THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, November 23, 2022
The Standing Senate Committee on Transport and Communications met this day at 6:45 p.m. (ET) with videoconference, to consider Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Senator Leo Housakos (Chair) in the chair.
[Translation]
The Chair: Good evening, honourable senators. I am Leo Housakos, senator from Quebec and chair of this committee. For those who are watching online, I would like to invite my colleagues to introduce themselves, starting on my left.
[English]
Senator Quinn: Jim Quinn, New Brunswick.
[Translation]
Senator Cormier: René Cormier, from New Brunswick.
[English]
Senator Dasko: Donna Dasko, senator from Ontario.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Klyne: Good evening. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dawson: Denis Dawson, from Quebec, Lauzon division.
Senator Gold: Marc Gold, government representative in the Senate, from Quebec, Stadcona division.
[English]
Senator Sorensen: Karen Sorensen, Alberta.
[Translation]
Senator Clement: Bernadette Clement, from Ontario.
Senator Miville-Dechêne: Julie Miville-Dechêne, from Quebec.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Plett: Don Plett, Manitoba.
Senator Wallin: Pamela Wallin, province of Saskatchewan.
The Chair: Honourable senators, we are meeting to begin our clause-by-clause consideration of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Before we begin, I would like to make committee members aware that we have officials from Canadian Heritage joining us in case members have any technical questions. That was the request of this committee. We have Thomas Owen Ripley, Associate Assistant Deputy Minister; Amy Awad, Senior Director, Marketplace and Legislative Policy; and Charles Kouri, Policy and Research Analyst, Marketplace and Legislative Policy. They are here with us and available if senators have any technical questions.
Before we begin with the clause by clause of the bill, I would like to remind senators of a number of points. If at any point a senator is not clear where we are in the process, please don’t hesitate to ask for clarification. At all times, I want to ensure we have the same understanding of where we are in the process.
In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of the clause. As is the tradition in this place, we are going to go article, page and line, unless the committee determines otherwise. But that seems to be the tradition in this place. Therefore, before we take up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so.
I have one small point. If a senator is opposed to an entire clause, I would remind you that, in committee, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
I would also remind senators that some amendments that are moved might have consequential effects on other parts of the bill. In the spirit of this statement, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in this bill where the amendment could have an effect. Otherwise, it would be very difficult and complex for members of the committee to remain consistent in their decision making.
Staff will endeavour to keep track of those places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there can have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument and decide when there has been sufficient discussion of a matter or order, and make a ruling. Hopefully, we will avoid that possibility. The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For that, I will depend upon your cooperation. I ask all of you to consider other senators and to keep remarks to the point and as brief and efficient as possible.
Finally, I wish to remind honourable senators that if there is any uncertainty as to the results of a voice vote or show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions with regard to the above process, colleagues?
If there aren’t any, I think we can begin our clause by clause. This meeting is scheduled to run until 9:45 p.m. on the agenda. We don’t know exactly how many amendments we have because the committee did not come to a consensus. So let’s hope for the best.
Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title stand postponed, colleagues?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 carry?
Colleagues, can I ask, as was stated in the opening remarks, that we have a little bit of patience with the process? The clerk and the staff are here to help with the proposals of the amendments. Those of you who sent them to the clerk in advance, that will have helped, obviously. Those of you who haven’t, please, again, bear with the chair and the clerk as we want to be able to do this in an orderly fashion. If I’m a little slower than usual, it’s not because I’m trying to be slower. I want to make sure we’re accurate.
Senators, please refer to your label on the amendment because, obviously, those that have been provided will be distributed.
Senator Miville-Dechêne: Absolutely. I have sent to our clerk the amendment JMD-C11-2-4-5. This is the one on privacy. Could it be distributed to the members?
Maybe you should have said that. I’m sorry.
The Chair: It’s on the way to being distributed to the members.
Senator Miville-Dechêne: I’ll be better.
The Chair: Colleagues, this is Bill C-11, section 2-4-5. The important question here, colleagues: Are there any amendments that are in advance of this particular line item? If anybody has a desire to move amendments prior to this, please speak now.
Senator Batters: The first one I have is C11-2-2-21. The clerk has that one, I believe.
The Chair: Colleagues, again, the question is on this amendment, C-11 section 2-2-21. Are there any senators who have amendments or the desire to move amendments prior to this line item?
The clerk informs me this is actually the first line item, so it would be impossible for anyone to have an amendment prior to that. It is moved by the Honourable Senator Batters that —
Senator Simons: Senator Plett on the amendment.
The Chair: I think it was sent in by Senator Plett, but obviously —
Senator Simons: I just want to make sure I’m looking at the right document.
The Chair: I think Senator Plett sent it to the clerk, but any senator can move it in her name.
It is moved by the Honourable Senator Batters that Bill C-11-2-2-21 be amended on —
Senator Batters: Chair, I think —
The Chair: Do you want to read the amendment and make it easier on the chair?
Senator Batters: Sure. Trying to help the chair out. I move:
That Bill C-11 be amended in clause 2, on page 2, by replacing lines 21 to 27 with the following:
“community element means the participation of members of the community, through volunteers and a community board elected by members, in the content production of community media in the language of their choice, as well as in the day-to-day operations and administration of not-for-profit community media entities responding to the needs of the community they serve; (élément communautaire)”.
So this particular amendment — 2-2-21, just so everyone is looking at the correct amendment — would change that community element definition. As we’ve heard from multiple witnesses at this particular committee, there are numerous sources of uncertainty related to this bill. Some of them are fundamental. Most notably, they’re grounded, for example, in the considerable confusion that the bill generates when it comes to the inclusion or exclusion of user-generated content. The sources of uncertainty also arise from definitions in the bill that may generate outcomes not fully reflective of the intent or indeed the will of Canadian communities.
In this regard, I believe there is a challenge in relation to the definition of “community element” as contained in this bill.
The definition currently states:
community element includes the element of the Canadian broadcasting system as part of which members of a community participate in the production of programs that are in a language used in the community including a not-for-profit broadcasting undertaking that is managed by a board of directors elected by the community; (élément communautaire)
But it should be made clear that this definition actually applies more narrowly to non-profit community broadcasting like campus radio or public-access cable and not to any broadcasting activity that may involve some community contributions.
Senator Simons: I think Senator Batters’ comments clarified something for me, so I’m good.
Senator Miville-Dechêne: Perhaps I’m wrong, but I notice that in your definition, you’ve taken out the Canadian aspect of it. Was that intended or not? Because in the original definition, we’re talking about Canadian broadcasting systems. I think it means that we are talking about Canadian community element.
Senator Batters: My intent was to make it not so much — obviously, this whole thing is about Canadian broadcasting, right? But what we’re dealing with here is that we wanted to make sure it was more focused on members of the community and that particular element of community media.
Senator Miville-Dechêne: We are dealing with Canadian broadcasting but also with online platforms and foreign in this bill. Therefore, I was wondering, in terms of clarification, if we should add somewhere that we’re talking about Canadian in general. You don’t think so?
Senator Batters: I don’t think it’s really necessary. The entire bill is a Canadian piece of legislation.
Senator Miville-Dechêne: It’s just a remark. Thank you.
Senator Dasko: Senator Batters, you’re using the terminology “language of their choice” as opposed to “language used in the community.” How do you see the difference? Can you illustrate that with an example?
Senator Batters: We live in a diverse country right now. It’s to make sure it’s properly inclusive of all Canadians and to just make sure that’s very apparent by “language of their choice” rather than “language used in a community” — to include all those who are maybe only a small percentage of people in that community. It’s more inclusive, I think, to refer to somebody’s language of choice rather than what might be the vast majority of people in the community.
The Chair: Are there any other questions, colleagues?
Senator Dawson: Just wondering, for consistency, if we could ask the people from the department if the words are used elsewhere in the document, and if this amendment might affect other clauses going down the document.
The Chair: I have no problems with that. If a member of the department wants to comment on this particular small change and if it would have an impact, in your view, in the course of the rest of the legislation.
Thomas Owen Ripley, Associate Assistant Deputy Minister, Cultural Affairs, Canadian Heritage: Thank you, chair, and thank you for the question.
The way the Broadcasting Act is structured is it recognizes that there is a private element, a public element and a community element to the broadcasting system. The definition in question is how you define the community element. Currently, the community element would include both not-for-profit entities but there are community channels that are operated by for-profit broadcasters, such as Rogers, for example, where they give that broadcasting space to community organizations to produce programming for.
The current definition of the act, while it recognizes the important role of not-for-profit entities in the community element, was an inclusive definition as opposed to an exhaustive definition so that the move from “includes” to “means” would, from the department’s perspective, shift the emphasis moving forward to heighten the importance of those not-for-profit entities, potentially to the exclusion of the current balance between some of the for-profit broadcasters providing community channels and space for broadcasting.
The Chair: Senator Batters, you are okay with that?
[Translation]
Senator Cormier: I would like to ask Senator Batters for a clarification.
The initial definition refers to a “board of directors elected by the community,” while your proposed amendment says “community board elected by members.” What is a community board? Is there a clear distinction?
[English]
Senator Batters: I think it does, because it says that through volunteers and a community board elected by members. It still has that wording in it, but I think it just makes it more clear what that situation is.
Senator Quinn: I have a point of clarification. Some community boards are appointed; so should it be “elected or appointed” because some community boards are appointed.
Senator Batters: Bill C-11’s current wording already says “board of directors elected by the community.” So it is not different there.
Senator Quinn: No.
Senator Batters: Managed by a board of directors elected by the community.
Senator Quinn: No, I hear that. New rules here for me, but I am just trying to determine whether this process gives us an opportunity to broaden the definition so it’s more inclusive.
Senator Batters: What if it says “selected”? So then it would be “selected or appointed” —
Senator Quinn: Or appointed, yes.
Senator Batters: I would be fine with that definition. Do the officials think that would be an okay thing to do?
The Chair: Could the officials from the department could weigh in on that?
Mr. Ripley: Thank you. The concept as currently used is elected, recognizing that most not-for-profit corporations consist of members who, in turn, elect the board. I defer certainly to senators, if they know of other types of not-for-profit arrangements in provinces across the country that are not caught by that concept of election.
Senator Batters: Therefore, wouldn’t the word “selected” encompass both of those things? I would certainly consider that to be a friendly amendment, to add the “s” to my amendment.
The Chair: I assume some of the community organization channels you are talking about are community run, right? They are selected; they do not necessarily have elections, and they operate as a non-profit board. Are you moving that in amendment, or is that a subamendment to her amendment?
Senator Quinn: I’d amend it in whatever order it is amended.
Senator Batters: Can I revise that?
The Chair: You can revise that in the motion, yes.
Senator Batters: Sure. Okay. So instead of saying that it is a community board elected by members, we could just put “selected by members.”
The Chair: What I have been advised by the clerk is that this will require a subamendment and it will require a clear clarification by the law clerk. So if Senator Quinn would put this in a subamendment, then we would get it verified by the law clerk.
