Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 5 - Evidence - February 27, 2003
OTTAWA, Thursday, February 27, 2003
The Standing Senate Committee on Transport and Communications, to which was referred Bill S-8, to amend the Broadcasting Act, met this day at 11:03 a.m. for clause-by-clause consideration of the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. We meet today to resume clause-by-clause consideration of Bill S-8, to amend the Broadcasting Act. I will take quite a few minutes to go through the procedural history of how we reached this point, in part for those senators who were not with us in October when we were last engaged in clause-by- clause consideration of this bill.
[Translation]
The first version of the bill, at the time Bill S-24, was introduced by our retired colleague the Honourable Sheila Finestone during the Second Session of the Thirty-sixth Parliament. The bill was referred to this committee after second reading, but no hearings were held before the dissolution of the Thirty-sixth Parliament.
Subsequently during the First Session of the Thirty-seventh Parliament, the Bill was reintroduced, this time as S-7. The bill was again referred to this committee, hearings were held, and it was then reported back to the Senate without amendment, but with observations.
[English]
The bill was eventually passed by the Senate and sent to the House of Commons. There, it received first and second readings and was referred to the Canadian Heritage Committee. That committee was not able to reach a final resolution on the bill before it was deemed reported out of committee pursuant to the Commons standing order 97.1. The bill stood at report stage at prorogation.
During the second session of the Thirty-seventh Parliament, the current session, the bill was reintroduced by our colleague, the Honourable Senator Kinsella, and after second reading it was referred to this committee for a third time.
The committee considered the bill on October 30, 2002. It heard from both the current sponsor and the former sponsor, as well as from representatives of broadcasters and the cable TV industry.
The committee then proceeded to clause-by-clause consideration of the bill. The title and both clauses carried on division. However, the next routine question, ``Shall the bill carry?'' was negatived on a recorded division.
In light of this somewhat odd situation, that is, that the committee had approved every element of the bill but had not expressed itself in favour of the entire bill, I proposed, and the committee agreed, that clause-by-clause consideration of the bill be suspended to a future sitting of the committee.
Subsequently, the steering committee reviewed the situation. While the decision the committee had made could lead to the committee recommending to the Senate that the bill not be further considered, this was not the only reasonable outcome. Alternatively, for example, it was possible that a senator wished to propose an amendment to the bill but did not have the wording ready. Indeed, I would note that after the recorded division on October 30, 2002, at least one senator had raised the issue of amendments.
[Translation]
There have been cases in the past in which committees recommended to the Senate that a bill not be further considered by the Senate. A review of these cases supports the conclusion that the committee had not taken the steps necessary to make such a report. In all eight cases of committees making such a recommendation that have been identified since 1975, this outcome came as a result of a clear, as opposed to an indirect, decision by the committees in question. Motions were adopted along the lines of: ``That this committee report the bill to the Senate with the recommendation that the bill should not be proceeded with further in the Senate''.
[English]
Rule 100 obliges committees to provide reasons for such a recommendation. Although the length of these reasons varied significantly, this obligation was fulfilled in almost all cases. There is only one exception and it is not relevant here since it involved examination by a joint committee of a bill before its introduction in the Senate.
The steering committee recommended to this committee on December 5, 2002, that it ``suspend clause-by-clause consideration of the Bill S-8, an act to amend the Broadcasting Act, in order to receive evidence from additional witnesses.'' The committee agreed. Witnesses were therefore heard on December 12, 2002; February 11, 2003; February 13, 2003; and February 25, 2003.
Having now heard from a wide sampling of groups on both sides of the issues, we have now decided to resume clause-by-clause consideration of the bill.
The committee has carried clause 1, clause 2 and the title. We now have, as I see it, four principal options.
First, a senator may wish to propose a motion to add a new clause to the bill.
Second, a senator may wish to move, pursuant to rule 77, that the committee reconsider a clause already carried. I would remind senators that rule 77 states that ``At any time before a bill is passed a senator may move for the reconsideration of any clause thereof already carried.'' While we are reconsidering a clause, amendments to it could be moved.
