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THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS

EVIDENCE

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OTTAWA, Wednesday, November 16, 2022

The Standing Senate Committee on Transport and Communications met with videoconference this day at 6:46 p.m. [ET] to study Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts; and, in camera, to consider a draft agenda (future business).

Senator Leo Housakos (Chair) in the chair.

[Translation]

The Chair: Good evening, and welcome to the Standing Senate Committee on Transport and Communications.

I am Leo Housakos, a senator from Quebec and chair of this committee. I would like to invite my colleagues to introduce themselves.

[English]

Senator Simons: I’m Senator Paula Simons. I’m from Alberta, Treaty 6 territory.

[Translation]

Senator Gagné: Raymonde Gagné, from Manitoba.

Senator Cormier: Senator René Cormier, from New Brunswick.

Senator Miville-Dechêne: Julie Miville-Dechêne, from Quebec.

[English]

Senator Tannas: Scott Tannas, Alberta.

Senator Dawson: Dennis Dawson, Quebec.

Senator Manning: Fabian Manning, Newfoundland and Labrador.

Senator Sorensen: Karen Sorensen, Alberta.

Senator Quinn: Jim Quinn, New Brunswick.

Senator Dasko: Donna Dasko, senator from Ontario.

Senator Wallin: Pamela Wallin from the province of Saskatchewan.

The Chair: Thank you, colleagues.

We’re meeting to continue our study of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. Joining us by popular demand for a second go-round is the CRTC, which has come up many times in our deliberations, both by witnesses and during questions. We have with us Ian Scott, the Chairperson and Chief Executive Officer; Scott Shortliffe, Executive Director, Broadcasting; and Ms. Rachelle Frenette, General Counsel and Deputy Executive Director. Welcome to our committee.

You usually have five minutes for opening remarks, but given the fact that you, deservedly, have the floor, the chair will be generous with your opening statement. After that, we’ll open it up for Q and A.

Ian Scott, Chairperson and Chief Executive Officer, Canadian Radio-television and Telecommunications Commission: Thank you for the invitation and the privilege to appear before you, as you said, for the second time.

[Translation]

When we last appeared before you in June 2022, we spoke about the importance of Bill C-11. Our opinion has not changed since. Bill C-11 and the changes it proposes are needed to modernize Canada’s broadcasting legislation and to give us the tools we need for the broadcasting system to adapt to the digital environment.

I would like to commend the committee on the depth and breadth of witnesses that have appeared to discuss this important topic. You have heard a number of different views. I would like to focus my remarks on some of the concerns that have been raised, mainly user generated content, algorithms, and official language minority communities.

I’ll begin with user-generated content. Our view on this issue has not changed since our last appearance before the committee: Bill C-11 makes a distinction between social media users, on the one hand, and the platforms themselves on the other.

Its intent is to exclude individual users from regulation.

[English]

These powers granted to the CRTC under the bill are focused and, in our view, necessary. For example, they would allow us to require that social media platforms support the development of Canadian programs and make content discoverable and accessible to persons with disabilities. The CRTC is not being given the power to regulate individual users in relation to the content they create.

I wish to assure you — and Canadians more broadly — that the CRTC has no intention of regulating individual TikTokers, YouTubers or other digital content creators.

I understand the committee has also heard a great deal about discoverability, algorithms and how Bill C-11 would provide the CRTC with the power to impose conditions to enhance the discoverability of Canadian content. Unfortunately, my previous remarks have been taken out of context by some witnesses who have appeared before you, so I wish to be very clear. The CRTC’s objective is to ensure that Canadians are made aware of Canadian content and that they can find it. It is not about manipulating algorithms; it is about encouraging innovation.

Among the new objectives proposed by Bill C-11, online broadcasters should ensure the promotion and discoverability of Canadian content in both official languages, as well as Indigenous content. The CRTC will have tools at its disposal to achieve this objective.

For example, online broadcasters could commit to promoting Canadian content through online or off-line marketing and advertising, curated music lists or promotional reels. The CRTC could request that online broadcasters report on the measures that they might have taken to promote Canadian and Indigenous content.

What the bill will not do is allow the CRTC to mandate the use of specific algorithms or source code to achieve the objective of promotion and discoverability. And we have no issue with that limitation.

In addition, let me assure you that prior to putting in place any regulatory obligation that affects online broadcasters, domestic or foreign, we will hold public consultations. Online broadcasters, consumers and other interested parties can and will have their say. The views of everyone who participates in our public proceedings will be considered by this commission when putting in place measures to promote and make discoverable Canadian and Indigenous content.

I would also note that discoverability is not a new issue for the CRTC. As far back as 2016, prior to my assuming this role, we co-hosted a summit on the issue where experts from both conventional and digital media — including, by the way, YouTube — as well as government gathered to exchange ideas about how content is created and discovered online, not leading to some regulatory caveat but rather an exchange of views and best practices.

[Translation]

The final issue I’d like to discuss is the provision in Bill C-11 to afford unique consultation rights to official language minority communities, OLMCs, when the CRTC makes decisions that could affect these groups.

Let me be clear, the CRTC is subject to the Official Languages Act and takes its obligations seriously. We meet regularly with these communities in our dedicated working groups to discuss the issues they are facing and make them aware of upcoming proceedings. We also have internal checks and balances to ensure that their views are fully considered in our decision-making. These are not new measures; they have been in place for years.

In fact, the Commissioner of Official Languages has found in a report that through several of these measures, the CRTC fulfils its duty to take positive measures to enhance the vitality and development of official language minority communities.

Moreover, our position has never been that we do not wish to consult with OLMCs. Quite the contrary, consultation is in the CRTC’s DNA; it’s what we do. We ensure that everyone, including OLMCs, has every opportunity to participate in our proceedings and contribute their views to the public record.

We consult, we listen and we deliberate, with the ultimate objective of making decisions that are evidence-based and reflective of the views and opinions of those who participated in our proceedings.

[English]

Bill C-11, however, sets out farther reaching and rigid consultation requirements in the proposed subsection 5.2(2), which in our view are legally problematic and would have unintended consequences. I expect you may have a question or two on that, and we would be pleased to address the specifics during our testimony today.

One other aspect of Bill C-11 that would have similar unintended consequences is the proposed section 34.01. That section requires the CRTC to conduct a review of all orders and regulations made every seven years. It’s important to understand that the CRTC issues literally hundreds of decisions annually, amounting to well over a thousand decisions in a seven-year period. Such a requirement would divert our resources away from the important task of conducting efficient proceedings and issuing current, timely decisions. In our view, it’s unnecessary, seeing as the CRTC already conducts reviews of its regulatory frameworks on a consistent basis, either as a result of our own initiative or because of a request made by one of our stakeholders.

Finally, the CRTC is required to hold hearings and issue reports on request by the Governor-in-Council. In our view, the existing Broadcasting Act provides for sufficient oversight and review. We would therefore ask that you consider this amendment be removed.

Thank you once again. Thank you for the additional time, Mr. Chair, and for inviting us to appear before you again. We hope that this legislation will be finalized in the coming months since it is desperately needed. We would be pleased to attempt to answer your questions. Thank you.

The Chair: Thank you, sir.

Senator Wallin: Thank you all for being here. Seeing as it’s your second round, it will also be our second round and we will go over some of the material.

You and I had an exchange the last time you were here. I won’t read it all, but basically, in response to some other questions, it provoked questions about whether or not you would be able to control or manage user-generated content. I said to you:

You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly or explicitly . . . .

And your answer was, “You’re right.”

Can we clarify?

Mr. Scott: As you reread that and you say “make the platforms do it,” perhaps I should have listened more carefully to the precise wording of your question. I apologize for that.

As I was addressing in my opening remarks, or we are addressing in our opening remarks, discoverability is an objective. We’re trying to help Canadians identify and find Canadian content.

As I said, there are a number of ways of doing it. Today they use promotional reels; they can advertise. YouTube opened studios in Toronto to support digital creators; they are producing new digital productions in Canada and have Canadian products. There are lots of ways to do it.

What I mentioned at the time — and I ought to have been more precise with my wording — is that a number of platforms already use their algorithm in that manner. YouTube identifies Canadian content. Netflix identifies Canadian content. For example, if you say, “I’m interested in drama,” they will show drama. They will also identify some of those dramas as Canadian.

My point is simply that they can use their algorithm to help achieve that objective. The commission won’t make them.

Senator Wallin: You also say you want to set up a framework to encourage those providers to deliver the outcomes that you want, and that has two troubling sides to it, which is right now the relationship is between me as the consumer and the platform. My behaviour then sends signals to the platform about what I want to watch, what I want to listen to and what I want to see. My relationship is with them. If you want to direct that, directly or indirectly, and have the platforms respond to a set of objectives you have, it’s troubling because I’m not sure my relationship should be with the CRTC.