Senator Quinn: So moved.
The Chair: It would be moved as a subamendment, then, by Senator Quinn.
As we do that, colleagues, I will give the floor to Senator Dawson.
Senator Dawson: While we are debating some of these issues, as they are being assessed, may we continue with other amendments?
The Chair: Yes, the tradition is that we can stand this as they do their clerical verification, and we can go on.
We will stand the amendment.
Senator Gold: Before we formally stand it, may I ask a question of clarification to the officials, please? I apologize for being late to the party here.
I want to be clear, from the officials, is it your view that the change proposed in the amendment would potentially exclude the private sector from this definition and have that run through the rest of the act?
Mr. Ripley: Thank you, chair.
Yes, the current definition seeks to maintain a space where you could have the participation of both for-profit entities and not-for-profit entities in providing that community element of the broadcasting system.
The move to a more exhaustive definition using the term “means” would, from our perspective, shift that balance to indicating that it has to be primarily or solely from the not-for-profit sector.
Senator Gold: Thank you.
Senator Dawson: If I understand it, in some communities where Rogers or Vidéotron or anybody is subsidizing a not-for-profit organization, this would not be permitted if we amend it?
Mr. Ripley: Thank you.
Right now, the way it works is as a condition of licence, some of the big ownership groups — such as Rogers, for example — have to provide a community channel. That is a part of their licence. The way it works is they often work with not-for-profit community groups who provide the programming for that channel.
The move away from a definition that allows for the participation of both would require, from our perspective, the Canadian Radio and Telecommunications Commission to revisit that current framework, yes.
The Chair: Again, colleagues, we will stand this amendment as we do, the amendment — the amendment stand, colleagues? The clerk will get back to what Senator Quinn is proposing. Thank you, colleagues.
Senator Plett: Chair, I have another question for the officials.
The Chair: On this same issue?
Senator Plett: On this same issue.
The Chair: We just stood it, but go ahead, Senator Plett.
Senator Plett: If we changed “community element means” to “community element includes,” would that deal with the issue that you just addressed?
Mr. Ripley: Yes, that would mitigate that issue.
Senator Plett: Chair, if I could, I would like to move another subamendment that would simply change the words to “community element includes” instead of “community element means.”
The Chair: If that rectifies the problems, colleagues, I think you would withdraw your subamendment, Senator Quinn, if I understand?
Senator Plett: No, they would both be there.
Senator Quinn: They would both be there.
Mr. Ripley: It includes but they’re stand-alone issues.
The Chair: Repeat that again, please, Senator Plett, for the clerk.
Senator Plett: I move that:
. . . community element includes the participation of members . . . .
— taking out the word “means” after “community element.”
Senator Wallin: So keeping the selected?
Senator Plett: Yes.
The Chair: We will stand this amendment, and our clerk will do the due diligence with the legal clerk on the two subamendments, colleagues.
[Translation]
Senator Cormier: Does Senator Plett’s proposal work in French?
Vincent Labrosse, Clerk of the Committee, Senate of Canada: That is something we will clarify.
Senator Cormier: You will clarify, okay.
The Chair: That is one of the reasons that we want to take the time to clarify this.
[English]
Senator Cormier: Okay. I just want to make sure the French version works.
The Chair: This is the procedure. The procedural work we want to do is to ensure the translation works in French and English for the subamendments before we go, as well as the technical terms.
Senator Plett: And once they indicate to you that it does, we are coming back to it at that point?
The Chair: Yes, exactly.
Now we are back to clause 2. If I’m not mistaken, we are moving forward with Senator Miville-Dechêne, unless there is another amendment before the amendment of Senator Miville-Dechêne.
Senator Batters: Yes, I do have another one on clause 2, page 2. Yours is page 4, is that correct?
Senator Miville-Dechêne: Yes.
Senator Batters: I have another one on this one, and that is C11-2-2-31.
I will wait for everyone to receive it so that you can have it in front of you.
Senator Miville-Dechêne: What page is it on?
The Chair: Colleagues, it is being distributed now.
As it is being distributed, in clause 2, on page 2, it is moved by the Honourable Senator Batters:
That Bill C-11 be amended in clause 2, on page 2, by replacing lines 31 and 32 with the following:
“decision includes a determination made by the Commission in any form; (décision)”.
Senator Batters, you have the floor.
Senator Batters: Thank you. The main purpose of this is to harmonize the definition of “decision” with that which is included in the Telecommunications Act. As such, it is not a huge change, but it seems that this is the better way to approach it.
We have heard from several witnesses that the bill we have before us has some terms that are not clearly defined, so we are trying to improve that. A lack of clarity contributes to uncertainty and uncertainty, which will be extremely damaging to our broadcasting sector. Monica Auer from the Forum for Research and Policy in Communications told our committee:
. . . Bill C-11 is also incoherent, makes errors and leaves gaps. Clear and coherent laws state Parliament’s intent and are readily understood by the public, but Bill C-11 is not coherent and not readily understood.
So I think it is important for us to ensure, to the greatest extent possible, we do not have such gaps. In this respect, the witness told us that we have an inconsistency related to the definition of “decision” in this bill versus that in the Telecommunications Act. The definition in Bill C-11 currently reads:
decision means any measure of any kind taken by the Commission;
The definition in the Telecommunications Act, on the other hand, reads:
decision includes a determination made by the Commission in any form;
That is actually what we were just hearing from the officials. Here, we are trying to change it to “includes” whereas Bill C-11 says “means,” so it is more determinative.
In that respect, Elmer A. Driedger, who wrote the work Construction of Statutes in 1983, wrote:
It may be convenient to regard intention of Parliament as composed of four elements, namely the expressed intention, the intention expressed by the enacted words; the implied intention, the intention that may legitimately be implied from the enacted words; the presumed intention, the intention that courts will give in the absence of an intention are an indication to the contrary imputed to Parliament; and the declared intention, the intention that Parliament itself has set.
So consistent expression requires the same definitions, and when we have different definitions, that can contribute to confusion. This seems to be a situation where we can change it fairly easily and make it clearer.
The Chair: Colleagues, are we in agreement? Agreed?
Some Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Any more amendments before C11-2-4-5, which is Senator Miville-Dechêne?
Senator Batters: This is C11-2-2-32a. This is also regarding clause 2, page 2.
The Chair: It will be distributed by the clerk.
Senator Dawson: We will need more days to debate it. Without having the amendments defined, do we have a quantity of amendments we know we are going to have?
The Chair: I asked that question of the clerk, but he tells me that they were provided to him by every senator on the committee in confidence.
Senator Dawson: I don’t want the amendments; I just want the quantity. The confidence is the content, but the quantity is not —
The Chair: If the committee agrees, I will force the clerk to divulge the number of amendments.
Senator Dawson: Will the committee agree? Just for planning purposes.
The Chair: I have asked the same question you have.
Senator Wallin: Many, many.
Mr. Ripley: One hundred.
The Chair: A hundred.
Senator Dawson: A hundred.
The Chair: I also asked how many are duplications, colleagues. I do not know that either. I can tell you the clerk is mum on that.
Senator Dawson: At least I have an idea.
Senator Batters: Chair, if you would like, I can read this one.
The Chair: Yes, go ahead, Senator Batters.
Senator Batters: I move:
That Bill C-11 be amended in clause 2, on page 2, by adding the following after line 32:
“Indigenous news organization means a broadcasting undertaking that is owned or controlled by Indigenous people and provides news programming; (organisme de nouvelles autochtone)”.
So this one would add a new category of Indigenous news organizations. This particular amendment responds to testimony that we heard from Jesse Wente, co-Executive Director of the Indigenous Screen Office, who said that:
. . . this bill must ensure that the stories that are broadcast and the stories it means to ensure don’t just take place in a modern broadcasting and telecommunications regulatory framework but that these stories come from what has always been the modern Canada: a multinational place with a deep history still largely unexplored and a rich and diverse future that will be created through right relations and between communities and a sharing of our stories.
He also said:
This bill should also ensure that the definition of “news” contains Indigenous forms of storytelling and that an “Indigenous news outlet” be defined as being controlled by Indigenous peoples and produces content by Indigenous peoples.
The Chair: Colleagues, the number that has been sent by members of the committee to the Law Clerk is 98. That is the exact number.
Senator Klyne: I have a question for Senator Batters. Are you doing this after the definition of Indigenous peoples or before?
Senator Batters: Well it would be —
Senator Klyne: You are not replacing Indigenous peoples.
Senator Batters: No. All it does is add that particular thing after line 32.
Senator Klyne: Would it be after line 36 or 35 or —
Senator Batters: No. Because the definitions are always in alphabetical order and so “Indigenous news organization”—
Senator Klyne: It comes before —
Senator Batters: — comes earlier than that. But the Indigenous people indicated in there would then refer to the definition of “Indigenous peoples” as is already —
Senator Klyne: The constitutional definition.
Senator Batters: Yes, exactly.
The Chair: Before I go to Senator Gold, I do recall that Mr. Wente’s testimony before the committee was toward the end of our study. He was very much concerned about the bill not being explicit when it comes to Indigenous news organizations. He and other members of that particular panel had voiced that concern and I, for one, do not believe that it is a very complicated ask.
Senator Klyne: What is your definition of news programming?
Senator Batters: What is my definition?
Senator Klyne: A news organization typically covers a number of topics, if you will, in terms of being enlightening, engaging and entertaining. So a news organization can go beyond hard news. It can take on soft news. It can take on entertainment like walk of the town or community of the town. Could it not be just news?
The Chair: If I can take on that question, I think that Mr. Wente was referring to anything that was documentary, anything that is local news or community news.
Senator Klyne: Right. News programming could be interpreted as hard news. That is my concern.
The Chair: There are categories of news. You’re absolutely right.
Senator Wallin: The distinction and the common phrase now is “fact based.” That can be soft, hard or entertainment, but it is not a movie. It is not anything outside of that framework.
Senator Klyne: So give me a word, because I’m thinking “news programming” is more on the hard side.
Senator Wallin: As long as you make the distinction between movies or opinion or any of that —
Senator Klyne: I do not think this makes that distinction.
Senator Wallin: If you have fact-based programming or fact-based news programming, you have —
The Chair: Do you have a word in mind, Senator Klyne?
Senator Klyne: Well, something around content. Jump in any time here, Senator Simons.
Senator Simons: I think that with 100 amendments before us, we ought not to bog ourselves down with minutia. I think it is fine the way it is.
Senator Gold: I have a question for the officials and then a question for Senator Batters.
To the officials, is the term “Indigenous news organization” currently used in the act or the bill and, if it is not — as I believe it is not — what effect will this have? Does this imply or entail or require further amendments in the act for this to become an operative provision? That is the question to you. I will pause there.
Mr. Ripley: Thank you, senator, for the question.
We have checked. No, “Indigenous news organization” is not currently used in the bill or the existing act. This amendment would create a definition for it, but in light of the fact that it is not used anywhere else in the bill or the act, it would not have an effect unless there is a further amendment that uses that term somewhere down the road.
