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Teresa Scassa

Teresa Scassa

Tuesday, 08 August 2017 08:39

On data ownership rights

In early July 2017 I attended an excellent workshop hosted by researchers at the Centre for Information Technology, Society and Law at the University of Zurich. The objective of the workshop was to bring a group of academic experts together to discuss data ownership rights.

It is perhaps not surprising that the issue of ownership rights in data is bubbling to the surface as we move further into the evolving big data environment. Data have been described as the new “oil” of the information society. They have a tremendous value and are strongly linked to innovation. One of the ways in which industrialized nations have nurtured innovation has been through the creation of intangible property rights such as intellectual property rights. Data ownership rights flow from that same industrial era mind set. However, it is far from clear that this paradigm is a good fit for data and data-related innovation.

The concept of a data ownership right was raised in the EU in the European Data Market Study, Second Interim Report, June 2016. At page 146, it states:

In fact, the way data are made available and the extent to which data are flowing across sectors and organizations, play a fundamental role in sustaining and developing the emergence of a European data-driven economy. In defining and specifying the rights to create, edit, modify, share and restrict access to data, data ownership becomes a pivotal factor affecting a growing number of potential data users and an increasing range of data-related activities.

One might perhaps be forgiven for thinking that there are already data ownership rights; for example, terms of service for websites frequently state that the company behind the website “owns” its data. Canada’s federal government even got its knuckles rapped by the Federal Court of Appeal for making a similar copyright-based claim in one of its data licences (see my post on this decision here). And, while the law of confidential information could be argued to provide a kind of property right in data or information, in reality what is protected by this body of law is the confidentiality of the information. Once confidentiality is lost, it is clear that there is no underlying ‘property’ right in the data.

Policy makers have long been wary of extending IP rights to data – and for some very good reasons. Copyright law, for example, does not protect “facts”, viewing them instead as the building blocks for creativity and expression, and therefore part of the public domain. Of course, copyright law does protect the original selection and arrangement that goes into creating a compilation of facts (i.e. a data set). How extensive this protection ultimately is depends on what a court sees as the taking of a substantial part of that selection or arrangement. It is this protection for compilations of data that no doubt supports those Terms-of-Service claims to ownership of data mentioned above, but the scope and extent of copyright protection in such circumstances is nevertheless limited and uncertain. In the EU, database rights have provided a broader protection for databases, but it still, fundamentally, is not a protection for the data that make up the database.

It is difficult to see where the interest in a data ownership right is coming from. No clear or pressing need to enhance the protection available for data has been identified. Data ownership rights might be more likely to create confusion and uncertainty – and to increase transaction costs and slow innovation – than to improve the current situation. It would be difficult – and hugely problematic – even to begin to try to identify the ‘owners’ of rights in data and to manage the potential competing interests. And while there are undoubtedly issues around the fairness of particular uses of data, or the legitimacy of means used to acquire data, existing laws already offer a range of recourses and remedies that may be applicable in any given case.

The brief summary of our meetings on data ownership is now publicly available, and it addresses these and many other issues relating to data ownership rights. Our conclusions – that there is no evident need for a new data ownership right and that it would be impossibly difficult to define or constrain – offer a caution to those who regard property rights as a panacea in marketplaces of all kinds.

The Supreme Court of Canada has just granted leave to appeal a decision of the British Columbia Court of Appeal in a case involving evidentiary issues in the province’s law suit to recover health care costs from the tobacco industry. The law suit was brought under the Tobacco Damages and Health Care Costs Recovery Act – a law passed specifically for the purpose of recovering health care costs from the industry. The case raises interesting issues regarding the balance between privacy rights and fairness in litigation; it also touches on issues or re-identification risk in aggregate health care data.

Under the B.C. statute, the province has two options for recovering health care costs. It can recover actual costs for particular identified individuals, or it can recover costs on an aggregate basis “for a population of insured persons as a result of exposure to a type of tobacco product.” (s. 2(1)) The province chose the second option. Under s. 2(5) of the Act, if this route is chosen, the province is not required to identify specific individuals or to establish tobacco-related illnesses with respect to those individuals. Further, the health records of specific individuals need not be provided as part of the litigation. However, if aggregate data is relied upon, the court retains the right to “order discovery of a statistically meaningful sample” of the records, and can issue “directions concerning the nature, level of detail and type of information to be disclosed.” The court must nevertheless ensure that the identities of the specific individuals to whom the data pertain are not disclosed.

The province generated aggregate statistical data regarding costs from its databases of health care services provided to insured persons, and indicated its intention to rely upon this data to prove its case. The defendant tobacco companies sought access to the data relied upon by the province. The province declined to provide the data directly. Instead it arranged for a limited form of access through third party intermediaries, which included Statistics Canada employees. Although some of the defendants accepted this approach, Philip Morris International (PMI) did not. It argued that it was entitled to access the data itself in order to assess the reliability and accuracy of the province’s analyses. Both the court at first instance and the B.C. Court of Appeal ultimately sided with PMI.

The B.C. Information and Privacy Commissioner, who intervened in the appeal before the B.C. Court, argued that “the interpretation of a statutory provision aimed at protecting personal privacy must be approached in light of the importance of protection of privacy as a fundamental value in Canadian society” (at para 25 of the BCCA decision). He maintained that the court should rely upon the Freedom of Information and Protection of Privacy Act (FIPPA) in interpreting the Tobacco Act, and that FIPPA required the terms “personal information” and “record” to be given a broad interpretation. The Court of Appeal summarily rejected this argument, stating that “FIPPA does not limit the information available by law to a party to a proceeding (s. 3(2)) and has no role in the interpretation of s. 2(5)(b).” (at para 25)

The Court of Appeal noted that the Tobacco Act provided two routes for the province to establish damages, one that required consideration of individual health records and one that did not. It chose the second route, which means that in general terms, individual health records are not compellable. The province argued that their decision to choose this route was motivated by a desire to protect the privacy of affected individuals. The Information and Privacy Commissioner argued that a requirement to disclose the aggregate data “has privacy implications for millions of insured persons who are not involved as litigants in the underlying action.” (at para 28) The Court of Appeal noted, however, that the legislation established the ‘playing field’ on which the litigation would take place and that there was no indication that this playing field was not intended to be even. It observed that the legislation does not make privacy a “paramount concern” (at para 31) since it did provide the province with the option to choose a route that would involve consideration of thousands of specific records. Had this route been chosen, the Court noted, “all of the individualized persons’ health care records would be subject to discovery and disclosure notwithstanding any privacy concerns that such disclosure might raise.” (at para 31)

