Using the Government's Latest Speech-Restricting Law to Protect Speech Rights
Who Said Bill C-59 Implementation Can't Be Fun?
Hey kids, here’s a fun game we can all play!
Just a few days ago - June 20th, to be precise - Bill C-59 received royal assent. The “Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023” thus became law. The bill’s official description contains more than 170,000 words and fills more than 500 pages in PDF format.
Bills! Budgets! Amendments! Sounds like an end-to-end yawnaroo. Until it doesn’t.
A budget bill like C-59 is meant to impact nearly everything a government does. Which means that, rather than a standalone piece of legislation, a budget law will trigger amendments to many already-existing laws. C-59, in fact, included changes to around 15 separate acts, including the Income Tax Act, the Criminal Code, the Public Sector Pension Investment Board Act, and the Bankruptcy and Insolvency Act.
Partly due to their complexity, budgets are also irresistible opportunities for publicity-averse governments to quietly slip in politicized changes. There’s at least at one such hidden treasure buried deep inside C-59 that has nothing at all to do with government spending.
The change takes the form of an amendment to Section 74.01(1) of the Competition Act. Here, until June 19th, 2024 at least, is how Section 74.01(1) looked:
Deceptive Marketing Practices
Reviewable Matters
Marginal note:Misrepresentations to public
74.01 (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever,
(a) makes a representation to the public that is false or misleading in a material respect;
(b) makes a representation to the public in the form of a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation; or
That’s straightforward enough. I’m definitely on board with laws protecting consumers from deceptive marketing practices. And I have no problem with the threat of penalties as high as $1,000,000 for individuals and $15,000,000 for corporations ruled to have broken those rules.
But it wasn’t good enough for the Liberal government. They felt their lives not worth living unless they added the following language to Subsection (b):
(b.1) makes a representation to the public in the form of a statement, warranty or guarantee of a product’s benefits for protecting or restoring the environment or mitigating the environmental, social and ecological causes or effects of climate change that is not based on an adequate and proper test, the proof of which lies on the person making the representation;
(b.2) makes a representation to the public with respect to the benefits of a business or business activity for protecting or restoring the environment or mitigating the environmental and ecological causes or effects of climate change that is not based on adequate and proper substantiation in accordance with internationally recognized methodology, the proof of which lies on the person making the representation; or
In other words, an unsubstantiated claim that your company’s product or business activity has environmental benefits could be subject to review and penalty unless you can prove your claim to the satisfaction of the good people at the Competition Bureau.
It’s widely assumed that the inspiration for this amendment was claims coming from Canada’s oil and gas industry. The Liberals will obviously contest the possibility that a fossil fuel industry could benefit the environment. But it seems they even don’t want Canadians exposed to such ideas.
The obvious threat the amendment presents is that the highly ambiguous language (“adequate and proper substantiation” and “in accordance with internationally recognized methodology”) make compliance difficult. Which, given the context and the potential penalties, places an unfair restriction on our Charter speech rights.
It is, in other words, an embarrassing piece of partisan legislation. But it is now the law. And, as loyal subjects of His Majesty the King, we have a responsibility to ensure that it’s respected and upheld.
Which brings me to the fun stuff.
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