Senator Gold: Thank you. Knowing what amendments are coming poses a challenge. But the question, Senator Batters, is that my understanding is that the witness to whom you referred asked that “Indigenous news outlet” — I believe that was the term used — be defined as “being controlled by Indigenous peoples” and “produces content by Indigenous peoples.” Your amendment is somewhat different in language. Apart from the witness, was there any consultation with Indigenous groups about the content of your amendment?
Senator Batters: It was primarily dealing with that particular witness and the important testimony that he brought forward. The language that was chosen for the amendment was simply to be efficient in the wording and make sure it conveyed the same intent as, it seemed, this particular witness brought forward.
If I could briefly respond to what Senator Klyne was saying earlier about news programming. I am certainly someone who watches a lot of news. You say “news content,” yet you watch something like one of the 24-hour news channels that has everything from, yes, hard news but also Taylor Swift’s latest concert where people were unable to buy tickets, keeping that definition very broad, I would say, is probably a good idea. Keep it very broad because I do not think it will limit it in that respect.
Senator Klyne: They could provide content on multiple platforms.
Senator Batters: Yes, I think so.
Senator Klyne: In lieu of “news programming,” it could be “content on multiple platforms.”
The Chair: I will keep that in mind. I am going through my list of interveners on the amendment itself.
Senator Plett: My question is also for the officials. It may be a bit of a duplication of what Senator Gold asked, but I will ask my questions in any event. First, how might the adoption of this amendment impact how the bill is implemented when it comes to Indigenous broadcasting? Second, does it pose any challenges that you are really concerned about?
Mr. Ripley: Thank you, Senator Plett. Without further amendments that use this term, the impact of creating a definition would be minimal.
Senator Plett: Okay.
Mr. Ripley: There would have to be the use of this term elsewhere in the bill, such as in policy objectives or something like that, for it to have an effect. Otherwise it will just be a stand-alone definition that then is not used —
Senator Plett: If there is no other amendment passed, it would not be either positive or negative?
Mr. Ripley: Correct.
Senator Plett: Thank you. Senator Klyne, he said, no, it wouldn’t.
Senator Klyne: Are we going to accept “content on multiple platforms” instead of “news programming”?
Senator Dawson: Are you proposing a subamendment?
Senator Klyne: I guess I am. In lieu of “news programming,” I am proposing “content on multiple platforms.”
The Chair: With the agreement of the committee, can we finish the discussion on the amendment as they prepare the subamendment, Senator Klyne? Would you be amenable? Because I have senators who want to continue the debate on the main amendment.
Senator Klyne: Okay, keeping in mind that there is an amendment there, go ahead.
The Chair: I am saying that we’ll wait because there will be consultation, and it should take a few minutes.
If there is agreement from Senator Klyne, we will stand the subamendment and finish the discussion on this main amendment so that we do not delay the process.
Senator Dasko: I have a question for Senator Batters. From the comments you just made a couple of minutes ago, it sounds like you’re envisioning a wider type of programming than just news. If that is the case, shouldn’t it be something like Indigenous broadcasting undertaking means a broadcasting undertaking that is owned and controlled by Indigenous people and provides programming over a range of areas? Because I thought that’s what you just said a few minutes ago, as opposed to news being narrow, and what you suggested was something broader.
Senator Batters: Sorry. Were you talking about how I was answering Senator Klyne on that question about Taylor Swift?
Senator Dasko: Yes, exactly.
Senator Batters: I was trying to explain — and I obviously wasn’t clear — that I thought that the term “news programming” was already fairly broad, because when you watch 24-hour news stations and they have very hard news stories about developments in the war in Ukraine, but then the next news story is about how Taylor Swift fans can’t get tickets. What I meant is that I think the term “news programming” is already fairly broad.
Senator Dasko: Okay. For me the term “news broadcasting” is rather narrow. Thank you.
Senator Batters: I have a question, but I’m cognizant of your list.
The Chair: Let me go through the list and try to keep a bit of order.
Senator Clement: For officials, is this the language used in Bill C-18, and was it passed in the House just recently?
Mr. Ripley: Thank you for the question. There has been some recent discussion in clause by clause on Bill C-18 about recognizing Indigenous news outlets, which is, I believe, the term that is currently being debated in the context of that bill.
Senator Clement: Thank you.
The Chair: I have some brief comments on the amendment. I have to say the question the government leader posed is a very good question in terms of how consultative we have been in crafting this bill. The truth of the matter is this amendment is an amendment that comes directly from an Indigenous panel that came before our group. Again, thanks to Senator Klyne, we didn’t make the same mistake they did on the House side, because the truth is, colleagues, on the House side, Indigenous voices were not consulted by the House committee. We did significantly more consultation, and from Mr. Wente, Ms. Bousseau and Mr. Crowfoot, we learned a lot in terms of their concern. Some surprising things we also learned from them. UNDRIP is a bill that passed our Parliament of Canada and is something that needs to be taken seriously when we build legislation.
We did consult with Indigenous groups, and this amendment is something they asked for. Given the lack of consultation by the House, we need to look at this carefully. I don’t think this redefines the bill.
The other question I have for the officials is when I go through this bill, it’s 56 pages. The words “Indigenous peoples” are mentioned twice. I have heard time and time again that we need Bill C-11 to empower voices that don’t have voices right now in broadcasting. Given how all of us have come to terms with the importance of Indigenous people and where they stand and where they’ve stood in the past and where they need to stand in the future, I’m curious why. I know you might not have the answer, but I’m curious if the department officials can tell me why the words “Indigenous peoples” are found only twice in 56 pages.
Mr. Ripley: Thank you, chair. I would have to check how many times the specific term “Indigenous peoples” is used in the bill. There are other terms, though, used to refer to policy objectives around supporting Indigenous communities, so “Indigenous persons” is also used in the bill, as well as “Indigenous languages.”
There are multiple references to Indigenous policy objectives, because to your point, one of the objectives is to make sure that, moving forward, the broadcasting system does provide an opportunity for Indigenous peoples to create content, control broadcasting undertakings and see themselves reflected in the system.
The Chair: In your view, does this amendment interfere or weaken the bill, or does it add a component to it?
Mr. Ripley: No, senator. It would create an understanding or a definition of what an Indigenous news organization is, but for it to have a meaningful impact, you would have to see that term picked up elsewhere in the bill, either in the policy objective section or the regulatory objective section, because it’s really those sections that guide the work of the CRTC.
Senator Wallin: To Senator Dasko’s point, I don’t think you want to call it a broadcasting outlet, because that is very restrictive. You used that phrase, and I’m not sure you meant to.
Senator Dasko: Broadcasting undertaking.
Senator Wallin: Yes. It would have to be — I think that’s part of the battle over the use of the word “broadcast” when you’re coming to other platforms. You could add “news and information programming,” which also broadens it out — to speak to Senator Klyne’s point — and that would be another way to deal with it.
You had also raised, Senator Klyne — and I don’t have it written down word for word, but something to the effect of owned or controlled by Indigenous people and produces Indigenous content, which I then think begs another definition. We could eliminate that, because almost by definition it’s Indigenous content if it’s owned and controlled and they’re making the choices.
Senator Klyne: I understand what you’re saying. My issue is that we shouldn’t put them in a box just because they’re Indigenous.
Senator Wallin: That’s what I mean. They may want to do programs about anything.
Senator Klyne: They could buy Corus; they could buy Anthem Sports & Entertainment. I would request that it provides content on multiple platforms.
Senator Wallin: Yes.
Senator Klyne: It’s broad-ranging —
Senator Wallin: And eliminate the other. Yes, I agree with that. Those are my points. Thank you.
Senator Dawson: Beyond the fact that we would be repeating the word “Indigenous” but with no action to be followed — because like the witness from the department said, it’s not going to be used elsewhere in the document. I can understand we’re adding the words, but we’re adding them to a chapter that already includes Indigenous representation.
Again, to come to Senator Simons’ question about how much time will we spend on each detail, if it’s an additional detail that will not be improving the bill, should we not pass and go on to something else?
The Chair: The only thing is — we’ve discussed it many times at committee, and Senator Quinn made the point, I made the point on a number of occasions — the regulatory framework, as we know, in telecommunications and in the Broadcasting Act are even more important than the bill. The bill serves as a foundation to guide those guidelines and the regulatory framework.
As the official appropriately pointed out, this bill will serve as that framework to influence the regulatory guidelines, because, as we know, that regulatory framework, once we push this bill off to the CRTC, the only opinion we have left in influencing the framework is the bill. Again, for me, even this doesn’t go far enough to send the message to the CRTC of what the objective of the bill is stating, which is to give more voices to diverse groups and minority groups in the country, and particularly our founding peoples.
I agree with you, Senator Dawson; it looks a bit innocuous, but I think it’s the beginning of what the bill should reflect by the end of it. It’s a guideline to the CRTC, since — and we’ve asked for it. I asked for it; Senator Quinn asked for it. We would have loved the department to give us at least the basis of the regulatory framework. Again, they did with Bill C-11. They chose not to — sorry, with Bill C-10, the old version of this bill. They chose not to with Bill C-11. Again, it’s their right. I bear to disagree for the reasons I just highlighted.
Senator Batters: I have a question for the officials. Would that particular definition apply to the bill’s regulations that are yet to be drafted? Often the regulations have much more detail, and that could be something where that term could be used for that.
As well, I watched Minister Rodriguez indicate to this committee the other day that this act hasn’t been amended in 30 years. So something that we’re dealing with right now is perhaps just a small part of this bill, but it could become a much bigger entity in the future and perhaps spurred on by something as relatively innocuous as a definition. But that could be something that helps to spur on a very important element.
The Chair: To your point, we might have another 30 years before it gets amended. We don’t amend broadcasting acts very often, for good reason, as we see from the process.
Senator Gold: I’ll be brief. This is to respectfully and gently correct an impression that might be given. In fact, the act uses the term “Indigenous,” whether it’s Indigenous culture, language or peoples, 22 times in this act. I don’t want those who are listening to be misled that the importance of Indigenous culture, participation, voices and role in our country are being minimized in the act; it’s quite the contrary.
The Chair: Thank you, Senator Gold. I was specific in terms of what I saw in the act and what was missing.
Any others on this debate?
Senator Wallin: When we get to Senator Klyne’s subamendment, would he agree to take “broadcasting” out as well? “Indigenous news organization” means an undertaking that is owned rather than broadcast. It’s the same limit we’ve got when we’re talking about controlling the internet here. It’s not necessarily called broadcasting. That has a specific definition under the act and certainly in terms of usage in the community.
Senator Klyne: If not broadcasting, then distributing.
The Chair: Repeat that.
Senator Klyne: “Distribution” instead of “broadcasting.” There are platforms and programming. Broadcasting is almost unilateral; not unilateral but —
Senator Wallin: Take them both out. If it wasn’t either “distribution” or “broadcasting” but just said “undertaking.” It might be a website. It might be — I don’t know — that is owned and controlled by Indigenous people and provide content on multiple platforms.
