THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, September 14, 2022
The Standing Senate Committee on Transport and Communications met with videoconference this day at 2 p.m. [ET] to study the subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts; and, in camera, for the consideration of a draft agenda (future business).
Senator Leo Housakos (Chair) in the chair.
[English]
The Chair: Welcome, everyone. I hope that everyone has had a fantastic summer. It is really good to see everyone live, in person, here in the Senate of Canada after so many months of seeing each other over screens and computers. It is great to be here.
[Translation]
I am Leo Housakos, a senator from Quebec and chair of this committee. I would like to introduce to you, on my left, the deputy chair of the committee, as well as all of my colleagues who are participating in this meeting.
Senator Miville-Dechêne: Senator Julie Miville-Dechêne from Quebec.
Senator Dawson: Senator Dennis Dawson from Quebec.
[English]
Senator Harder: Peter Harder, senator from Ontario.
Senator Oh: Senator Oh from Ontario.
Senator Simons: Senator Paula Simons from Alberta, Treaty 6 territory.
Senator Sorensen: Senator Sorensen, senator for Alberta.
Senator Quinn: Jim Quinn, senator for New Brunswick.
[Translation]
Senator Clement: Senator Bernadette Clement from Ontario.
[English]
Senator Dasko: Donna Dasko, senator for Ontario.
Senator Wallin: Pamela Wallin, senator for Saskatchewan.
The Chair: Senators, it is with extraordinary sadness that we learned last week of the passing of Her Majesty Queen Elizabeth II after many decades of devotion to the Commonwealth and to our country.
[Translation]
As members of the Senate of Canada, we extend our sincere condolences to His Majesty King Charles III and to all the members of the royal family.
[English]
Honourable senators, please all join me in rising for a moment of silence.
(Those present then stood in silent tribute.)
The Chair: Thank you. Colleagues, we are meeting to continue our examination of the subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other acts.
[Translation]
We are meeting to continue our study on the subject matter of Bill C-11, An Act to amend the Broadcasting Act and make related and consequential amendments to other Acts.
For our first witness panel, we are pleased to welcome Philippe Dufresne, Privacy Commissioner of Canada. We are also hearing from Brent Homan, Deputy Commissioner, Compliance Sector, Office of the Privacy Commissioner of Canada.
Philippe Dufresne, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Honourable senators, thank you for your invitation.
Before I begin, on behalf of my office, I would like to extend our condolences on the death of Her Majesty Queen Elizabeth II. I am pleased to be here today to assist the committee in its study of Bill C-11, the Online Streaming Act. I am accompanied by my colleague Brent Homan, Deputy Commissioner, Compliance Sector.
As you know, as the Privacy Commissioner of Canada, I am responsible for the protection and promotion of the privacy rights of Canadians in the public and private sectors. My office does so by investigating complaints, providing advice to government institutions and private sector organizations, reporting publicly on compliance with privacy laws, and promoting public awareness of privacy issues.
[English]
When I appeared before the Senate in June to discuss my proposed appointment as Privacy Commissioner, I indicated that I would have as my vision the following three elements: One, privacy as a fundamental right; two, privacy in support of the public interest; and three, privacy as an accelerator of Canadians’ trust in their institutions and in their participation as digital citizens. With these principles in mind, I can offer the following observations on Bill C-11, which would amend the Broadcasting Act to bring online undertakings within its scope and modify the mandate and powers of the CRTC in this context.
The bill would provide the CRTC with the power to impose conditions respecting the discoverability of Canadian programs and programming services. While the bill specifies that in doing so the CRTC could not require the use of a specific computer algorithm or source code, discoverability conditions could nonetheless potentially require the adaptation of existing algorithms that rely on personal information or the analysis of personal information to determine whether user-generated content is Canadian.
The potential privacy impacts would depend upon the specific circumstances of each case, including how these powers are exercised by the CRTC and how regulated entities respond to new obligations by their collection and analysis of personal information. Given this, it will be important that these privacy implications be fully assessed and mitigated prior to the CRTC imposing these conditions.
[Translation]
I note in this regard that the bill does include a requirement that a reasonable opportunity be given to persons carrying out broadcasting undertakings and other interested persons to make representations to the CRTC with respect to any proposed order. My office will want to avail itself of this opportunity in appropriate cases and will remain available to offer our regulatory expertise on privacy matters to both industry and the CRTC in this context.
I also note that, while the bill would give the CRTC the power to require broadcasters to provide information related to audience measurements, this power would specifically exclude information that could identify any individual audience member. Here, again, the implementation of the bill in a way that ensures that the requested information is de-identified or anonymized will be essential, and my office will be available to provide the necessary advice and guidance.
Given this and in light of the fundamental importance of privacy, the committee could consider amending section 3 of the Broadcasting Act to include the protection of the privacy of persons as a policy objective of that act. This would be similar to the approach taken in the Telecommunications Act and would ensure that privacy is fully considered in the interpretation and implementation of the bill, by the CRTC, regulated entities and courts.
[English]
I would also like to bring to the committee’s attention the European Union’s Digital Services Act which was adopted by the European Parliament in July and will come into force in 2024. This act will require major online platforms to provide individuals with an option to turn off recommendations based on individual profile. Once in force, this act will provide an additional alternative to reduce the potential collection and use of personal information.
Lastly, I would reiterate my recommendation that the preparation of timely privacy impact assessments by public institutions be made a binding legal requirement in a modernized version of the Privacy Act.
I hope these observations are of assistance to the committee and we would now be happy to answer any questions.
The Chair: Thank you so much, commissioner. Before I turn to my colleagues, I have a couple of questions for you.
The government has said that it has no intention of regulating user-generated content, but there is clearly a sleight of hand at play here because when the CRTC commissioner appeared before our committee this past June, he was asked by Senator Wallin whether Bill C-11 was not regulating user content indirectly by compelling the platforms to do it. That specific question the commissioner responded to Senator Wallin, “you’re right.”
Does this concern you, commissioner, and do you see any privacy consequences in such an indirect regulation of user-generated content?
Mr. Dufresne: Well, what we see is that the bill will provide the commissioner with certain powers, including the power to deal with discoverability and how the algorithms and the systems will promote certain types of content. These algorithms could use personal information, which is why I have stated that it is going to be important in how the CRTC exercises these powers, that these privacy considerations be taken before these orders are made.
I note that the act does provide for the possibility of the CRTC’s commissioner’s orders to be publicized and for interested persons to make representations. This is something that we will be following to avail ourselves of that opportunity in appropriate cases.
The Chair: My last question for this round. A key principle under the Personal Information Protection and Electronic Documents Act is an organization may collect, use or disclose personal information only for the purpose that a reasonable person could consider are appropriate in the circumstances. But section 4.2(1) and (2) of Bill C-11 gives the CRTC the ability to scope end user-generated content at its discretion. Thus, online undertaking would need to collect this information from all types of users, not just major music labels and artists.
The CRTC commissioner has confirmed that the regulation of user-generated content is within the scope of this legislation.
Are you, commissioner, of the opinion that a reasonable person would consider the collection of this information appropriate? And what privacy risks do you see this creating for Canadians?
Mr. Dufresne: In terms of the collection of information, there is a provision in the bill that the CRTC can request information, but it does specify that the information should not be information that can identify the viewers.
There are also, as you note, the sections on users, and there is precision in the bill in terms of some of the factors the commission shall consider in making these regulations, including revenue generation and so on.
For us, it will be important how these powers are exercised. The act specifies that the information provided to the CRTC should not be such that it can identify individuals. To us, that goes to notions of de-identification and anonymization. It will be important that this be done in the right way, with the proper techniques and inputs.
[Translation]
Senator Miville-Dechêne: Welcome, Mr. Dufresne.
First of all, you brought this up, but do you support the idea that, in Europe, subscribers or customers can be given the opportunity to disable recommendations based on individual profiling on platforms in online businesses?
I am asking you this question because Bill C-11 deals with the regulation of these platforms. At the same time, since there will be a lot of personal information at stake, shouldn’t users be given the power to opt out and not be part of individual profiling?
Mr. Dufresne: That is the approach taken by the European Union. It is certainly a privacy-friendly approach to authorize this type of method and to say that we are not going to get recommendations based on our practices or based on what we are listening to. In my office, we funded research that indicated that Canadians often feel observed when they watch programs. So the European approach is a possibility.
Senator Miville-Dechêne: What do you think about it?
Mr. Dufresne: It’s an approach that promotes privacy with respect to that information. There are other approaches, such as de-identifying the information, having it provided in a more anonymous fashion. It will be important to consider all the options, but this is certainly one that we have brought to the committee’s attention.
Senator Miville-Dechêne: We have talked a lot about privacy, which is a very important issue. When Ian Scott came before our committee, he said that what he wants is an obligation to get results. He even said that, in order to achieve that goal, online companies need to change their algorithms.
