Philip Palmer, a former specialist practitioner at Industry Canada Legal Services and the person who oversaw the development of CASL and its regulations, just published an important blog post, CRTC CASL Guidelines: Do they Compromise Adjudicative Independence? In the post, he questions whether the CRTC should be publishing enforcement guidelines in the name of the Commission in view of the important adjudicative role that the Commission also has in enforcing CASL.
In part, he says the following:
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.