On 10 October 2012, the Canadian Radio-television and Telecommunications Commission issued Compliance and Information Bulletin, CRTC 2012-548, as Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC). The guidelines are made in respect of the CRTC’s role in enforcing the key prohibitions in what is now commonly called – in the absence of a short title – Canada’s Anti-spam Legislation, or CASL for short.
The guidelines raise serious issues respecting the CRTC’s understanding of how the principles of fundamental justice are touched by its approach to adjudicative independence.
While guidelines are a potentially very helpful and useful means of informing persons who are subject to a specific legislative or regulatory regime of important aspects of its enforcement approach, the particular guidelines in this case cause me some concern at a very basic level. The content of the guidelines deals with the issue of express consent in the context of pre-checked toggle boxes in electronic messages or websites. As it happens, I agree fully with the substance of the guidelines. However, the guidelines evidence a continuing failure of the CRTC to effectively address the need to put in place structural separations that would both preserve the integrity of its investigations and shield the adjudicative independence of its cabinet appointed members.
In recent years, the CRTC has been assigned a new role in respect of, first, telemarketing, and, most recently, the enforcement of CASL – in both of which instances the CRTC is charged with hybrid functions of both enforcement of the legislative regime and of the adjudication of cases in which decisions of administrative officers are contested.
Administrative agencies having these hybrid functions include the provincial liquor control boards and securities commissions. The commissioners often establish policies and guidelines, as well as regulations. However, the enforcement of the legislation and regulations is entrusted to a separate branch within the organisation, and it operates at arm’s length in investigating and bringing proceeding to enforce the relevant legislation. The enforcement proceedings are brought before the commissioners, who adjudicate the matter.
That the CRTC enforcement guidelines are issued not in the name of the head of enforcement, but of the “Commission,” is a signal that the CRTC has not absorbed the lessons presented by a wealth of Supreme Court of Canada jurisprudence that underlines the necessity of creating institutional safeguards to accommodate its hybrid functions. The Commission, in the case of the CRTC, are the members appointed by Cabinet – not the administrative apparatus of the CRTC. It seems plain that in issuing the guidelines in the name of the Commission, as opposed to the officer or branch responsible for enforcement, the CRTC has not merely issued an administrative guideline, but has actually issued a judicial guideline. In doing so, the CRTC risks pre-empting the true role of commissioners – which is to make independent decisions based on the facts before them and applying the law with impartiality.
As the guidelines deal with a matter that is central to the CASL scheme (express consent to receive commercial electronic messages), and one in which there are possible arguments to be made in favour of industry practices (PIPEDA, for instance, specifically recognises a pre-ticked box as a real consent). This is a matter that must, at some stage, be adjudicated before the Commission. Is it appropriate for the CRTC to be issuing a Commission guideline that prejudges an issue on which its members will have to adjudicate?
I am concerned that the CRTC has not fully grasped the significant difference in roles to be played between its enforcement staff and the Commissioners who, ultimately, will have to interpret and apply the law.
An enforcement guideline is not the same as a judicial guideline: by making an enforcement guideline in the name of the Commission, as opposed to the head of enforcement, the CRTC is at peril of compromising its judicial independence. The guidelines evidence a failure of the CRTC to create the appropriate structural separations to protect the enforcement function from compromising the independence of the judicial function.
In contrast to the practices of the CRTC, the Ontario Securities Commission, for instance, issues Staff Notices instead of Commission Guidelines when dealing with its investigative and prosecutorial functions. Similarly, enforcement actions by the OSC are brought, not by the Commission, but by Staff. The CRTC should look carefully at administrative agencies that carry out similar hybrid functions: it risks sleepwalking into a knot of legal and procedural issues that are entirely avoidable, and that may seriously compromise the ability of the CRTC to effectively enforce the provisions of CASL.