With that in mind, do you think that this obligation to get results exists, and that future users of platforms like YouTube will provide information related to their nationality or geographic location to make it possible to keep track of where the videos that are being viewed are coming from? If so, is that one of the things that you find risky or not?
Mr. Dufresne: I think that’s going to be part of the considerations that the CRTC will have to look at and the representations that will have to be made to the CRTC in terms of the conditions that need to be imposed and the ways to do so. From a privacy perspective, we are looking at the elements of necessity and proportionality. What is Parliament trying to achieve by favouring certain Canadian and other content? Is too much information being sought to achieve this objective? Can this be done with anonymized information? How much information about Canadians will be sought?
I note that the bill indicates that the ratings information should not identify Canadians. That is the approach we take in these types of situations, to look at the technology and the plan and give our recommendations, which is to collect as little information as possible to achieve the goal that the government will have set.
[English]
Senator Simons: As is so often the case, Senator Miville-Dechêne has, in large part, anticipated what I wanted to say.
I’m a writer, playwright and journalist. I like to think of culture as something we consume on its own merits. But I think we have to recognize that for some of these large platforms — I’m thinking specifically of Google and Prime — the programming is almost like a loss leader for the collection of data. These are companies that exist to mine data in order to better sell us things, and they provide us the programming as a way of obtaining that data.
Do you think there are enough safeguards in Bill C-11 to protect us from the impacts of the extraordinary amount of data that these platforms are able to collect on us based upon our viewing habits and our likes and dislikes, and then they can build a profile based on all our clickages and time spent on platforms to better market us?
Mr. Dufresne: In the bill, there are references to the protection of privacy. There is this notion of not identifying Canadian users in further sections about the CRTC’s sharing of information with the Competition Bureau. There is a provision that it must be done while respecting the privacy of Canadians. We are suggesting that given that these decisions will depend upon how the act is implemented and interpreted, we have proposed the inclusion of a clause to bring into the broadcasting policy the protection of the privacy of persons.
This is something that exists in the Telecommunications Act. In our view, this is something that would assist if there are debates as to whether privacy is a fundamental consideration in this act. In our view, it should be.
Senator Simons: Do you have draft language that you can share with us or is it more of a suggestion?
Mr. Dufresne: We have pointed to the language in the Telecommunications Act, which would include, in section 3 of this act, in the broadcasting policy, the protection of the privacy of persons. There could be other ways of doing it, but we pointed to this one because there is already precedent for that in the Telecommunications Act.
Senator Simons: I wanted to come back to Senator Miville-Dechêne’s point. You spoke of the EU’s plan to have an opt-out clause so that people don’t have to accept the recommendations. Personally, I find that idea very appealing. I am often perplexed as to why Netflix thinks I want to watch this or why Prime thinks I want to watch that.
However, it seems to me that this is running at cross-purposes to Bill C-11, because if we’re going to have a discoverability protocol that privileges Canadian content, but I wish to turn off the recommendations that will stymie any effort to collect the data — obviously, Bill C-11 does not include the capacity to turn off recommendations — would that be the appropriate place to put such a clause? If we did, would it undercut the whole concept of discoverability?
Mr. Dufresne: This is the assessment that you and Parliament will have to make. The specific objective of this legislation involves different circumstances from those in the European Union.
We provide that as an example of one privacy-enhancing tool that exists. It may not be appropriate in this instance, as you suggest. It might be at cross-purposes with the purpose of this act, which is why we highlight other privacy-enhancing measures, making sure that the information is de-identified and that the collection of information is as limited as possible to attain the objectives of Parliament, if that is Parliament’s decision in the end.
Senator Simons: Thank you very much.
Senator Wallin: Thank you very much for being here today.
To follow up on that point, you think the language as it exists in the Telecommunications Act — because we’ll take a look at this — could be taken as is and transported into this bill?
Mr. Dufresne: I feel that that would be an easy way of doing it because you have a model. That would be simple.
Senator Wallin: When we did speak to the CRTC commissioner about all these matters — and there were contradictions obviously between him and the ministers and all of that — he basically said that he will hand the task of monitoring, censoring and perhaps even removing over to the platforms. It is one thing to put something into Bill C-11, but then how would those same privacy regulations be able to impact their activities? And I have a follow-up to that question.
Mr. Dufresne: The provisions of Bill C-11 will be governing what the CRTC can request, what it can obtain, what it can share and so on. The organizations will be governed by the conditions set by the CRTC and the privacy-enhancing measures that we would want to see in those. But they would remain governed by PIPEDA, the legislation that applies to private sector organizations.
Senator Wallin: If someone is a small producer, a YouTube producer, who wants to be or does not want to be discovered as Canadian content — some say that this will make it very difficult for them to continue to produce — who will make that kind of assessment? And then, more importantly, to whom does the producer appeal if they disagree?
Mr. Dufresne: The process for the setting of these conditions is made by the CRTC, but there is a provision that the regulated entities and interested persons will have the opportunity to see the proposed conditions and to make representations on that basis.
Senator Wallin: But we have heard from ministers and others that there may be content that they want to remove. It would be a much broader definition than just Canadian content; it is content that they might disagree with. How is that issue arbitrated?
Mr. Dufresne: My understanding is this would go through the CRTC, deciding what conditions will be imposed. There would be an opportunity to make representations to the CRTC —
Senator Wallin: That is the “police” deciding whether or not the “police” did the right thing?
Mr. Dufresne: Well, there are provisions as I understand —
Senator Wallin: The CRTC being the “police,” just to be clear.
Mr. Dufresne: Again, with these questions, the CRTC would be better placed to discuss this. I understand that there is a process for the cabinet to review certain decisions of the CRTC, but I would defer to the CRTC on that —
Senator Wallin: So does that give you specific concern?
Mr. Dufresne: The observations that we’re making are that we want to see privacy considered, and we want to see privacy impacts minimized.
So there are purposes, and it is important, in adopting any use of technology, any use of tools, by public or private institutions, to ensure privacy impacts would be identified. That’s what I refer to as privacy impact assessment or privacy by design. There is a process in this bill for us to be making representations to the CRTC, and so we would do so. We would recommend that this interpretive principle be put in the act and that privacy is part of the objective, so that that can be applied by the CRTC.
Senator Wallin: But if I do not trust the “police” to police themselves, is there a mechanism for me to come through you as the Privacy Commissioner, if I even knew they were doing that to me?
Mr. Dufresne: If there are specific privacy concerns about activities of public institutions or private institutions, there is a process under privacy legislation to work through that.
Senator Wallin: Thank you.
Senator Oh: Thank you, commissioner, for being here with us. An article by the Centre for International Governance Innovation says that Bill C-11 should add a privacy clause to the broadcasting policy set out in section 3-1 of the Broadcasting Act, considering the data that TV set-top boxes, smart televisions and apps collect from their users.
My question for you is, what sort of data does the set-top boxes, smart televisions and media-streaming apps collect from their users?
Mr. Dufresne: Perhaps my colleague Deputy Commissioner Homan could provide more details on this, but this is the type of discussion in items of de-identification of information, anonymization of information. These programs will look at viewing habits. We have been engaged in some discussions on some of those initiatives. Our recommendation from a privacy standpoint was to make sure that this information is de-identified, that you’re using the proper techniques so that you can get aggregated information that does not allow you to identify individuals.
Does Deputy Commissioner Homan have anything to add?
Brent Homan, Deputy Commissioner, Compliance Sector, Office of the Privacy Commissioner of Canada: Not much other than, yes, we did kind of engage with the set-top box working group between 2015 and 2020 in order to provide them guidance. We did have a series of meetings with them. We wrote to them in September 2020 to emphasize and underscore the importance of ensuring that de-identification practices, safeguards and meaningful consent are worked into the systems.
We didn’t have an opportunity to review a privacy impact assessment to see how it was finally arrived at, but they do have our guidelines and our guidance in that area.
Senator Oh: Would this be collected and forwarded to so-called big data information collectors? Nowadays they compose all information, all data, together to analyze the patterns of users and what programs they want. Are these data being collected and given to some so-called big data information?
Mr. Dufresne: Well, we would have to look at an individual case situation to see that specific use and collection, but our position is collecting the minimum number of uses for the purpose of that activity and sharing with third parties is something that has to be regulated very carefully.
Senator Oh: Thank you.
[Translation]
Senator Clement: Good afternoon to both of you and thank you for joining us today.
[English]
I want to first thank you, commissioner, for restating your mission statement, the third one being trust in public institutions. I think that that is most crucial, so thank you for restating that again here.
I, like many Canadians, spent several hours in an airport waiting for a flight. I sat behind a teenager who was scrolling his social media feed. I think I was probably violating his privacy by looking but he wasn’t hiding his screen, so I looked at that. Everyone in his feed looked like him — young, white, male teenagers. I worry more about people not wanting to turn off their recommendations, right? They may be keeping their recommendations on because they like that personalized experience that creates this silo for people.