Third, a senator could propose a motion along the lines of the following: ``That the committee report Bill S-8 to the Senate with a recommendation that the bill should not be proceeded with further in the Senate.'' If that motion carried, my suggestion would be that we then proceed in camera, pursuant to rule 92(2)(f), to prepare the draft report outlining our reasons for the recommendation, thereby fulfilling our obligation under rule 100.
Finally, the last option is that a senator could move ``that the bill now carry.''
If none of the options were taken up by a senator, it would be appropriate for me, as chair, to take the initiative to ask whether the bill shall now carry, in order to allow the transaction of committee business. The question could then be debated. If the bill carried, we could then discuss whether we wished to include observations in our report, or we could go immediately to the final question, ``Shall I now report the bill to the Senate?''
In the event that the committee again negatived the question, ``Shall the bill now carry?'', I feel that it would be appropriate for the chair to ask whether the committee wishes to report to the Senate with a recommendation that the bill should not be proceeded with further. Otherwise, we might find ourselves in a circular process that would prevent us from fulfilling our obligation under rule 98 to report the bill, although I do recognize that that rule does not specify any time limit.
That was probably one of the longest prefaces that a committee chair has had to deliver in some time here, but I hope it was helpful to you. Does anyone have any questions?
Senator Banks: I have a question of clarification. Do I understand that, at this moment, the two clauses are deemed to be or have been in fact carried and the only question remaining is whether the bill will carry or we might undertake the other options that you talked about?
The Chairman: All those options are available to us.
Senator Banks: However, the two have carried, and that still stands?
The Chairman: And the title.
Senator Spivak: I have an amendment to the clause that is carried.
The Chairman: Given the very unusual nature of these events, I will walk us through those options one by one, if I may. We will get to your amendment.
First, I would ask if there are any other questions? No.
Could I ask whether any senator wishes to propose a motion to add a new clause to the bill? No.
Does any senator wish to propose an amendment to a clause that the committee has already carried?
Senator Spivak: Yes.
The Chairman: Before you move that, senator, the committee must agree to reconsider that clause. Is that clause 1?
Senator Spivak: Yes.
The Chairman: Is the committee in agreement that we should reconsider clause 1? All in favour? Opposed? Carried.
Senator Spivak: I would move that Bill S-8 be amended in clause 1, on page 1, by adding after line 13 the following:
(3) The Commission shall not make an award or order under this section pursuant to which the Corporation becomes liable for the payment of costs.
If I can explain, that refers to the CBC. One of the major reasons that I did not support the bill in the end was because the CBC made a very strong case for why they should not be penalized in this way. Given the fact that the CBC has suffered major reductions over the years, I feel I do not want to add to any further possible reduction in their budget. That was, however, only one of the things that we heard. Also, the small broadcasters will suffer, and they have told us so in plain words. I have not addressed that part of the proceedings before us. However, I understand that the Department of Heritage has addressed most of those and that they are now not in favour of Bill S-8, as they stated.
Senator Callbeck: I have one question. If the CBC is exempt and there is a hearing that involves the CBC and a group intervenes, then there is no way they can get intervener funding, is there?
Senator Spivak: I do not know. It seems to me that that is up to the CRTC — is it not? There is a bill that says interveners will get funding. All this addresses is that CBC should not provide the funding. I know that this is admissible in terms of the bill because I have checked with legal counsel. This is not contrary to it. It is acceptable, according to our legal counsel. It seems to me that the CRTC could do whatever. Also, you will remember that we heard that there were thousands of interveners at the CBC motions, that they make every effort to travel and so forth, and they have never had a complaint. This is what we heard.
Senator Ringuette-Maltais: In this proposed amendment, you are just mentioning ``Corporation.''
Senator Spivak: Yes.
The Chairman: I believe that the ``Corporation'' is identified in the Broadcasting Act as meaning the CBC.
Senator Spivak: Yes. Actually, the lawyer drafted the wording very carefully, and yes, the ``Corporation'' is the CBC.