Furthermore, you are going to be directed by cabinet, and I certainly don’t want my relationship to be with my government telling me what it is that I should be listening to, watching and responding to.

Mr. Scott: I’m listening and trying to pay very careful attention to the terms you’ve used. I want to be clear: The CRTC has not and will not be trying to direct what consumers watch. What we do is attempt to currently further the objectives of the Broadcasting Act, which includes the production, distribution and discoverability of programming. Today, we do not tell a Rogers or a Corus what to put on air or what consumers should watch, and we will not do that for platforms in the future. What we do is provide a policy framework; for example, programs of national interest today. There are requirements for expenditures in those areas. The question in the future is: What are appropriate and equitable measures that could be applied to providers that are operating on the digital platforms? That’s what we’re doing, not directing consumers to watch or controlling what they watch in any way.

Senator Wallin: If that’s what’s put in front of me, and if the signals that I’m sending are being overridden by another set of rules — I mean, you’ve said here today:

Among the new objectives proposed by Bill C-11, online broadcasters should ensure the promotion and discoverability of Canadian content in both official languages, as well as Indigenous content. The CRTC will have tools at its disposal to achieve this objective.

Mr. Scott: Yes. You just reiterated some of the —

Senator Wallin: That sounds to me —

Mr. Scott: No. Again, there are lots of things. Today, we do encourage, for example, the production and creation of Indigenous content. I’ll use a more current example.

Earlier in my term, we held the Women in Production Summit. We were not ordering players to have women in key positions, but rather, having them report to us about what their practices are and asking them to voluntarily commit to annual reports on their progress. That is a way the commission can encourage an activity. We can encourage them to advertise. We can encourage them to use lots of tools.

My point is, there are a bunch of things in the tool kit, and they will be used to promote the objectives that you ultimately decide are part of this legislation.

Senator Wallin: I would just have to say that, as a consumer and sometimes a participant in this business, it’s very different how I relate to a television screen in which you have mandated that there be X percentage of Canadian content or any other kind of thing and how I react and interact with the platform. It’s a very different relationship.

The Chair: Senator Wallin, your time allotted for this round is over.

Mr. Scott: Mr. Chair, could I quickly respond to that last point?

The Chair: You’ll have to do so on second round. I want to be fair with all senators.

Mr. Scott: I’ll happily try to respond to that, senator.

Senator Miville-Dechêne: Thank you for being here, Mr. Scott. I will ask my first question in English because I want to quote you.

I asked you a question last time about how you are going to accomplish discoverability, and you answered quite clearly, “I don’t want to manipulate your algorithm. I want you” — and you were talking about the industry — “to manipulate it to produce a particular outcome.”

So this is quite clear, it seems to me, saying that, at this time, you were of the opinion that if this is what was needed, you wanted the industry to manipulate the algorithm to attain those particular results. I’m wondering why you’re saying you were misquoted.

Mr. Scott: That is an accurate reflection of what I said. What I’m trying to explain is that’s a very narrow example. There are numerous ways to promote discoverability.

Senator Miville-Dechêne: Yes.

Mr. Scott: And the use of the algorithms is one. If we go back, the CRTC produced a report earlier in my mandate called Harnessing Change: The Future of Programming Distribution in Canada, and we focused on the fact that we need to use a variety of approaches that are equitable, dynamic and flexible in order to achieve the objectives of the act.

The use of algorithms by players is a tool they use. We’re focused on outcomes. Here the objective is the outcome of helping Canadians discover content. Algorithms are one way to do that. As I’ve mentioned, there are several other ways of doing it. Yes, we would encourage them broadly, using every tool at their disposal.

Senator Miville-Dechêne: Including algorithms?

Mr. Scott: If that works for them, but we will not say, “You will use your algorithm to do X.” The desired outcome is to show us how you will encourage discoverability. Show us how you will help Canadians find content. The algorithm is one tool that they would have at their disposal.

If my words were unclear for that, I’m trying to be as clear and transparent as possible in explaining my perspective.

Senator Miville-Dechêne: Let’s take a hypothetical situation. A platform has to generate results. You’ve asked for results. Let’s say you want results in terms of francophone music on a platform, and the platform is not able to generate the results you are asking for with what we call static recommendations, where everything is static.

At this point, will you say to the platform, “You have not attained your results, so now take other means” — which means algorithms — “to attain the particular results the CRTC is asking for”?

Mr. Scott: Thank you for the example. I’m always wary of responding to hypotheticals, but I would agree with everything you said up to the point of, “Therefore, you will use an algorithm.” I would change that and say, “You’ve reported that you are not fulfilling a particular objective that we have established.”

The same is true today with linear and traditional providers where we receive reports, and we know whether they are meeting their conditions of licence or obligations. If they’re failing to do so, we seek resolution. We ask, “How will you achieve it, then?” You asked, “Will you make them use their algorithm?” I wouldn’t suggest that would be an outcome, certainly not an approach I would take. It would be, “Now tell me, how are you going to meet that policy objective? How are you going to meet that obligation?” Not, “You will do this or that.”

Similarly, we don’t tell them today to spend Canadian Content Development contributions on a particular kind of music. Rather, we direct money to a French music fund and an English music fund, and we apportion it to help achieve the results. To use a hypothetical, if one side was not being successful, the commission might consider a change in the ratio.

I’ll add — and perhaps this is a way of answering Senator Wallin’s question — all of these things, if I may take the opportunity to remind you, are not done in isolation. They’re done through a public hearing process where parties will come and give evidence, make submissions and develop a public record upon which we make decisions. We don’t make these decisions in a back room. We make them based on a record in public proceedings.

Senator Miville-Dechêne: Generating results — does that mean quotas? Because you will have to have targets. We know that in France, for example, you have 30% quotas on Netflix. What about Spotify? We all know there’s very little listening to francophone music.

Mr. Scott: Clearly, it would be inappropriate for me to say what the commission might rule in the future. I would say — and I can again refer you to the Harnessing Change report — the commission will be looking for equitable rules.

Netflix or YouTube are different creatures from Bell and Quebecor. They’re a different line of business. They operate differently, to Senator Wallin’s point. Simply taking the old regime and applying it to the new makes no sense whatsoever. That’s why the commission will work on developing a new framework that is equitable — not necessarily the same tools at all.

Senator Manning: Thank you to our witnesses.

One of the concerns we have heard here is the CRTC’s own lack of transparency and accountability. We had Monica Auer from Canada’s Forum for Research and Policy in Communications, who said:

When we say that the CRTC is transparent, it is simply not. It is holding public hearings without witnesses . . . .

Every year, it’s publishing dozens of decisions that you can’t see . . . .

Do you acknowledge that those are serious concerns, especially for smaller players in the broadcasting system, and will also be for digital creators, in particular going forward? Second, what plans does the CRTC have to address those shortcomings that those people have put forward? Do you have any plans to address them?

Mr. Scott: I am going to confess, I’m perplexed and confused by the statement. I’ll ask my legal colleague to speak to this in a moment.

We hold all of our proceedings publicly. The only things that are held confidential, whether it’s in a telecommunications or broadcasting proceeding, principally relate to business-confidential matters. Parties are entitled under the statute to seek confidential treatment of certain information where its disclosure would be harmful. Otherwise, everything we decide upon is a matter of public record.

So I’m not sure what they’re addressing. If they mean our meetings, our deliberations are private, as is any quasi-judicial or judicial body, but the decisions or results of those deliberations are entirely transparent and public. Frankly, I am at a loss to understand where the lack of transparency might be.

The Chair: We’ve had a number of independent content producers that don’t have the legal or financial capacity of Bell Media, Rogers or Quebecor — and I can go on — and they don’t feel they have accessibility as individuals. I think that’s what Senator Manning is referring to, and that can’t be diminished, because we’ve heard it over and over again throughout this deliberation.

Mr. Scott: Mr. Chair, I appreciate that. It’s a separate issue. Transparency and the ability or financial ability to participate are not the same issue. We do take measures. There is a Broadcasting Participation Fund that was established that is there to help not-for-profit or public-interested-oriented groups to participate in broadcasting proceedings. This bill will allow for more support similar to that which is contained in the Telecommunications Act.

We are also engaging in extensive outreach to maximize the ability of Canadians, whether they’re individual Canadians or other stakeholders, to participate.

So we certainly strive to do that. Obviously, the respective resources are not the same, but their weight on the record is, because when we deliberate, we consider all of the evidence on the public record.

Senator Manning: I want to get back to the user-generated content. You and the minister, as well as some of my colleagues, have stated that while Bill C-11 does give the CRTC power over user-generated content and claims that even the current Broadcasting Act does so, this would never happen and that we should all trust the CRTC or trust the powers that be. You testified in front of the House committee: “As constructed, there is a provision that would allow us to do it as required . . . “But you have said that the CRTC has no intent or interest in doing so.