With an aggregate action, the focus is not on individualized health care records. Section 2(5)(b) protects the privacy of individuals if such a route is chosen, and prevents “the aggregate action from becoming bogged down with “individual forms of discovery” in which the defendants could demand voluminous records of thousands or millions of people.” (at para 34) However, the Court noted that in following this route, the province will rely upon the data generated from its databases to establish both causation and damage. This makes the databases highly relevant to the litigation. The Court noted that s. 2(5)(b) “is not intended to block the discovery of the cumulative data contained in the databases, which data is essential to prove causation and damages.” (at para 35)

The Court ruled that the anonymized data on which the province would base its analyses would pose “no realistic threat to personal privacy.” (at para 36) Further, the defendants would be bound not to disclose the information provided to them as part of the litigation-related implied undertaking. The Court also observed that the identity of the specific individuals would be of no interest to the defendants, making it highly unlikely any attempts at re-identification would be made.

The Court of Appeal was particularly concerned about the unfairness that might result if “The only data available to the defendants would be the data the Province offers up on restrictive terms, or the data the Province’s testifying experts eventually choose to rely on in their reports.” (at para 37) It found that fairness required that the databases be produced.

It should be noted that in reaching its decision, the B.C. Court of Appeal declined to follow a judgment from the New Brunswick Supreme Court in a very similar case under nearly identical legislation. In Her Majesty the Queen in Right of the Province of New Brunswick v. Rothmans Inc., the judge had dismissed an application by the defendant tobacco companies for the production of anonymized health care data in the same circumstances. The judge in that case had access to the decision of the B.C. Supreme Court which had ordered production of the databases, but had declined to follow that decision on the basis that the anonymization of the data would not be sufficient to protect privacy, and that the database was “a document containing information that relates to the provision of health care benefits for “particular individuals””. (BCCA decision at para 20) In declining to follow the New Brunswick decision, the B.C. Court of Appeal observed that the New Brunswick judge had relied entirely on the privacy provisions and “did not attempt to read the provisions in the New Brunswick Act as a harmonious whole.” (at para 39) The New Brunswick Court of Appeal declined leave to appeal. With two conflicting decisions from two different provinces, the matter is now heading to the Supreme Court of Canada.

 

 

Toronto Star journalist Theresa Boyle has just won an important victory for access to information rights and government transparency – one that is likely to be challenged before the Ontario Court of Appeal. On June 30, 2017, three justices of the Ontario Divisional Court unanimously upheld an adjudicator’s order that the Ministry of Health and Long-Term Care disclose the names, annual billing amounts and fields of medical specialization of the 100 top-billing physicians in Ontario. The application for judicial review of the order was brought by the Ontario Medical Association, along with many of the doctors on the disputed list (the Applicants).

The amount that the Ontario Health Insurance Program (OHIP) pays physicians for services rendered is government information. Under the Freedom of Information and Protection of Privacy Act (FOIPPA), the public has a right of access to government information – subject to specific exceptions that serve competing issues of public interest. One of these is privacy – a government institution can refuse to disclose information if it would reveal personal information. The Ministry had been willing to disclose the top 100 amounts billed to OHIP, but it refused to disclose the names of the doctors or some of the areas of specialization (which might lead to their identification) on the basis that this was the physicians’ personal information. The Adjudicator disagreed and found that the billing information, including the doctors’ names, was not personal information. Instead, it identified the physicians in their professional capacity. FOIPPA excludes this sort of information from the definition of personal information.

The Applicants accepted that the physicians were named in the billing records in their professional capacity. However, they argued that when those names were associated with the gross amounts, this revealed “other personal information”. In other words, they argued that the raw billing information did not reflect the business overhead expenses that physicians had to pay from their earnings. As a result, this information, if released, would be misinterpreted by the public as information about their net incomes. They argued that this made converted it into “other personal information relating to the individual” (s. 2(1)(h)). How much doctors bill OHIP should be public information. The idea that the possibility that such information might be misinterpreted could be a justification for refusal to disclose it is paternalistic. It also has the potential to stifle access to information. The argument deserved the swift rejection it received from the court.

The Applicants also argued that the adjudicator erred by not following earlier decisions of the Office of the Information and Privacy Commissioner (OIPC) that had found that the gross billing amounts associated with physician names constituted personal information. Adjudicator John Higgins ruled that “Payments that are subject to deductions for business expenses are clearly business information.” (at para 18) The Court observed that the adjudicator was not bound to follow earlier OIPC decisions. Further, the issue of consistency could be looked at in two ways. As the adjudicator himself had noted, the OIPC had regularly treated information about the income of non-medical professionals as non-personal information subject to disclosure under the FOIPPA; but for some reasons had treated physician-related information differently. Thus, while one could argue that the adjudicator’s decision was inconsistent with earlier decisions about physician billing information, it was entirely consistent with decisions about monies paid by government to other professionals. The Court found no fault with the adjudicator’s approach.

The Applicants had also argued that Ms Boyle “had failed to establish a pressing need for the information or how providing it to her would advance the objective of transparency in government.” (para 31). The court gave this argument the treatment it deserved – they smacked it down. Justice Nordheimer observed that applicants under the FOIPPA are not required to provide reasons why they seek information. Rather, the legislation requires that information of this kind “is to be provided unless a privacy exception is demonstrated.” (at para 32) Justice Nordheimer went on to note that under access to information legislation, “the public is entitled to information in the possession of their governments so that the public may, among other things, hold their governments accountable.” He stated that “the proper question to be asked in this context, therefore, is not “why do you need it?” but rather is “why should you not have it.”” (at para 34).

This decision of the Court is to be applauded for making such short work of arguments that contained little of the public interest and a great deal of private interest. Transparency within a publicly-funded health care system is essential to accountability. Kudos to Theresa Boyle and the Toronto Star for pushing this matter forward. The legal costs of $50,000 awarded to them make it clear that transparency and accountability often do not come cheaply or without significant effort. And those costs continue to mount as the issues must now be hammered out again before the Ontario Court of Appeal.