Senator Klyne: Are you thinking “broadcasting” is limiting?
Senator Wallin: Yes.
Senator Klyne: Then I’m all for it, if it means that.
Senator Cormier: In the beginning, in the definition, we have “broadcasting” everywhere. We have “broadcasting” and then “broadcasting undertaking” includes a distribution undertaking, an online undertaking, a programming undertaking and a network.
Senator Wallin: Yes, all of those undertakings. I’m thinking if we just use the word “undertaking.”
I’m talking about the motion here — Senator Batters’. So “Indigenous news organization” means an “undertaking” that is owned or controlled by Indigenous people — whatever the phrase is — and produces content on multiple platforms. Then we’re not just saying they’re a broadcast outlet, nor are we saying they’re a distribution outlet. We’re saying they can be whatever they want to be in the modern world with all the technology that exists.
Senator Quinn: I have a question. If we did what you just suggested, would we not then have to define “undertaking”? Because in acts and bills, you want to be able to refer back to a phrase in the definition. What is the definition of “undertaking”? “Broadcasting undertaking” is specified there.
I guess I’m asking the department. If we were to use just the word “undertaking,” then, by necessity, we would have to define “undertaking.”
Senator Wallin: To be more inclusive.
Senator Quinn: That’s what those who are interpreting legislation want to do: go back to the definition section.
Senator Klyne: I always get spooked about what happens to bills once REGS gets a hold of it. What we interpreted, what we meant and what we thought we meant can sometimes fall by the wayside.
I look to Senator Batters. “Undertaking” is more like you undertake to do something. I’m not even crazy about that word, without an adjective to it. If it means through multiple media and content on multiple platforms — I don’t want to box people in. Ten years from now, they want to buy Corus Entertainment. Well, that’s not really broadcasting. Who knows?
What we do in the bill and what happens with regs and policy can be three different things.
Senator Quinn: I was coming back to the suggestion that Senator Wallin was making. If we were to use a phrase by itself — “undertaking” — would the department advise that you, then, need a definition for what “undertaking” means? That’s my question to the department.
Mr. Ripley: Thank you, Senator Quinn. The concept of “broadcasting undertaking,” as one senator pointed out, is one of the key concepts of the bill. It is what gives rise then to different kinds of broadcast undertakings, such as a distribution undertaking, which is cable and satellite companies; an online undertaking, which is one of the key thrusts of the bill, which are streaming services; and then a programming undertaking, which is essentially a TV channel.
From the department’s perspective, the definition that is being proposed captures the variety or the scope of the act, and “broadcast undertaking” is probably the right scope, given the defined term that exists in the act.
Senator Quinn: Thank you. I agree with you. I was trying to bring that to a point of certainty so we can move on.
I think Senator Cormier correctly identified that the definition is the broad definition when it comes to “broadcasting undertaking.” Thanks for that.
The Chair: The definition meaning “undertaking”?
Senator Quinn: “Broadcasting undertaking.” I’d leave it as is.
The Chair: Senator Klyne, that satisfies your perspective too, right?
Senator Klyne: Who determines what “broadcasting” is? Is it radio and television? Because that sets the limitation. But if it’s multiple media today — if it’s streaming —
Senator Batters: “Broadcasting undertaking” includes a distribution undertaking, an online undertaking, a programming undertaking and a network undertaking.
I was reading the definition of “broadcasting undertaking” that’s in Bill C-11. It says:
broadcasting undertaking includes a distribution undertaking, an online undertaking, a programming undertaking and a network;
Senator Quinn: I’m simply saying that above that definition is the definition of “broadcasting,” which seems to bring clarity to what broadcasting is and what a broadcasting undertaking is.
I’m humbly suggesting that we’re trying to find a needle in a haystack and that the definitions in the bill seem to appease the discussion we’re having.
Senator Wallin: I agree. Those of us who spent many years in the business have very defined definitions about what this constitutes. The department has declared that it means all those things. It just doesn’t necessarily mean all those things to ears in certain businesses.
Senator Simons: Can we stand this item and move on? We’re now getting into an existential whirlpool.
The Chair: I see a consensus. If we stand all these items — at some point we have to come to conclusions. If the committee wants to stand it, we can stand it. But we’ve stood everything so far.
Senator Gold: We’ve had a full discussion. I’m not sure what we’re about to vote on, but I think it’s time to call the question.
Senator Plett: Clearly we’re voting on an amendment that has been put forward. If Senator Klyne wants to put forward a subamendment, we’ll vote on that. I do agree, though, that if we are going to stand everything — we were told we have 98 amendments to go through. At what point are we going to vote on them? We have to vote on them at sometime.
My suggestion is that if Senator Klyne has a subamendment, then we vote on it. We then vote on the main amendment and we’re done.
The Chair: Colleagues, there is another more important procedural problem. Senator Simons, we have two subamendments that are on the floor that have been stood. We cannot have a vote on the main amendment. We can only have the debate until we address the two subamendments.
Senator Wallin, the table wants to know: Are you proposing to remove “broadcasting” from —
Senator Wallin: No. I was asking Senator Klyne if he wished to do that, and if he does not, then I will not propose it.
The Chair: What stands right now is that we have a subamendment from Senator Klyne that has been stood.
Senator Klyne: I don’t know if this speaks to the subamendment, but I’m fine with “broadcast undertaking.”
The Chair: I have your subamendment here prepared by the law clerk.
Senator Dawson: That’s not it.
Senator Klyne: I just want to focus the vote on “many platforms.”
The Chair: Are you withdrawing the subamendment?
Senator Klyne: Mine? No. I just didn’t want to muddy it up with —
The Chair: Colleagues, I’m told that one of the options, if the committee is agreeable, is that I have the subamendment in French and English from the law clerk, but apparently we don’t have the logistical capacity to send it around to all of you. I can read it in French and English, if the committee is amenable.
This is Senator Klyne’s subamendment:
That Bill C-11 be amended in clause 2, on page 2, by adding the following after line 32: “Indigenous news organization” means a broadcasting undertaking that is owned or controlled by Indigenous people and provides content on multiple platforms.
That’s the English version.
Does the subamendment carry, colleagues?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: Agreed or no?
Some Hon. Senators: No.
The Chair: To me, it’s the “nays” that have it.
Senator Plett: Recorded vote.
The Chair: There’s a request for a recorded vote.
Senator Batters: Mr. Chair, this is on Senator Klyne’s subamendment, correct?
Senator Wallin: As read by you.
The Chair: As read by me in English and French, which is essentially the multiple platform —
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: For.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: For.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Nay.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
The Chair: Honourable colleagues, it is a tie. Thus, the subamendment is defeated. The results were 7-7.
Now, there was a motion on the floor, if I’m correct, from Senator Simons, to call a question on the main amendment.
Senator Simons: Don’t we still have another subamendment?
The Chair: No. It was withdrawn.
Senator Simons: Withdrawn? All right. Then, yes, that’s my motion.
The Chair: Honourable senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Plett: Recorded vote.
The Chair: I think the “yes” side has got it.
Senator Plett: Recorded vote.
The Chair: A recorded vote. It’s not a very vocal crowd.
Senator Plett: You’re not yet at that age, Senator Housakos, where the hearing should be going.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: I’m going to abstain.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas, 5. Nays, 8. Abstentions, 1.
The Chair: The motion is defeated.
Colleagues, the law clerk has gotten back to us on the amendment in French and English, but there seems to be difficulty getting copies to everybody. I guess we are running out of printers and photocopies.
If the committee agrees, I can read the amendment in French and English. It’s 2-2-21. It was the subamendment that was stood on community broadcasting.
Senator Plett: The very first one.
The Chair: The very first one.
If the committee does have a preference to have a written copy, obviously, you have the right to request that. Some are more interested in speed than efficiency. It’s the committee’s right.
Colleagues, Bill C-11 be amended in clause 2 on page 2 by replacing lines 21 to 27 with the following: “community element, the participation of members of the community through volunteers and a community board elected by members” — selected by members — this is the first one.
Yes. I apologize. It is the first subamendment.
It says:
“community element means the participation of members of the community, through volunteers and a community board selected by members, in the content production of community media in the language of their choice, as well as in the day-to-day operations and administration of not-for-profit community media entities responding to the needs of the community they serve; (élément communautaire)”.
[Translation]
That Bill C-11 be amended in clause 2, on page 2, by replacing lines 21 to 27 with the following:
“community element means the participation of members of the community, through volunteers and a community board elected by members, in the content production of community media in the language of their choice, as well as in the day-to-day operations and administration of not-for-profit community media entities responding to the needs of the community they serve;(élément communautaire)”.
[English]
Shall the subamendment carry, colleagues?
Hon. Senators: Agreed.
Senator Gold: I do apologize. Every time you read it, it was not clear to my ears whether the first line was community element “means” or “includes.”
Senator Plett: The first one is “means.”
Senator Gold: We are voting on “means” now.
The Chair: Right.
Senator Plett: No, we are voting on —
The Chair: Instead of elected, choisis. Instead of elected, selected.
Senator Gold: Thank you. I always know it is better with paper in front of me. Thank you for the clarification.
The Chair: Shall the subamendment carry?
Hon. Senators: Agreed.
The Chair: Carried. Excellent.
On the subamendment of Senator Plett, it is to replace “means” by “include.” So I will read that amendment again, colleagues. Bear with me, because this is a little discombobulated It says “Community element includes the participation of members of the community through volunteers and a community board by members . . . “
Senator Dawson: The rest is the same.
The Chair: The rest is the same, so I dispense.
Some Hon. Senators: Dispense.
The Chair: In French, obviously, it is:
[Translation]
“élément communautaire, s'entend notamment de la participation des membres d’une communauté . . . .”
Is that correct?
[English]
So is this subamendment carried?
Hon. Senators: Agreed.
The Chair: Excellent. We are on a roll. So carried.
And shall the motion in amendment carry, colleagues?
Hon. Senators: Agreed.
The Chair: Excellent. So carried.
Colleagues, are there any other amendments on clause 2?
Senator Batters: I have one on clause 2, page 2 again. I do not know if anyone has one prior to this. This is C-11-2-2-32b for the clerk.
The Chair: Section 2-2-32. It is moved by Senator Batters.
Senator Batters: I should read it.
The Chair: Go ahead. You are more familiar with it than I am.
Senator Batters: So on clause 2, page 2, that Bill C-11 be amended in clause 2 on page 2 by adding the following after line 32: “Discoverability means the ability for Canadians to search for and find Canadian content — oh, my French is rusty — découvrabilité.”
So this particular one, it adds a discoverability definition.
Section 3(7)(q)(i) refers to ensuring “the discoverability of Canadian programming services.” Section 9.1(1) of the bill states that:
The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting . . .
(e) the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs . . .
Right now, the act of discoverability, i.e promoted or suggested content, is based upon the consumer’s pattern. Take Youtube for example. When you are viewing content on Youtube and you see other videos in the queue — suggested videos that Youtube thinks you may like — that is based upon what you have already viewed. That’s done through the algorithm.
