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Canada Considering A Three Strikes And You're Off The Internet Policy?
Techdirt is reporting that Canada may be considering a "three strikes" policy which could see users internet access privileges revoked for file sharing violations. "Given how secretive the industry and the government have been about new copyright laws, perhaps this isn't too surprising. We do know that the industry was pushing for greater ISP liability as part of copyright law changes a few months back, so it wouldn't be surprising if ISPs were negotiating a "three strikes" type rule to avoid the liability issues. Of course, they probably want to keep it secret, as publicity (and resulting anger) about these types of laws in Europe has at least some politicians moving away from them. However, as the entertainment industry does keep succeeding in getting these types of laws to move forward, how long will it be before similar laws are proposed in the US, with "everyone else is doing it" as part of the reasoning?"
That's not what the notwithstanding clause means. It means that the government can ignore (i.e. pass a law that runs counter to) certain parts of the Canadian Charter. It doesn't allow provinces to ignore federal acts of parliament.
"freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication"
You mean unless you say or write something that offends Muslims, right?
That's not a troll either, it's the truth.
1. That is exactly the way a Charter challenge to such a law would work. Even persons convicted of a serious indictable offence and sentenced to (and serving time in) prison are entitled to 3(b) protections with minimal, proportionate restrictions. Even these restrictions are subject to challenge, since section 24(1) applies to anyone.
2. The point is to make the committees in the House of Commons and the Senate see that a Charter challenge is both inevitable and unwinnable, and to simply not proceed with the legislation on that basis. There are still Senators and MPs who feel that Parliament should not be in the business of producing legislation which is known a priori to conflict with the Charter, unless it is tagged by the non obstante clause or an extremely persuasive section 1 limit, both of which are rare and politically awkward.
Also importantly, there is the question of whether society has a compelling interest in the prevention of not-for-profit individual-scale copyright infringement that would justify criminal sanctions that will be expensive to investigate and prosecute.
As a deterrent, are tiny numbers of heavy sentences (i.e., make it an indictable offence) realistic? Or large numbers of small sentences (summary conviction)?
The courts have been in no mood to accept large increases in the number of criminal cases put before them without sufficient resources to cope with them, and this sort of move is liable to provoke another "11(b) work-to-rule" akin to the fallout after Askov v. R., [1990] 2 S.C.R. 1199 in matters involving minor offences, despite R v. Morin [1992] 1 S.C.R. 771. One of the obvious administrative issues will be the sheer number of people who participate in file sharing now.
On the other hand, the possibility large numbers of people (a percent or more of all Canadians!) waiting for 2 years or more between charge and trial is a risky proposition for a minority government! File sharing makes marijuana use look rare.