Bill C-58, the government’s response to years of calls for reform of Canada’s badly outdated Access to Information Act has been criticized for falling far short of what is needed and from what was promised during the last election campaign. I share this concern. However, this blog post focuses on a somewhat different issue raised by Bill C-58 – the new relationship it will create around privacy as between the Offices of the Information Commissioner and the Privacy Commissioner of Canada.

While Canadian provinces combine access to information and the protection of personal information in the hands of government under a single statute and a single commissioner, the federal government has kept these functions separate. As a result, there is a federal Information Commissioner charged with administering the Access to Information Act and a federal Privacy Commissioner charged with administering the Privacy Act. In 2001, the Privacy Commissioner was also given the task of overseeing Canada’s private sector data protection statute, the Personal Information Protection and Electronic Documents Act (PIPEDA). Certainly at the federal level it makes sense to separate the two regimes. While there is a close relationship between access and privacy (citizens have a right of access to their personal information in the hands of government, for example; and access rights are limited by the protection of the personal information of third parties), access to information and the protection of privacy have important – and sometimes conflicting – differences in their overall objectives. The reality is, as well, that both bring with them substantial and growing workloads, particularly at the federal level. Just as the role of the Privacy Commissioner has expanded with the addition of new responsibilities under PIPEDA, with the rapid advance of information technologies, and with new challenges at in relation to the actions of law enforcement and national security officials, so too has the Information Commissioner’s role been impacted by technology, and by the growing movement towards open government and open data.

In spite of these different spheres of activity, there remain points of intersection between access and privacy. These points of intersection are significant enough that changes to the role of one Commissioner may have implications for the other. For example, a government institution under the ATIA can refuse to disclose records if doing so would reveal third party personal information. The Information Commissioner, fielding a complaint about such a refusal, will consider whether the information at issue is personal information and whether it should be disclosed. The federal Privacy Commissioner, dealing with complaints regarding the mishandling of personal information, must also determine what is or is not personal information.

This overlap is poised to be affected by proposed changes to the ATIA. First, Bill C-58 will make the definition of “personal information” in the ATIA match that in the Privacy Act. Second – and significantly – the Bill will give the Information Commissioner order-making powers. This means that the Information Commissioner can rule on whether information in the hands of a government institution is or is not personal information. The decision will be binding and enforceable if it is not challenged. The Privacy Commissioner currently does not have order-making powers (these are on the wish-list for Privacy Act reform). Ironically, then, this means that the Information Commissioner will be in a position to make binding orders regarding what constitutes personal information in the hands of government whereas the Privacy Commissioner cannot. Even if the Privacy Commissioner eventually gets such powers, there will still be the potential for conflicting decisions/interpretations about how the definition of personal information should be applied to particular types of information.

No doubt in recognition of the potential for conflict in the short and longer term, Bill C-58 provides for the Information Commissioner to consult with the Privacy Commissioner. The proposed new section 36.2 reads:

36.‍2 If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the head of the institution refuses to disclose under subsection 19(1), the Information Commissioner may consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information. [my emphasis]

In theory then, the Information Commissioner should touch base with the Privacy Commissioner before making orders regarding what is or is not personal information, or perhaps even whether certain personal information is subject to disclosure. It is worth noting, however, that the new provision uses the verb “may”, rather than “must”. Neither consultation nor consensus is mandatory.

Bill C-58 anticipates potential problems. A revised section 37(2) requires the Information Commissioner to give notice to the Privacy Commissioner before any order is made regarding the disclosure of personal information. Section 41(4) then provides:

41(4) If neither the person who made the complaint nor the head of the institution makes an application under this section within the period for doing so, the Privacy Commissioner, if he or she receives a report under subsection 37(2), may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of any matter in relation to the disclosure of a record that might contain personal information and that is the subject of the complaint in respect of which the report is made.

Thus, if the Privacy Commissioner disagrees with a decision of the Information Commissioner regarding what constitutes personal information or whether it should be released, he can apply to a court to have the dispute resolved before a final order is made by the Information Commissioner. Note that this can happen even if the applicant and the government institution are satisfied with the Commissioner’s proposed resolution.

It will be interesting to see whether the Privacy Commissioner will get order-making powers if and when the Privacy Act is reformed. This seems likely. What will be even more interesting will be whether any decision by the Privacy Commissioner about what constitutes “personal information” will similarly be open to challenge by the Information Commissioner, with the outcome to be settled by the Federal Court. This too seems likely. In the provinces, decisions about personal information for access and privacy purposes are made by a single Commissioner. The best way to achieve consensus as to the meaning of “personal information” at the federal level with two different Commissioners with different mandates, will be to have any conflicts referred to the courts. This will add a layer of delay in any case where disputes arise, although in theory at least, with open lines of communication between the two Commissioners, such disputes may be few and far between. Nevertheless, there may be a disadvantage in pushing controversies over the definition of “personal information” directly to the courts which lack the same experience and expertise as the two Commissioners in an increasingly complex data landscape. True, the courts already have the last word when it comes to interpreting the definitions of personal information in either statute. But those interpretations have, to date, been confined in impact to one or the other of the statutes and understood in the context of the particular legislative goals underlying the specific statute at issue. The impact of these changes will interesting to monitor.

 

Note that for ease of reference the different provisions of the bills/laws discussed here are reproduced at the end of this post.

The Liberal government, which had promised during the last election campaign to reform Canada’s outdated Access to Information Act (ATIA) has tabled its reforms in Bill C-58. First reviews of the bill, by key users of the ATIA such as academics and journalists have been highly critical of the many ways in which the proposed reforms fall short of what was promised. While acknowledging the importance and salience of these critiques, this post will focus on two very specific amendments in this Bill that are most welcome.

Government departments and agencies subject to the ATIA have long been able to refuse to disclose records covered by solicitor-client privilege. This is an important exception. As the Supreme Court of Canada stated in Blood Tribe, “Solicitor-client privilege is fundamental to the proper functioning of our legal system.” (at para 9). The court noted that the privilege permits a free flow of legal advice between lawyer and client, and stated that without solicitor-client privilege, “access to justice and the quality of justice in this country would be severely compromised.” (para 9) It is not surprising, therefore that documents covered by solicitor-client privilege would not be disclosable under the ATIA. In the same vein, the right to access one’s personal information under the federal Privacy Act, or the Personal Information Protection and Electronic Documents Act (PIPEDA), is similarly limited – access cannot be had to records containing personal information that are subject to solicitor-client privilege.