What this bill proposes to do is force platforms to change their algorithms to produce the prescribed outcomes, i.e. prioritizing Canadian content and suggested viewing in the case of Youtube. In the case of Instagram, it would not even be a suggestion. Your feed would already populate based on whether something is Canadian content versus something you have already shown an interest in.
The problem is two-fold. When content is featured in a consumer feed based on something other than their established preferences, they will not know this until they click on it. Once they click on it and they realize it is not something they are interested in, they will move on without watching it to its completion.
First, it will cause the consumer to start questioning why this content is showing up in their feed, and they will start to lose confidence in the service and actively try to avoid the very content that this legislation is supposedly meant to promote and protect, and ultimately, they will leave the platform altogether.
Second, when a consumer clicks on content, does not like what they see and does not stay with it until completion, then the audience retention rate on that content goes down. When the audience retention rate goes down, the global ranking goes down, and once that global ranking goes down, they start losing money. Ultimately, those digital creators lose either way. In an attempt to promote their content here at home, we would be blunting their success globally.
I know there has been a lot of discussion about this, in particular whether this legislation actually gives the CRTC control over algorithms or whether that is our intention or not, but it is clear that for some platforms there is no way other than algorithm manipulation.
Canadian Radio and Telecommunications Commission chair Ian Scott made this clear in his first appearance before this committee last June. He said that the CRTC wouldn’t change the algorithm; they would just make the platforms do it for them. Even though he tried to somewhat walk that back when he appeared again November 16 by suggesting platforms could use advertising and marketing to promote Canadian content, he acknowledged that if those methods don’t result in the outcome prescribed by the CRTC, then those platforms would be penalized, and eventually, in order to avoid penalization, the platforms would end up manipulating their algorithms.
It is an extremely important part of the legislation. We have to understand the difference between passive and active discoverability, and we have to recognize the difference between online streaming platforms that can feature content through the menu versus platforms that feature user-generated content and don’t have the screen real estate to feature passive discoverability.
Numerous witnesses have raised the challenge that this bill poses when it comes to clarity and when it comes to ensuring certainty and stability in Canadian broadcasting. One of the key areas has been around how discoverability will be dealt with under the terms of this legislation. Right now, the bill does not contain a definition of “discoverability” despite references to that term.
We have heard that a potentially expansive use of the term “discoverability” is unnecessary for consumers who are seeking Canadian content since it is not difficult to find on the internet, but in the context of this bill, it appears that we’re conflating discoverability with promotion. In that sense, we’re choosing winners and losers based upon something other than just consumer preference or quality of content.
Additionally, we’ve also heard how the use of active discoverability — “active” meaning forced upon users — versus “passive,” meaning use of a search function or menu option that includes folders based upon genre, country of origin, et cetera. That poses significant problems for Canadian creators digital, in particular digital creators producing user-generated content versus online streaming companies.
J.J. McCullough, who spoke to the Heritage Committee last spring, summarized the issue succinctly, saying:
. . . The CRTC is going to be given a mandate to promote the ‘discoverability’ of Canadian content, specifically, and that websites under the CRTC jurisdiction, such as YouTube, will be obligated to comply with this discoverability mandate.
What this means is that the CRTC is going to have to come up with some sort of criteria for what is good Canadian content and then YouTube is going to have to live up to its legal obligations to promote and recommend that content.
Overnight, creators are going to wake up and find the kind of content that has previously been successful in an unregulated YouTube is no longer successful in a regulated YouTube. As a result, they will either have to change the nature of content that they make in order to make it more overtly Canadian—whatever that means—or they could possibly be at a disadvantage. That could mean their viewership, and thus revenues, take a hit. That’s something that I think is quite worrying to a lot of YouTubers.
We have had witnesses at this committee tell us that there is a solution to this inherent problem that the bill creates for content creators. Matthew Hatfield, Campaigns Director for OpenMedia, provided a solution that numerous other witnesses have endorsed. He said:
. . . Bill C-11 must not give the CRTC the power to manipulate the results of algorithms on platforms. We would never tolerate the government setting rules specifying which books must be placed in the front window of our bookstores or what kinds of stories must appear on the front pages of our newspapers. But that’s exactly what the discoverability provision in section 9.1(1) currently does. This dictatorial approach is not needed or appropriate. Striking the discoverability language in 9.1 while keeping the language asking platforms to showcase Canadian content would be a reasonable compromise. That change could make it easy for users to explore Canadian cultural content when we want to but not have our feeds overwritten by content the government chooses for us everywhere we go online.
We will later get to dealing with section 9.1(1), but in advance of that, I propose an amendment that will add a clear definition of “discoverability” to the bill. The bill in clause 2 would read, as I read earlier:
discoverability means the ability for Canadians to search for and find Canadian content;
Colleagues, I think that amendment puts the power where it belongs: in the hands of Canadian consumers, and it protects consumers from intrusive regulation. Thank you.
The Chair: Thank you, Senator Batters. This is a very important amendment, in my opinion.
I have a list here and will go to Senator Gold soon. but before I do, I will ask Mr. Ripley something. Throughout the process of our study, obviously we spoke a lot about Canadian content. That is at the core of this particular amendment — who decides what is Canadian and what is not? We heard many Youtubers and streamers come before the committee, and the biggest concern for most stakeholders is “Am I Canadian enough? Is my content Canadian enough? Will algorithms be manipulated?” That was all language I did not know existed before.
This bill is certainly working with the definition of “Canadian content” that was very much designed 45 years ago. The concern a lot of the stakeholders and I have is whether it easily transformed into the digital world? We heard so many times, even from the platforms, that they know where a person is downloading content from, but they do not know if they are Canadian. You could have an entity in Canada downloading content, and they are some kind of entity conducting dubious activity on the part of a foreign country that wants to influence our nation.
Have you given any thought to how the “Canadian content” definition applies to the new digital world?
Second, this is a question that has been asked umpteen times in this committee, and the truth of the matter is that we keep getting contradictory definitions. Will algorithms be off the table when it comes to forcing platform providers to manipulate them to reach the Canadian content definition that either the department or the CRTC comes to a conclusion on?
I know that was a long question but it is an important one.
Mr. Ripley: Thank you. With respect to your first question, the government’s position is that there is no extension of the concept of Canadian program to social media creators, because the intention is to scope out their content at 4.1 and 4.2. The idea of commercial content — one of the ideas underpinning that — is the question of substitution and whether that content is found on other broadcasting services.
It is grounded in an understanding that, because it is commercial content — and we are talking about, say, commercial music or commercial audiovisual content — the existing definitions are applicable. Again, this is about supporting or promoting the discoverability — or showcasing — of that content on social media services.
But there is no question of trying to extend that definition to social media creators, but I acknowledge that there has been a lot of debate and, I think, misunderstanding around that. There is no question of asking those social media creators to fill out a CanCon form or identify the Canadianness of their content. The idea is that 4.2 does not extend to them.
On your second question, the government’s position — and we had the opportunity to chat about this the other day — there is no definition right now as to “discoverability.” I understand that is why Senator Batters is bringing this forward. Right now, it is a concept that would be understood in the ordinary understanding and meaning of the term at any given point in time, and that was to allow the concept to continue to evolve as techniques, tools and opportunities to showcase or promote content on online services evolve.
There has been a lot of focus, I would argue, on the question of social media services. One observation I would make to the committee is that it is important to remember that the concept of discoverability and showcasing is not limited to social media services; that power also exists with respect to other streaming services, such as Netflix, Crave or Spotify.
A well-established service like YouTube is very much algorithm-based in terms of how it promotes content. Those other services are a mix of recommendation algorithms that understand our personal preferences and of people behind the scenes making programming choices about what content they are going to promote on their landing page.
Again, the government’s position is that there is a lot of space for industry and stakeholders to have a discussion in the context of regulatory proceedings about the most impactful way to promote and showcase Canadian programs on online services.
The Chair: Will that definition be exclusively left to the hands of the CRTC, or will the Heritage Canada have a say in it?
Mr. Ripley: The definition would be understood in its ordinary understanding, which, right now, would encompass things like promotion on landing pages. It could also include actions that are off-service through promotion or marketing. It could include better user tools with respect to search and those kinds of things.
But, again, I think our expectation is that how discoverability and showcasing is understood in the creative industries, including the music and audiovisual sectors, will evolve over time. There was reluctance on the government’s part to define it in a way that locks in at a particular moment in time.
The Chair: What I am saying is, with the current legislation as it stands, the Heritage Department has the authority to make those decisions or force the CRTC, in terms of how the bill is created, to make those decisions. It sets the standards or the benchmarks. Correct me if I am wrong; the department and the government have the capacity to set benchmarks?
Mr. Ripley: The government doesn’t have the ability to add a definition to the legislation. The government could, through the policy direction process, emphasize or provide guidance on how those powers could or should be used, but, again, that process will involve consultation with all interested stakeholders.
The Chair: Thank you for that clear answer, Mr. Ripley.
Senator Gold: I have a question for the officials again, and it builds upon the very illuminating discussion on these larger issues.
Am I understanding correctly that the act as it is contemplated is trying to provide flexibility to the various different platforms to promote, showcase, make available, make accessible, make known, content, however they decide to do it? Perhaps you could comment on the proposed amendment because it seems to be focused very much on algorithms. It says discoverability means the ability for Canadians to search for, as opposed to being presented with, on a Spotify page or what have you. Would you have a concern that this, in fact, would actually limit the scope of discoverability as it evolves? I won’t editorialize, but it almost sounds as if, in a rush to embrace the new digital age, we’re actually restricting ourselves in terms of what the act hopes to accomplish by allowing platforms to choose the ways in which they promote and showcase, which may not involve exclusive reliance on algorithms. I wonder if you could comment on that.
Mr. Ripley: Thank you, senator. Our understanding of the proposed amendment is that it would be limiting to the concept of discoverability as it does preclude other elements that I highlighted, which would potentially be included in that term. To your question, it puts the focus on specific things, like the ability to search and to find. That meaning is reinforced by the fact that it uses the term “means,” so it’s not an inclusive definition but rather an exhaustive definition of discoverability.
Senator Gold: Thank you.
Senator Wallin: We have spent a lot of months going over the details of this, and I don’t think we can let it stand, with the comments of the officials being quite so definitive. We heard explicitly and directly from the commissioner of the CRTC and, furthermore, from his legal counsel that not only today but tomorrow — under the existing law and certainly under this one — they have the right to regulate social media. Their assurance was that they would choose not to because it wouldn’t be in their interests. That’s the crux of this whole discussion.
Even the promotion of Canadian content, as defined by the chair and yesterday by the minister, actually constitutes manipulation of platforms. For example, the minister talked about requiring or forcing platforms to surround content with advertising or promotion of Canadian content. That would require them to do something they don’t currently do; that is regulation of social content.
