Provincial wireless laws unconstitutional: Legal opinion

Provincial laws governing mobile service contracts are “outside the constitutional jurisdiction of the provinces,” a legal opinion commissioned by the Public Interest Advocacy Centre (PIAC) and BCE Inc. says. In the legal analysis sent to the CRTC Friday and obtained by The Wire Report, Heenen Blaikie LLP counsel Michel Bastarache said provincial laws have no bearing on Canada’s wireless carriers and are “inconsistent” with Parliament’s “clear intent” that the federal government and the CRTC hold regulatory authority over the Canadian telecom market. "Existing and proposed provincial legislation regulating mobile wireless services contracts are outside the constitutional jurisdiction of the provinces," Bastarache wrote in the opinion, dated Feb. 7. “These provisions specifically target federal undertakings and have substantial effects on their operations. In pith and substance, they would be an impermissible provincial attempt to regulate telecommunications, an area of exclusive federal jurisdiction.” The CRTC will begin a hearing on Monday to establish code of conduct regulations for Canada’s wireless carriers. Several carriers had requested the code after a “patchwork” of provincial laws started to emerge for the wireless industry. In a draft code released in January, the commission proposed that the national code should not weaken consumer protections now covered under provincial law. The national wireless code “must not be interpreted in a way that prevents a consumer from benefiting from any other federal or provincial law or regulation which is more favourable to the consumer," the CRTC said. Quebec and Manitoba have passed consumer wireless services laws while other provinces have proposed similar legislation. Quebec's law established rules for wireless contracts, such as limits on the amounts that can be charged for breaking a contract. BCE and PIAC, along with Telus Corp. and Rogers Communications Inc., said last year that they had reached a “shared position” in support of national consumer wireless regulation. Bastarache wrote that an attempt by the commission to “accommodate” provincial regulation of the wireless industry “would be ineffective in expanding the provinces’ constitutional jurisdiction and would therefore result in legal uncertainty.” In a letter sent to the CRTC Friday, PIAC and Bell said the public interest group will formally ask the commission at the hearing Monday to introduce Bastarache’s legal opinion into the public record for the proceeding. —With reporting by Nicholas Kyonka at nkyonka@thewirereport.ca and editing by Simon Doyle at sdoyle@thewirereport.ca

Provincial wireless laws unconstitutional: Legal opinion

News | February 9, 2013

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