Can you guarantee that the next person who sits in the position you’re in today will follow through on what you’re saying today? Is there any provision in this bill that you’re aware of that protects us going forward in relation to that decision? What’s to stop a future chair from doing so?

Mr. Scott: Thank you for the question, senator. I want to be clear: The chair doesn’t make decisions for the commission; nine members make decisions based on the advice of our 500 expert staff and legal counsel. So the chair doesn’t make those determinations alone. I haven’t, nor will my successor.

We said — and you characterized it precisely and accurately — that we are not interested, as the regulator, in individual uploaded content, because that’s not what the focus is. The focus is on regulating broadcasting undertakings. The focus will be on the platforms.

Then there are specific provisions in the act that my legal colleague can speak to that create some exceptional areas. I’ll give you one example of why that’s in there. A platform such as Facebook can be just an intermediary of news and connecting individuals, and that’s fine. But sometimes Facebook is a broadcaster. They have had on their platform live coverage of Blue Jays baseball games in the past. When they engage in broadcasting, they will be of interest to the CRTC.

The distinction that we’ve been trying to draw attention to, and that I’ve been trying to emphasize, is that’s not the same as individual content being put up on TikTok, YouTube or anywhere else on platforms. It’s the platform we’ll be looking at, not the individual.

We can speak to the specific provisions in the act if that’s helpful, but I think you have it accurately.

Senator Simons: I want to plow a new furrow. We’ve had witnesses come before us to express concerns about the proposed subsection 7(7), which points to a number of other sections of the act and would, in essence, give to the Governor-in-Council extraordinary new powers that have traditionally rested with the CRTC.

They’ve also pointed to proposed section 34.995, which allows the Governor-in-Council to make regulations about administrative monetary penalties, the AMPs. It has been suggested to us that it would be more in keeping with the traditional role of the CRTC as an independent regulator for us to strike section 7(7) and to amend section 34.995.

I wanted to know what the CRTC thought about whether 7(7) diminishes your traditional powers and whether it creates a bifurcated structure or appeal.

Mr. Scott: Thank you, senator. Will you be surprised or shocked if I, as a regulator, say I would rather have greater independence than less independence? And the answer would be, no, we would prefer that the policy direction power, as it exists today in the Broadcasting Act, be the statutory language.

But ultimately, that’s not for us, as the regulator, to determine. The government proposes legislation; you decide with your parliamentary colleagues.

But yes, it is a change, and it is a change that moves, if you will, the fulcrum or balance point slightly closer to — how can I put it? — lessening the independence of the commission. But it’s always a question of balance. Governments are accountable, and ministers are accountable to Parliament. This commission is arm’s length. I guess you can put it as, “How long are the arms?” I prefer as the regulator to have them as long as possible.

Senator Simons: Here is the question. When we have spoken to the government about this, we’ve been told that the reason they need 7(7) is to escape the possibility of a Canada-United States-Mexico Agreement, CUSMA, violation. Perhaps Ms. Frenette can explain, when the government says that it needs 7(7) for CUSMA reasons, can you explain what the difference would be between the powers of the Governor-in-Council versus the CRTC?

Mr. Scott: I’m not sure we can on the spot. We certainly understood that the department, in its process of legislative development, takes the necessary steps to ensure constitutionality, trade, addresses any possible trade issues and so on. That’s not our place or purpose. I can’t answer why they hold that view.

Senator Simons: Let me ask this question: If 7(7) were allowed to stay in the bill, and 34.995, what powers would the CRTC lose that it currently has?

Mr. Scott: It’s not a question of losing. As I said, it moves a balance point. The concern — I’ve read some of the transcripts but not all of the evidence of the witnesses that have appeared before you — is that it could allow more discretion to government to give the commission direction of a narrower type with respect to narrower issues, rather than as originally contemplated, a broad policy direction. An example of a broad direction is, “Thou shall have Canadian ownership or a Canadian CEO.” If it went further and addressed a specific case involving ownership, it gets less comfortable, shall we say.

Senator Simons: It would allow any future government to potentially micromanage —

Mr. Scott: I wouldn’t use those words.

Senator Simons: Pick some of your own.

Mr. Scott: I have. I would say there is a spectrum —

Senator Simons: As it were, yes.

Mr. Scott: — and it moves the balance point on the spectrum to allow government more say or a more detailed say, rather than a lesser one, and I’ll leave it at that unless my colleagues want to add anything.

Senator Simons: If there’s more information that you can provide the committee, that would be terrific.

Mr. Scott: I would be pleased to do so.

Senator Simons: And about the AMPs under 34.995, that would be good too.

The Chair: The truth of the matter is the minister of heritage — and in your case, you testified as well now before both houses of Parliament. On both occasions, it’s been crystal clear that this bill, the previous Broadcasting Act, gives power over user-generated content. There’s no denying it. You have that capacity, if you want to exercise that capacity. Anyone who denies that, they’re threading a needle that’s just not honest.

Following the aftermath statement in the house — I’m following up on the question from my colleague, Senator Manning — MP Bittle — and we all know who MP Bittle is — asked whether the CRTC had ever regulated actual content rather than just distribution, and you replied in the house: “We don’t dictate content, neither what is broadcast nor what is watched . . . .” This is similar to what you’re saying tonight, correct? But the truth of the matter is at that time when you were giving that testimony, you were aware — as it turns out, we’re all aware now — the CRTC was sitting on a ruling regarding content from a Radio-Canada broadcast in which a racial slur was used. The commission sat on this decision for a number of months, as the debate around this bill unfolded. So the question is very simple. When you come and you say you don’t have power over generated content, clearly you exercise power over content vis-à-vis Radio-Canada and that very famous racial slur that I don’t want to use here. There was outrage and criticism by my fellow Quebecers across the province about censorship.

My question to you is very simple: Do you consider the decision that the CRTC took in regard to the decision vis-à-vis Radio-Canada, and that particular racial slur, as controlling content, or do you have another definition? That to me is very much controlling content, and that is at the core of what I’m very concerned about in terms of the authority and the power that was exercised in this tangible case.

Mr. Scott: Thank you, Mr. Chairman. I would, with respect, disagree with your statement. I do not believe that is interfering with content.

We have established in Canada codes of conduct for content, and it’s what I would call a co-regulatory model. For the private broadcasters, it is in the hands of the Canadian Broadcast Standards Council. All broadcasters are members. When offensive or questionable content arises, the matter goes to the CBSC, and they issue rulings. They don’t control — nor do we — what is said, but rather, whether or not the content was appropriate and abided by those codes.

In the case of Radio-Canada and the CBC, they are not members of the CBSC. They have internal ombudspersons, one for Radio-Canada, one for CBC English language services. Ultimately, in both cases, matters can be escalated — to use a term — to the CRTC for final resolution if the complainant is not satisfied. In that case — and I’m going to stop very shortly after this because as you would know the matter is now under appeal at the Federal Court of Appeal, so we’re not going to comment on it further — the decision speaks for itself. The question of whether or not we exceeded our jurisdiction is in front of the court, but the jurisdiction related to the application of standards, not the content itself. We don’t say what can and cannot be broadcast, but if we receive a complaint from an individual — and we’ll use a different example that uses a different racial slur — and it comes to our attention, we will deliberate, as we did, and we rendered a decision. It speaks for itself.

The Chair: It does speak for itself. With all due respect, chair, the CRTC in this case regulated content, and that’s why it’s before the courts. That’s why it’s being litigated. Of course —

Mr. Scott: With respect, that’s your interpretation.

The Chair: It is my interpretation. But, like I said, many people, particularly in my own province, across the board, share that interpretation. That’s why we’re in this quagmire and why it really has called into question the risks that are associated with Bill C-11.

I’ll follow up on another question —

Mr. Scott: With respect, chair, the complainant was also from the province of Quebec.

The Chair: Yes, it was. Again, you took a decision in regard to content, and that is not something I’m imagining. Again, it will be decided by a court of law, and it also reinforces the fact that you have that authority. I’m not saying you did anything wrong. All I’m simply saying is you have the authority, vis-à-vis Bill C-11, as you’ve had under the Broadcast Act. That’s all I said. That’s why the CRTC is the powerful agency that it is. We, as legislators, have given you that authority. I’m not questioning what you did. You exercised that authority of regulating that content. My debate here is about before it gets to that level; I don’t believe that authority should be given frivolously. I’m at the end of my time, so I’ll put myself on second round, and I turn it over to Senator Quinn.

Senator Quinn: Thank you for being here this evening. My first observation is that I really appreciate the earnest and clear description of what you’ve said. We have heard a whole series of witnesses and their concerns that there’s lack of clarity in certain areas of the bill. You’ve talked about one area where clarity is needed or you would propose an amendment. We’ve had witnesses that have proposed whole amendments to bring clarity to the bill.

For example, you have no intentions of regulating user-generated content, but that is not clear in the bill for the people that have appeared before us. Would you agree there are areas that have a lack of clarity that need to be amended so that there is clarity for the population out there that is affected, which is virtually every Canadian?

