Case information

Constitutional law — Division of powers — Parliament’s general trade and commerce power — Charter of Rights and Freedoms — Freedom of expression — CRTC and Federal Court of Appeal finding anti spam legislation intra vires Parliament’s power and constitutional — Whether ubiquity of online commerce is a “constitutionally significant transformation” bringing regulation of all commercial electronic messages within Parliament’s general trade and commerce power under s. 91(2) of the Constitution Act, 1867 — What makes internet speech “commercial” for purposes of the freedom of expression guaranteed in s. 2(b) of the Charter — If commercial electronic message provisions under the anti-spam legislation are constitutionally valid, what is proper scope of exceptions to its prohibitions of commercial electronic messages sent without prior consent.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Canada’s anti-spam legislation came into force in 2014: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (CASL). It provides for the regulation of certain forms of commercial conduct relating to electronic commerce (e commerce), most notably the sending of commercial electronic messages (CEMs).

The applicant, 3510395 Canada Inc. was issued a Notice of Violation (NOV) under CASL alleging it had not obtained recipients’ consent prior to sending the CEMs in question. The NOV also alleged that some of the CEMs did not contain a functioning “unsubscribe” link. The NOV imposed a $1,100,000 administrative monetary penalty.

Two related constitutional and compliance and enforcement decisions of the Canadian Radio Television and Telecommunications Commission were issued. The CRTC determined that the CASL was intra vires Parliament’s trade and commerce power under s. 91(2) of the Constitution Act, 1867 and that its infringement of freedom of expression pursuant to s. 2(b) of the Canadian Charter of Rights and Freedoms was justified under s. 1. The CRTC also dismissed claims under ss. 7, 8 and 11 of the Charter. In the second decision, the CRTC found that the applicant company had committed four violations under CASL and imposed a $200,000 penalty.

The applicant company appealed the CRTC’s decisions to the Federal Court of Appeal. Both appeals were dismissed.