Penalties that do not Punish: Administrative Monetary Penalties Under the Canadian Anti Spam Legislation

University of Toronto philosophy professor Joseph Heath argues for a reinstatement of rationality in social and political discourse in his new book, Enlightenment 2.0.[1]   This book provides modern examples of statements by politicians that are not based on proper factual or logical foundations.

We could use some rational logic  in the world of administrative monetary penalties. The new Canadian Anti Spam Law, (CASL)[2] is enforced by a  maximum administrative  penalty (AMP) of $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.  AMPs defy logic in two significant ways. 

First, CASL states explicitly under the heading of "Administrative Monetary Penalties",  "Violations" and the "purpose of penalty" that  "the purpose of a penalty is to promote compliance with this Act and not to punish."[3]   .   The proposition that penalties do not punish not only defies logic  but also violates basic rule of the English language.  Penalty is defined as "A punishment imposed for breaking a law, rule, or contract."[4]  

Secondly, the scheme defies logic by setting the amount of the penalty before submissions are made on the threshold issue of liability for the alleged violation.

This note submits  that there is a way to resolve the logical paradox of penalties that do not punish, based on the distinction between "prices" as contrasted to "sanctions". This conceptual distinction was articulated over 20 years ago by Robert Cooter in his article "Prices and Sanctions"[5].  See:  http://c.ymcdn.com/sites/tlaonline.site-ym.com/resource/resmgr/Toronto_Law_Journal_2015/Penalties_that_do_not_Punish.pdf