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by Julius Melnitzer
The Supreme Court of Canada's December decision declaring unconstitutional the federal government's scheme for a national securities regulator (NSR) has cast a shadow on the validity of federal privacy, digital and copyright laws.
The Supreme Court ruled that the proposed NSR legislation did not fall within the federal trade and commerce power. Rather, the court reasoned, because contractual matters were the primary object of securities regulation, “these matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole.”
Because the private-sector privacy law (the Personal Information Protection and Electronic Documents Act) and the new anti-spam legislation both rely on the trade and commerce power, observers are speculating that they too may be vulnerable to constitutional attack.
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