While this is understandable, the problem has long been that there has been no proper oversight of assertions of solicitor-client privilege by record-holders. The courts have treated the privilege as so absolute, that only the most explicit statutory language will permit a Commissioner (whether the Information Commissioner or a Privacy Commissioner) to review such documents in order to determine whether the claimed privilege is actually justified. In Blood Tribe, the Supreme Court of Canada found that the rather open-ended language in PIPEDA did not meet the test, and as a result the federal Privacy Commissioner could not review claims of solicitor client privilege in records containing personal information under that statute. Much clearer language was needed.

While the outcome in Blood Tribe is fair enough, a 2016 decision by the Supreme Court of Canada seemed to move from protecting solicitor client privilege to fetishizing it. In Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada considered wording in Alberta’s Freedom of Information and Protection of Privacy Act that was quite a bit more explicit than that in PIPEDA, and that appeared quite sufficient to give Alberta’s Commissioner the power to review claims of solicitor-client privilege in government records sought through access to information requests. Yet the majority of the Court determined that Blood Tribe dictated that only the clearest statutory language could derogate from the protection of solicitor-client privilege. They took the position that solicitor-client privilege was no mere privilege of the law of evidence. It arose in circumstances outside the court room, and had the character of “an important civil and legal right and a principle of fundamental justice in Canadian law.” (at para 41) Because of this, the majority ruled that the wording of the statute, which allowed the Commissioner to access records “despite . . . any privilege of the law of evidence” (s. 56(3) was “not sufficiently clear, explicit and unequivocal to evince legislative intent to set aside solicitor-client privilege.” (at para 44) It should be noted that Justice Cromwell wrote a separate opinion in University of Calgary making it clear that he strongly disagreed with the interpretation of the majority, and stating that in his view the language of the statute was perfectly clear and gave the necessary powers to the Commissioner. The majority decision in University of Calgary was so surprising that Ontario’s Information and Privacy Commissioner in his Annual Report released in mid-June 2017, asked the Ontario government to amend very similar language in Ontario’s Freedom of Information and Protection of Privacy Act so as to make it crystal clear that the Ontario Commissioner has the power to review claims of solicitor client privilege in documents being withheld by government departments and agencies.

If passed, Bill C-58 will amend section 36(2) of the ATIA to provide in language that even the most punctilious judge would find hard to ignore, that the Information Commissioner can review records being withheld on the basis of solicitor-client privilege in order to determine whether such privilege is properly claimed. Notably, the bill will also amend the Privacy Act to add similar language giving the Privacy Commissioner the power to review records withheld under claims of solicitor client privilege. Both sets of amendments make it clear that this review does not constitute a waiver of those privileges or of professional secrecy. It is a necessary compromise to ensure a proper balancing of interests. These changes, at least, should be welcome.

Statutory language discussed in the above post:

PIPEDA (interpreted in Blood Tribe and found to be too vague to support review by the Commissioner):

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

[. . . ]

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible

Access to Information Act (currently):

36 (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

Privacy Act (currently):

34 (2)  Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

Freedom of Information and Protection of Privacy Act (Alberta) (at issue in University of Calgary and found to be insufficient):

56(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

Ontario’s Freedom of Information and Protection of Privacy Act:

52 (4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts II and III of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation.  R.S.O. 1990, c. F.31, s. 52 (4).

 

Proposed Amendment to the Access to Information Act in Bill C-58:

36 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Information Commissioner may, during the investigation of any complaint under the Part, examine any record to which this Part applies that is under the control of a government institution, and not such record may be withheld from the Commissioner on any grounds.

Proposed Amendment to the Privacy Act in Bill C-58:

34 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Privacy Commissioner may, during the investigation of any complaint under the Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

 

The Supreme Court of the United States (SCOTUS) has struck down a provision of that country’s trademark statute, the Lanham Act, for violating the constitutionally guaranteed freedom of speech. The provision in question is the “disparagement” clause, which barred the registration of any trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (§1052(a)).

The long-simmering issue of the constitutionality of this provision came to a head in two recent high profile cases, only one of which was before SCOTUS. The case heard by SCOTUS was Matal v. Tam, and it involved the Asian dance band The Slants, which had unsuccessfully sought to register their name as a trademark. The band’s name uses a common racial slur, but their objective in registering the name was “to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity.” (at p. 7) The other case, which had been put on hold by an appellate court pending the decision of SCOTUS in Matal v. Tam, involved the infamous name of the Washington D.C.’s football team, the Redskins. The Trademark Trial and Appeal Board had ruled that this name was disparaging of Native Americans, and ordered it struck from the register. This decision had been upheld by a court in review, and was under appeal. As a result of the decision in Tam, this name will undoubtedly be allowed to stand.

In a nutshell, a unanimous SCOTUS ruled that the disparagement clause prohibited certain forms of speech, and confirmed that “[s]peech may not be banned on the ground that it expresses ideas that offend.” (pp. 1-2) The court easily rejected a series of arguments by the U.S. government to the effect that trademarks were government and not private speech; that trademarks were a form of government subsidy; or that trademark registration was a kind of government program. It came back to the view that the case was simply a matter of “viewpoint discrimination” – in other words, that some speech was being banned by government because of the point of view that it expressed. Justice Alito, writing the majority opinion, firmly stated that a government attempt to prevent the expression of ideas that offend “strikes at the heart of the First Amendment.” (at p. 25) He noted that the clause was so broadly worded that it prohibited disparagement on any basis, suggesting that it could be applied to trademarks such as “Down with racists” or “Down with sexists” (not, of course, that this has ever happened). He characterized it as “not an anti-discrimination clause; it is a happy-talk clause”. (at p. 25) Justice Alito noted that as drafted, the “clause protects every person living or dead as well as every institution.” (at para 26) The court found the provision unconstitutional regardless of whether it was characterized as commercial speech (which carries a lower level of scrutiny than, for example, political expression). He wrote: “The commercial market is stacked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates.” (at para 26) He observed that free speech would be endangered if “affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility”.” (at para 26)

This decision ends a long saga involving offensive trademarks in the United States. In the Canadian context, a provision in the Trade-marks Act that effectively prohibits the adoption, use or registration of a trademark that is “scandalous, obscene or immoral” (s. 9(1)(j)) has yet to be properly tested in court or measured against the Canadian Charter of Rights and Freedoms. Given the erratic history of the use of the provision (see my post here), it undoubtedly violates the freedom of expression, and would be difficult to save under section 1 as a reasonable limit, demonstrably justified in a free and democratic society. This raises the question of what other means are available to address offensive speech in trademarks. In the U.S. many have argued that this is an issue for the market to decide; if a mark is sufficiently offensive, consumer repugnance will lead to a failure of the product or service or force the trademark owner to change the mark. Given the long history of sports team names and logos such as those of Washington D.C.’s NFL team and Cleveland’s Major League Baseball team, this is a questionable theory. The disparagement of minority groups is not easily addressed by market forces if the majority is indifferent to or complicit in the offense.