Senator Banks: I am obliged to oppose the amendment. I have the greatest sympathy for the CBC. I am an apologist for the CBC, and I will hit the barricades for them. However, if this provision is for broadcasters, a broadcaster is a broadcaster is a broadcaster. I take comfort from the fact that most of those 4,000 interventions with respect to the CBC are not at CRTC hearings but at CBC hearings, and that is a different question. I also take comfort from the fact that according to the research that we have been presented with today, in 2002, the total awarded to all interveners was $542,000. I gather that is a larger amount than has normally been the case. That would be split among all, in this case, telecommunications interveners. I do not think this will likely impose an undue cost on the CBC because most people do not travel further than by bus downtown to make their interventions against the CBC in whatever city they live.
I would argue that the CBC would support this bill if they were exempted from it. So would the Canadian Association of Broadcasters, and so would every small broadcaster support this bill if they were exempted from it. That is not a good argument, in my view, to excuse anyone from it, if we intend to pass the bill.
Senator Christensen: I wish to clarify something. The ``Corporation'' in the interpretation section of the bill is the CBC. When you look at it here, it just does not fit.
The Chairman: Does any other honourable senator wish to comment on this amendment?
Senator Chaput: I would like to say that I agree with Senator Spivak's amendment.
[Translation]
When I read that costs could be incurred at the expense of Canadian programming, I have to agree with the position taken here. One can never have a surfeit of Canadian programming.
[English]
Senator Eyton: I am of the same mind as Senator Banks. It seems to me that the amendment interrupts the work of the CRTC. We heard something of their record, and they have been sensible in the way they have awarded costs in the past. The CRTC would want to protect and enhance the performance of the CBC as one of their fundamental values. I am confident that the concerns expressed would be considered by the CRTC. Indeed, the bill gives them authority over broadcasters.
Senator Banks: Perhaps to comfort Senator Chaput in respect of her reservation, while it is true that historically the CBC has been, by exponential degrees, the largest producer of Canadian content television, they are no longer the only game in town, although they once were. The private networks now also produce Canadian programming, as they are obliged to do by the law. I would argue that the distinction is not entirely appropriate.
Senator Spivak: What is actually happening?
Senator Banks: That is what is actually happening. There is an argument, for a different time, about whether that ought to be in program tonnage on the one hand, or dollars spent on the other, but the answer to the question is that there is 60 per cent overall Canadian content in the program schedule and 50 per cent Canadian content during the prime time hours on the CTV network and the ITV network.
[Translation]
Senator Ringuette-Maltais: I am opposed to this amendment because the aim of the bill is to ensure that when changes are proposed, consumers from coast to coast have an opportunity — even if they lack the financial resources — to voice their opposition or express their support, with the help of experts.
I recall that during the 1980s, when CBC offices were being closed across the country, both in minority francophone and minority anglophone regions, people were limited to protesting the decision in front of CBC offices. Their protests were dismissed lightly on the grounds that they were not experts on the subject.
In my estimation, the CBC has a responsibility toward the Canadian public. Claiming that it would be losing public funds because of the requirement to pay these costs, as set out in Bill S-8, the Corporation maintains that it would then have to cut services to the regions. Therefore, I staunchly oppose Senator Spivak's motion.
[English]
Senator Spivak: This amendment was strongly supported by the CBC. It would be very nice if the CBC were funded to the extent of its mandate. It is supposed to reveal Canadians to each other across the country. It is certainly not funded to its mandate and we do not know what obligations the CBC might have by the time this bill is passed.
Senator Day: If it is passed.
Senator Ringuette-Maltais: I do not agree with the counter-proposal of the senator because we must acknowledge that the CBC has undergone great expense to be in real time, and we have never asked them at what cost to the regions or to Canadian consumers. Therefore, I think they do have money to spare, and I state again that I oppose this motion.
Senator Kinsella: I understand the important argument being advanced by my colleague, Senator Spivak. I agree with the public policy objective that underlies her argument. However, as Senator Ringuette-Maltais has pointed out, the purpose of this bill is to create as much of a level playing field as we can in an imperfect world in a very large country with tremendous diversity. The cost of doing business under the licences, which both the private sector and the public sector receive from the state, is to participate in ensuring that the programming, and the plans they have for broadcasting across the country, will respond to the needs of all the people. Therefore, we must hear from all the people. This bill is trying to create a vehicle by which we give access to that voice.
