This post has been updated with a court judgment. See below.

It was the very last thing in last year’s Quebec budget. Literally, on pages 616-618 of the 620-page budget document (the last two pages are blank): The government was going to create a law that will require Internet service providers to block illegal gambling websites based on a list provided by Loto-Québec:

A legislative amendment will be proposed to introduce an illegal website
filtering measure. In accordance with this measure, Internet service providers
will not be allowed to provide access to an online gaming and gambling
website whose name is on a list of websites that are to be blocked, drawn up
by Loto-Québec. This measure will be applied by the Régie des alcools, des
courses et des jeux, which should have the necessary resources to fulfil its
new responsibilities.

That was all the budget said about this measure. There were no further details given (except for the fact that it was based on a recommendation from a working group on gambling) and there was no legislation drafted yet to criticize. But various players caught on quickly to the potential slippery slope of Internet censorship, as well as the inevitable jurisdictional battle between the provincial government’s legislation of gambling and the federal government’s responsibility over telecommunications.

Fast-forward a year later, and as Quebecers get ready to receive the 2016-17 budget, several aspects of the previous one still haven’t been put into law.

Introduced in November, and currently working its way through the finance committee, Bill 74, called “An Act respecting mainly the implementation of certain provisions of the Budget Speech of 26 March 2015” has various provisions, including the one about Internet website blocking.

What the bill says

The text of the bill modifies Quebec’s Consumer Protection Act to insert the following clauses:

“TITLE III.4

“ONLINE GAMBLING

“260.33. For the purposes of this Title, “online gambling site” means
a website on which a person may make wagers and bets through an interactive
mechanism.

“260.34. An Internet service provider may not give access to an online
gambling site whose operation is not authorized under Québec law.

“260.35. The Société des loteries du Québec shall oversee the
accessibility of online gambling. It shall draw up a list of unauthorized online
gambling sites and provide the list to the Régie des alcools, des courses et des
jeux, which shall send it to Internet service providers by registered mail.
The receipt notice or, as the case may be, the delivery notice serves as proof
of notification.

“260.36. An Internet service provider that receives the list of unauthorized
online gambling sites in accordance with section 260.35 shall, within 30 days
after receiving the list, block access to those sites.

“260.37. If the Société des loteries du Québec becomes aware that an
Internet service provider is not complying with section 260.36, it shall report
the non-compliance to the Régie des alcools, des courses et des jeux.
In such a case, the Régie des alcools, des courses et des jeux shall send a
notice to the non-compliant Internet service provider and send a copy of the
notice to the Société des loteries du Québec.

“260.38. For the purposes of this Title, the Régie des alcools, des courses
et des jeux and the Société des loteries du Québec may enter into an agreement
on the frequency at which the list of unauthorized online gambling sites is to
be updated and sent and on any other terms relating to the carrying out of this
Title.”

It also changes the Act Respecting the Régie des alcools, des courses et des jeux, to give it authority over enforcing this law, and the Act Respecting the Société des loteries du Québec, to give Loto-Québec the responsibility to draw up the list of banned websites and investigate ISPs. The latter adds these provisions:

“17.1. The president and chief executive officer, or the person the
president and chief executive officer designates for that purpose, may investigate
any matter relating to the carrying out of Title III.4 of the Consumer Protection
Act (chapter P-40.1).

“17.2. The person who conducts an investigation under section 17.1 of
this Act cannot be prosecuted for acts performed in good faith in the exercise
of the functions of office.

An ISP failing to block a website within 30 days of getting a list from Loto-Québec (by registered mail) is added to the list of offences in the Consumer Protection Act, which makes that ISP liable for fines from $2,000 to $100,000, or twice that for a repeat conviction.

The bill also states that while the Consumer Protection Act is supervised by the Minister of Justice and the consumer protection office, the provisions regarding websites and gambling are supervised by the Régie des alcools, des courses et des jeux and Loto-Québec, under the Minister of Public Security. (Finance Minister Carlos Leitão explains that Loto-Québec informs the RACJ that a provider is noncompliant, and the latter does any legal action.)