In Canada, the answers may come from outside trademark law. Certainly there are hate speech laws in Canada that might apply to the adoption of highly offensive trademarks. The human rights challenges brought by indigenous activist Douglas Cardinal against Rogers, Major League Baseball and the Cleveland baseball franchise (see my post here) are well worth watching. If these claims eventually succeed, they may provide another route by which some trademarks (at least those associated with the provision of services covered by human rights legislation) may be challenged.

A recent court decision (Assn. for Reformed Political Action Canada v. Ontario) raises some interesting questions about the relationship between the Charter right to freedom of expression and access to information rights.

On June 9, 2017, Justice Labrosse of the Ontario Superior Court of Justice ruled that a statutory exemption to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) violated s. 2(b) of the Canadian Charter of Rights and Freedoms, and could not be justified under s. 1. He issued a suspended declaration of invalidity, giving the province 12 months to repair the offending legislation.

Like other access to information regimes in Canada, Ontario’s FIPPA sets a default rule that citizens have a right of access to information in the hands of government and its agencies and departments. This default rule is subject to a number of exceptions that allow government institutions to refuse to disclose information that would, among other things, violate solicitor client privilege, reveal third party confidential commercial information, or adversely impact privacy rights. When a government institution refuses to release all or some of the requested information on one of these statutory grounds, the requesting party can complain to the Office of the Information and Privacy Commissioner (OIPC), which is authorized to resolve such disputes. That, in a nutshell, is the regime established under FIPPA.

In this case, the applicants challenged a provision of FIPPA that was added to the statute in 2012. Section 65(5.7) provides that “This Act does not apply to records relating to the provision of abortion services.” The Applicants argued that this exception violated their right to freedom of expression under s. 2(b) of the Charter by limiting their right of access to information. In a 2010 decision, the Supreme Court of Canada held that there was no constitutional right of access to information; rather, access was a “derivative” right related to the freedom of expression. A denial of access to information could violate the freedom of expression where access “is a necessary precondition of meaningful expression on the functioning of government.” (at para 30) Justice Labrosse’s decision therefore turns on a conclusion that the denial of access to the statistical data at issue in this case prevents “meaningful expression on the functioning of government.” In this case, Justice Labrosse characterizes the information currently available as “less than 50% of some of the statistical information on a matter of important public interest.”(at para 6).

To be clear, the effect of s. 65(5.7) is not to prohibit the disclosure of information relating to the provision of abortion services. Rather, it simply removes decisions about the disclosure of such information from the statutory scheme. The Ontario government argued that freedom of expression rights were not affected by s. 65(5.7) because hospitals and/or the government could still release such information outside of the statutory scheme. Indeed, the government of Ontario had disclosed statistical information about abortion services to the applicant, and had even argued that because this information had been provided, the application was moot.

Prior to 2012, requests for data relating to the provision of abortion services could be made to government departments or agencies that were in possession of such data. For example, the Ministry of Health would have data about the number of abortions billed to OHIP, and those data could be sought through an access to information request. In responding to requests, the department or agency would ensure that the release of data was not subject to any of the exceptions in the legislation. Any disputes would be dealt with by the OIPC. In 2012, FIPPA was amended so as to include hospitals under the legislative scheme. This meant that the public would be able to make freedom of information requests to hospitals for data about their services. It was at this time that the legislation was amended to add s. 65(5.7). Justice Labrosse noted that the government’s justification for the addition of this exception was “to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of [hospital] patients, health care providers and other staff.” (at para 59). He characterized this as a pressing and substantial objective. He expressed skepticism, however, about the government’s stated secondary objective which was to “allow hospitals to decide if they wish to voluntarily disclose records relating to the provision of abortion services.” (at para 59). He noted that there was no policy framework put in place for such disclosures, and that no voluntary disclosures had ever been made.

Justice Labrosse essentially found that the exemption of the application of FIPPA to information about abortion services, which, as argued by the government, leaves hospitals and other government bodies free to disclose this information outside the FIPPA scheme, violates the freedom of expression. It is therefore the failure to ensure a framework for access to information, with all of its balancing exceptions and limitations that presents the constitutional problem. In rejecting the sufficiency of assurances by government that information can be provided outside of FIPPA on a voluntary basis, he noted that “Ontario has not pointed to any policy or legislative provision which would allow interested parties to rely on voluntary disclosure by Ontario.” (at para 40)

Justice Labrosse also rejected Ontario’s claims that Charter rights were not affected since statistical data was already available from other sources such as the Canadian Institutes for Health Information (CIHI), billing information voluntarily disclosed by the government, and statistical information available in some scholarly research. The government argued that this information was sufficient to allow for an informed public debate. In his view, significant discrepancies between the government data and the CIHI data meant that the CIHI data was not an adequate substitute. He also added that “requiring interested parties to project forward from dated statistical information published in journals” (at para 42) was also not sufficient to allow for meaningful public discussion.

Although Justice Labrosse accepted that the government had a pressing and substantial concern in protecting the safety and security of patients and health care providers, he found that the s. 65(5.7) went too far. He noted that the exception “includes no criteria to allow for disclosure of records which do not impact the objective of protecting the privacy and safety of patients seeking abortion services” (at para 66). The suspended declaration of invalidity means that the government now has 12 months in which to try to craft an exception that better balances their objectives with the public right of access to information.