There are all the details about the different platforms and why Spotify is different from YouTube and all of the rest of it. I don’t think we can let it stand that this question is settled. It’s not settled. We have very contradictory testimony. Simply by stating that they’re out does not make it so.
Whether this is the right definition of discoverability is another issue, but I do think that we just can’t let that stand. Thank you.
Senator Plett: My question is also for the officials. Can you tell us why the government has produced the regulatory framework?
Mr. Ripley: Thank you for the question, senator. The question around the policy direction is that there is a process provided for in the bill, as senators are aware. The government has been waiting for the bill to land because there have been a good deal of changes throughout the parliamentary process. The plan is to publish a draft, once the bill receives Royal Assent, for all stakeholders and parliamentarians to see. The intention is to use the process provided for in the act to that effect.
Senator Miville-Dechêne: I think we’ve heard the arguments on both sides. I, for one, am ready for the question. I am ready to vote.
The Chair: Colleagues, thank you. I won’t start reading the rules that we have in the Senate, but as long as senators are engaged in debate, we can’t go to the question. It’s not a new rule. I didn’t just make it up.
Senator Batters: I just wanted to respond to something that Mr. Ripley said a little bit ago. I believe that I heard him say something about “discoverability” being a commonly understood term or something similar to that. I would take issue with that. I don’t think that discoverability is a commonly understood term. Frankly, prior to Bill C-11, the most common place where I heard the term discoverability was when I was practising law. There is something called the discoverability principle where you have a statutory limitation period that can be extended in cases where a plaintiff didn’t have knowledge of and can’t reasonably be said to have discovered an event, like a criminal offence or something like that, so that they would sue based on that. That’s certainly a much different sort of term than what we’re dealing with here.
To have this type of an extensive act with an issue that has been discussed for weeks and months, dealing with discoverability, I think the sober-second-thought thing to do is to have a very short but descriptive definition here.
The Chair: My question is for Mr. Ripley. You said that this limit would limit discoverability to people’s searches. It would limit discoverability to past discoverability versus active; is that correct?
You are acknowledging that the bill itself would force active discoverability? You are acknowledging that the bill would force algorithmic manipulation based on what you shared with us?
Mr. Ripley: Thank you, chair, for the question.
There is, indeed, a range of tools that could be used, including proactive discoverability measures, as we discussed the other day. We know that the bill is clear that the intention is not to empower the CRTC to request information on algorithms and prescribe prescriptive changes to them, but, again, in light of the fact that we’re talking about a wide array of services, the government’s position is that there may be places where, yes, it may be appropriate to have proactive promotion or showcasing of Canadian music and stories.
The definition that’s on the table puts a strong emphasis on search and a user using the search. Our position is that discoverability, as it’s understood in the industry, is a broader concept.
The Chair: Thank you again, Mr. Ripley, for your clarity. That’s the clearest definition and explanation I’ve heard so far. I appreciate that.
Senator Wallin: Just a quick question for Mr. Ripley. We have all of these definitions. Is there some other definition of “discoverability” that you would rather see than the one proposed here?
Mr. Ripley: Thank you, Senator Wallin. As I indicated to Senator Gold, one observation I would make is that this is an exhaustive definition. I certainly acknowledge that the ability to search for and find content is part of discoverability, so perhaps one observation is whether the committee wishes to broaden it to be an inclusive definition, as it leaves room for the concept to be understood beyond just the ability to search and find.
Senator Wallin: What would that language sound like?
Mr. Ripley: “Includes” the ability for Canadians.
Senator Wallin: So it’s back to that, instead of “means.”
Senator Quinn: I think you were getting at what I was going to ask, and in fact, what Senator Batters said. I am not a member of the broadcasting community, but one thing I’ve learned through this process is that one of the biggest issues has been the term “discoverability.” I believe it really needs to be defined in one way or another. If it needs to be more inclusive, then suggest how we make it more inclusive. I think you’ve just suggested something.
My ability to actively go and look for things should also, from what I understand from the discussion, be the ability for broadcast platforms or providers to provide me information. It’s the give-and-take principle. I should be able to search, but it should be able to be provided.
If we can get at that, would that not solve the issue in terms of a definition for discoverability that Canadians can understand? I don’t have the words. I’m not an expert on this. I look to the department or one of my colleagues who have the background, because I don’t.
Senator Wallin: I’m prepared to begin the discussion by saying I’m proposing a subamendment, then, where we replace the word “means” with “includes.”
The Chair: Senator Plett, you can ask your question and then we’ll go to the subamendment.
Senator Plett: Again, for the officials, the CRTC commissioner told this committee that there are many ways to implement discoverability without requiring algorithms to be manipulated.
Would this amendment not define discoverability and assist in confirming, for example, that algorithms do not need to be manipulated?
Mr. Ripley: Thank you, senator, for the question. I agree that the definition, as drafted — my read of it — puts a lot of emphasis on the user and the ability when I search for something as a user on an online service. It’s about making sure that in that search function, Canadian programs can be found.
The government’s position, though, is that the tools available to the CRTC should be broader than that. Again, there are very powerful tools that online services have and use to promote content. There should be space for there to be debate about those tools being used to promote Canadian stories and music in the most effective way, while still respecting consumer choice, which is what I understood the CRTC chair to be recognizing as a really important principle in all of this because it’s something that we all really value about these online services.
Senator Wallin: How does the subamendment proposed here — discoverability means the ability for Canadians to search for and find Canadian content — limit consumer choice or prevent platforms from advertising or, I don’t know, in other ways promoting Canadian content? Why does the word “means” eliminate that ability or restrict that ability?
Mr. Ripley: Thank you, Senator Wallin. I believe the effect would be that the emphasis is really on that search. In an online service, they generally provide a search function, so the emphasis is really in the context of that search function, and discoverability is understood exclusively in relation to that search function. That’s why I think, from our perspective, it limits it because, as we’ve discussed, there are other ways that services can proactively promote content.
Senator Wallin: I agree. I just don’t know why you think this particular wording prevents or precludes that.
Mr. Ripley: Thank you, senator. At the end of the day, it’s a question of what regulatory obligations could be placed on services in the scope of those regulatory obligations, which I think is the crux of the debate.
Senator Wallin: I’m sorry, you’ll have to go at that one more time. How does it preclude that?
Mr. Ripley: Section 9.1 is the key section where the term “discoverability” is used. That provides the CRTC with the power to place certain obligations on online services to promote the discoverability of Canadian programs.
The definition that I think is being tabled is definitely an element of discoverability — I’m certainly not disputing that — but I think it has a particular emphasis on search. Then, if the definition were to be adopted, it means that discoverability, as used in section 9.1, would be understood in that way.
Senator Wallin: Thank you.
Senator Quinn: For the department again, for Mr. Ripley, you’re acknowledging what I said to be going in the right direction. I’m wondering, in this definition — again, I’m looking for guidance — about if you were to see the words “means the ability for Canadians to be informed of Canadian content by broadcasting service providers or to search for and find Canadian content.” I’m trying to get at that give-and-take principle.
You have said, other witnesses have said and the commissioner has said that there are different ways of promoting Canadian content, such as with marketing, advertising, and in fact, bricks and mortar for the YouTube facility in Toronto, I think it was. There are different ways of getting at it.
What I’m proposing would have providers inform me of Canadian content, and at the same time, allow me to search for Canadian content.
I’m waiting for an answer.
Senator Wallin: And I have a comment.
Mr. Ripley: Thank you, senator. I think part of it is, at least in English — looking at the French, I’m not sure to what extent it’s an issue.
Part of the question right now is to search for and find whether that is understood as one concept or one clause that goes together. If so, I agree with you that it limits the idea of to and fro or back and forth, perhaps something along the lines of the ability to find Canadian content. Again, that removes the idea of search and just emphasizes that what we’re trying to do at the end of the day is to ensure that when Canadians go on these services, Canadian stories and music can be found, can be discovered.
Senator Quinn: Would the concept of being informed, as I suggested, be another way of doing everything we’ve talked about around marketing and all that kind of stuff?
For Canadians to be informed of Canadian content, by broadcasting service providers, wouldn’t that get at that issue and acknowledge that which Mr. Scott said would be a way for discoverability to be enhanced? Because we do need a definition, I believe, of discoverability. But how do you do it so you acknowledge what Mr. Scott said, because he was compelling, and what you’ve indicated, but also acknowledging my ability to search?
Mr. Ripley: Thank you, senator. What does it mean to discover? To discover, you can go out looking for something and discover it, with the intention of finding it. But “discover,” to me, also includes the idea of coming across something that you may not necessarily have been expecting. I think the point is that these platforms have very sophisticated techniques and ways of promoting content on their platforms and bringing our attention to content that we may not have been looking for. So I think discoverability, in my mind, includes both of those aspects. I worry that “informed” has a slightly different nuance, to me.
Senator Quinn: I agree with everything you’re saying. Just give me another word. You’re the expert.
Senator Simons: Is there a motion before us? I don’t quite understand what we’re doing.
The Chair: He’s asking the official on a particular thought, and at the end of the day — there is a subamendment by Senator Wallin, if people are following, and he’s asking for another suggestion. That’s what I understand from the question.
Senator Quinn: I’m just building on —
Senator Wallin: Which is what I asked for in the first place.
The Chair: Some are following, Senator Wallin.
Senator Wallin: I think I’ve just heard Mr. Ripley say exactly what we heard from the minister and what we heard from the chair of the CRTC, that the amendment would limit the government’s ability to force behaviour on the part of the platforms by manipulating algorithms. So I think I will withdraw my subamendment.
The Chair: And go right to the amendment. I do agree with you. That is precisely what I gather, and I thank Mr. Ripley for his honesty. This is at the crux of some of the concerns we heard from our witnesses. If there’s no more debate on it, I would call —
Senator Plett: I have one more question. Mr. Ripley, isn’t it true that limiting the definition doesn’t eliminate the showcasing requirement, contrary to the concerns expressed?
Mr. Ripley: Thank you, senator. You are right that the power in 9.1 includes both the concept of showcasing, as well as discoverability. So the definition here would only limit the concept of discoverability.
Senator Plett: Thank you.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in the amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I think the nays have it.
Senator Batters: Recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
The Chair: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: [Inaudible].
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas, 3; nays, 9; abstentions, none.
[English]
The Chair: Accordingly, the amendment is defeated.
Colleagues, before we move on, is it the wish of the committee suspend for a three- or four-minute health break? No? I love the intensity. Colleagues, we carry on.
Senator Plett: If I could, colleagues, some of us are past 70 years of age. That is absolutely offensive that you would not allow somebody a five-minute health break. I want to be on the record telling you all that this is not the way to conduct a meeting, not allowing someone to go to the bathroom and have to miss part of the meeting. Unbelievably offensive.
The Chair: Thank you, Senator Plett. Are there any other amendments in clause 2, colleagues?
Senator Batters: This one is C11-2-2-36.
The Chair: That will be distributed around the committee, colleagues.
Senator Batters: Should I read it, Mr. Chair?