The problems

As highlighted by Michael Geist and others, this legislation has serious issues, some of them legal and some practical. Among them:

• Telecommunications are a federal responsibility, administered by the CRTC, not a provincial one. The legislation could be challenged on constitutional grounds.
• Telecommunications regulations forbid ISPs from manipulating Internet traffic in this way.
• The legislation forces ISPs to block people from doing something that is not illegal: viewing an online gambling website.
• The slippery slope argument: Implementing this could lead to the government ordering the blocking of other websites it doesn’t like. (Major ISPs block sites that contain child pornography, but that’s an industry measure, and isn’t required by law.)
• The motive for this legislation seems to be as much about protecting Loto-Québec’s revenue as it is about blocking an illegal and unwanted activity.
• There seem to be few checks and balances to ensure that the websites listed by Loto-Québec deserve to be there. There’s no obvious appeals process.
• Implementing a government blacklist of websites would cost a lot of money, particularly for small Internet providers. (Leitão dismissed those costs in December, saying “Je ne pense pas que ce soient des coûts énormes, là, c’est une question de mettre la «switch on and off»”. He then threw out a range of $100,000 to $500,000 for additional costs to ISPs, plus another $15-75,000 a year in maintenance costs, and said the government might be willing to subsidize the costs for smaller providers.)
• There are technical means around such blocks. And someone interested in online gambling will probably make quick use of such measures.
• Online gambling sites could get around the blocks by setting up new domains or new sites.
• There could be issues when traffic crosses provincial borders. If I’m a Wind Mobile customer in Alberta and I walk into Quebec with my cellphone, is Wind suddenly obligated to abide by this Quebec law for data it sends to my phone, even though it doesn’t operate in Quebec? Or is that the responsibility of the network I’m roaming on?
• Other measures might be just as effective without the censorship problem, such as making it illegal for credit card companies to process payments to illegal gambling sites (though there are ways around such problems as well).

The jurisdictional issue seems to be the most problematic, though a legal analysis of the bill points out that many issues cross jurisdictional lines, and a law that seems to involve the other government’s turf isn’t necessarily unconstitutional. Leitão told the committee he was confident the law would stand up to challenges, because of a “latitude” in enforcing provincial law against illegal gambling, but he said there was no formal legal opinion provided on it beyond the opinions of people in his department.

Opposition MNAs Nicolas Marceau (PQ), André Spénard (CAQ) and François Bonnardel (CAQ) grilled Leitão on these aspects of the bill during the committee hearings in December and February. And they’re not done yet. (Reading the transcripts of those hearings gives you a good appreciation for the value of opposition legislators, regardless of party, who give a critical eye to legislation even when they may be in agreement about the overall goal.)

Bonnardel, the MNA for Granby, was strongest in his opposition on legal and constitutional grounds:

Il y a un enjeu où on serait la première province, à ma connaissance au Canada, qui pourrait censurer la libre circulation sur Internet. Coudon, qui censure la libre circulation sur Internet? Cuba, la Corée, le Québec en 2016? M. le Président, mon collègue l’a mentionné, il y a 70 gros moyens, petits fournisseurs au Québec.

…

Mais au nom de quoi, aujourd’hui, on veut censurer la libre circulation? Tant qu’à faire, pourquoi ne pas bannir ou barrer les sites de pornographie juvénile, propagande islamique tant qu’à y être? On est rendus là.

There’s opposition outside the National Assembly as well. Even the Union des consommateurs, who would normally be all for increased consumer protections, has expressed reservations about this law.

In La Presse last month, columnist Stéphanie Grammond asked why the government was rushing this legislation through. Even though it’s been a year since the plan was announced, it seems clear the government hasn’t been doing a lot of reflecting about the unintended consequences of its proposal.

Maybe it would be a good time to start, once the finance department is done talking about this year’s budget.

UPDATE (April 3): The Canadian Press has a story about this proposed law. It includes a new justification from the Quebec government, that it has the authority to impose Internet censorship laws because problem gambling is a health issue and health is under provincial jurisdiction.

UPDATE (July 24, 2018): Quebec Superior Court has struck down this law as unconstitutional. The decision is here.