Supreme Court of Canada Dismisses Leave to Appeal Constitutional Challenge to Canada’s Anti-Spam Legislation (CASL)

On March 4, 2021, the Supreme Court of Canada denied an application for leave to appeal brought forward by 3510395 Canada Inc. (Compufinder) for two Federal Court of Appeal decisions that unanimously upheld the constitutionality of Canada’s Anti-Spam Legislation (CASL). This dismissal of the application for leave ends a run of challenges brought forth by Compufinder claiming that the legislation is unconstitutional because it falls outside of Parliament’s legislative power and it violates sections 2(b), 7, 8 and 11 of the Canadian Charter of Rights and Freedom (the Charter).

CompuFinder is a Quebec company offering professional training courses that was issued a Notice of Violation (NOV) under CASL alleging it had not obtained recipients’ consent prior to sending the commercial electronic messages (CEMs). The NOV also alleged some of the CEMs did not contain a functioning “unsubscribe” link. The NOV imposed a $1.1M administrative monetary penalty.

Compufinder challenged the constitutionality of the legislation. The challenge was rejected in two separate decisions issued by the Canadian Radio-television and Telecommunications Commission (CRTC) in October 2017. In the first decision (CRTC 2017-367), the CRTC rejected the company’s constitutional challenge to CASL and stated that the legislation was intra vires the federal government’s trade and commerce power under s. 91(2) of the Constitution Act,1867 and its infringement of freedom of expression pursuant to s. 2(b) of the Charter was justified under s. 1. The CRTC also dismissed claims under ss. 7, 8 and 11 of the Charter. In the second decision (CRTC 2017-368), CompuFinder was found to violate CASL and was subject to an administrative penalty of $200,000.

Compufinder appealed the CRTC decisions to the Federal Court of Appeal (the Court), which heard the appeals of the two CRTC decisions together and dismissed both with costs (as previously reported by the E-TIPS® Newsletter here). The Court unanimously upheld the constitutionality of CASL on the same basis as the CRTC, holding that while the CASL scheme may impede the freedom of expression guaranteed by section 2(b) of the Charter, such infringement is saved under section 1 since the beneficial effects of the law outweigh the detrimental effects on commercial expression.

Summary By: Hashim Ghazi