The Chair: Senator Batters, you have the floor.
Senator Batters: Thank you. This one states:
That Bill C-11 be amended in clause 2, on page 2, by adding the following after line 36:
“journalism includes Indigenous storytelling; (journalisme)”.
This one is a new definition, but what it again responds to is a recommendation made by Jesse Wente, co-executive director of the Indigenous Screen Office, who said:
. . . this bill must ensure that the stories that are broadcast and the stories it means to ensure don’t just take place in a modern broadcasting and telecommunications regulatory framework but that these stories come from what has always been the modern Canada: a multinational place with a deep history still largely unexplored and a rich and diverse future that will be created through right relations and between communities and a sharing of our stories.
Mr. Wente also went on to say that:
. . . it is well past time that this legislation be modernized to reflect the present and, ideally, the future as much as possible.
To us, the central focus should be the modernization of the definitions associated with broadcasting and broadcast undertakings, ensuring that there is equitable access and support for marginalized communities and that there be specific supports for Indigenous storytelling and Indigenous languages broadcasting. We believe new platforms, even those based outside Canada, should contribute financially to support Canadian storytelling and that there should be dedicated supports for Indigenous storytelling within that.
I think we as a committee can support that with just this modest amendment to the definition section. So I move that we add that amendment to simply say that, that journalism includes Indigenous storytelling.
Senator Klyne: I have a question for Mr. Ripley. I didn’t see anything in the bill that precluded Indigenous storytelling or defined it by ethnicity. Is that right?
Mr. Ripley: Thank you, senator. No, I don’t think there’s anything that precludes Indigenous storytelling. In fact, one of the amendments to the policy objectives, section 3 of the act, is to promote Indigenous storytelling.
The definition that has been put forward is in relation to the term “journalism.” In the English version of the act, there is no reference to journalism specifically. There is a reference to “journalistic.” For example, in the interpretation section, this act shall be construed and applied in a manner consistent with the freedom of expression and journalistic creative and programming independence enjoyed by broadcasting undertakings. And in French, the way that provision is translated it would include the term “journalism.” So that would be the nexus between the definition that’s been proposed and —
Senator Klyne: So a journalist is a journalist by any other name is a journalist. This is unnecessary?
Mr. Ripley: It’s similar to the previous amendment that because the term is not used, the impact is minimal.
Senator Klyne: Thank you.
The Chair: My question is for Mr. Ripley. Would this amendment have any negative impacts to the objective of the bill?
Mr. Ripley: No, not that I can see. Again, in light of the fact that the term “journalism” isn’t really used, unless there are further amendments that come forward that use that term, the impact would be minimal.
Senator Batters: As we were speaking about earlier or if this particular term — and, of course, it says “includes,” not “means,” so it’s inclusive, and could also be something that would be dealt with in regulations or future policy. Again, if we’re going to only very rarely amend this act, then it should be something that’s a bit forward-looking and more inclusive.
The Chair: If there are no further interventions, is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the nays have it.
Senator Batters: Recorded vote, please.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Labrosse: Yeas 3, nays 11, abstentions, nil.
The Chair: Accordingly, the amendment is defeated.
Senator Batters: This particular amendment is C11-2-2-36a. The clerk will have a copy of that.
The Chair: Colleagues, the proposed amendment is being distributed. Give us a second, Senator Batters.
Senator Batters: This particular amendment again is C11-2-2-36a:
That Bill C-11 be amended in clause 2, on page 2, by adding the following after line 36:
“marginalized communities means communities of individuals who face discrimination and exclusion — including social, political and economic exclusion — because of unequal power relationships across economic, political, social and cultural dimensions; (communautés marginalisées)”.
This adds a new definition to the affirmative action criteria in this bill. Colleagues, we’ve heard considerable testimony from witnesses related to how this bill may be disproportionately applied or disproportionately impact some of the smaller communities we have in Canada, in particular, marginalized communities. The vulnerability of minority language communities in this regard was also referenced by other witnesses who appeared before this committee, Matthew Hatfield, campaign director of OpenMedia stated that:
It would be a very cruel consequence of this bill for diasporic Canadian communities to be cut off from the invaluable cultural lifeline provided by foreign streaming services.
And Shannon Avison, assistant professor from the Indigenous Communication Arts of the First Nations University of Canada in my home city of Regina, told our committee:
. . . there are hundreds of Indigenous radio stations and over a dozen regional radio networks. Some stations are tiny, run by volunteers who are on the air for just a few hours a week. Others have full-time language announcers on air for eight hours every day. Many of these broadcasters, like Robert Merasty, of Ile-a-la-Crosse, are hoping to retire. Since Pauline Clarke retired this summer, the station she started 20 years ago at Southend, Reindeer Lake, is not broadcasting locally.
Other witnesses talked to us about the experiences of other visible minority communities. These experiences are clearly not all the same, but they do speak to the need to recognize that we do have a number of marginalized communities in Canada and they are all ethnicities faced and individual circumstance. I believe in response to what we have heard it would be useful to have an inclusive definition that simply recognizes that fact. Thank you.
Senator Gold: I have a question for the officials, please. Does this term appear anywhere in the act? And what would be the possible consequences of including a definition that isn’t tied to anything in the act?
Mr. Ripley: No, it does not. It’s not a term that’s used in the act. My answer is similar to the previous one. Without further amendments that use the term, the impact is marginal.
Senator Plett: I have a further question for the officials. Has your department received any correspondence or have you had concerns expressed to you by any representatives of marginalized communities about challenges that they face in accessing unique broadcasting that would better serve their communities?
Mr. Ripley: Thank you for the question, senator. Chair, if I may, I would say yes, throughout the bill process, organizations representing Indigenous organizations, ethnocultural broadcasting organizations and communities, racialized communities, they have all expressed that, from their perspective, they are disadvantaged because the policy objectives of the Broadcasting Act are not inclusive of their concerns. So the government has sought to address that by modifying the objectives to be more inclusive of those communities.
The way I would characterize it is I would agree that there are marginalized communities who have not benefited to the same extent. I just referenced some who have historically been discriminated in the act because resources were not allocated in the same way.
But the term “marginalized community” is not used in the act. There are references to Indigenous persons and communities, to racialized communities, to persons with disabilities. I would characterize those as historically being marginalized, but this specific term is not used.
[Translation]
Senator Cormier: My question is for Senator Batters.
In your amendment, you say “including social, political and economic exclusion,” without the adjective “cultural,” and then you say “because of unequal power relationships across economic, political, social and cultural dimensions.”
Why does the adjective “cultural” not appear in the first part of your amendment? Because cultural exclusion does exist, as well as in other areas, such as sexual orientation. There are a lot of marginalized communities, and my fear is that your amendment — which is why I want to understand it properly —, in specifying certain aspects might leave out others.
I am not sure if it is inclusive and I would like to understand.
[English]
Senator Batters: That is a very good point, and I think that is a very friendly subamendment if you wish to include the word “cultural,” Senator Cormier.
[Translation]
Senator Cormier: I would not suggest it as a subamendment for the time being because I think there are other things that should be included.
With regard to marginalized communities, I believe that includes — there are references in the bill, in any case — LGBTQ communities. A number of communities are mentioned in the bill and I find that here, your amendment is restrictive to the extent that it does not include what is stated elsewhere in the bill.
I understand the intent and I recognize and appreciate the intent of your amendment, but I would say that I find it incomplete in that it does not reflect the communities that are already identified in the bill.
[English]
The Chair: I, for one, support the amendment. I think it makes a lot of sense. I appreciate Mr. Ripley confirming that there have been a number of marginalized communities that have made representations to officials. I know a few who have made them directly to the minister’s office.
To Senator Gold’s question, the fact that the word “marginalized” does not appear in the bill does not diminish the need for it.
I also take Senator Cormier’s intervention as very legitimate as well, because we live in a community of communities in this country. That’s what Canada is all about.
It seems to me that the Broadcasting Act certainly puts a lot more emphasis and weight — if you look at the various definitions and how many times they are used — to certain communities and less to other communities. I think this is an innocuous and legitimate amendment in my humble opinion.
Senator Plett: We have a government that pride themselves in reaching out to all marginalized, all different communities. I find it strange that they would not have included this in the bill. I also agree with Senator Cormier that “cultural” should possibly be in there. I find it strange that he wouldn’t rather add the word “cultural” in it rather than saying, “Well, I’ll vote against it because it’s not in it.” Maybe I am putting him on the spot. I’m going to put in a subamendment to include the word “cultural” maybe just before “social.”
The Chair: It is moved by Senator Plett, clerk, to add the word “cultural” before “social.”
Senator Cormier: I have a comment. Just to put it on the record, senator, I didn’t say I wouldn’t vote for it because “cultural” was not there. I said that I wouldn’t vote for it at this moment because there are other dimensions, other marginalized communities that are not specifically identified there and they are in the bill. I want to make sure that this was my comment. Thank you.
The Chair: Do you want to add “other groups,” senator, or no?
Senator Cormier: No. Because it is in the bill.
The Chair: We need to validate and verify.
Senator Plett: Chair, if I could maybe clarify the subamendment, I would like to change two words here: “Marginalized communities includes communities of individuals who face discrimination and exclusion, including cultural, social, political and economic exclusion.”
The Chair: Repeat that one more time, senator.
Senator Plett: “Marginalized communities includes communities of individuals who face discrimination and exclusion, including cultural, social . . .” and then the rest of it.
The Chair: We will send it to the law clerk, honourable senators. Colleagues, if you want — and like I said, this can become a problem — we can stand the amendment and the subamendment and move on to the next one. We can pile them on. Colleagues, is that the wish of the committee, senators? To stand the amendment plus the subamendment?
Senator Gold: Given the very modest changes to the amendment and subamendments, I would recommend we proceed with the vote.
The Chair: If that’s the committee’s wish, colleagues, I will proceed.
We still need the law clerk to validate it before I present it.
Honourable senators, you have the amendment in French and English in front of you.
It is moved by the Honourable Senator Plett:
That Bill C-11 be amended in clause 2, on page 2, by adding the following after line 36:
“marginalized communities means communities of individuals who face discrimination and exclusion — including social, political and economic exclusion — because of unequal power relationships across economic, political, social and cultural dimensions; (communautés marginalisées)”.
So number one, replace “means” with “includes” and number two, add “including with cultural.”
Colleagues, is there agreement in support of this subamendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: I see the nays have it.
Senator Plett: Recorded vote.
Senator Batters: Recorded vote, please.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: I am abstaining on this one.
Mr. Labrosse: Yeas, 3; nays, 10; abstentions 1.
The Chair: Accordingly, the subamendment is defeated. Now we are back to the main amendment and we’re calling the question, colleagues, on the main amendment.
It is, moved by the Honourable Senator Batters that Bill C-11 be amended clause 2, page 2, line 36.
Colleagues, are you in favour of adopting the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I believe the nays have it again.
Senator Batters: Recorded vote, please.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Labrosse: Yeas, 3; nays, 11; abstentions, nil.