Mr. Scott: I will choose my words carefully, as I should always. As the regulator, of course, I would agree that there are amendments that should be made. I’ve identified several that the commission would like to see, but I would return to the point that we don’t draft the legislation, and I’m not trying to defend the legislation. That’s the job of the minister and the department. I’m trying to, as best I can, with my colleagues, help you understand how we read the legislation, how we would interpret it and how we would act in the future, without binding, obviously, a future commission. So that’s what I’m trying to do.

Could you remove that? Of course you can, and there are numerous other amendments, and then you would potentially create some other problems. I assume the intent of the government was to deal with the kind of example I gave you. Let’s absolutely make clear that Facebook is excluded. Then what do you do when Facebook starts broadcasting? That’s the dilemma, and it is for you as lawmakers to decide on the ultimate content, not me.

Senator Quinn: Help me. I’m just trying to boil it down.

Mr. Scott: I am trying to help.

Senator Quinn: I appreciate the answer. Would you not agree that any piece of legislation should be clear so that the stakeholder community affected has that clarity, so they have certainty in terms of how to proceed?

Mr. Scott: Yes.

Senator Quinn: Thank you. The other thing I’m trying to figure out is the relationship between policy directives, regulation and the bill and all of those types of things. There’s been a lot of discussion in this committee about the fact that we’ve not seen the policy direction and whatnot. When the bill becomes law, becomes an act, I would assume, if there are amendments, there would be alterations to whatever that policy direction is. Has the department talked to you, consulted with you about policy direction and what that might be?

Mr. Scott: I haven’t seen the draft policy direction. You’re aware that there is a provision in the existing Broadcasting Act that requires that we be consulted about any proposed direction, and subsequently, obviously, it goes before Parliament. There are always, at the level of officials, some consultations on legal provisions and elements, but to be clear, no draft policy direction has been brought to me or my fellow commissioners. So we’ve not seen it as decision makers.

Senator Quinn: Officials may have and probably have been involved in policy direction.

Mr. Scott: As is the normal course of business.

Senator Quinn: To your legal representative, that would be, I assume, in fact, the case.

Mr. Scott: That’s the normal course of business.

Senator Quinn: That’s helpful. The other part is we’ve heard a lot of people talking about the CRTC being a great organization. We have 100% confidence.

Mr. Scott: Thank you.

Senator Quinn: And we’ve heard other witnesses say quite the opposite.

Mr. Scott: They’re wrong, just for the record.

Senator Quinn: We have this group in the middle saying, “We’re not sure; we’re kind of suspect, but we’re not sure.” You’ve talked about checks and balances. Would it be beneficial to have a check and balance such as this: as the regulations are brought forward and go through the gazetting process, before being promulgated, they come back to the committees of parliament, not to approve or disprove, but to ensure they’re consistent with the act and consistent with the policy directives that by that point we should be able to see?

Mr. Scott: Sure. Perhaps my legal counsel can add to that. I think there are a number of elements to it. But just to address the premise, the first part of your question, this is a wonderful organization. It deals with some of the most challenging and public issues every day, every month, every year. So it’s not surprising you get a wide range of comments, but I cannot possibly end my turn without answering that it’s a tremendously hard-working, sincere organization that always strives to deliver balanced decisions in the public interest. It’s not meant to be an advertisement, but it’s a passionate defence of the agency itself.

Rachelle Frenette, General Counsel and Deputy Executive Director, Canadian Radio-television and Telecommunications Commission: I think Senator Quinn was asking specifically about our regulation-making authority. Under the act, the commission is required to publish any draft regulation. Those regulations were made in concert with our colleagues at the Department of Justice, subject to public comment, and then are made and published. Those regulations can also be the subject of certain standing committees on the scrutiny of regulations, so there are a number of checks and balances when the commission is called upon to make regulations.

[Translation]

Senator Cormier: Good evening and welcome, Mr. Scott. With respect, you will have guessed that I don’t agree with your position on section 5.2 of the bill. The main issue here is the concept of substantive equality and the protection of Canada’s francophone and anglophone minorities, a principle that has recognition under constitutional law, which takes precedence over any other statutes.

This committee has heard quite a few witnesses testify on the importance of keeping subsection 5.2(2). With reference to previous issues, many among us concretely explained just how the consultations held under subsection 5.2(2) would have made a difference.

My question does not concern section 5.2. I would very much like to hear you comment on paragraphs 3(1)(f) and 3(1)(f.1), on the distinction established in terms of requirements for Canadian undertakings and foreign online undertakings with respect to the use of Canadian resources and the contribution to Canadian programming. These two provisions establish a distinction with respect to the nature of use and contribution.

Do you believe that this distinction is consistent with the purpose of the bill, which is to establish a form of equity between Canadian undertakings and foreign online undertakings?

Furthermore, in relation to this question and this finding, when you have to determine the conditions of service for broadcast undertakings or review the definition of Canadian programming, am I mistaken, or are these sections sending a signal indicating that the use of the Canadian resources criterion might be lower for online undertakings than for Canadian undertakings, given that the terminology used in each of the two provisions makes a distinction in this matter? What, in your opinion, are the challenges in attempting to have two types of requirements for these two types of undertakings?

Mr. Scott: That’s a very broad question. It’s a matter of striking a balance between the objectives. That’s always a challenge for us and it’s an extremely important aspect of our work.

Senator Cormier: My question is very clear, Mr. Scott. Why do we have to make a distinction in terms of human resources hiring requirements and the contribution to Canadian content? Why should we — and that’s what the bill proposes — make a distinction between Canadian undertakings and foreign online undertakings? Why that distinction?

Scott Shortliffe, Executive Director, Broadcasting, Canadian Radio-television and Telecommunications Commission: As Mr. Scott mentioned, it’s not our bill. I understand your point of view with respect to foreign undertakings. There are different business models. The issue is not about having criteria, but having similar parallel criteria. It might indicate that for certain Canadian undertakings, it would be good to have quotas, for radio, for example. That might work for some undertakings and not for others, because their business models are very different.

If I have understood correctly, the purpose of the bill is to give the CRTC flexibility to determine whether it’s exactly the same or whether it might be possible to have different measures that achieve the same outcomes. That’s my understanding of the specific language used.

Senator Cormier: So, whether we make a distinction between the two or just use the same criteria, you would nevertheless still have to do an assessment based on the type of service.

Just to be clear, I don’t understand the distinction between the two categories. I’m also wondering what impact it would have on the CRTC when it had to do an assessment of this kind of undertaking in terms of its contribution to Canadian content.

[English]

Mr. Scott: Maybe just a quick addition to say, again, for me, at least, it is a question of identifying, as Scott said, equitable rules. These are different lines of business. They have different business models, and it may not be appropriate to use the same tools. This is going to come up in a number of areas. So, for me at least, and like Scott, my understanding is the intent is to give us the broad policy intention but give us the flexibility to apply it in different ways to different players.

But at the end of the day, for example, I don’t know that there will be a distinction between how we treat a Canadian digital platform and a foreign digital platform. We may well treat a linear platform differently than digital platforms, but in all cases: one, it will be as a result of public processes and, two, it will be equitable.

[Translation]

Senator Cormier: Mr. Scott, I’d like to hear what you have to say about public hearings. Unfortunately, Bill C-11 does not extend the public hearing process to orders made under sections 9.1 and 11.1…

The Chair: I’m sorry, Senator Cormier, but your speaking time is over. These have been in-depth questions and answers. However, I’ll put you down for the second round.

[English]

Senator Klyne: Thank you, Mr. Chair, and I too will ask for second round at this point.

Mr. Scott, you made reference previously of $900 being added to the market as a result of this bill. On that I have two questions. If that’s incrementally new money to come from the online streamers, will that be on the backs of their audiences or subscribers? My concern is that the shareholders of online streamers won’t be giving up that money. The second question is, where will these new revenues be directed or purposed in the production and distribution of good or better Canadian content and/or in the promotion of good Canadian content?

Mr. Scott: Very fair questions. I assume you mean $900 million. That number, I believe came from the minister. If I’ve ever said it, I was repeating a number provided by another source.

Senator Klyne: Will there be incremental revenue?

Mr. Scott: We would certainly expect so. Yes.

Senator Klyne: Where will that come from, and how will it be repurposed?

Mr. Scott: How it will be dealt with will be certainly one of the first public proceedings the commission will have, we’ll have to hold. We’ve been working while the legislation is being developed to identify the key questions that will have to be asked going forward, if and when this law is passed. That will be one of the key ones. First, what is the contribution arrangement, how much and how will it be deployed? Those are the very meaningful proceedings that will take place in front of the commission.

Senator Klyne: Do you think the bill should have prescribed policies and regulations to some extent to identify that?

Mr. Scott: Personally, I don’t.