Of course, when I turned on my social media feed, cats and black and Indigenous women came on, and that’s cool, but that’s not all I want to see.
I wonder about your role as the Privacy Commissioner in dealing with people who are not concerned about their privacy and what that means in the bigger picture of things.
Mr. Dufresne: This is something that I will want to work on in my term as Privacy Commissioner, to improve awareness of the importance of privacy. We are living in a world where technology is everywhere. Use of technology creates situations where individuals are going to share a lot of their information and perhaps without thinking of the impacts and of other uses and so on. That is something to promote, to talk about the importance of ensuring that there are purposes and there are benefits to this technology, but we should not be doing so at the expense of our fundamental privacy rights. We should be aware of the tools that can protect us.
Senator Clement: If people don’t turn off their recommendations, or if we don’t go the route of the European Union, you are talking about anonymization. Do we have the technology to do this? Are you comfortable? I know your colleague spoke a little bit to that, but are we there?
Mr. Dufresne: There are various tools that exist, and there is a debate as to whether you can ever make an information impossible to re-identify. That’s an element that is important. This is something that’s in Bill C-27, which is currently before the other place. There is discussion of de-identified information or anonymized information from our standpoint.
We provide expertise to industry and government institutions as to the tools that exist and how to apply them so that the risk of re-identification is as small as it can be or non-existent.
Mr. Homan: I would add in terms of one of the principles that was discussed earlier is that when you think about things such as algorithms and there may be an objective, but the extent to which, in our view, we would want the personal-information-collected use to be minimized. I think that’s one of the underscored and underlying objectives of ensuring privacy rights.
That said, I would just add that with respect to the decision whether or not to share, sometimes privacy is looked at as secrecy when really it can be about control. An individual could care very much about their privacy but still make the decision to share information or to benefit from this feedback or not. It’s all about control to the individual.
Senator Clement: Thank you for that.
Senator Dasko: Thank you for being here today. As a researcher for my career, I’ve often been looking to expand the use of data as opposed to making it harder for data to be used.
I have a couple of questions, one with respect to your observations about audience measurement and the use of data and collection of data by the CRTC. The bill would provide them with the power to require broadcasters to provide information related to audience measurement.
Well, the way I see it, they already collect a huge amount of data on audiences. Every year, the CRTC publishes a report, which is quite detailed. They go into the detail on viewership, audience measures across the country in markets, small radio markets, television markets. A lot of data is presented there. They publish that every year. They’ve just published the 2021 data not long ago over the summer.
What is it that’s different about this bill in terms of their ability to collect and use the data? What is different, and what is lacking? It seems to me that you’re saying something is lacking in their ability to do this or the ability to deal with privacy concerns. Obviously, data is always anonymized. What’s lacking? What’s different here?
Mr. Dufresne: In terms of using data for public interest or for valid purposes, I would agree with that. That’s the second element of my vision in saying that privacy is not an obstacle to public interest, to innovation, but there is a way of doing things in a privacy-protective manner.
What’s different here is that the bill gives the authority to the CRTC to require certain things to be done with respect to discoverability of Canadian programs. So that brings in the notion of algorithms. The bill specifies that the CRTC can’t require a specific algorithm, and it also specifies that when it asks information about audience measurements this information cannot be information that could identify any individual audience member.
So what I’m saying here is that the implementation of those principles is going to be important so that, in fact, when specific tools are used that they successfully de-identify and anonymize, and that when those conditions are adopted that they are done in a privacy-protective manner.
I also note that there is an ability in the legislation for interested persons to make representations to the CRTC. That’s something that I have advocated and my office has advocated that my office be given the opportunity to comment when there are tools that are either new or have potential privacy impacts so that we can share our expertise and make recommendations. I’ve identified that process in the bill where we perhaps will have that opportunity to make those representations.
Should there be any debate or ambiguity, I have suggested adding this notion of privacy protection as one of the purposes of the broadcasting policy, pointing to the fact that that already exists in the Telecommunications Act. Perhaps it’s understood that way already, but that would make it clear.
Senator Dasko: I see. So essentially, your concern is about the discoverability components and how that would add to what the CRTC would be doing under this act?
Mr. Dufresne: Discoverability component, the use of algorithms and the use —
Senator Dasko: Yes, which is related to discoverability. Not the only component of it but one of the components of it.
Mr. Dufresne: That’s right.
Senator Dasko: You mentioned the privacy language used by the European Union. How does this actually differ from the fact that right now Canadians can say that they don’t want to receive marketing material from private firms? Isn’t this sort of the same as marketing, like when the platforms are using your information to send you things, to inform you of things, to market to you? Isn’t this the same principle that we already have enshrined in this country where people can say no, I don’t want to receive marketing stuff from whoever it may be, your bank or whatever?
Mr. Dufresne: Right. There is the anti-spam legislation — what we call CASL — that regulates that and provides for the inability to do so without the consent if individuals don’t want to receive this. Bill C-11, in fact, talks about that as well in terms of applying that to online streaming programs. So that exists.
What we’re talking about here is that the discoverability in terms of algorithms — not so much advertising but algorithms using information to make recommendations or to follow up on recommendations to see if those discoverability mechanisms have been successful or not.
Senator Dasko: Thank you.
Senator Pate: Thank you to our witnesses and thank you for your work. I’m curious as to whether you’ve looked at the impact and done an analysis on which companies are most objecting to this kind of approach, particularly from a profit motive perspective, and whether they are couching that as a privacy issue or whether they’re being clear that this is a marketing concern and a profit-making concern?
Mr. Dufresne: I might pass that question to Deputy Commissioner Homan. In terms of specifics, you are asking about identifying patterns with respect to specific companies. What I can say is we’ve provided input in terms of the approach generally in terms of the audience measurements, but beyond that I’ll ask the Deputy Commissioner.
Mr. Homan: I would just point out that with respect to online undertakings, clearly they are commercial enterprises, and to that extent commercial enterprises are covered under PIPEDA. In terms of the activities of commercial enterprises, as is indicated under PIPEDA, we have jurisdiction where it is for a commercial activity. So all I would say is that those undertakings would still be covered. That said, obviously thought of in the context of what is required under Bill C-11.
Senator Pate: You do analysis in terms of some of the work that the government is introducing around competition law. Have you done any comparison between legislation like Bill C-11 and the competition policies that are being brought in and which companies are raising issues with respect to both pieces of legislation?
Mr. Homan: We haven’t done any specific analysis that you’re talking about, but I think I can make a general comment. What we have been seeing on a global level is a growing intersection of the regulatory spheres between privacy, consumer protection and competition. So more and more there is an opportunity, in fact, an advocated opportunity for collaboration between these regulatory entities to ensure that there is a more holistic outcome for Canadians.
Senator Pate: Thank you.
[Translation]
Senator Dawson: Thank you, Mr. Dufresne. Do you distinguish between information that is collected on subscriptions such as Amazon and Netflix, versus on ad-based platforms, such as TikTok and YouTube?
Do you make a distinction about how this information is used and collected? These are two systems that seek information for two different reasons. When we subscribe to a service, we understand that there is always a little dotted line where it says we accept this or that condition. There are services we sign up for after seeing advertising. Is there a distinction in how your office looks at this data?
Mr. Dufresne: The approach that is generally applied concerns necessity and proportionality in terms of using the least amount of information possible to achieve these objectives. There may be situations where consent will be obtained, but there are concerns about the nature of the consent. These provisions are often opaque. Again, Bill C-27, which is before the House, also addresses these elements. We are looking at the use of algorithms here, and we would apply the same approach, that this information needs to be de-identified and anonymized. We should not be able to go out and get information through these agencies.
Senator Dawson: Thank you.
[English]
The Chair: Privacy Commissioner, I have a couple of concerns. First, why would legislators give the benefit of the doubt to the CRTC and to cabinet when it comes to tightening up privacy aspects of this bill?
Second, what are your suggestions on what we need to do with this bill to make it ironclad when it comes to Canadian citizens’ privacy?
Third, do you have any concerns regarding this bill and how algorithms are being used and all this kind of new data, doxxing, for example, all these new terms I’m discovering on this study? How can we assure ourselves that the safety of marginalized Canadians will not be put at risk from all the mining that’s available on various platforms?
Mr. Dufresne: Thank you, Senator Housakos. In terms of the last element of your question, just broadly, on the use of technology, generally, I would say that Bill C-27 is before the House and aims to modernize privacy legislation in the private sector generally, and it does broadly address artificial intelligence.
In terms of recommendations for this piece of legislation, I flagged that there is a process for obtaining information. It does provide in the bill that it must be done in a way that does not identify users, and it does indicate that specific algorithms can’t be mandated and that there is a process to be heard.
I have suggested that, for greater clarity, an interpretive provision or a purpose provision highlighting protection of privacy as one of the broadcasting objectives would be beneficial. That would make it even clearer that this has to be interpreted and applied in a privacy-protective manner.