It is worth comparing the provision struck down in this case with the new exemption in FIPPA for information relating to medically assisted dying. Medically assisted dying is also controversial and the government was clearly concerned about possible privacy and security implications for individuals and institutions. Yet the solution they crafted is much narrower than the broad exemption for information relating to abortion services. A new section 65(11) provides that: “This Act does not apply to identifying information in a record relating to medical assistance in dying.” This exception is only with respect to “identifying information”, rather than with respect to “records” more generally. Section 65(12) defines “identifying information as information “(a) that relates to medical assistance in dying, and (b) that identifies an individual or facility, or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility”. This provision may well serve as a model for the government as it crafts a new exception to replace s. 65(5.7).

 

 

An interim decision of the Ontario Human Rights Tribunal paves the way for a challenge to the legitimacy of the use of an offensive sports team name and logo during Major League Baseball (MLB) games at Rogers Centre in Toronto. The decision is of particular interest in that it dismisses arguments that the grant of a registered trademark in Canada confers a positive right to use that mark that cannot be interfered with by provincial legislation such as the Ontario Human Rights Code.

The challenge to offensive sports team names and logos is long overdue in Canada. In the United States, after having its own trademark invalidated for disparagement, Washington D.C.’s football team is awaiting the outcome of a U.S. Supreme Court challenge to the constitutionality of the provision of the Lanham Act used to bar the registration of an allegedly offensive trademark in another case. Although Washington’s trademarks are also registered in Canada, their legitimacy has yet to be challenged here. In 2015 Justice Murray Sinclair (now Senator Sinclair), head of the Truth and Reconciliation Commission, called for an end to the appropriation of indigenous names for sports teams and for a cessation of the use of racist names and logos. On the eve of the American League Baseball Championship Series in 2016, architect and activist Douglas Cardinal sought an injunction to prevent the broadcasting of the offensive name and logo of Cleveland’s major league baseball team. He argued that doing so would violate the Canadian Human Rights Act. He was unsuccessful in obtaining the injunction, but his related complaint to the Canadian Human Rights Commission – regarding discrimination in the provision of broadcasting services is ongoing. At the same time, Cardinal launched his complaint before the Ontario Human Rights Tribunal, arguing that when Cleveland’s team plays at Rogers Centre in Toronto, the provision of sports entertainment services (in the form of the games) is carried out in a discriminatory fashion. This is because Cardinal, a baseball fan, is confronted with racism in the form of the team name (the Indians) and logo (a grotesque caricature), particularly on the uniforms of the Cleveland team’s players.

The Cleveland team’s trademarks are registered in Canada. This means that they somehow avoided the prohibition on the registration of trademarks that are “scandalous, obscene or immoral” in section 9(1)(j) of the Trade-marks Act when they were registered in 1988 and 2012 respectively. (For a discussion of scandalous, obscene or immoral marks see my post here). Unsurprisingly, the respondents in this case (Rogers Communications, MLB, and the Cleveland Indians Baseball Company Ltd.) argued that the Ontario Human Rights Code could have no bearing on the use of registered trademarks in Canada. In other words, they maintained that once a trademark has been registered, the owner has a right to use that mark in Canada, and that such use cannot be interfered with by provincial legislation.

Vice-Chair Jo-Anne Pickel made relatively short work of this argument. She found that the Trade-marks Act does not confer a positive right to use a trademark; rather it grants the right to exclusive use of the mark. The distinction is important. The right to exclusive use of a mark protects the trademark owner against the use of an identical or confusing mark by others. But it does not mean that the owner is entitled to use the mark without limitation or restriction. In fact, Pickel noted that restrictions on trademark use are not uncommon; she cited laws restricting the use of tobacco trademarks in advertising as examples of the kind of limitation that can be imposed on the use of trademarks under either federal or provincial legislation. Similarly, a right to use a trademark can be subject to a provincial law of general application such as the Human Rights Code. She brushed aside an argument by MLB that the continued existence of the ‘Edmonton Eskimos’ trademark demonstrated that not all trademark owners are treated the same way under the Human Rights Code. She noted that “The key is that a similar claim could be brought and that it would be treated in the same way as this Application against the Cleveland Team.” Vice-Chair Pickel also noted that an order that would enjoin the use of the team’s name and logo when it played at Rogers’ Centre in Toronto was not the same as an order prohibiting the use of the trademark entirely; the jurisdiction of the tribunal was limited to the scope of application of the Human Rights Code.

Pickel also rejected arguments that the application of the Code in this context would intrude on federal jurisdiction over trademarks. She noted that courts have described the core of the federal power over trademarks as being “to establish a national system for the adoption, use, transfer, and enforcement of rights in respect of registered and un-registered trademarks.” (at para 52). In her view, “the application of the Code to the use of particular trade-marks in the context of baseball games at the Rogers Centre would fall outside this core.” (at para 52). She found that the application of the Code would not frustrate the purposes of the Trade-marks Act, and concluded that nothing in the Constitution deprived the human rights tribunal of jurisdiction over the issue of the legitimacy of the use of the team name and logo during baseball games at Rogers Centre.

The result of this decision is to remove roadblocks to the case moving forward. The adjudicator noted that it would still remain to be determined at the hearing whether baseball games being held at Rogers Centre constitute a service under the Code. Further, it remained to be determined just how each of the three respondents was linked to the delivery of these services for the purposes of the application of the Code.

Because Cardinal is also proceeding with a complaint under the Canadian Human Rights Act (CHRA) relating to the broadcasting of the games (since broadcasting is under federal jurisdiction, it is the CHRA that would apply to those particular services), Pickel expressed concerns about both matters proceeding simultaneously. Because of the considerable overlap in factual and legal issues to be determined, there is a risk that the two tribunals might reach conflicting decisions on key issues of law or fact. She asked the parties to provide her with additional information about the status of the complaint under the CHRA in order to determine whether it would be best to postpone the hearing on the Human Rights Code application until the decision under the CHRA is rendered.

While it is almost certain that nothing will happen quickly as these matters proceed through the notoriously slow human rights tribunal processes, what is important is that something is finally starting to happen around the issue of offensive trademarks for sports teams in Canada. The legal tide is turning against the viability of such marks, creating new pressure for organizations to reconsider the value of clinging to offensive monikers in the name of ‘tradition’.

A recent Alberta Provincial Court decision raised interesting issues about access to law in the internet and open government era. The case involved a prosecution for alleged violations of the Safety Codes Act for non-compliance with the Alberta Fire Code (AFC). The accused, Mr. Khan, was ultimately acquitted of all counts – the alleged breaches of the AFC were related to either an improper conversion of his property into a rooming house or the improper addition of a secondary suite. The court ultimately found that it had not been established that he had done either of these things.

