Advocacy group asks CRTC to declare Quebec's online gambling bill unconstitutional

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The Quebec government is facing its first serious challenge to legislation that would force Internet providers to block access to certain gambling websites, a law that has been derided as a threat to Internet freedom, a form of censorship and outside the province's jurisdiction.

The province first proposed the legislation in early 2015, stating it would help divert revenues from "unauthorized" gambling sites to Espacejeux, a website run by Loto-Québec. The government agency itself will create the list of unauthorized sites.

It has defended the law as being within the provincial powers to regulate gambling and also promote health and safety. Despite criticism, the Quebec National Assembly passed the new provisions in May as part of Bill 74, budget implementation legislation.

The Public Interest Advocacy Centre filed an application on Friday with the Canadian Radio-television and Telecommunications Commission, asking the federal regulator to declare the law unconstitutional.

"PIAC brought its complaint to the CRTC because Bill 74 violates a long-standing recognition of federal jurisdiction over telecommunications and owing to concerns about what could happen if one province is allowed to order ISPs [Internet service providers] to block certain websites," Geoff White, external counsel for PIAC, said Tuesday.

"This is important not just as a legal matter because it could impact how complex and costly it is to run an ISP – which would drive up already high prices for consumers – but also impact the openness of the Internet."

The provisions of Bill 74 that relate to ISPs blocking certain websites will come into force at a date to be determined by the government, but Mr. White said PIAC filed the complaint now because the bill itself was recently passed.

Internet and wireless providers will already begin to incur costs as they evaluate how to comply with the new rules and block certain sites in Quebec but not outside the province, which some have said will be technically difficult if not impossible.

"The problem is now real and confirmation that the law is offside now will be important before the horse gets out of the barn and the act is implemented and enforced," Mr. White said. "PIAC hopes a commission decision will avoid an unnecessary and protracted constitutional debate, given the very clear past rulings of the Supreme Court," he added.

In a June ruling over the site of a new cell tower, Canada's top court reiterated that the federal government has authority over telecommunications. Mr. White said that decision was "helpful," but also just a "more recent pronouncement" of a long-held principle.

Quebec Finance Minister Carlos Leitao was not available for an interview on Tuesday, but in an e-mailed statement, he said the government plans to implement the measures announced in the 2015-16 budget, noting that the websites the government plans to target "are currently illegal and risky for consumers."

He said the CRTC was informed in advance of the provincial government's approach. "We have reasonable assurance that we are acting within our jurisdiction to protect consumers and fight against the risks of gambling."

PIAC's application comes amid some frustration in the industry over the law, which many believe conflicts with Ottawa's power over telecommunications and also represents a threat to freedom of expression.

During a panel discussion at the Canadian Telecom Summit in Toronto in early June, regulatory executives from Rogers, Telus, BCE and TekSavvy were all critical of the legislation, and suggested the CRTC itself should intervene to clear up confusion.

"If there's any issue where the commission ought to weigh in in advance to give all of us clarity, [it's this]," said Mirko Bibic, chief legal and regulatory officer for BCE.

CRTC spokeswoman Patricia Valladao said because PIAC's application is now open, the commission could not comment on any steps it could take independently, such as compelling the Quebec government to explain the law or referring it to the Federal Court of Appeal for a legal opinion.

The Canadian Wireless Telecommunications Association, which has acted as a voice on the Quebec legislation for both wireless carriers and ISPs, said in June it was still considering whether to mount a legal challenge. Kurt Eby, director of regulatory affairs for the industry group, said Tuesday his members are reviewing the application and deciding how to proceed but could not comment further.

Some have also called for the federal government to intervene, with Conservative MP Dan Albas pressing Minister of Canadian Heritage Mélanie Joly on the issue in the House of Commons on April 20.

"This clearly raises concerns about Quebeckers' rights to the Internet and censorship," he said. "Will the Liberals show their hand and tell us what their position is on this legislation?"

"We believe in net neutrality and of course we'll be having ongoing discussions with our counterparts in Quebec regarding that question," Ms. Joly responded. "I had the opportunity of meeting many stakeholders that have raised issues regarding that particular bill and it will be a pleasure to [have] further discussions on this subject."

A spokeswoman for the minister said Tuesday that the Department of Canadian Heritage shares responsibility for the issue with the Department of Innovation, Science and Economic Development.

In a joint statement on behalf of the two ministers, she said the government "supports an open Internet where Canadians have the power to freely innovate, communicate and access the content of their choice in accordance to Canadian laws. We are aware of the legislation in question and are monitoring its implementation."