To the first part of your question about trusting institutions, Parliament adopts legislation and mandates various organizations to interpret and apply it, whether it’s through administrative tribunals and subject to review by courts. The process is there and would be similar for any legislation that is adopted. So what parliamentarians can do is give guidance in the legislation itself.
Senator Simons: I have a question relating to a particular kind of vulnerable group, and that is children who are major consumers of online content.
In 2019, the FCC made a major ruling under the American Children’s Online Privacy Protection Act, COPPA, specifically looking at the way YouTube was targeting children through it’s — I don’t want to say “predatory” because “predatory” is such a nasty word — but that YouTube was not taking sufficient care to protect the data of children.
Last year in September, the United Kingdom invoked their age-appropriate design code for the internet, which, among other things, prohibits online platforms from nudging children toward providing more data.
I don’t know if Bill C-11 is the appropriate place to be discussing issues that are better dealt with under the amendments to the Privacy Act, but what you can tell us about what we might do about the particular issue of children, not those just under 18 but sometimes those as young as 4, 5 and 6 who are using these platforms without a lot of adult supervision?
Mr. Dufresne: This is included as an element of Bill C-27 in terms of the Privacy Act modernization in terms of greater protection for minors. That bill was introduced in the other place on June 27 and will be making its way. There will be an opportunity to look at that. But, certainly, it is important to ensure that children and minors have sufficient protection in this context.
[Translation]
Senator Miville-Dechêne: I would like to continue along the same lines as my colleague Senator Simons. I had another question in mind. Given that Bill C-27 talks about the increased protection of children, should Bill C-11 — which is the main vehicle for regulating programs — not provide increased protection for children?
I am thinking of a specific issue that is dear to me and that is already completely resolved in the mainstream world. For example, pornography is for adults only, yet there are absolutely no regulations to protect children from online businesses. What do you think about this?
Mr. Dufresne: These are considerations that you may raise as parliamentarians in terms of the protection of minors or the treatment of pornography. My comments would be more focused on the privacy aspects of this and would be about the importance of using as little information as possible for sufficiently important purposes. If you are dealing with minors, you have to make sure that the privacy of minors is interpreted and dealt with in a way that takes into account the fact that they are minors, particularly in terms of consent and the role of the parents. Perhaps there would be more protection than for adults.
Senator Miville-Dechêne: Yes, but it is not considered at this time. The fact is that children’s privacy and consent are not considered at this time. Is this something that should be corrected?
Mr. Dufresne: We are commenting on the privacy-related element today. Generally speaking, it is about limiting the use of information beyond what is necessary and having this interpretive provision that will recognize that. At this point, it can be interpreted appropriately to the context in which that issue is raised. The representations that would be made for things that affect minors would be separate from those that affect adults.
For us, what is important is that when these privacy issues arise in the specific cases that are referred to, the appropriate submissions and mechanisms are put in place.
Senator Miville-Dechêne: Your answer is still very general. I understand you being careful, but at the same time, shouldn’t their age be known to be able to protect them?
Mr. Dufresne: That is something that needs to be considered in terms of obtaining this information and ways to protect privacy. You can know whether someone is a minor without knowing their exact birthday. These are certainly things to consider very broadly. They will be considered in the context of bills C-27 and C-11. What we are putting forward here is the protection of privacy in a broader sense. This will be adapted to the case at hand in each instance.
Senator Miville-Dechêne: Thank you.
[English]
Senator Wallin: I want to follow up on Senator Housakos’s larger question about why you are confident in governments or government regulatory bodies to be in charge of monitoring and regulating content, user-generated content included.
Recently, Mark Zuckerberg admitted publicly that the FBI came to him in the United States and said that they were anticipating a Russian campaign. This is prior to the last election, et cetera, so be really, really careful about what you put up. He suggests now after the fact also about Hunter Biden, all of that, bold question. But they did respond, and they did restrict and limit content based on that information.
Are you concerned about that issue here when it comes to privacy and protection of those of us who use and read the internet and those who abuse and use the internet?
Mr. Dufresne: Insofar as the public institutions in Canada, they are governed by the Privacy Act, and we’ve called for modernization of that act to bring it with the times.
I’ve recently called for a legal obligation for privacy impact assessments to be done before new tools are used by public institutions. We want to see strong privacy regulations for the public sector — for the private sector — and if there are situations of abuse, there needs to be a strong and fair legal regime to address those, whether it involves the private sector or the public sector.
Senator Wallin: One of the American experts that I’ve talked to in another context says we can’t control algorithms as there are too many of them; it’s impossible, and the best we can do in this particular age is to opt for transparency. Make sure we understand how each of these things work, make it public, and then we can decide whether we want to participate, whether I am going to use Google or not or any one of the other streaming services that have been referenced.
Could we get to that point?
Mr. Dufresne: Well, transparency — and, again, I don’t want to go too far talking about Bill C-27, because it is still in the early stages in the other place, but it does include transparency —
Senator Wallin: It does apply here.
Mr. Dufresne: — but it does include transparency provisions, and there is also the Artificial Intelligence and Data Act that would regulate artificial decision-making in terms of substantive outcomes in certain cases. That is something that will be debated in the House and ultimately —
Senator Wallin: I’m asking, though, also in the context of Bill C-11. We need that kind of transparency, because we are asking or accepting that government bodies will be regulating and making decisions. They have stated explicitly that they will ask the platforms to use their algorithms to provide them with information.
Mr. Dufresne: In Bill C-11 there are provisions for the publication of the CRTC’s proposed orders. There are sections in terms of providing information by the CRTC to Statistics Canada, to the minister, disclosing some of it publicly. There are restrictions in terms of confidential information. There are some elements where it’s in the public interest to do so or where it needs to be shared with the Competition Bureau, so there are some provisions that address that topic.
Senator Quinn: Thank you for being here today. This has been very interesting.
I’m just wondering, coming back to some of the comments that colleagues have made with respect to appeal processes and concerns and whatnot, I understand from what you have said that people can go through a cabinet-type process, which seems to be something that is really onerous when it comes to such a broad subject as broadcasting.
Just an opinion, really, but do you think that there should be some consideration given for a tribunal that you would find in other sectors of government so that there is recourse for people who have concerns to go to and not have to go through a regulator who seems to have a lot of power? Should there be some consideration in this initiative that would allow even yourself to go to a tribunal to express your concerns about privacy?
Mr. Dufresne: In terms of us expressing our concerns, we would certainly avail ourselves of the opportunity to make representations to the CRTC. We’ve done it in the past, and we will, if this is adopted, do so in the context of those proposed requirements in terms of discoverability. So the process exists for that engagement with the CRTC, with my office, with courts, and so we will participate in that.
Our observations here are that it’s going to be important for the CRTC to have privacy in mind in making these decisions and hearing from us. To remove further doubt, we are proposing this principle of protecting privacy to be added to the Canadian broadcasting policy.
The Deputy Commissioner wants to add something.
Mr. Homan: All I would add as well is that we don’t have to wait for after the fact. There is already a good amount of collaboration, and we have government advisory services within the Office of the Privacy Commissioner that will allow for engagement and for providing guidance on prospective programs. So we have had opportunities in the past to engage with the CRTC, who has approached us. By virtue, and owing to CASL, we also have an opportunity and have been able to collaborate and establish a relationship with the CRTC.
I guess what I’m saying is there will also be an ongoing opportunity, should our guidance and our views be sought to have those shared with the CRTC currently as well as in the future.
The Chair: A very quick question before I turn it over to Senator Miville-Dechêne for the last word. Has your office done any assessment in terms of where Canada under Bill C-11 would stand in comparison to other democracies around the world?
Mr. Dufresne: I’m not aware that we’ve done this comparative analysis, specifically.
The Chair: Thank you.
[Translation]
Senator Miville-Dechêne: To avoid me having to redo research that you seem to have done brilliantly, can you send us the information that you found on the European example? It would be really useful to have a little more information.
Mr. Dufresne: Absolutely.
Senator Miville-Dechêne: Thank you.
The Chair: I would like to thank our witnesses, Mr. Dufresne and Mr. Homan, for their participation and their testimony, which we really appreciated.
Honourable senators, for our pre-study of Bill C-11, we are now pleased to welcome our second panel of witnesses, which is made up of senior officials from Global Affairs Canada and from Justice Canada.
[English]
We are joined now by Darren Smith, Executive Director, Technical Barriers and Regulations; Nolan Wiebe — by virtual on the screen — Senior Trade Policy Officer, Services Trade Policy Division; and Isabelle Ranger, Director, Services Trade Policy Division, Global Affairs Canada. From the Department of Justice Canada, we have Mr. Raymond MacCallum, General Counsel, Human Rights Law Section and Tariq Qureshi, Senior Counsel, Canadian Heritage Legal Services.
We welcome you all before this committee. I will now cede the floor to Mr. Smith, followed by Mr. Qureshi, and then we’ll have questions and answers with our colleagues.