The access to law issues arose because Mr. Khan, in his defence, raised a number of arguments regarding the relative inaccessibility of the Alberta Fire Code (AFC), and thus his inability to know what rules applied to his actions. In particular, he argued that the AFC was insufficiently published and distributed such that it would be a violation of section 7 of the Canadian Charter of Rights and Freedoms to find people bound by its provisions. He also argued that the defence of “Invincible Mistake of Law” applied to him since the AFC cannot be sufficiently known or followed because of the defects in its publication.

The Alberta Fire Code is one of those sets of rules that occupy a rather odd conceptual space. It sets out binding rules that must be followed, but it is not a provincial regulation enacted by the sitting government and published through the normal channels. Instead, it is a code that is developed by (in this case) the National Research Council, through the participation of volunteer experts from relevant stakeholder groups that include government, industry and the public. Codes developed by the NRC (which include the Fire Code, the Building Code, the Plumbing Code and the Enercy Code) are then adopted by provincial and territorial governments. For example, in Alberta, it is the Fire Code Regulation under the Safety Codes Act that adopts the AFC and declares it to be in force in the province.

In the good old analog days, the difference in accessibility between laws, regulations, and codes like the AFC would have been much harder to spot. Anyone wanting to know what the Safety Codes Act or the Fire Code Regulation provided would have had to get themselves to a library that carried legal texts. They would likely have also found a copy of the AFC at the same library. Alternatively, they could have paid the Queen’s Printer for print copies of the statute and the regulation. The provincial department of municipal affairs would have been happy as well to sell them a copy of the AFC. As far as access goes, it was not wildly convenient – but there were both free and for-fee options, each requiring varying levels of effort.

By contrast, today anyone seeking a copy of a law or regulation can find these quickly, for free, and from anywhere they have internet access, either by visiting the website for the relevant legislature or by visiting the one-stop public resource that is CanLII. Mr. Khan’s arguments were all based around the fact that while the Safety Codes Act and the Fire Code Regulations are publicly available online and for free, the AFC is not. The AFC is still only available for free through a visit to a public library that has one in its collection (not all do). Alternatively, one can purchase a hard copy for $220, or pay for access through an online subscription (with a minimum fee of $40 for 10 days of access). The issue raised by Mr. Khan, therefore, was whether this type of access is good enough in the digital and open government era.

Judge Robertson acknowledged that “accessibility is a basic requirement of the law and forms an important fundamental of a justice system within a free and democratic society.”(at para 48) However, he found that the manner of publication of the AFC did not offend the principles of fundamental justice. He noted that the Safety Codes Act and Alberta Fire Regulation are widely available free of charge, and provide public notice of the application of the AFC. The AFC itself is available either through public libraries or by paying for access. He rejected the argument that the fees for access violated the Charter, noting that the fees charged were “diverted back to the continued maintenance and updating of the AFC, from which all citizens benefit.” (at para 64) Judge Robertson also noted that no evidence had been led to show that the cost of access would be prohibitive to “a significant percentage of homeowners” (at para 70). Further, he noted that “by the very nature of what it controls, the Fire Code is concerned with those who own capital in the form of real property. These individuals are sufficiently well-off to contemplate renovation of that property. Moreover, the purpose of such renovation would be to gain additional revenue from the use of the property as a multi dwelling unit or rooming house.”(at para 72) He found that in such circumstances, the modest cost of purchasing access to the AFC was unlikely to cause hardship.

Taking into account the fact that charges would only arise where there is non-compliance with the AFC, Judge Robertson also showed little sympathy for any defendant who had not gone through the permitting and inspection process required for renovations and who then argued that the AFC was not freely available. He noted that “Speaking generally, an individual cannot complain about the illegitimacy of secret state laws, regulations and Safety Codes, while at the same time, trying to hide unauthorized renovations or increased use of a property from the state.” (at para 75)

Perhaps most importantly from an open government perspective, Judge Robertson rejected the existence of any legal principle or case law mandating the state to “provide hard copy documents of its laws to all citizens absolutely free of charge.” (at para 76). He noted that obtaining hard copies of laws has always come with a fee; nothing has changed in this regard, even where there is also a free online alternative. As a result, there was no violation of s. 7 of the Charter.

Finally, Judge Robertson ruled that the defence of invincible mistake of law was not available. He noted that the AFC was not a secret document, was available to the public in different ways, and could be accessed both for free at some public libraries as well as at reasonable cost from the government. He noted that both the public permit system and a free inspection service provided by the Calgary Fire Department supported citizens in complying with the provisions of the Code.

Essentially, Judge Robertson finds that the current situation falls within what is constitutionally acceptable for access to laws. This does not mean, however, that accessibility could not or should not be improved. The discussion of the accessibility of the AFC and the fees charged for access was framed by a consideration of the laborious process for drafting and regularly updating safety codes such as the AFC through complex multi-stakeholder processes. While it is understandable that cost-recovery might be an objective of the publication arrangements, and while it is arguable the main market for the AFC will be those engaged in business and thus well-placed to pay the fees, the open government movement has generally pushed back against cost-recovery for data and documents regardless of the time and resources needed to prepare and publish them. Cost-recovery is only one policy factor to consider in a debate or discussion about openness. Other considerations, such as transparency and accessibility could outweigh its importance.

Judge Robertson also noted that the process of co-creation leaves copyright in the AFC shared between the federal and provincial Crowns. This means that the agreement of both levels of government is necessary for the publication and dissemination of the AFC. In other words, the decision to make such a document freely and openly available online is more complicated than it would be if only a single level of government is involved. It is worth noting that the often problematic role played by Crown copyright is the subject of a recent petition by Amanda Wakaruk, who advocates for a reform of Crown copyright when it comes to the publication of government documents. Wakaruk’s petition calls for government documents to be free of copyright restrictions once they are made public.

 

On April 13, 2017 the Federal Government introduced Bill C-45, which will, if passed, legalize the sale and possession of cannabis in Canada. The law will not simply remove criminal sanctions; it will provide a carefully limited framework for the sale and consumption of cannabis. In light of Bill S-5, also before Parliament, and which will introduce plain-packaging rules for tobacco products, it is worth considering the marketing framework for cannabis. It should be remembered that the Report of the Task Force on Cannabis Legalization and Regulation recommended plain packaging for cannabis and related products.