The Chair: Accordingly, the amendment is defeated.
[Translation]
Senator Cormier: I would like to make a brief comment. I want to thank the senator for proposing this marginalized community. I voted against it, Madam Senator, because I think there is a lot of information in the bill that clearly spells out the communities in question. Thank you for proposing the amendment. Thank you.
The Chair: Thank you, senator.
[English]
We are proceeding now to clause 2, the next amendment.
Senator Batters: Mine is on page 4, clause 2. It starts, I think it still might be — because it says “by adding the following before line 1.”
The Chair: Can you give us the label, Senator Batters?
Senator Batters: I’m sorry. It’s C-11-2-4-1. It starts right at the top.
The Chair: Are there any other amendments before?
Senator Batters: It is 2-4-1.
The Chair: They are being circulated, colleagues. Bear with us.
Senator Batters: This one, again, is C11-2-4-1:
That Bill C-11 be amended in clause 2, on page 4, by adding the following before line 1:
“(2.4) This Act does not apply to an online undertaking whose revenues in Canada from paid subscriptions and embedded advertising do not exceed $150,000,000 annually.”.
This particular amendment ensures that the act will only apply to large streaming services by introducing a revenue threshold of $150 million in advertising and/or subscription revenue to be included. This is the threshold that was recommended by Timothy Denton, former CRTC commissioner and president of the Internet Society, Canada Chapter.
Bill C-11 currently applies to online undertakings, defining them as:
. . . undertakings for the transmission or retransmission of programs over the Internet . . . for reception by the public by means of broadcasting receiving apparatus . . . .
This definition is so vague that it could include everything from Amazon Prime to everyone with a website and a podcast. Programs under the Broadcasting Act are defined to include images and sounds or some combination of them in which written text is not predominant. This would include videos, podcasts, photos and memes but not written posts or news articles, and it could include everything from a $100 million Martin Scorsese film produced for Netflix to a 15-second video on TikTok. Conservative Heritage Committee members proposed multiple amendments to Bill C-11 and former Bill C-10 so it would only apply to large streaming services with progressively lower revenue thresholds.
It’s not just going after big tech. All Canadians, potentially, could be targeted. So what we need to look at here is that a principal issue related to this bill, colleagues, is the question of to whom this legislation should apply. The government has repeatedly stated that there is no intention to regulate user-generated content and that there is no intent to apply this legislation to small players. But there are no boundaries in this legislation to ensure that actually does not happen. There are no boundaries to provide the certainty that digital creators have told us they require. We’ve heard from numerous witnesses who very clearly stated that this bill had to incorporate a revenue threshold in order to ensure the legislation focuses on services that are truly of consequence in the digital marketplace.
Tim Denton of the Internet Society, Canada Chapter, told our committee specifically that any online service that earns less than $150 million in Canada annually should be excluded from the act and from any regulation or obligation to contribute to Canadian content production. Mr. Denton stated that Bill C-11 captures ordinary Canadians, while section 2.3 of the bill excludes some instances of streaming services that would otherwise be caught by the act. These provisions, Mr. Denton argued, do not go nearly far enough in ensuring the legislation focuses on services that are truly of consequence in the digital marketplace. For instance, neither charities nor religious organizations are exempt, nor does section 2.3 shelter the online activities of individuals, whether professional or amateur. Mr. Denton said that social media platforms are far from the only places on the internet where entities and individuals may transmit audio or audiovisual content on the internet. Individual and community websites abound with such content. Neither section 2.3 nor section 4.1 address the much broader regulatory reach of Bill C-11.
Konrad von Finckenstein, a former chair of the CRTC, told our committee that vesting the commission with such large powers and such vague parameters will prove extremely onerous for the CRTC. Every single stakeholder will come forward with specific requests for exemptions of conditions and argue they fall within the vast powers given to the CRTC.
Mr. von Finckenstein said:
. . . of record that identifies issues, either on its own or via petitions; seeks input from affected parties and stakeholders; holds hearings, live or on paper; and then issues a decision. All that has to be done in accordance with due process and can be judicially appealed.
He went on to say that:
Consequently, narrowing the powers will allow the CRTC to make good, timely and targeted decisions. The goal, of course, is to protect and strengthen Canadian broadcasting and foster Canadian production. Hence, the legislation should target only large streamers who can meaningfully compete with established broadcasters. Small innovative internet players should be able to give their innovative drives full rein to contribute to the overall productivity of the Canadian economy.
Professor Michael Geist also told our committee:
I believe there is a clear need for thresholds and limitations in the legislation itself. Without it, services may regard the regulatory uncertainty — which the House committee heard will take years to sort out — to block Canada, leading to less choice and higher consumer costs.
I would like to quote Matthew Hatfield, the campaigns director for OpenMedia, when he said, “It’s nonsensical for Bill C-11 to place obligations on platforms with a few thousand Canadian subscribers. . .” He also said:
It would be a very cruel consequence of this bill for diasporic Canadian communities to be cut off from the invaluable cultural lifeline provided by foreign streaming services.
Colleagues, we have to recognize what uncertainty this is creating for ordinary players. Jeanette Patell, head of government affairs and public policy for YouTube Canada told our committee on September 21 that the language of this bill must be narrowed and that these sections of the bill leave the question of what content will be impacted entirely to the discretion of the CRTC.
As Monica Auer, executive director of Forum for Research and Policy in Communications told our committee, “. . . Bill C-11 is not coherent and not readily understood.”
The bill leaves creators guessing, and we should not be putting them in that position.
This is what some of the smaller creators told our committee. Justin Tomchuk, an independent filmmaker, told this committee on September 27 that Bill C-11 as currently drafted:
. . . makes it clear that my business will fall under the call of the CRTC’s directives, as I derive direct and indirect income through my artistic efforts.
Scott Benzie, managing director of Digital First Canada, told the committee on September 28, “Our ask is simple.” He said that the bill:
. . . needs clarity into what is in and what is out, because it currently includes the entire internet. Something this critical cannot be left to the CRTC to wade through.
Morghan Fortier, the co-owner and chief executive officer of Skyship Entertainment said that in her view:
. . . the CRTC has already given us their interpretation of the bill. They’ve said quite plainly that UGC is scoped in and that they would require platforms to artificially manipulate their algorithms, so we know how the government and the CRTC intends to use the bill. If they do that, other countries will follow suit, and this will be a huge economic blunder on the part of the government. . . .
What keeps me up at night about this bill is the potential to gate content that is deemed not Canadian, either entering into the country or within the country. With retaliation from other countries, should this type of a law pass through, we’re done. I don’t mean my company. I mean we don’t need to talk about this bill anymore because it’s over. That will affect regionalized content creators, small content creators and larger content creators.
Oorbee Roy, content creator and skateboarder, told our committee:
As a digital creator, I feel that if 4.2 goes in as it stands, then I have to go look for a full-time job. It’s a depressing reality for me to see that my content is going to be pushed aside. I’ve just gotten this platform. I’m not young; I’m almost 50, and I’ve been working really hard to get to a place where I can do something like this. I haven’t done it with a lot of help. For someone else to come in, push me aside and dictate what my audience wants to see, I can’t fight that. I’m very discouraged. That’s how I feel.
The last word of the small creators I’ll leave to Frédéric Bastien Forrest, animator and content creator, who told our committee on October 4:
Sometimes it’s healthy to create without gatekeepers. That lets us be 100% ourselves, regardless of our differences. It enables us to reach an audience of people like us. . . .
It’s absurd that a YouTuber who wants to hire a camerawoman or a researcher should have to pay out of pocket 30% to 50% more for the same service than the television station next door. However, that’s the way it is since those conventional media have access to grants and tax refunds that aren’t available to digital creators.
Right now, I’m reaching out to all the politicians in Ottawa, Vancouver, Toronto, St. John’s, Winnipeg, Montreal and Quebec. Please help us empower digital creativeness. Because a creator is a small business. Small businesses are the backbone of our economy and internet platforms allow small creator businesses to thrive. If we are to tax the tech giants, let’s make sure we subsidize local internet creators with that money. Let’s not miss this opportunity for stronger creators and a stronger economy. . . .
My take on this is that it is scary. We have the feeling that the politicians behind this law are well intentioned and they want to promote our culture, which is great, but the side effects of the law could break stuff.
Colleagues, I believe we have an obligation to respond to what an overwhelming number of witnesses have told us. I hope you will support this amendment to establish greater certainty for small creators. Thank you.
Senator Gold: I’ll be brief. The government opposes this amendment for two essential reasons. First of all, it’s not necessary. If you look at proposed subsection 5(2)(h), the CRTC is explicitly mandated or instructed to avoid:
. . . imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1).
Second, the government opposes the establishment of thresholds. They could introduce and are likely to introduce distortions in the application of the policy. For that reason, we oppose the amendment.
Senator Plett: I have a couple of questions for the officials. Are there currently any limitations in the act related to its application to online undertakings that may have more limited revenues and paid-up subscriptions when compared to the big players?
Mr. Ripley: Thank you, senator, for the question. The limitation would be the one that Senator Gold read out, which is the instruction that the CRTC should not impose obligations on undertakings if they’re not in a position to contribute in a material way to the policy objectives. That is the primary limitation on the CRTC’s authority to extend obligations to services that aren’t in a position to do so.
Senator Plett: Former CRTC chair Konrad von Finckenstein has stated that vesting the commission with such large powers, with such vague parameters, will prove extremely onerous for the CRTC. Every single stakeholder will come forward with a specific request for exemptions of conditions and argue they fall within the vast powers given to the CRTC.
Would officials not agree that incorporating a threshold would lessen that regulatory burden?
Mr. Ripley: Thank you, senator, for the question. The way it works right now is that the CRTC has, through various regulatory processes, assessed what the obligation should be on big undertakings and smaller undertakings, and those look different. For example, the obligations that are placed on undertakings with fewer than 200,000 subscribers look different than those obligations placed on large undertakings that belong to the big ownership groups.
As senators are likely aware, the CRTC, since 1999, has also exempted online undertakings from the scope of the act.
One of the things the government is concerned about with the establishment of a threshold is potential unintended consequences. For example, at $150 million, which is the amount being proposed, that would exclude online services operated by CBC/Radio-Canada, for example, and the government’s position is that CBC/Radio-Canada is uniquely placed to contribute to the policy objectives of the act. This provision would exclude CBC Gem, likely, as well ICI TOU.TV.
One of the concerns is, if there’s too much of a bright-line rule, it reduces the ability of the CRTC to make regulations that make sense, given the nature of the undertaking.
Senator Plett: I see it’s 9:45. Do I have time to ask one more question?
The Chair: You don’t, Senator Plett. Colleagues, we’ve come up to 9:45. We’ve carried on a lot of work in this first session of clause-by-clause. We will carry on next week. Senator Wallin, Senator Housakos and Senator Plett are on debate, to keep in mind for next week. Please remind me, clerk, next week.
Thank you, colleagues. We’ll see you next week.
(The committee adjourned.)