This page covers Quebec’s failed ISP blocking law Bill 74 and why courts struck it down after a legal battle that ran from 2016 to 2021. It walks through how the law was designed to work, why it was challenged almost immediately after passing, how the CRTC stepped in under Section 36 of the Telecommunications Act, and what both courts ultimately decided. The courts found that Quebec had crossed into federal jurisdiction over telecommunications and criminal law, largely to protect Loto-Québec’s revenue. By the end, you’ll have a clear picture of where the law failed legally and why federal authority over internet regulation left no room for the province to act the way it did.
The Legislative Origins and Mechanics of the Blocking Regime
The blocking regime started with An Act respecting mainly the implementation of certain provisions of the Budget Speech of March 26, 2015, an omnibus budget bill passed by the Quebec National Assembly on May 17, 2016. Rather than creating a standalone law, the legislature tucked the blocking provisions — sections 260.33 to 260.37 — into the existing Consumer Protection Act, framing the obligations placed on internet service providers as an extension of provincial consumer protection authority. The sections below explain how the regime was designed to work before getting into the constitutional analysis that ultimately killed it.
How the Blocking Obligation Was Structured
Sections 260.33 to 260.37 of the Consumer Protection Act gave Loto-Québec, the provincially owned Crown corporation responsible for gaming in the province, the job of drawing up the list of unlicensed iGaming sites to be blocked.
The list didn’t go directly from Loto-Québec to carriers. It passed through the Régie des alcools, des courses et des jeux, the provincial gaming regulator, which acted as the go-between responsible for forwarding the list to ISPs operating in Quebec.
Once an ISP received the list, the law gave it 30 days to block access to the listed sites. Carriers that didn’t comply faced fines of up to C$100,000. The obligation covered both fixed home internet connections and mobile data services from wireless carriers.
The law didn’t specify a particular blocking technology. Technical commentary from civil society groups, including the Internet Society, pointed to DNS-level blocking as the most likely approach given the absence of a legislated technical standard.
The Revenue Rationale Behind the Legislation
The fiscal reasoning behind the bill was stated openly during the legislative process. Quebec’s Minister of Finance publicly estimated that steering players toward Espacejeux, Loto-Québec’s online gambling platform, could bring in up to C$27 million per year in additional provincial revenue.
This wasn’t presented as a side effect. It was put forward as a direct fiscal justification for the blocking regime, tied to the broader budget bill the provisions were bundled into. The prominence of that revenue figure during legislative debate later became central to how both the Superior Court and the Court of Appeal characterized the statute’s real purpose under the pith-and-substance doctrine.
The Legal Challenges Filed in 2016
Within about two months of Bill 74 receiving assent on May 17, 2016, two separate legal actions were filed against the blocking regime. A coalition of Canada’s largest telecommunications carriers launched a constitutional challenge in the Superior Court of Quebec in July 2016, asking the court to declare the amendments to the Consumer Protection Act invalid. At the same time, the Public Interest Advocacy Centre filed an application with the Canadian Radio-television and Telecommunications Commission raising a separate regulatory objection under federal telecommunications law.
The ISP Coalition’s Constitutional Challenge
In July 2016, a coalition of Canada’s largest telecommunications carriers went to the Superior Court of Quebec asking for a declaration that the blocking provisions added to the Consumer Protection Act were unconstitutional and had no legal force. Their argument was that the amendments were beyond the province’s authority because their true subject matter fell under two exclusive federal heads of power: telecommunications and criminal law.
The carriers were asking the court to invalidate the statutory provisions themselves, not to challenge any particular blocking order issued under them. Framing the action as a constitutional challenge rather than an administrative one was a deliberate choice: it brought the dispute to the superior courts under the pith-and-substance and division-of-powers doctrines, rather than routing it through the federal telecommunications regulator or a provincial administrative tribunal. That framing put the validity of the entire regime before the court, not just how it was being applied.
The Parallel Telecommunications Regulator Complaint
Also in July 2016, the Public Interest Advocacy Centre filed a Part 1 application with the Canadian Radio-television and Telecommunications Commission objecting to the blocking regime on regulatory grounds separate from the constitutional arguments before the Superior Court. The core objection was grounded in Section 36 of the Telecommunications Act, which prohibits Canadian carriers from controlling the content or influencing the meaning or purpose of telecommunications they carry for the public, unless the Commission approves otherwise. That provision is the foundation of Canadian net neutrality.