It is important that parliamentarians look carefully at the adequacy or inadequacy of funding for our public broadcaster, but I do not think we should do that in this bill.
On the one hand, I agree with Senator Spivak, but as a proponent of the bill seeking a particular objective, I would rather not use this vehicle. It provides an exemption and will save only a little money. They probably need much more money, and perhaps we should address that more directly.
[Translation]
The Chairman: Honourable Senators, the following is moved by Senator Spivak:
THAT Bill S-8 be amended in clause 1, on page 1, by adding after line 13 the following:
``(3) The Commission shall not make an award or order under this section pursuant to which the Corporation becomes liable for the payment of costs.''
[English]
I propose that we proceed to a role call vote. Given the confusions there have been over this bill, that is probably the clearest way in which to proceed.
Mr. Clerk, would you please call the roll.
Mr. Till Heyde, Clerk of the Committee: The Honourable Senator Fraser.
The Chairman: Abstain.
Mr. Heyde: The Honourable Senator Banks.
Senator Banks: Opposed.
Mr. Heyde: The Honourable Senator Callbeck.
Senator Callbeck: Opposed.
Mr. Heyde: The Honourable Senator Chaput.
Senator Chaput: In favour.
Mr. Heyde: The Honourable Senator Christensen.
Senator Christensen: Opposed.
Mr. Heyde: The Honourable Senator Eyton.
Senator Eyton: Opposed.
Mr. Heyde: The Honourable Senator Johnson.
Senator Johnson: In favour.
Mr. Heyde: The Honourable Senator Kinsella
Senator Kinsella: Opposed.
Mr. Heyde: The Honourable Senator Mahovlich.
Senator Mahovlich: Opposed.
Mr. Heyde: The Honourable Senator Spivak.
Senator Spivak: In favour.
Mr. Heyde: The Honourable Senator Ringuette-Maltais.
Senator Ringuette-Maltais: Opposed.
Mr. Heyde: Yeas, three; nays, seven; abstentions, one.
The Chairman: I declare the amendment defeated.
Does any senator wish to make any other amendment to clause 1?
We are reconsidering clause 1. Shall clause 1 of the bill carry?
Hon. Senators: Agreed.
The Chairman: I did not hear a dissenting voice, so clause 1 of the bill carries.
Does any honourable senator wish to propose an amendment to any other clause of the bill?
There being no response, shall the bill carry?
Hon. Senators: Agreed.
The Chairman: Let me do this very carefully. Will all honourable senators in favour please so indicate.
Hon. Senators: Agreed.
The Chairman: Will all those opposed so indicate.
Senator Spivak: On division.
The Chairman: The bill is carried on division.
Senator Day: I am non-functus here, Madam Chair, but had I been able vote, I would have voted against this bill.
The Chairman: You want that to be on the record, Senator Day. We do understand. When senators must attend several committees at the same time, it does get difficult.
Before we vote on reporting to the Senate, let me ask whether you want to attach observations to this report. Observations were attached the last time this bill went through this committee, in the previous session. There is nothing requiring us to do so.
Senator Spivak: If you attach observations, they ought to be on the basis of what we heard in committee. I would favour observations with those in favour and those opposed listed, though not by name.
The Chairman: You do not mean senators? You mean witnesses?
Senator Spivak: I am talking about witnesses before the committee.
The Chairman: We should explain the arguments that we heard.
Senator Spivak: Yes, and we should include the department.
The Chairman: Does any other senator wish to discuss observations? We can go in camera if honourable senators wish to have a more detailed discussion. I do not see any great will for that.
Senator Kinsella: We have agreed to the bill?
The Chairman: We have not agreed to report it yet. We will, I assume. We will vote on that at any rate. I just wanted to know before I get there if there are other issues.
Senator Kinsella: I ask that the question be put.
The Chairman: Senators, shall I report the bill to the Senate?
Hon. Senators: Yes.
The Chairman: Shall I include observations?
Some Hon. Senators: Yes.
The Chairman: Honourable senators, will you entrust the steering committee with the task of writing said observations?
Some Hon. Senators: Absolutely.
The Chairman: Thank you very much.
The committee adjourned.