Senator Klyne: Another question?

Mr. Scott: Can I answer why, quickly?

Senator Klyne: Go ahead, sure.

Mr. Scott: The last time the law changed was 30 years ago. It’s not easy to change structural legislation, and secondly, we are the expert regulator, and we understand the puts and takes, and we can gather evidence here and render decisions and they will change from time to time.

Senator Klyne: Good. Then I’ll ask you an expert question, not that I’m the expert, but I expect an expert answer.

Mr. Scott: I have experts with me, so I’m good.

Senator Klyne: You’re loaded. So the legislation if passed would ensure that online streaming services showcase Canadian music and stories and support Canadian creators and producers. It would make programs by talented artists in both official languages more accessible to Canadians. I’ve heard reference to this bill making Canadian content discoverable but little to nothing about making Canadian content sought after. Which is it that the CRTC will be pursuing as an aim or objective, making it discoverable or sought after?

Mr. Scott: I’ll put this in the most general terms. How I like to describe the purpose of the Broadcasting Act or this current proposed piece of legislation is that our aim is to ensure that Canadian stories, in both official languages and increasingly reflecting Indigenous and racialized communities, are told, that they are distributed, produced and can be found. Popularity is not our job.

Senator Klyne: Do you have in your mind a strategy and execution of how you make that happen?

Mr. Scott: I do, but it’s for a future commission proceeding and based on a record when all of these well-meaning, well-informed witnesses that you’ve been hearing from will come and make their case and add to the record. Then we’ll develop that framework, and I look forward to seeing the commission do that work.

Senator Klyne: Thank you so much. And I don’t need a second round.

Mr. Scott: Thank you, senator.

Senator Dasko: Thank you for being here. Just one word on algorithms — I love the topic — just to say, I have received thousands of letters quoting what you said on algorithms when you came in June.

Mr. Scott: We’ll see if it’s followed up by thousands understanding what I tried to clear up today.

Senator Dasko: Really thousands, it’s been that many. However, my questions relate to other topics. I want to follow up on Senator Simons’ comments about proposed subsection 7(7) and section 34.995, which in a very convoluted way — it’s hard for many of us to actually figure this out — gives the Governor-in-Council all those powers that would seem to make the CRTC less arm’s length. You discussed this earlier with Senator Simons.

You have proposed amendments in some other areas. Would you like to send us an amendment that you think would set out the proper relationship between a regulator and a government?

Mr. Scott: Well. There’s a skill-testing question. A bit of a challenge.

Let me answer this way: I will accept an undertaking to provide you with a response to that request. I would ask you to indulge me; I would also then provide you with a short document in relation to the issue about official language minority communities and our concern about the provision as drafted and the seven-year review. If you would indulge us, I would be happy to undertake to provide a short document.

Senator Dasko: Thank you very much, especially with respect to subsection 7(7).

Mr. Scott: We’d be happy to try and help, and again, I just wish to reiterate, for the benefit of the minister and departments that it is their job to put forward legislation and your job ultimately to decide what goes in the law. We are trying, as public officials who have responsibilities as the regulator, to give suggestions about how we think it can be most effective.

Senator Dasko: I appreciate that, thank you.

My second question. The commission now has the authority to resolve disputes between distribution undertakings and programming services; however, the bill does not include online undertakings in this mode of operating. I want to ask you to elaborate on — I think you did mention it when you came here briefly — your view on this and the necessity, or the importance, of adding something to the bill that would speak to this. Maybe you could provide a little bit of background as to how this mechanism has worked in the past. Let us know what triggers the mediation and negotiation among the players and programmers.

Mr. Scott: I’ll start, and I happen to have the head of broadcasting and the person responsible for mediation and arbitration and my leading legal counsel, so I’m in good hands here.

The way which we use it, and the most common area — we have it in telecommunications as well, but if we stick with broadcasting for a moment — it’s most often used with respect to disputes between distributors of services and the services themselves. To pick an example, let’s say OUTtv, an independent, were trying to reach an agreement with a distributor, a Rogers or a Bell or whomever, I firmly believe that this is a situation where commercial negotiation should be paramount, and the commission treats it as such. We hope and trust that’s how things are resolved. When they are not, we engage in mediation. If mediation is unsuccessful, they can seek arbitration, and we use baseball-style, final-offer arbitration. The act maintains our ability to do that with respect to licensed undertakings. It speaks to requiring platforms to engage in constructive negotiations, but it does not give us the ability to compel those platforms, as we do linear broadcasters, to go to arbitration. Why? You must ask the minister. We would prefer it did.

Senator Dasko: I have 35 seconds —

Mr. Scott: Then I need to speak faster.

Senator Dasko: Over at the other place, they inserted a provision for community broadcasters to deal with disinformation. This touches on the content. What do you think about that?

Mr. Scott: My understanding is that the government’s plans are to introduce, if you will, a trifecta of legislation. The third piece relates to online harms. With that, they will be able to deal with things like age verification for adult services and other online harmful and illegal content. That’s where I expect it will be addressed. I’m not aware of anything in the legislation that would go to the issue of misinformation or disinformation.

Senator Dasko: It came at the end of a long night over at the other place.

The Chair: We’ll really talk about controlling content.

Senator Tannas: I have two questions. The first one is following up on the exchange you had with Senator Klyne.

With the modern way of Canadians consuming entertainment through international platforms, there are two things: There are humans on Earth consuming Canadian music and art, and then there’s this imperative that Canadians consume Canadian music and art and making sure they eat a sufficient amount of Canadian cooking when it comes to art.

I thought I heard you say something, and I just want to hear it again. How do you prioritize those two outcomes? Are the first ones — people on Earth who are not Canadian — irrelevant in the CRTC’s mind? Where is the line of prioritization with respect to developing Canadian artists and music for the enjoyment of everybody versus Canadian cooking and a mandated amount of that being consumed by Canadians? That’s number one.

Mr. Scott: Thank you. I’ll try to be brief, but that’s a very broad and large question. With respect, I’m going to take a bit of issue with the premise of making Canadians eat that as opposed to making sure that there are Canadian dishes on the menu. I see that as our role, and that’s how I see discoverability: not “you will watch it” but “can you find it?”

Senator Tannas: So how much is eaten will never be an outcome by which you judge a platform?

Mr. Scott: It shouldn’t be. I’m not entirely comfortable with saying “by platform.” We will apply equitable rules to everyone. You’re absolutely right about the other part. You started by saying there’s a plethora of content, international and domestic, available to Canadians today in multiple languages, in fact, and from multiple cultures. That’s wonderful. What we’re trying to do with respect to those operating in Canada is to see how they contribute to those other social policy objectives: the public good of ensuring Canadian stories are told and found.

Senator Tannas: That’s where the money comes from.

Mr. Scott: That’s where the money comes from, and that’s where we’ll be developing the regulatory framework. The export side, by the way, is a very positive one. It’s a positive aspect of the fact that there are multiple platforms because good Canadian stories are going to be told and found — and are being found — not just in Canada but around the world, and this includes digital creator content.

Senator Tannas: Thank you. My second question is this: We hear lots about the speed of decisions and how it needs to be entirely different than what it has been. In the traditional broadcasting realm people can wait for months and it doesn’t hurt anything, but, as we all see, a period of months is forever in a lot of these ecosystems; they will be ruined or the opportunities could be ruined over the course of months, never mind years.

Have you got all the tools within this to make sure you can develop what has to be a brand-new process for dealing with these services and entities?

Mr. Scott: Yes. It’s a fair criticism. It’s usually directed more at the telecommunications side than the broadcasting side because it often involves detailed cost-accounting issues, and they can go on a very long time. What goes with a quasi-judicial model — I don’t know how many times I’ve repeated today — what we do is identify issues, develop a public record, invite everyone to participate and then analyze and render a decision. That takes time. We could operate differently and just research if we weren’t using a quasi-judicial model, and it would be faster. Would it be representative? Would we be hearing from all parties? Would we have that rich record? We wouldn’t. I think it’s a necessary evil that goes with a quasi-judicial process that relies on evidence and public participation.

That said, yes, we could do better. Again, I’ll hearken back to harnessing change. Part of the deal here has to be, as we say, that we need flexibility and new tools to regulate. We need to regulate in a more efficient manner. That will be on us. We need to use technology, which we are trying to use. For example, in the radio and music industry, we are working on a project where we’re going to hopefully code music more effectively, and we have industry and musicians’ participation in doing that. We need to find better ways and do better as a regulator and not regulate what we don’t need to regulate.

Senator Tannas: Would you agree that it’s important that you have some very clear metrics, which you could report to us on, to show that you are accomplishing that important, necessary task of speed in areas where speed is critical to keep the ecosystem alive?