Darren Smith, Executive Director, Technical Barriers and Regulations, Global Affairs Canada: Thank you, Mr. Chair and honourable senators, for inviting representatives of Global Affairs Canada here today with regard to your study of Bill C-11 and for introducing me and my colleagues.
[Translation]
We believe that the committee has asked Global Affairs Canada to appear as a witness so that we can discuss the issue of international trade in relation to proposed changes to Canada’s domestic online broadcasting regime, including in the context of support for Canada’s cultural industries.
In this respect, I will be pleased to outline my department’s role in the development of the proposed Online Streaming Act led by the Department of Canadian Heritage and to answer any questions you may have on broader issues, such as the commercial scope of the bill and digital trade.
[English]
As the lead department for undertaking international trade negotiations, Global Affairs Canada is building on decades of work with our federal, provincial and territorial government partners, industry and labour stakeholders, as well as civil society, to provide expanded economic opportunities for Canadians. The foundation of our current efforts is the certainty and predictability generated through rules forged at the multilateral level, namely the World Trade Organization, as well as through numerous high-quality free trade agreements with many of our most significant trading partners.
The shift from an analogue to a digitally oriented economy has generated increased need for Canada to be at the forefront of new efforts to shape the rules and market-access conditions for the cross-border trade of digital products. As a result, Global Affairs Canada is involved in a multi-pronged effort to advance the interests of Canadian industry and consumers through ongoing initiatives at the WTO and through new or modernized FTAs, as well as more recently exploring the promise of digital trade specific agreements such as the Digital Economy Partnership Agreement, DEPA. These efforts continue to benefit from the contributions and support of our federal government colleagues including Heritage Canada, provinces and territories, industry, labour and civil society.
Canada’s agenda in this regard is forward-looking. As we seek ways to improve the conditions for our businesses operating abroad, especially our small- and medium-sized enterprises and those driving digital transformation across the different segments of our economy.
That said, our efforts with regard to addressing potential market access impediments and establishing rules to help facilitate digital trade are equally complemented by our interest to secure outcomes that build consumer confidence in digital trade, including the protection of personal information. This balanced approach that we take to the negotiating table with our international trading partners is also a reflection of our domestic regime.
Canada is a trading nation that welcomes competition and encourages international investment. We do so with conviction to maintain our capacity to regulate in the public interest. As such, our international trade agreements, including our new initiatives in the digital trade context, will continue to maintain the necessary public policy space, including with respect to safeguarding our cultural policy imperatives.
[Translation]
Achieving both goals requires a coherent approach to the work undertaken in the international and domestic contexts. This is a prerequisite clearly recognized by this committee in its invitation to Global Affairs Canada to appear here today.
To that end, I think it is important to point out to the committee, as it considers Bill C-11, that Global Affairs Canada is working closely with Canadian Heritage to ensure that the international trade dimension has been fully considered in the development of this bill.
In addition, our department will continue to contribute to this national initiative as it moves through the regulatory development stage, as well as to other upcoming initiatives that affect the digital economy in a way that also includes international trade.
Once again, I thank you for inviting us to appear here today. I am available to answer any questions you may have.
The Chair: Thank you, Mr. Smith.
[English]
Tariq Qureshi, Senior Counsel, Canadian Heritage Legal Services, Department of Justice Canada: Good afternoon, Mr. Chair and honourable senators. My name is Tariq Qureshi. I am Senior counsel with the Department of Justice working in the Legal Services Unit of the Department of Canadian Heritage. I’m here this afternoon with my colleague Ray MacCallum, General Counsel in the Human Rights Law Section of the Department of Justice. We understand that the committee has invited Justice Canada to participate in this panel in relation to the Charter Statement concerning Bill C-11 and we thank you for this opportunity.
As officials of the Department of Justice, Mr. MacCallum and I are legal advisers to the Government of Canada. We provide legal advice to government departments on matters of law which generally include advice in relation to the development of new legislation. Although we can provide information about the government’s position respecting legal aspects, we cannot give you legal advice. Doing so would conflict with our role as legal advisers to the government and the Department of Canadian Heritage in particular.
Each client department is generally responsible for piloting through Parliament legislation sponsored by their minister. As such, the Department of Canadian Heritage is best placed to address questions you may have concerning the policy behind the bill, explain the operation of the bill and explain its implications. The role of the Department of Justice in the development of government legislation includes ensuring that legislation is not inconsistent with the Charter.
The Department of Justice also assists the minister in fulfilling his duties to table a Charter Statement for government bills introduced in Parliament.
[Translation]
I would like to briefly discuss the requirement for the Minister of Justice to prepare a charter statement for government bills that are tabled or introduced in the House of Commons, in Parliament.
[English]
In 2019, amendments to the Department of Justice Act came into force, creating a new duty on the Minister of Justice to ensure a Charter Statement is tabled in Parliament for every government bill. Charter Statements are a transparent measure intended to inform parliamentary and public debate on a bill and help increase awareness and understanding of the Charter. By tabling a Charter Statement, the minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter.
The Charter Statement identifies the provisions of a bill that may potentially affect Charter rights and freedoms. It briefly explains the purpose and operation of the provisions and how the provisions potentially affect the relevant rights and freedoms. The statement also identifies potential justification for any limits the bill may impose on the Canadian Charter of Rights and Freedoms. In this regard, section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. Legislative limits to rights and freedoms must, however, be carefully considered in the context of the shared value of Canada’s unique free and democratic society. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
[Translation]
I also wish to clarify what a Charter Statement is not. It is not a complete analysis of all potential considerations relating to the constitutionality of a bill. Nor is it a legal opinion on the constitutionality of a bill.
As the Charter Statement indicates, the regulatory framework established by Bill C-11, including sanctions for non-compliance, could specifically bring into play subsection 2(b) of the Charter, which guarantees freedom of thought, belief, opinion and expression.
The following conditions do however weigh in favour of the compatibility of the proposed regulatory requirements with subsection 2(b) regarding freedom of expression.
First of all, the bill seeks to establish an environment of fair competition for traditional and online broadcasting services in Canada so that traditional broadcasting services can continue to be a viable and accessible source of information and programming for Canadian consumers.
The proposed amendments also seek to guarantee that broadcasting enterprises contribute fairly to attaining the objectives Canada’s broadcasting policy, specifically the cultural objectives for the creation of diverse, representative and informative Canadian content, thereby strengthening Canadians’ participation in the making of social and political decisions, and also strengthening the principles underlying the right to freedom of expression.
[English]
Further, the bill maintains the CRTC’s role and flexibility in determining what, if any, regulatory requirements to impose on the broadcasting undertakings, taking into account the Broadcasting Act’s policy and regulatory objectives. The CRTC is subject to the Charter and must therefore exercise any discretionary powers it has in a manner that is consistent with the Charter. The bill provides that it must be interpreted and applied in a manner consistent with freedom of expression. In making regulatory decisions, the CRTC must proportionally balance the objectives of the bill with the protection of freedom of expression in light of the present facts and circumstances. The CRTC’s decision on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.
This concludes my introductory remarks. Again, thank you for the invitation to appear here today. We look forward to your questions.
The Chair: Thank you to both departments for being here. I will start off the first round.
Global Affairs will obviously acknowledge that the cultural exemption — unlike other trade agreements — in the United States-Mexico-Canada Agreement, or USMCA, is not unbound. The USMCA grants the U.S.A. the right to levy retaliatory measures of equivalent commercial effect in response to Canadian policies that would otherwise violate USMCA for cultural exemption.
My question is this: Given that the government is touting $1 billion in required contributions from foreign platforms — the majority of which, of course, are U.S.-based — how do the witnesses view the risk of retaliation?
My other question is this: Have the witnesses heard anything from the U.S. officials in terms of concerns regarding Bill C-11?
The final question is: In your view, would this put at risk various other sectors in our Canadian economy?
Mr. Smith: Thank you, Mr. Chair, for the questions.
In terms of the first one — risk of retaliation — I think the first thing we want to emphasize here is that we believe that the provisions of Bill C-11 are indeed consistent with Canada’s international trade obligations, including its commitments under the Canada-United States-Mexico Agreement or CUSMA. The draft legislation has been undertaken in such a way to try to avoid any kind of discriminatory differences between Canadian and foreign service suppliers.
I think the one thing also worth noting here is that this is a process whereby we have the opportunity to work closely with U.S. officials as this process moves from the legislative phase and also through the end phase after the formation of specific regulations. It is not unusual for us to have a dialogue with the U.S. from the working level all the way through up to, say, senior officials or ambassadors on issues of this type of orientation.
To that end — to answer your second question — indeed, there has been engagement between Canada and the U.S. officials on this matter. I would characterize the U.S. interest as more or less focused on process-oriented elements of this legislative initiative — understanding how it works through the House and then through the Senate, et cetera — and also on providing what could be described as a general clarity or understanding of what the intention of this bill is. That is certainly information that is being conveyed to U.S. officials. I think that U.S. officials, naturally, are looking for a better understanding so that they can provide the certainty and predictability for their stakeholders in this regard. That is the general characterization of the dialogue thus far.
