASL seems simple. Effectively, any unsolicited electronic messages that could be construed as "commercial" (including emails and text messages) are now illegal -- unless you can find an exemption somewhere in the law or its regulations.

A single email sent to a single recipient can be illegal since CASL does not say that spam must have multiple recipients, multiple iterations, or the like. More disturbing, many perfectly harmless and innocent electronic messages are now illegal. For example, if your Grade 3 child emails his classmates offering to sell his baseball glove using email addresses supplied by his elementary school, your child has broken the law.

As you might expect, there has been significant opposition to CASL.

Before CASL came into force, the Canadian Chamber of Commerce conducted a mini-survey of over 160 of its members. Ninety percent of respondents thought that CASL should be scrapped, amended, or at least subject to Parliamentary review. Eighty percent predicted that the law would be ineffective. Sixty-four percent said that CASL would make it more difficult to conduct business. And 56 per cent expected CASL to be an impediment to business development, job growth, and the future prosperity of Canadians.

The business sector's dissatisfaction is shared by Canada's charitable sector. CASL is a significant restriction on freedom of expression and will have many unintended consequences. After all, an important way to evaluate legislation is to examine how it can be abused, not what the government says its goals are.

Consider this. CASL prohibits unsolicited commercial electronic messages but fails to define what "commercial" means. Instead, it defines "commercial activity" as deeds performed with or without the expectation of profit--even though any dictionary will confirm that "commercial" is inherently tied to the expectation of profit. As a result, CASL is so confusing and ambiguous that it's impossible to know precisely what Parliament intended to prohibit.

What's more troubling is that the regulators enforcing CASL will get to decide what Parliament intended. The CRTC's website illustrates this. The CRTC periodically issues FAQs on how it understands the term "commercial" and how CASL will be enforced. Apparently, Parliament has no qualms about enacting bad laws and allowing unelected bureaucrats to solve the problem. But here's the point -- Parliament has abdicated its legislative role to the regulators.

And it only gets worse from there. The penalty provisions in CASL are of a peculiar variety called "administrative monetary penalties." AMPs are a special breed of fine that a regulator is capable of levying all on its own. Typically, if you are fined for a breaking a law, you will have your day in court to present your arguments before an impartial judge in a fair and public proceeding. It's only after hearing both sides of a dispute that the judge decides whether you should pay up.

AMPs are different. Regulators can levy AMPs directly without having to prove your guilt to an impartial judge in a fair and public proceeding. This is problematic. CASL permits regulators to levy AMPs of up to $1-million against individuals and $10-million against corporations. There is no judge, no fair and public hearing, and certainly no presumption of innocence. All those procedural protections are surreptitiously dispensed with.

And here's the full depth of the problem with CASL. When Parliament enacted this confusing and ambiguous legislation, it relinquished its legislative power to those regulators charged with enforcing the law. And since those same regulators have the power to directly levy enormous penalties, CASL permits bureaucrats to play the roles of legislator, police, and judge simultaneously.

Needless to say, this combination is a perfect recipe for abuse and has no place in a free and democratic society like our own.

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