Mr. Scott: I’ll give you a twofold answer. I had a CEO who drilled a message into my head that I don’t think I’ll ever forget: “What gets measured gets done.” I do appreciate and understand that. My caveat is this: I have heard many times and we have thought a lot about, for example, proposals that the commission must render a decision in X days or X months. That just doesn’t work because it doesn’t appreciate the complexity of issues, the competing parties and procedural fairness. It’s just not that easy.

Senator Tannas: I get that, but it also doesn’t meet the requirement.

Mr. Scott: Understood.

The Chair: Mr. Scott, if you hear from all the witnesses that we’ve had before the committee, you’ll be deliberating for a long time to find consensus. It’s been a challenge.

Mr. Scott: That’s the point. And they all have legitimate views, and we have to hear them and adjudicate.

The Chair: It’s a challenge. I do agree.

Senator Wallin: I would like to come back to where we started —

Mr. Scott: Shall I surrender now, senator?

Senator Wallin: Yes. I am seeking clarification. You won’t manipulate the algorithms, you’ll make the platforms do it; that’s Mr. Scott’s statement. I agree; you’re right. How else will social media companies be able to enforce discoverability rules without algorithms? It’s how they do business. It’s what they are. There is a near-unlimited amount of content available in that global world we’ve just been discussing, and the algorithm is the only tool they have to really meet whatever requirement you put, whether it’s more Canadian Content, or CanCon, more French music, more dance on the head of a pin. It’s how they function.

Mr. Scott: But it’s not the only tool they have, and that was what I —

Senator Wallin: How else would they do it?

Mr. Scott: Promotion, advertising, helping creators produce content, any number of ways. The algorithm is simply one. I fundamentally disagree that just because —

Senator Wallin: In terms of putting in front of people, advertising doesn’t accomplish that.

Mr. Scott: It does. It’s used today. They use promotional reels. They use commercial time. They could put up billboards, if any billboards are still standing.

I accept the point you’re making that there are companies whose business is very much not transactional but set up in a manner where they are suggesting content. Again, I’m going to go back and use algorithms to make those suggestions. What I’m saying to you is no different than what they do today. When you go on Pickit, Crave, Netflix, whatever, it goes, who is it? Oh, it’s Senator Wallin. What is she interested in? News.

Senator Wallin: Correct.

Mr. Scott: It must be documentaries, and then it will have documentaries. Within there, it will have Canadian documentaries.

Senator Wallin: That’s what I mean; it’s the mechanism by which they work.

Mr. Scott: That’s fine, and they’re doing that today, and I expect they’ll continue to do it tomorrow. What about what YouTube does in Toronto by developing a studio for digital-first creators to help them make Canadian content? That’s important. That will help discoverability.

Senator Wallin: No, it helps the amount of material that’s there. That’s it. Not discoverability.

Mr. Scott: The amount is part of the process. If there’s only one Canadian documentary to be found, it will be considerably more challenging.

Senator Wallin: Can I just ask one more tiny thing? We’ve heard you say a lot tonight, and I know you are speaking as the Chair of the CRTC and you don’t speak for the government, but you have reassured us on many occasions here tonight that the deliberations, the debate will be public. There will be hearings. This will be discussed.

I think it’s back to Senator Simons’ point here, that the transfer of power from the commission to the cabinet or the ability of cabinet to direct your behaviour will mean that many of these things are not subject to public hearings or to appeals. Cabinet won’t take an appeal to cabinet about a cabinet decision. It doesn’t work that way.

Mr. Scott: With respect, senator, no, that’s not true.

Senator Wallin: How would you appeal it if cabinet —

Mr. Scott: We do not take direction about decisions. We never have; we never will. There is a very bright line. I have never and will never discuss a matter in front of us with a minister or anyone else.

Senator Wallin: But this bill is creating a transfer that has not existed previously.

Mr. Scott: It creates an addition to a policy direction power that is general in nature and does not relate to the specific decisions taken by the commission. We are arm’s length and independent.

Senator Wallin: How could you appeal a decision of the CRTC that has been directed within a framework from cabinet? Cabinet has said, “We’d like to see this happen.” You’ve gone out and made that happen. Some member of the public, a creator or a consumer, has said, “I don’t like that. I want to appeal that.” You’re now appealing a cabinet decision. Whether directly or indirectly, that’s how it works out.

Mr. Scott: I’m not sure I understand that because what happens today is we can render a decision — there are two possible situations. We can render a decision and cabinet can return it to us through an order-in-council to reconsider and in certain circumstances can set it aside. They’re limited in what matters.

They can also issue broad policy direction. I used the example earlier of saying to be a Canadian broadcaster, you have to be Canadian owned and controlled. So those are two examples.

A legal challenge is a separate lane, if you will, and that goes to whether we exceed our jurisdiction, to the chair’s point earlier, and that will go to the courts. Those are the channels for appeal. That is the channel for a broad policy direction. Nowhere in there is the commission’s adjudicative independence affected.

Senator Wallin: I guess it starts with who makes the rules, and as you have said, you would prefer to have a much more arm’s-length relationship than this bill will allow.

Mr. Scott: That just relates to one provision. It was put to me that there is an existing policy direction power in the Broadcasting Act that is proposed to be changed and added to in this bill. I was then asked whether I would I rather have that change or have the provision that exists in the Broadcasting Act today. I hope that’s an accurate reflection. My answer was, I’d rather have what’s in the Broadcasting Act today.

Senator Miville-Dechêne: Mr. Scott, I’ll go back to the algorithm too because it seems to me right now that the platforms are giving money to YouTubers. They’re doing what you referenced in terms of programs to become better and all that. There are some grants. There are some static — it’s sharing, but there’s also recommendation.

There are all kinds of things around the screen right now, and the needle is not moving. The static recommendation of Canadian content doesn’t seem to be doing the job in terms of increasing the number of people listening to Canadian content. There’s a difference between having great content that’s financed by different programs and this content being listened to. Those are two very different propositions.

What I don’t really understand is that you’re putting everything on an equal footing when it’s not equal. Some static recommendations have limited impact. And we all know that the algorithms basically offer in your ear at a particular moment a song or a video that is much more powerful. That will mean if we want changes, algorithms will have to be used.

Mr. Scott: I’m glad you referenced music because we’ve been talking a lot about audiovisual. We haven’t been talking about music as much. Scott, I may have to call a friend on this one in a second.

You talked about a number of things in there, and I don’t want to confuse the issue. When you search for something, there are two different things that could be happening. There can be an algorithm by a content provider or a content aggregator that points you to content. That’s what we’re talking about. The desirable outcome is that you’ll be able to find Canadian music when you tune your radio dial in the car and go to SiriusXM or when you go to Apple Music or Spotify. That’s the objective.

How they do that is different than advertising, which obviously is another aspect — whether it’s YouTube with Google. What you see is a different algorithm driven by totally different economic issues, nothing to do with us. I’m not speaking to that at all.

But to go to your point, and you’re quite right, what happens perhaps on Apple Music is very different than turning your radio dial. One is primarily dependent on local advertising, and the other is typically dependent on subscriptions. They have two different business models.

The question is, what do we do to make sure Canadian music is recorded, distributed and found? Today, the way we do that is we invest in funds. It’s more in the artists. It goes to Musicaction and other groups so that the artist gets support, their music gets recorded, they get a presence and eventually, hopefully, they make some money, typically today more on performance than on being played. That’s the model.

Senator Miville-Dechêne: That’s happening now.

Mr. Scott: That’s what’s happening now. In the future, what I expect the commission to be focused on on the music side are those very same objectives. How do we make sure that musicians are being supported? It will be primarily financial.

But you’re right; the way that Spotify presents music, or Apple Music does, is different than how a commercial radio presents it. That’s fine. What we need to find and will be developed in the future is an equitable framework that works for all of those different business models. There isn’t one answer. There won’t be one set of rules, not from my perspective.

Senator Miville-Dechêne: I have a second quick question; proposed subsection 4.2(2) has been the exception of the exception. It’s on the generated content. We’ve been hearing so much criticism about this one. The first criteria, which is about money, anything that makes money could be captured. The extent to which a program is uploaded —

Mr. Scott: — is commercial.

Senator Miville-Dechêne: Yes. Would you like it to be defined more clearly? Because what we’re trying to have there are professional musicians as opposed to user-generated content. Is this definition problematic, the three criteria we have there to say what’s captured by Bill C-11 and what’s not captured? I think what we’re trying to do is capture professional music, but it’s not evident looking at that definition. Everybody who makes a bit of money says, “I will be captured.”

Mr. Scott: I certainly do not understand that to be the intent, and I don’t think that would be the way the commission would look at it. I’ll turn to my legal colleague in a second.

I know I’m repeating myself, but that won’t be the objective of the regulatory framework. Many of the witnesses and intervenors, both in the other house and here, have been focused on the exception, on what will happen with this little example. I understand why they do that, but that’s not what the commission’s regulatory framework will be. It will be on the platforms. Why would we focus on individual YouTube videos?