In terms of risk to other sectors, again, I would not want to prejudge that this effort is going to lead to any kind of a regulatory outcome. Indeed, the type of retaliation that has been discussed somewhat in this overall review is something that we do not feel will necessarily come to fruition.
When you look at our ability to engage with the U.S. on these matters for the last 25 or 30 years, the U.S. has never invoked any kind of retaliatory response to Canada’s cultural policy programs, and we do not see that Bill C-11 will necessarily do that either. In the meantime, there are a number of different mitigation elements that are in play, and I can speak to those in more detail.
The Chair: So I guess, Mr. Smith, that last July when the U.S. trade representative Katherine Tai met with our minister, Minister Ng, and expressed her concern on behalf of the United States that this law would be infringing on a number of sections of our trade agreement, that was just the normal course of dialogue between a trade representative of the U.S. department and our minister. Or was that some somewhat serious concerns about what the Americans see as overreach?
Mr. Smith: I think it is fair to say that the Americans want to make a signal that they are paying attention to this legislative initiative. I think the context of these discussions, from what I gather, were quite amicable in this regard. I do not think that the U.S. has presented any specific threat to Canada in this regard, and the reports that I received about those conversations were that the U.S. did appreciate the feedback that our minister provided with respect to our ability to continue to ensure that our international trade obligations are indeed respected. This is something we take very seriously, of course, because we also want the same kind of treatment for our stakeholders when they’re operating abroad, including in the U.S. marketplace.
Senator Simons: My questions are also related to trade issues. When Konrad von Finckenstein came to speak with us in June, he specifically mentioned concerns about CUSMA in relationship to the Canada Media Fund, which will get much larger as Bill C-11 progresses. It will be a large pool of capital for Canadian filmmakers to access. He was concerned that it might create problems under CUSMA because it is specifically a fund for Canadian producers. Do you foresee that this could be a source of friction? Would it be necessary for the Canada Media Fund to open itself to international — I mean, frankly, Disney does not care about the Canada Media Fund, it is too small? But for other, more international producers, might they need to access that fund in order to be equitable?
Mr. Smith: In this case, I would probably defer to PCH to address any specific questions in the terms of the operation of the fund itself. But the fund, along with other types of support programs that exist for Canadian cultural entities, were assessed as part of this overall process by our PCH colleagues in consultation with us. We’re comfortable with the fact that the way that the rights and obligations exist within CUSMA that the agreement is very much in a situation whereby the provisions of the agreement are consistent with our international trade obligations, including CUSMA.
Senator Simons: I have an unrelated question that is about 9(1)(h) broadcasters. These are broadcasters like OMNI, APTN, CPAC and The Weather Network, which are mandatory carriage broadcasters. They have enjoyed that right under conventional broadcast and cable. They are very concerned that as conventional broadcasters transition to become streaming services that they will then lose their mandatory carriage privileges. They told me — and I have met with them repeatedly — that they have spoken to Canadian Heritage about this and that Canadian Heritage told them that it would be a violation of CUSMA if they were to be given mandatory carriage rights for over-the-top streaming services.
To be clear, they are not asking that CPAC be carried by Netflix or that APTN be carried by Disney, but they are concerned about Canadian streaming services as Global, Rogers and Bell’s transition to a digital platform. I’m struggling to understand what the CUSMA issue would be, so perhaps you can explain it to me.
Mr. Smith: Thank you very much for question. I think that I would have to consult my colleagues further at PCH since this is obviously more of a second-hand information context. I would not have the ability to provide a precise answer at this point, so I would like to learn a little bit more about these specific Canadian entities and what PCH has said exactly in this context. If I may ask that this be something that we can follow up on after this meeting, I could provide an answer in writing.
Senator Simons: That would be terrific. Please answer to my office and to the committee. That would be tip-top.
Mr. Smith: My pleasure.
Senator Simons: Thank you.
Senator Wallin: Some of us are old enough to have been around for the FTA negotiations and the NAFTA negotiations, and we know a man by the name of Jack Valenti and others. This is a huge issue on the trade table any way that you cut it.
This was a question that was raised earlier: Have you done any comparative analysis about where we are with this piece of legislation in terms of our trading partners, our G7 partners? Where are we in the world on that? In particular, have you looked at NAFTA, WTO, CETA or other agreements specifically on this question?
Mr. Smith: Thank you for the question. With respect to any kind of a comparative analysis in terms of the system that is being proposed here under Bill C-11 and that which has been contemplated in other jurisdictions, including our trading partners, my understanding from conversations with my PCH colleagues is that they are aware of some of these different ideas or systems that are either have been put in place or are being contemplated. Certainly, the Canadian context is one in which the balance is trying to be achieved with respect to our commercial imperatives as well as our international trade obligations vis-à-vis our domestic policy imperatives, it makes this somewhat of a unique exercise where we cannot necessarily compare our system of laws and regulations and our domestic regime to that of other jurisdictions. There are differences, of course. We have a very unique cultural context. But there are obviously other jurisdictions that are tackling some of these questions simultaneously, sometimes in a bit of a different way.
From an international trade negotiator perspective, when we become aware of these kinds of developments, we, of course, want to ensure that our trading partners are abiding by their international obligations, whether it be for an FTA like CUSMA or CETA, and, of course, there are WTO commitments that also come into play. This is more of a general response, and I do not have a specific point to make on that.
One thing that I do want to emphasize is that there are certainly issues that are pertinent to the online streaming world and to the idea of where cultural initiatives are put into this. Of course, as a department we take even more of a macro perspective on these issues when it comes to digital trade landscapes. What are the rules on cross-border data flows? Are there data localization requirements? Are there mandatory requirements on divulging source code, for instance? We have the ability to work with PHC on the specific issues related to culture, but again, our department also takes a 40,000-foot view on this.
Senator Wallin: Well, at 40,000 feet or any other measurement this is an attempt by Canada to regulate content on the internet, which is a global operation. In your assessment of just that, on a very basic level, have you had any responses from those countries with whom we have specific agreements?
Mr. Smith: Other than inquiries with respect to the request to explain the objective of this legislation and questions that are more pertinent to process that would be the extent of it. There is also, I think, a realization that this is an initiative that has yet to be fully completed. It is a process that still has to go through the regulatory and development phase, and I think that will also be an area in which there will be further inquiries from our trading partners, as we would have if the situation were reversed.
Senator Wallin: I think that we will have to pursue that in another point. One question for Mr. Qureshi, if I am saying that correctly. Can you, in simple terms, say whether you have advised the government that there are freedom of speech issues or freedom of thought and belief or expression issues? Are there red flags? Have you gone that far in terms of your response to this piece of legislation, in terms of talking with the government?
Mr. Qureshi: Thank you, senator, for the question. As I had mentioned in my opening remarks, as officials for the Department of Justice, we are responsible for advising the government and government departments, and so I cannot go into the nature of the discussions and legal advice that was provided to the Department of Canadian Heritage and in this bill in particular.
This being said, broadcasting is the medium by which information is communicated and Canadians have access to information. Just as the Minister of Justice has mentioned in his Charter statement, it is potentially going to engage certain Charter rights. The Charter statement does outline some of the Charter rights that might be engaged by certain provisions of the bill, and it has also outlined some of the considerations supporting the Charter values.
Senator Wallin: Okay. We’ll read between the lines there. Whom would you suggest could best come before this committee, as it is our job as senators to assess legislation, and we need to have legal advice on that? Is there someone in your department who could come and give us a briefing on what these potential red flag areas might be, or do we have to go to a private law firm? How would we go about someone describing those potential concerns to us here at committee?
Mr. Qureshi: Department officials won’t be able to provide you legal advice. The Department of Justice certainly won’t provide you with legal advice.
The officials of the Department of Canadian Heritage can explain how the bill operates, how it works and some of the implications.
I understand that there are lawyers working for Parliament. Maybe they can assist.
Senator Wallin: But you also work for us. We are here on behalf of Canadians to assess legislation. That is literally the definition of what the Senate does. It’s one thing to provide insight and information to government departments, but we need that information as well.
The Chair: Thank you, Senator Wallin.
Senator Wallin: We’ll leave it there.
The Chair: And God forbid our Department of Justice being able to provide legal advice to parliamentarians.
Senator Harder: It’s not their job.
The Chair: It’s not their job? It is their job. The Parliament of Canada is the ultimate authority, and it is incumbent on bureaucrats and civil servants. They are not accountable only to government. The executive branch is accountable to Parliament, and ministries fall under the executive branch, but some have been in civil service for far too long.
[Translation]
Senator Miville-Dechêne: I really have a lot of questions. I will try to limit myself specifically to CUSMA, because we are hearing all kinds of contradictory things right now.