The application argued that ISPs complying with the Quebec list would be blocking subscriber access to content without the prior Commission authorization that Section 36 requires. In September 2016, the CRTC issued a procedural decision putting the application on hold pending resolution of the constitutional issues before the courts. That suspension had a structural effect: it meant the constitutional question would be resolved by the courts before the regulatory question was addressed, putting the division-of-powers analysis ahead of the Section 36 analysis.
The Federal Telecommunications Regulator’s Position
The CRTC suspended PIAC’s application in September 2016, but its stated interpretation of federal common carriage stayed on the record throughout the constitutional litigation. The Commission’s position was that Canadian carriers cannot block subscriber access to online content without prior Commission approval. That position sat in direct conflict with Bill 74’s compulsory blocking regime, which required ISPs to disable access to sites on Loto-Québec’s list within 30 days or face a C$100,000 penalty. That conflict shaped how the courts would later characterize the statute’s real operational effect.
The Conflict Between Federal Common Carriage and Provincial Compulsion
The two regimes gave opposite instructions to the same regulated entities. Federal telecommunications law, as interpreted by the Commission in decisions including Telecom Decision CRTC 2018-384 and Telecom Decision CRTC 2022-170, treats unauthorized blocking as a breach of the common carriage obligation and requires prior Commission authorization before any Canadian carrier disables access to a listed site. The provincial statute did the opposite: it required ISPs to block sites on Loto-Québec’s list within 30 days, with financial penalties for non-compliance.
That conflict went beyond ordinary jurisdictional overlap into something practically impossible to resolve. An ISP served with a Quebec blocking list couldn’t lawfully act on it without first getting Commission approval, and couldn’t lawfully ignore it without incurring the provincial penalty. On the Commission’s stated view, there was no way to comply with both regimes at the same time. That structural problem foreshadowed the pith-and-substance question the Superior Court and the Court of Appeal would later have to answer.
The Superior Court Ruling on July 24, 2018
On July 24, 2018, Justice Pierre Nollet of the Superior Court of Quebec issued the trial-level judgment in the constitutional challenge to Bill 74, declaring the blocking provisions of the Consumer Protection Act unconstitutional and beyond the province’s authority. The judgment was the first judicial ruling on the constitutional questions raised by the statute, and it addressed both the jurisdictional question of legislative competence and the question of what the statute was actually designed to do.
The Pith and Substance Analysis
Justice Nollet applied the pith-and-substance doctrine, the standard framework for deciding whether a statute falls within the enacting legislature’s constitutional authority. The doctrine requires the court to identify the dominant characteristic of the challenged provision — its true subject matter — and then match that against the heads of power divided between Parliament and the provincial legislatures under the Constitution Act, 1867.
Applying that framework, the court found that the dominant characteristic of section 260.35 was compelling internet service providers to block subscriber access to gambling sites on a list compiled by Loto-Québec. The connection between that requirement and the provincial consumer protection head was superficial, not substantive.
The court held that this dominant characteristic encroached on two exclusive federal heads of power. The telecommunications head was engaged because compelling ISPs to filter the traffic they carry regulates the operation of federally regulated undertakings — the statute directly targets how a telecommunications carrier handles content on its network. The criminal law head was engaged because gambling regulation outside the narrow provincial licensing carve-out in the Criminal Code falls within federal criminal jurisdiction, and the statute worked by identifying and suppressing gambling activity the province deemed unlawful.
The Purposive Finding on Revenue Versus Consumer Protection
The court looked at the evidence surrounding the statute’s enactment and found that the stated consumer protection rationale wasn’t its true purpose. The legislative record, the fact that enforcement authority was placed with Loto-Québec rather than the Consumer Protection Office, and the fiscal context of the omnibus budget bill all pointed to a different objective: keeping competing iGaming operators away from Quebec residents so that player activity would flow to the provincial Espacejeux platform. The projected annual revenue uplift for that platform, introduced during the legislative process, reinforced that reading of the statute’s real aim.
That purposive finding carried direct constitutional weight. When a statute’s stated purpose doesn’t match its actual purpose, it supports the conclusion that the legislature has passed a law on a subject matter outside its authority — in this case, using the label of consumer protection to legislate on something reserved to Parliament.
