Timothy M. Denton

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CRTC defends the Internet, and the right to choose. Hurrah!

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The CRTC has publicly defended the Internet, for which Canadians should raise a cheer. It issued a letter which plainly defended its right to regulate telecommunications carriage against the pretensions of the Government of Quebec to interfere in the choice of Canadians as to which websites they might use.

The Commission wrote:

Consistent with the above, the Commission is of the preliminary view that the Act prohibits the blocking by Canadian carriers of access by end-users to specific websites on the Internet, whether or not this blocking is the result of an ITMP. Consequently, any such blocking is unlawful without prior Commission approval, which would only be given where it would further the telecommunications policy objectives. Accordingly, compliance with other legal or juridical requirements—whether municipal, provincial, or foreign—does not in and of itself justify the blocking of specific websites by Canadian carriers, in the absence of Commission approval under the Act.

 

What more can I say than to doff my  hat and make a bow in the Commission's direction.

A propos history, and what I hope is a relevant story, I ran into a Meechite this summer, who tried to maintain that Canada had somehow lost a great opportunity to lay separatism to rest thirty years ago by failing to approve the Meech Lake Accord in Brian Mulroney's time. (Yes, they still are whining about it).  The Accord came close to being passed under the Mulroney regime and failed only for legislative non- action in Newfoundland and Manitoba. Its central provision was that, whenever a provincial legislature and the federal legislature agreed to pass jurisdiction over a topic from the federal to the provincial level, or the converse, then the two legislatures could transfer jurisdiction over a topic and thereby amend the division of powers in the constitution.

Anyone with knowledge of Canada will realize that the likeliest practical outcome of this provision would have been the transfer of federal powers to Quebec, the province that most thought it needs more powers to protect itself from the challenges of the outer world. If other provinces had availed themselves of this possibility, it would only have added to the confusion. Imagine the endless wrangling for constitutional authority, which would have been embedded in the constitution. People did imagine it and told the Mulroney government and the entire Canadian establishment (Globe and Mail, CBC, provincial premiers, all the bien-pensants) to stuff it, but by indirect means, as there was no referendum on Meech, as there later was on Charlottetown.

Today we observe that the federal authority over telecommunications was plainly asserted by the CRTC, and quite rightly. It was able to be asserted, I would maintain, because we do not now live in the political environment that the Meech Lake Agreement would have created, had we approved it. In effect, three decades ago, English Canada told French Canada that, if it wanted to separate, it would have to make a much more significant political gesture than federal-provincial salami slicing.

You may not believe that there is any connection between the CRTC asserting its proper jurisdiction and the failure of the Meech Lake and Charlottetown Accords, but I do. When I listen to old Mulroneyites whining about how awful English Canada was to reject the Meech Lake and later the Charlottetown Accords, I wish they could contemplate how much better off we are when jurisdictions are not in continuous contention.

If you want to separate, keep the question clear and decisive and get a majority. See Brexit as an example.

In any case, the CRTC has acted well. Bravo!

 

 

 

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Friday, 28 April 2017
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