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.

You see, the amendment is a knife that cuts both ways. The Government of Alberta’s Canadian Energy Centre (known as the War Room) isn’t the only organization that should worry that their environmental claims could be subject to review. Lots and lots (and lots) of Canadians make such claims every single day.

Just about any corporate website in Canada will feature its very own environmental policy page extolling a company’s many efforts on behalf of our planet. The message is clear: use our product or service because doing so contributes tangibly to environmental relief and restoration.

Let me illustrate how, in the shadow of Bill C-59, things might work. I took a quick look at the Environmental Policy page from the website of a large and well-known Canadian corporation. They claimed that their “approach to environmental stewardship” included:

• Purchasing renewable energy certificates and net-zero aligned carbon offsets

• Working to reduce paper use

• Working to divert waste and improve recycling…

Under the new amendment, this corporation would need to prove that each of those measures was actually a net-positive. Which will be difficult. After all:

• The concept of additionality questions whether the purchase of renewable energy certificates and net-zero aligned carbon offsets actually leads to additional renewable energy generation or simply supports existing projects.

• Ensuring that offset projects are properly verified and that the carbon reductions are permanent can be challenging. There have been instances where offset projects failed to deliver the promised reductions.

• Leakage occurs when a project reduces emissions in one area but causes an increase in another, offsetting the benefits.

• Reducing paper use is great. But what replaces paper? Obviously, that’ll be more digital documents, which will drive greater energy consumption, electronic device end-of-life disposal, and hazardous resource extraction (to manufacture the required extra devices).

• Recycling, in theory at least, is another excellent practice. But its true value depends on many variables, including contamination rates, quality of the sorting process, and the hard-to-monitor treatment of materials at off-shore facilities

Great. But I did promise this would be fun, didn’t I? Right. Allow me to introduce you to the Competition Bureau’s handy online complaint form. I just used it myself to submit my own (first) complaint using the observations I just shared with you. The process is simple, free, and took just a couple of minutes.

Why not join me? And why not share this article with others who could also participate. I figure that one of three things could happen:

1. Enough Liberal-friendly corporations could get hit with potentially painful liabilities that, realizing how vulnerable they’ve become, they push their friends in government to neuter the amendments.

2. The Competition Bureau rules that environmental claims don’t need to be substantiated. In which case the amendments will have been neutered for us.

3. The Competition Bureau simply ignores inconvenient submissions which, if publicized, can be its own statement.

As long as each complaint is submitted in good faith, isn’t spammy, and relies on plain facts, there’s really no down-side. Here’s a template you can adapt for your own use:

In the context of Bill C-59 having recently received royal assent, I've noted two subsections have been added as "Reviewable Matters" to Section 74.01(1) of the Competition Act.

In that context, I would like to bring to your attention some potentially deceptive representations included in Company X’s online environmental policy document (URL - retrieved June 23, 2024). Among other things, they claim they're…

I would suggest that those include claims that can't be adequately and properly substantiated (as required by the law in its current form). After all…