Because of the cautious and measured approach to the legalization of cannabis reflected in the bill, it is not a surprise that Bill C-45 will place significant restrictions on the marketing of cannabis-related products and accessories. For example, under section 17 it will not be permitted to market such products by association with real persons or fictional creatures, through testimonials, in a way that communicates information about price or distribution, or in any manner that would be attractive to young persons (defined as those under the age of 18). Lifestyle advertising is also specifically prohibited.

There are some exceptions to the strict limits on marketing. For example, the Bill permits the use of cannabis-related “brand elements” on something that is not cannabis or a cannabis accessory – although only in certain circumstances. This means that you can put these brand elements on promotional or other items such as t-shirts or ball caps – except of course, that the “thing” on which the brand elements are put must not be associated with young persons, reasonably likely to be appealing to young persons, or associated in any way with a glamorous or interesting lifestyle. As a result, instead of t-shirts and ball caps, it may perhaps be more realistic to find cannabis-related logos on things like pocket protectors.

False and deceptive advertising with respect to cannabis and cannabis-related products is specifically prohibited by section 18 of the Bill. This too is no surprise and not likely to be controversial. False and misleading representations in general are already prohibited under section 52 of the Competition Act. Section 18 will capture, however, claims about things such as “value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects or health risks” of cannabis products. It will be interesting, therefore, to see where the boundary will be drawn between “false and misleading” advertising and mere puffery.

In these days of porous national borders, particularly in virtual space, the prohibition in section 20 is notable. It reads:

20. It is prohibited to promote, in a way that is prohibited by this Part, cannabis, a cannabis accessory, a service related to cannabis or a brand element of any of those things in a publication that is published outside Canada, a broadcast that originates outside Canada or any other communication that originates outside Canada.

The provision seems oddly worded and raises issues about extraterritoriality. For example, the prohibition in section 20 is not limited to Canadian-based persons or businesses or ones with ties to Canada who engage in such marketing from outside of Canada. Yet its application would surely have to be limited to a person or business with some connection to Canada. Further, it does not say that the publication or communication must make its way into Canada, or, if it is online, must target Canadians in some way.

Section 21 of the Bill would prohibit the use of cannabis-related brand elements, or the name of someone associated with the production, sale or provision of cannabis or related services, in the sponsorship of persons, events, facilities or activities. It will also be prohibited to use cannabis-related brand elements or names of producers or sellers on facilities. None of this is particularly surprising. The Tobacco Act has long placed restrictions on lifestyle advertising in relation to tobacco products, and has also placed limits on sponsorships of events and facilities. Legal challenges to these types of marketing restrictions failed in the case of the Tobacco Act because the enormous public health issues associated with tobacco provided a justification for the government to restrict the expressive rights of tobacco manufacturers in the public interest. Some might argue that the risks/harms associated with consumption of cannabis are less significant than with tobacco – justifying lesser restrictions – but good luck to them. In applying section 1 (the justification provision of the Canadian Charter of Rights and Freedoms) courts have been very deferential to the public policy goals of government. Given that we are moving from criminalization to a limited right to legally sell cannabis and related products, the measures are likely to be found to be reasonable limits demonstrably justified in a free and democratic society. In any event, it is not a total ban on marketing. The bill creates an exception for “informational promotion or brand-preference promotion”, so long as such promotions are carried out in prescribed places and in a prescribed manner (to be determined by regulations) or are carried out in ways that are careful to ensure that the messages do not reach “young persons”. Point of sale promotion is also permitted, so long as it is limited to information about availability and price.

The Bill also hints at further restrictions, the boundaries of which will not be clear until accompanying regulations are drafted. Section 19 prohibits the use of “any term, expression, logo, symbol or illustration” that is specified in the yet-to-be-drafted regulations if such use is in the promotion of cannabis, or cannabis-related products or services. It is not clear if these regulations might restrict, for example, all logos – in other words limiting available trademarks to word marks. Clearly, the limits on usable terms and expressions will also have an impact on the available word trademarks for cannabis products. Since these products have not been legal up until this point, it is not as if s. 19 and its accompanying regulations will deprive existing trademark holders of the rights to use established marks. Instead, the effect is more likely to set parameters for the use of language and images in trademarks and on packaging. While this is a restriction on the freedom of expression, it is one that may well be considered minimally impairing by the courts.

Sections 25 to 28 of the Bill nevertheless make it clear that there will be restrictions on the packaging of cannabis and cannabis-related products. It will be necessary to wait for the regulations to know just how extensive these restrictions will be. Those already listed in the bill are similar to the restrictions discussed above regarding marketing more generally. There is also a restriction in s. 28 that is similar to that in s. 19. It places limits on the use of certain terms, logos and so on, as may be set out in the (awaited) regulations. Some have wondered whether the regulations might actually introduce plain packaging, as was recommended by the Task Force on Cannabis Legalization and Regulation. Plain packaging, (as I discuss here), substantially restricts the use of trademarks and other brand elements on tobacco packages, and mandates the use of a plain colour and graphic health warnings. Yet there are notable differences in the wording of Bill C-45 when compared to Bill S-5. Bill S-5 prohibits, in section 5.3 the sale of any tobacco product that bears a marking that is not authorized by the regulations. By contrast, Bill C-45 provides that its regulations will list terms, expressions and logos that may not be used. There is a clear difference between prescribing what can be used and listing what may not be used. If Bill C-45 is meant to introduce plain packing via the regulations, it seems oddly worded for this purpose.

A final provision worthy of note is found in section 16(a), and is an attempt to balance the marketing restrictions with the freedom of expression. It provides that the restrictions on marketing do not apply

(a) to a literary, dramatic, musical, cinematographic, scientific, educational or artistic work, production or performance that uses or depicts cannabis, a cannabis accessory or a service related to cannabis, or a brand element of any of those things, whatever the mode or form of its expression, if no consideration is given, directly or indirectly, for that use or depiction in the work, production or performance;

Thus it will not be prohibited to show persons in films or on television consuming cannabis or using cannabis-related accessories (no doubt to the relief of the Trailer Park Boys) so long as there is no product-placement or other marketing dimension to the depictions.

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