Specifically, I refer you to page 6 of the bill, paragraphs 3(4)f) and 3(4)f.1), regarding the use of Canadian resources in Canadian production.
Mr. Smith, in one of your previous answers, you said it is important not to make a distinction between Canadian and foreign broadcasting companies. Yet that is exactly what paragraphs 3(4)f) and 3(4)f.1) do, namely require Canadian companies to hire as many Canadian resources as possible, while foreign companies have more flexibility. So that creates two sets of rules.
These amendments are obviously important to the government since none of them have been passed by the House of Commons.
Would you say that having a single set of rules for everyone would not support the cultural exemption provision, or do you think there could be retaliation?
Let me clarify that foreign online companies are being asked to use Canadian resources solely for Canadian programming. Is this a scare tactic or do you really have concerns about American retaliation on a clause that many Canadians would consider fair?
[English]
Mr. Smith: Thank you very much for the question. Again, we’re not in a position to speculate on what kind of action or reaction U.S. authorities may have in terms of these elements of the legislation. We’re not aware that there will be any kind of resonate concern raised directly on this specific type of element or component to the legislation.
What I’d again refer to, and I think that some of the explanations some of our PCH colleagues have provided as well, is they have sought outcomes with respect to the domestic context that are befitting the kind of balance that is required in our system.
I would have to defer to them to explain more fully how they came to the conclusions and how this fits into the specific draft legislation as it stands right now.
On the overarching question of whether it is inconsistent with our obligations under the Canada-United States-Mexico Agreement, the answer to that is “no.”
[Translation]
Senator Miville-Dechêne: I am satisfied with that reply, although it does not get to the bottom of things.
My next question is for the justice department. Let us imagine that a YouTuber who generates content—and is therefore subject to subclause 4.2(2), the exception to the exception—makes controversial comments, pro-Russian remarks, or comments that are misogynist, racist or hurtful to a cultural, religious or linguistic community. Would the CRTC have the power to sanction that user, in spite of the principle of freedom of expression that would apply? I know we must strike a balance, but would that be possible?
Mr. Qureshi: Thank you for the question, senator. Regarding content that appears on social media, the bill is very clear. It does not allow the CRTC to regulate platform users.
Senator Miville-Dechêne: I am referring to a YouTuber who creates commercial content, who would have enough—
Mr. Qureshi: The CRTC would have regulated...
Senator Miville-Dechêne: —who would generate enough revenue to be subject to the CRTC. That is why I mentioned YouTube.
Mr. Qureshi: As to that specific provision pertaining to social media, the provision would apply if the CRTC decided to regulate or prescribe a category of user content on which the CRTC could impose regulations.
The entity that would be regulated would be the social media platform. Even if the CRTC regulated that platform, the bill does not allow the CRTC to impose conditions regarding content or Canadian content quotas.
Senator Miville-Dechêne: Even if the content is unacceptable? I am asking because, as you know, the CRTC just made a decision regarding Radio-Canada, specifically about content—the N-word—that is considered unacceptable. So could the same thing happen to YouTubers?
Mr. Qureshi: I know the CRTC made that decision, which is now before the courts. I will not comment on that. With regard to social media specifically, and content appearing on a platform such as YouTube, for instance, the CRTC would not have the necessary authority to regulate content on the platform. So no, it would not have that authority.
Senator Miville-Dechêne: Regardless of the type of offensive content?
Mr. Qureshi: Precisely, the way—and I think Canadian Heritage officials explained the policy objective... Generally speaking, user content on social media platforms is not regulated, unless the user is affiliated with the platform. There are however exceptions in which the CRTC can stipulate content that will be regulated—
Senator Miville-Dechêne: Exactly.
Mr. Qureshi: —and once again, I think the Canadian Heritage officials explained the policy objective. Even in those cases, the entity regulated would be the social media platform, YouTube in your example, and the CRTC does not have the authority to regulate content or to impose standards on the content appearing on the platform.
Senator Miville-Dechêne: So, if I understand correctly, the CRTC could regulate YouTube for offensive remarks that appeared... No.
Mr. Qureshi: No.
Senator Miville-Dechêne: Perfect, I understand.
[English]
Senator Sorensen: My questions are for Mr. Qureshi. First, can you tell me about the process for appealing CRTC decisions? My second question, which I think we’ve already heard your response to, is on any legal challenges around Bill C-11 that you would anticipate. But I think I am repeating Senator Wallin’s question, so if you have anything to add, feel free to add.
Mr. Qureshi: Thank you for the question, senator. The process to appeal a CRTC decision depends on the nature of the CRTC decision. The usual mechanism to appeal or review a CRTC decision is through an appeal to the Federal Court of Appeal. It’s a statutory appeal that’s provided in the Broadcasting Act, and it’s on leave. So someone who wants to appeal a CRTC decision has to ask permission from the Federal Court of Appeal. Once leave is granted, they can appeal the decision to the Federal Court of Appeal. There is obviously an appeal through the Supreme Court, again, with permission, with leave. That’s basically the process.
Concerning the second question, I could make the same comment, but maybe I could add that the Charter statement that the Minister of Justice has introduced in Parliament does provide some insight. It is not a legal opinion as to whether the bill is consistent or not with the Charter, but it outlines certain considerations and some of the Charter rights that may be implicated.
Senator Wallin: Supplementary on that. You referenced the Court of Appeal before. That’s one thing if you’re CTV or CBC or Global. How does an individual content generator access that? Is there any subsidy that allows them to pursue an appeal?
Mr. Qureshi: Thank you, senator. Just to clarify, you’re asking specifically about funding mechanisms for them to be able to actually carry an appeal?
Senator Wallin: Yes. When one of the big broadcasters or platforms wants to appeal a CRTC decision, they have a cast of lawyers on staff. If you are a TikTok producer and you don’t agree with the decision, going to the Court of Appeal is quite another matter.
Mr. Qureshi: That’s correct. I appreciate that, but I would say that’s the case for every regulatory regime where an individual or a corporation wants to get their rights enforced. Unfortunately, courts are usually the mechanism to enforce those.
Senator Oh: My question is regarding Minister Mary Ng and the U.S. Trade Representative Katherine Tai. My question has been stolen by the chair, so I have no further questions.
The Chair: Sorry, senator. I didn’t intentionally steal it.
[Translation]
Senator Clement: My question is for the officials from Justice Canada. Thank you for being here today. What is the extent of the CRTC’s obligations to consult anglophone and francophone minority communities? I am referring specifically to clause 5.2. By way of background, the CRTC chairperson and general counsel appeared before this committee in June and expressed reservations about clause 5.2, which provides that the CRTC must consult official language minority communities “when making decisions that could adversely affect them”.
They stated that clause 5.2 would violate 50 years of well-established precedents and legal principles, namely, the principles of procedural fairness and confidentiality of deliberations. What is the justice department’s analysis of this situation? What obligations does the CRTC have and what are your thoughts on this?
Mr. Qureshi: Thank you for your question. I have heard the explanations provided by CRTC officials. Once again, I cannot provide a legal opinion or interpret the provisions.
Senator Clement: I understand, you explained that very clearly.
Mr. Qureshi: With regard to this specific provision, I understand there is a backstory. This provision was tabled in the House of Commons when Bill C-10 was debated, and it is once again in Bill C-11.
I have to say that it is a rather unusual provision. As the CRTC officials noted, on the whole, many public policy objectives are included in section 3 of the Broadcasting Act, which the CRTC is responsible for implementing, typically regarding the interests of certain communities or minorities. The CRTC does however hold consultations to ensure that the regulatory framework considers the characteristics of the affected communities.
The same applies to minority communities. Yet this clause appears to impose an additional obligation or a specific obligation to consult. I cannot comment on the scope of this provision, however, since that would constitute a legal opinion.
Senator Clement: In your analysis, therefore, you do not have the same reservations. You agree that it is unusual, but you do not have any reservations?
Mr. Qureshi: It is difficult for me to express reservations from a legal standpoint, because I cannot give a legal opinion on the interpretation of the provision or its legal implications. What I can say is that, from an operational point of view, the CRTC has certain concerns about these provisions, which is completely understandable.
Senator Clement: Can you give us an indication of the potential challenges relating to this clause, particularly in light of the 50 years of precedents?
Mr. Qureshi: Once again, I know that the CRTC officials referred to 50 years of precedents. I cannot put words in their mouth. I would simply refer to the CRTC’s process when holding public or private hearings. When the CRTC creates a regulatory framework, it holds hearings to ensure that the regulatory framework is appropriate, not only for achieving the policy objectives set out in section 3 of the Broadcasting Act, but also in relation to the impacts on other stakeholders. So there are public hearings and, in the context of these hearings, the CRTC consults and hears representations from various communities and rights holders, including official language minority communities.
Senator Miville-Dechêne: As you know, there will be no hearings regarding orders. There will only be hearings on licenses, as the bill is worded. So in many cases there will be no advance consultation, publicly or in advance, of minority communities, which are nonetheless relatively fragile.