The Chair: I hate to cut off.

Senator Manning: It is certainly a very interesting conversation. I want to get back to achieving prescribed outcomes without using algorithms manipulation. I made notes while you were talking.

You said you use promos, training and ads to try to meet those outcomes. I’m wondering what happens if the ads and the promos don’t work and don’t meet their outcomes. How are they brought under some type of regulation? Are they fined?

And then you said that if they use the promos and training, they will be adhering to the requirements. My concern is if they use the promos and ads, it seems like they’re doing their best, but if they don’t meet the outcomes, it’s okay. I’m trying to find the middle ground here because it’s a bit confusing for me, algorithms and outcomes.

Mr. Scott: I don’t think it’s specific to algorithms, senator. I think what you’re describing is regulation at work. We do this today. We have conditions of licence. Let’s not focus on platforms for a second. Let’s focus on existing players.

Audiovisual distributors, whether it’s Bell, Rogers or Quebecor, they have conditions of licence. Let’s say they will show X number of hours of news, for example. They have an obligation to do local news and so on. If they don’t do it, what do we do? We hold them to account. They have licences. We have hearings. If they are not in compliance, frankly, we can haul them in front of us.

You might remember a situation four years ago now when a certain broadcaster removed programming contrary to specific order from the commission. Within a week they were at a hearing in front of me and my colleagues, held to account. Does that answer your question?

Mr. Shortliffe: I could give you a specific example, and this might help. Over the last couple of years, as these bills are before Parliament, we have heard informally from many of these services. Obviously, they don’t know what our rules will be and we’re not having formal meetings, but they call us to say that we’re aware this is in the public sphere. Obviously, they’re thinking about this.

For example, we’ve had — I won’t mention names — a company come before us to say, “Our algorithms would be really hard to change. But what if we did Canadian music festivals and publicized that?” I wasn’t able to say that’s good or bad because that was their dime and obviously we would hold hearings, but that was a concrete idea of saying, “Here’s something that would help promote Canadian music, help make it discoverable and wouldn’t require us to change our algorithms.”

My response was, “Come before a public hearing and say that officially. That would be a great idea.” That was an example of a concrete idea, and it wasn’t coming from us. It wasn’t staff generating that and saying, “Thou shalt do that.” It was a company saying, “We’re trying to think of things. Here’s a possibility that works with our business model and might work with your needs.” So that is the kind of thing that we hope will come out in public hearings.

Back to the idea of flexibility. To your question, will that be enough? I don’t know. I don’t know what they’re proposing. I don’t know how it works. Would it aid discoverability? But it’s a starting point for a public dialogue around it.

Senator Manning: Just to get back to the chair, I wonder about TikTok and Instagram specifically. Can you tell the members of the committee how they could achieve their outcomes without using algorithm manipulation, those two particular ones?

Mr. Scott: I don’t know why they would be discreet. I shouldn’t be asking you a question. I don’t know why they would be different. You have content on YouTube. You have digital content. You have a variety of user-uploaded content. We’re not concerned with that.

Would there in the future be some obligations on TikTok? Quite possibly. We will have to determine who is within the scope of the legislation once it’s finalized and how they can best contribute to the system. But I think your question is: What happens to the individual piece of content? The answer is, nothing, necessarily. We’re not interested in the individual TikTok uptake.

Senator Manning: But will TikTok have a measurement to have a certain amount of Canadian content? If you don’t reach it —

Mr. Scott: I’m sorry. I understand better. Would we ask them to report to us or help us understand how much of that content comes from Canada? Presumably, they could give us a report or help us.

I guess we’re distinguishing here between what might be imposed on them, which is a decision for the future. But to use that simple example — I hope I don’t regret using an example, but I’ll try — what if we were to ask them to report on what they understand or could identify as content that was originated in Canada on their platform, not information about individual upload, senator?

Senator Manning: Then we get into the definition of Canadian content.

Mr. Scott: We do, which is another of the things we will have to have a hearing on.

Senator Manning: We’ve been down that road here too. Who determines what Canadian content is?

Mr. Scott: You are right, sir, and we will do that.

Senator Manning: You said you’re right, but you didn’t answer who determines it.

Mr. Scott: We will have a definition, as we do today, for Canadian content. And I fully expect that it will be required to be amended. It will need to change and that will be done through public proceedings. That’s one of the key elements, no doubt, of the future regulatory framework.

Senator Simons: Mr. Scott, I want to return to proposed paragraph 4.2(2)(a), because you have repeatedly told us that individual TikTokers and YouTubers are not captured by this. Let me reread 4.2(2)(a):

(2) In making regulations under subsection (1), the Commission shall consider the following matters:

(a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues;

Apart from the algorithmic question, this is the most contentious part of the bill because it is based on this sentence that we have heard from dozens of digital creators and platforms who have said to us that they are clearly captured by this. Anybody who posts something on YouTube, TikTok or Instagram, even if it indirectly generates revenue, can be regarded as a program that falls under regulation. Their great fear is that they will lose out on market share and international audiences, because they’ll be forced to be ghettoized into a kind of a CanCon tide pool.

So explain to me your great assurance that they are not captured, because that certainly seems to be a widespread interpretation, as Senator Miville-Dechêne has indicated, of 4.2(2)(a).

Mr. Scott: We have, and we will again — and I can add this to my list of small documents that we could follow up with the committee — I will have them to you very quickly.

In a second, I’ll ask legal counsel to just try and give you a legal response to how we understand the legislation.

Again, it’s not our legislation.

Senator Simons: I understand that.

Mr. Scott: What we can answer is how we interpret it.

But I would like to go back to the point — I understand the concern, but I’ve tried to emphasize several times this evening and other times that we’re not interested in individual uploaded content. There’s no purpose to regulating it. It would not be in the public interest. It would not contribute to the Canadian broadcasting system.

We may well be interested in a platform’s activities, not the individual uploaded content. Why would we spend all of our time looking at individual cat videos, for lack of a better example? It just makes no sense from a public policy perspective.

Senator Simons: Indeed, and yet that is the clear language of the act.

Mr. Scott: If you interpret it that way.

Rachelle, could you just respond, if you’re able to?

Ms. Frenette: I can do my best.

The way we understand that particular provision — and you are correct: The CRTC can prescribe by regulation certain content under very certain specific conditions that are set out in the bill itself, which includes these factors, such as generating revenues, whether it’s available on other platforms, et cetera.

But the way we interpret what is set out in Bill C-11 currently is that there’s always this distinction between jurisdiction on the one hand and the exercise of powers on the other. So while the CRTC may have jurisdiction over certain matters and over certain content, it may not necessarily exercise its powers and enact regulations or regulatory requirements on those subject matters. It can only do so if it’s consistent, for example, with subsection 9(4) of the act, which says the commission will only regulate where it has a material impact on the Broadcasting Act. Also, the commission would only be enacting any particular requirement after a public hearing in which we would hear evidence and submissions from parties as to whether it is appropriate to be exercising its powers in relation to those particular aspects.

I hope that provides you with some clarity.

Senator Simons: It’s nice that you’re going to choose to interpret the bill in that particular way, but that’s not what the language says. People keep talking about cat videos. We’re not talking about cat videos; we’re talking about extremely successful videos. Please stop saying cat videos. We’re talking about people who are creating real art and using digital technologies to create different kinds of film, animation, stand-up comedy, miniature plays and children’s music.

There are all kinds of people who are doing professional, cutting-edge, artistic work who are seriously concerned and have taken legal advice that advises them to be seriously concerned that they will be captured by this section. I grow weary of dismissing an entire generation of artistic creators as people posting cat videos —

Mr. Scott: Senator, that was not my reference. I’m just going to add this, if I may very briefly: You do realize that, today, under the Broadcasting Act, to the point my counsel made, there’s a difference between applying jurisdiction and having an authority. We could regulate them today, under the Broadcasting Act. We do not. The reason we do not is that it makes no sense to do so.

The Chair: Thank you, Mr. Scott, and I agree with those comments. The problem is —

Mr. Scott: All of them? Can we record that?

The Chair: The last comment — it makes no sense to regulate it. And I agree with you that, even in the old Broadcasting Act, prior to Bill C-11, you have the power to do that. That’s what we’re all here arguing over. I take you at face value today, but I don’t know what your successor or future CRTC chairs —

Mr. Scott: I will repeat that the chair represents the commission but does not make the decisions for the commission.

The Chair: The debate and controversy over Bill C-11 — you see it here tonight — you have my colleague Senator Miville-Dechêne who believes we need to push out Canadian content and do more to overcome the lack of Canadian content or a certain type that she might view as more Canadian that needs to push it out. She believes that the way to do that is through an algorithm. You didn’t say that, senator? I won’t quote you.