The Quebec Government’s Appeal
In August 2018, the Attorney General of Quebec announced the province’s intention to appeal Justice Nollet’s ruling and filed the appeal with the Quebec Court of Appeal. Appealing to defend the constitutionality of its own legislation was a routine step for the province, but the stakes were unusual: it put before a Canadian appellate court, for the first time, the question of whether a provincial legislature could require internet service providers to block access to specified online content.
The Court of Appeal Decision in 2021
In June 2021, the Quebec Court of Appeal delivered its judgment in Procureur général du Québec c Association canadienne des télécommunications sans fil, 2021 QCCA 730, dismissing the province’s appeal and upholding the Superior Court’s invalidation of the blocking provisions. The ruling was the first from a provincial appellate court to confirm that federally regulated telecommunications undertakings fall within exclusive federal jurisdiction for the purpose of website blocking mandates. It settled, at the appellate level in Quebec, a constitutional question that had until then only been addressed at trial.
The Reaffirmed Constitutional Grounds
The Court of Appeal confirmed both constitutional grounds identified by Justice Nollet: the blocking regime encroached on exclusive federal jurisdiction over telecommunications and, in its practical operation, engaged the federal criminal law power over gambling. Applying the pith-and-substance doctrine, the appellate court examined the evidence surrounding the statute’s adoption and concluded that its dominant characteristic was not consumer protection but the diversion of player activity toward Loto-Québec’s Espacejeux platform.
The court put particular weight on the legislative debate accompanying the omnibus budget bill. That debate focused on revenue generation for the province rather than on measures addressing problem gambling or protecting consumers from harm, which reinforced the finding that the dominant purpose was fiscal. The appellate court also noted the anomaly that section 260.35 was administered by Loto-Québec rather than by the Consumer Protection Office, which administered the rest of the statute. This appellate confirmation turned what had been a trial-level pith-and-substance finding into binding provincial appellate precedent on the constitutional characterization of provincial ISP blocking mandates.
The Inter-Provincial Network Overlap Finding
The Court of Appeal identified a further jurisdictional problem rooted in the physical architecture of Canadian telecommunications networks. ISP and wireless carrier infrastructure doesn’t follow provincial boundaries, and the appellate court accepted evidence that complying with the Loto-Québec list would have required blocking access to the listed sites for subscribers in neighbouring provinces, not just Quebec. Limiting the block to Quebec residents wasn’t technically feasible given how the networks were built and operated.
That mattered constitutionally because a provincial statute can’t lawfully produce effects outside the province. A Quebec law that, in practice, dictated what subscribers in Ontario or New Brunswick could access on the internet reached beyond the province’s legislative authority. The Court of Appeal treated this extraterritorial reach as an independent structural reason the statute couldn’t stand, separate from the pith-and-substance analysis.
The Precedential Significance for Canadian Telecommunications Jurisdiction
The ruling was the first from a provincial court of appeal to hold that ISPs fall within exclusive federal telecommunications jurisdiction for the purpose of content-blocking mandates. That characterization matters beyond Bill 74 because it fixes the constitutional starting point for any future provincial attempt to legislate on ISP conduct, whether the target content is gambling, copyright infringement, hate speech, or something else the province wants to restrict.
The practical implication is that a comparable statute passed by another provincial legislature would face the same constitutional problems: encroachment on federal telecommunications jurisdiction, potential engagement of the criminal law power depending on the subject matter, and, where networks cross provincial lines, extraterritorial effects that no provincial legislature can lawfully produce. The ruling doesn’t block federal action on ISP blocking, which remains available through Parliament and, subject to section 36 of the Telecommunications Act, through CRTC-authorized processes. But provincial site-blocking legislation now faces a documented appellate precedent working against it.
What the Bill 74 Rulings Established for Canadian ISP Regulation
What makes the Bill 74 rulings particularly significant is that courts didn’t just strike down the legislation. They exposed its underlying motive, finding that revenue protection for Espacejeux, not consumer welfare, was the statute’s true purpose. That distinction matters: it signals that provincial governments can’t dress up commercial interests as public protection to sidestep federal telecommunications authority. ISP content blocking remains firmly within exclusive federal jurisdiction, and the CRTC decisions — particularly 2016-442, 2016-479, 2018-384, and 2022-170 — remain the authoritative framework for anyone working through this area of Canadian telecom law and regulation.