Mr. Qureshi: That is possible. I am not very familiar with the CRTC’s regulatory process. Once again, the CRTC would be better able to explain this process. On the whole, in some cases when there are public hearings, such concerns will be considered. CRTC lawyers or officials indicated that these provisions would add an extra step. Usually, the CRTC would make its policy decision in relation to the regulatory framework after the hearings, if there are hearings, and then that decision is implemented. They indicated that this provision would create an additional step in the regulatory framework after they establish their regulatory framework, requiring them to consult certain communities again.
Senator Clement: Thank you, Mr. Qureshi.
[English]
Senator Pate: My question is also for the representatives from the Department of Justice. Thank you very much for being here, all of you.
The Charter Statement for Bill C-11 which you’ve referenced largely emphasized the equality rights and the promotion of cultural viewpoints for most marginalized people, in particular Indigenous people are named. I’m curious whether you see, particularly in light of this bill and some of the amendments have been made in the house that focus on language issues, but in light of the UN Declaration on the Rights of Indigenous People and their recommendations and the commitment of the government to reconciliation and the implementation of the Calls to Action of the Truth and Reconciliation Commission, I’m curious whether you see a duty to consult or any other legal issues that are invoked as a result of clause 3.3, considering that we are talking about including Indigenous peoples in this issue. If so, are there any measures of which you are aware that have been undertaken to ensure that duty to consult has been exercised?
Mr. Qureshi: Thank you, senator, for the question. I’m afraid I will have to start with an answer that is not very popular by again saying I won’t be able to provide legal advice.
I will also turn to Mr. MacCallum if he wants to jump in.
With respect to particular provisions in the bill, ensuring that content is relevant to certain minority communities, again as the Charter Statement referenced, it is certainly very much in line with the values of certain Charter rights, including the right to freedom of expression, which includes the right to get access to information, in particular, information that’s relevant that speaks to the particular community.
Raymond MacCallum, General Counsel, Human Rights Law Section, Department of Justice Canada: I would only add that it might be most appropriate to direct the question about what consultation, if any, has taken place with respect to these provisions to the lead department, Canadian Heritage. We’re not aware of that information and, of course, can’t advise on what duty may or may not have arisen in relation to the United Nations declaration in respect of this law reform.
Senator Pate: As a general view, though, in terms of preparing Charter Statements for legislation, presumably these are areas that you would look at. What is the process the Department of Justice would use to ensure that appropriate consultation has occurred?
Mr. MacCallum: The responsibility vis-à-vis the Charter Statement is to identify potential effects of government legislation on the rights and freedoms enumerated in the Charter. As such, specific rights that don’t overlap the Charter rights that are outlined in the United Nations declaration don’t fall within that duty to elucidate them in the Charter Statement. The declaration represents a separate legal obligation, and the Charter Statement’s duty of the minister to identify rights and freedoms that may potentially be affected by a government bill doesn’t extend to any obligations that exist under the United Nations declaration with respect to Indigenous peoples.
Senator Pate: So you don’t see section 15 as capturing some of this?
Mr. MacCallum: Section 15 captures the right to equality. Potential effects of a government bill, both positive and negative, would be identified in a Charter Statement related to that bill. The extent to which this Charter Statement identifies equality rights vis-à-vis Indigenous peoples is in terms of pointing out the potentially positive effect of requiring additional consideration to be given to those interests in the implementation of the broadcasting policy. It’s not identifying potentially negative impacts on Indigenous peoples by anything that is proposed in the bill.
Senator Quinn: Coming back to some of my colleagues’ earlier questions around legal risk assessments, my question is for Mr. Qureshi and Mr. Smith. I’m trying to come at it in a different way because I understand that you have to be careful in terms of what you can and cannot share.
The act we’re amending is decades old and a lot has changed over those decades. The original act talks about the impacts — economic, political, social and cultural. In those 39 years, we have had a number of trade arrangements with various countries. I would imagine that a legal risk assessment would have looked at that particular area.
Without asking for your legal risk assessment, is it something we should expect to be a higher, lower or medium risk in terms of challenges that may come forward?
Mr. Qureshi: Just a point of clarification. When you’re talking about challenges, you mean at the international level or domestically or both?
Senator Quinn: I would say both. I was interested in international, but I’ll walk through the door that you’ve opened for me.
Mr. Smith: Thank you for the question. I think it’s a very good one. As I said in my opening remarks, the necessity to ensure coherence between the international and domestic realms is becoming more and more important. We’re obviously engaged in political, economic and social interactions with people and entities outside of our borders. Especially in a trade context, ensuring there are rules that provide greater certainty and predictability for those engaged in these spheres, including areas that are being discussed under Bill C-11, is becoming more and more important.
As I said at the beginning, the fact that this committee has connected those dots and the fact that we need to contemplate these questions underscores that what we’re dealing with now is not so much a question of more or less risk but just that it’s more complex. We are dealing with a much more complex environment in which to look at these kinds of issues because a lot more consideration must be given to a multitude of different matters on the international scene, part and parcel with having engaged in legally binding obligations with some of our key foreign trading partners.
Not to speak for my colleagues on the domestic side, but even on that front we have to consider more and we’re doing more — whether it be on gender-based analysis or on the environmental impact of our work. A lot more considerations have to be taken into account. That’s where I’d say the complexity resides and why we have to work seamlessly in a federal government system, among different departments, to ensure those considerations boil to the surface and are adequately addressed. On the trade side, we feel they have been, but there is a lot.
As parliamentarians, you are now having to look at these issues through different prisms that perhaps weren’t there even 10 or 15 years ago. My hope is that our work in this regard will lead to better domestic regime outcomes for Canada that we can reflect at the international stage as well.
Senator Quinn: As with all things legislative, one could expect with this particular bill that we will experience some bumps in the road as we go forward?
Mr. Smith: Bumps in the road in the sense that we will have to ensure that we ask the right questions, both from an internal and external process, to ensure we will have a final product that tries to achieve all the objectives we have at the outset of this legislative initiative.
As I mentioned, we’re not yet at the finish line, of course. We’ll be moving toward a stage with our colleagues, including PCH, to ensure the regulatory framework aspect, as it’s drafted and put into action, keeps these considerations in mind. We also need to ensure it’s one that allows for input to be captured from our trading partners and taken into account so that we can have a regime that gives us the ability to address those domestic policy imperatives, including on culture, but that at the same time allows Canada to maintain its very good reputation in terms of ensuring that we’re open to trade, investment and the economic prosperity that it brings.
Senator Dasko: My question is for Mr. Qureshi. In your opening comments, you commented about the objectives of Bill C-11. You described them as being compatible with Charter rights, language and values. Those objectives include diversity issues, diversity themes, Indigenous and official languages and others, and also the level playing field, which you said is compatible with Charter values and language.
The bill itself — and the government, in its messaging — uses diversity themes and talks about level playing field, but the legislation itself doesn’t actually create a level playing field. There are tiers within it. In many areas, Canadian broadcasters will continue to have different requirements than foreign streamers.
Does this create a problem for the bill in terms of the fact that there is not a level playing field at the end of the process and that there continue to be different rules and so on separating the two tiers?
Can legal challenges be made among those who feel they might not be benefiting from a level playing field and that others may be benefiting more? Some have greater requirements and others have fewer. Is that possible, or does this all just come out in the administration of the bill, in “small p” political considerations? How does that play out, potentially?
Mr. Qureshi: Thank you, senator, for the question. You’re right; it would play out depending how the way the regulatory framework is ultimately implemented by the CRTC. The bill outlines certain policy objectives that the government has determined are important and these are included in section 3 as part of the broadcasting regulatory policy for Canada. The CRTC is tasked to implement those policy objectives. The bill provides certain regulatory tools to the CRTC to implement those policy objectives.
The bill does also recognize that there are different players. It has been 30 years since the Broadcasting Act was last amended. There are new players who came in. I think there is a recognition that different players have different abilities to contribute to the broadcasting system and to the advancement of those policy objectives.
That is what the bill does. Then it is left up to the CRTC to put in place this regulatory framework using the various tools that the bill provides. And that’s really where the rubber will hit the road.
Senator Dasko: I see. So some of the players, stakeholders, would not be able to make legal challenges against the objectives if they were treated differently? They would have to make their case in settings that the CRTC has?
Mr. Qureshi: Yes. This being said, like any piece of legislation, the bill is subject to Charter requirements and the Constitution, so it is always open for somebody to challenge the legislation or a particular provision. And as I said, it’s up to the courts to decide whether a particular provision is constitutional or not.
The Chair: It being past 4:00, all good things must come to an end. I thank the Department of Justice and the Department of Global Affairs for coming before our committee. As you have seen from the questions and the answers, there are a lot of concerns and issues, but I thank both departments for being here. The exchange was very fruitful.
We will now move in camera to take care of some house duties.
(The committee continued in camera.)