Let me change the line of questioning here. At the end of the day, the problem we really had — you mentioned that the objective of this bill, as you interpret it, is that we make Canadians more aware of Canadian content. It’s been clear throughout the course of questions and answers that one of those ways is through algorithm manipulation. You say there are also other mechanisms, advertising and strips and so on, but clearly the most powerful tool — as Senator Manning said — if we don’t achieve our first goal — is to get these platforms — and that’s the big concern with the bill —

Senator Dawson: Chair, we have to deal with future business. We are 15 minutes late. We only have 15 minutes. We know where you stand on the bill, so —

The Chair: It’s not a question of where I stand. I have a question to the witness. It’s an important witness, and I’d like to finish my question, if that’s okay with you. Thank you.

Mr. Scott, you mentioned that individual uploaded content is not what this is all about; you don’t think it is your objective to basically dictate individual content. But when we look at those platforms, all they’re about is individual uploaded content. TikTok, YouTube — none of them actually exist without that content. Their algorithm policies are driven by commercial base — by consumer choice — so if they want to watch certain things, that’s what they push up. It’s a business model.

So the question is this: If we don’t get the end result that the CRTC or a government official wants, are we going to go as far as using algorithm manipulation and forcing these platforms to decide who we push up and who we push down?

The concern of hundreds of thousands of individual content producers in this country is that if you’re a comedian from British Columbia who has millions of followers and you’ve made a business out of this as a comedian, maybe what they do —

Senator Dawson: Are you going to ask a question?

The Chair: I have three minutes here; I have another three minutes to go. You might not like the question, Senator Dawson —

Senator Dawson: I don’t like the lack of neutrality. I’ve learned to live with it for many weeks, but I think now we have to talk about future business, and we only have 15 minutes left.

The Chair: Senator Dawson, there are a number of senators on the list. I’m a senator like anybody else; I’m entitled to my six minutes. Am I not? If you want to take away that privilege for me, that’s your choice, because you don’t like a line of questioning.

Senator Dawson: We finished at 8:15, chair, and it’s 8:30.

The Chair: Senator Dawson, if you don’t like the line of questioning, I’ll move on to another senator, if that’s what you consider democracy. Senator Quinn, you have the floor, because I clearly can’t finish my three minutes.

Senator Sorensen: Were we to adjourn at 8:15? That’s the question.

The Chair: It’s not unusual to go a few minutes over with witnesses. I thank the witness for his presence, but if Senator Dawson also wants to adjourn this meeting and doesn’t want to hear from the remaining colleagues on the second round, that’s your choice as well. Move a motion.

Senator Dawson: It’s scheduled on the agenda. We all know that you’re very transparent about your bias, but we think there might be a limit to how much we should tolerate that bias, chair.

The Chair: With all due respect, is your bias more tolerable than mine, Senator Dawson?

Senator Dawson: I’m sorry, but I have never seen a chair be that biased, but I guess after 17 years —

The Chair: Senator Dawson, with all due respect, giving an opinion is not a bias, it’s an opinion. That’s what we do in this institution. With all due respect, I don’t question anyone else’s motives and their work here, and you have no business questioning mine. That’s a question of privilege, Senator Dawson. It has nothing to do with the chair. You can’t question my motives and my neutrality as a chair. I’ve given everybody equal time. The only person that has withdrawn equal time is you, taking up my time right now, in order to kill my questions. And that is a reality.

Senator Dawson: [Technical difficulties] a democracy.

The Chair: That is Senator Dawson’s style of democracy.

Senator Quinn, you have the floor, if the witness will indulge us for another ten minutes.

Mr. Scott: I would. Could I quickly give a response to your question, Mr. Chair?

The Chair: That would be welcome.

Mr. Scott: Just to say that I understand your point, but I don’t know that it’s different than today. Again, today broadcasters also have a business model. They rely on advertising. It’s different, it’s a traditional model, but consumers have a choice. They can choose to watch one network or another, and they can choose to watch foreign programming and never turn on a Canadian channel. It is their choice. That will be the case in a future regulatory environment. Whether the service uses different technology or not, I don’t expect that to be any different in the future. Consumers are the ultimate arbiters of content. They will choose what they watch, and there is nothing in the Commission’s approach to make them choose one over the other. That is the ultimate choice of the consumer.

The Chair: Thank you, Mr. Scott.

Mr. Scott: Thank you, chair.

Senator Quinn: Following up to our discussion, the question and commentary are for Ms. Frenette. Earlier we talked about the mechanisms that regulations [Technical difficulties]. You mentioned the scrutiny of regulation process, that’s a process that comes in after the regulations are in force. I was saying that a better mechanism, given the interest of Canadians in this topic, is maybe to have a mechanism in place that allows the parliamentarians to review regulations and policies as they go through the Gazette, Part II process, when they’re completed, so we have assurance that they’re consistent with the act, the policy directives, et cetera. That’s what I was getting at.

Wouldn’t there be an alternative, much more efficient, and given the controversy here, more palatable for stakeholders?

Ms. Frenette: Absolutely. Our regulations are published in Part I and Part II of the Gazette, absolutely. So there is a public component to that. People are entitled to and do avail themselves of that ability to react to the draft regulations that we put forward for comment.

Senator Quinn: Right. All I’m saying is let that process unfold, but let parliamentarians, who are responsible for ensuring that acts are there and regulations that emanate from policy — that we have a chance to review, not to disallow, but to ensure that the concerns that have been expressed are somehow balanced in a more meaningful way, particularly in an area that affects every Canadian.

Mr. Scott: If I may, senator, just one quick comment to add to counsel’s response.

That is not something for us to determine, obviously. Governments and parliamentarians can decide if that’s appropriate. I was asked a question earlier about how long things take. We do rely on public processes. Doing formal regulations already takes a long time, a considerable amount of time. Every time you add another check and balance — they may be laudable, it may be a good objective — it also will add time.

Senator Quinn: Right. That’s why it’s got to have boundaries, and I agree with that.

Mr. Scott: They all take time.

[Translation]

Senator Cormier: I have a brief question about public hearings. Bill C-11 doesn’t extend the public hearing process to orders made under sections 9.1 and 11.1. According to the bill, these draft orders are to be published on the CRTC website, giving broadcasting undertakings and other interested parties the opportunity to submit their observations to the CRTC. My question is this: Does limiting the publication process to the CRTC website and allowing interested parties to submit their observations to the CRTC significantly reduce accessibility and make this consultation process obsolete?

Does the CRTC have an objection to stating in the act that public hearings are also applicable to orders made under section 9.1 and subsection 11.1(2), to enable people to participate appropriately in public hearings? There are many ways of arranging this now.

Ms. Frenette: Senator Cormier, perhaps I could give you an overview of how we currently handle our processes. The CRTC, as the chair mentioned, makes several hundred decisions per year. Each of these decisions is preceded by a public process. I would say that about 80% to 90% of our processes are in writing. Why? Because they are more effective, by allowing, as in a public hearing, the development of a robust public record that the CRTC can consider before making an informed decision. In my view, requiring a public hearing for every order made by the CRTC would involve excessive resources that are out of proportion to those available for us to put together a proper public record for submission to the CRTC so that it can reach a decision.

Senator Cormier: I understand your explanation. However, not everyone is equipped equally to express their point of view. Posting comments on a website, depending on the population and where it comes from, is more difficult than being able to say what you think in person. How would you make sure that as many Canadians as possible could contribute at important public hearings?

Ms. Frenette: The CRTC nevertheless has a solid history of developing public processes to address the nature of the issue being examined. We therefore have some flexibility as an administrative tribunal to gather and request comments, as well as the submissions we need to make an informed decision. It could be a written submission or oral participation, but such processes have to be flexible, and a certain amount of discretion is essential to determine the essentials in any specific case.

Senator Cormier: Thank you.

[English]

The Chair: I would like to thank Mr. Scott and the CRTC for being so generous again with their time on this second round of testimony.

There are a couple of minutes, Mr. Scott, if you would like a closing statement to wrap up, because a lot was discussed tonight, back and forth, so if you want to clarify or address anything in particular.

Mr. Scott: Maybe I should raise the issue of algorithms.

No, I’d like to say two things. The first is that we appreciate the opportunity to come before you, both the invitation to come during your pre-study and again today. I did say at the time we’d be available to come back, and I’m glad that you invited us to do so.

I would also like to say that we are public servants who are trying to be helpful to this committee. As I’ve said a number of times, we’re not the drafters. We are not trying to be the defenders of everything about the legislation. We are doing our best to give you an honest appraisal of how we would approach it, and again, as I’ve emphasized in my opening remarks, we need this legislation. We have outdated tools. We have a radically changed broadcasting environment, and we do need new tools and a new framework with which to oversee them and pursue the objectives, which I have not seen disagreed with by any party in either house.

Again, I thank you for your indulgence, your penetrating questions and listening to the answers. It is truly appreciated, and it is always an honour to appear in front of you.

The Chair: Thank you very much.

(The committee continued in camera.)