THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Tuesday, November 29, 2022
The Standing Senate Committee on Transport and Communications met with videoconference this day at 8 a.m. [ET] for 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.
Senator Leo Housakos (Chair) in the chair.
[English]
The Chair: I am Senator Leo Housakos from Quebec, chair of this committee. I would like my colleagues to briefly introduce themselves.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Miville-Dechêne: I am Senator Miville-Dechêne from Quebec.
Senator Cormier: I am Senator René Cormier from New Brunswick.
[English]
Senator Dasko: Donna Dasko, senator from Ontario.
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 Territory.
[Translation]
Senator Dawson: I am Dennis Dawson from Quebec.
[English]
Senator Gold: Marc Gold, Quebec, Government Representative in the Senate.
Senator Sorensen: Karen Sorensen, Province of Alberta, Treaty 7 Territory.
Senator Quinn: Jim Quinn, New Brunswick.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Plett: Don Plett from Landmark, Manitoba.
Senator Wallin: Pamela Wallin, province of Saskatchewan.
The Chair: Colleagues, I would like to remind everyone that we have officials from Canadian Heritage with us. Mr. Thomas Owen Ripley, Ms. Amy Awad and Mr. Charles Kouri were with us also at the last meeting. Thank you for being with us here again today.
Honourable Senators, we are meeting to continue our clause-by-clause examination of Bill C-11, Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. We adjourned our last meeting by standing an amendment to clause 2, proposed by Senator Batters, under the label: DNP-C11-2-4-1.
Can we please have copies of the amendment distributed to members of the committee as a reminder? Colleagues, the copies of the amendment will be distributed. Senator Batters did speak on debate on her amendment and, at the point where we adjourned last time, we had Senator Wallin, Senator Plett and Senator Housakos on the list for questions or debate. Senator Wallin?
Senator Wallin: Thank you. I won’t try and rehash all of the debate that we had last week. The point of my question was that Senator Batters had quoted some people. However, former CRTC chair Konrad von Finckenstein, Tim Denton, Peter Menzies, OpenMedia’s Matt Hatfield, Professor Michael Geist and Skyship Entertainment’s Morghan Fortier, who has testified here before us as well, as well as multiple online creators — as we have all been hearing from them over the months — have all suggested that we put some kind of threshold in this bill. Many of them have testified that a financial threshold would be important to help give guidelines to the CRTC on whom they can regulate.
At the last meeting, Senator Gold quoted proposed paragraph 5(2)(h) as a reason not to implement the thresholds. It states that 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).
The issue there is that the criteria set out in 3(1) is pretty vague, and the CRTC still has a great deal of discretion over who can be regulated. This problem is pretty central given the testimony we have heard, and 3(1) does not clarify the concerns of scope raised by the creators and former regulators that I cited.
Senator Gold also said that the government opposes thresholds because, “They could introduce and are likely to introduce distortions in the application of the policy.” I’m wondering what that means. Could we have a clarification on those two points from Senator Gold as to what those distortions would be and what the concerns are?
Senator Gold: Well, not being a witness, I’m happy to say simply this: First of all, the government opposes this amendment. It thinks it’s not necessary for reasons I set out. Setting a threshold like this makes it possible for corporations to structure themselves in different ways to split income or the like and creates incentives for people to avoid the regulation when the intention of this act is clear. It has been clear from the outset. The government has been clear about it. For that reason, we oppose the amendment.
Senator Wallin: I just don’t understand. Incentives? In what way would there be incentives?
Senator Gold: Respectfully, senator, I’m suggesting that a bright-line threshold creates circumstances where business practices, business organizations and accounting procedures can be structured in such a way as to avoid or fall below, in this particular case, the threshold.
It is a concern the government has. It does not believe this amendment is necessary and, indeed, thinks that it could have unintended consequences that run contrary to the policy of the bill.
Senator Wallin: Do I have time to get Mr. Ripley’s comments?
The Chair: Yes, you do.
Senator Wallin: Mr. Ripley, others have said — including Peter Menzies, also quoted here — that if the intention is to generate cash from the platforms, then if you had actual designated amounts — whether it’s $150 million or whatever it is — you would get your money faster because the intent would be clear and the number of hearings and challenges would be reduced. What was your actual thinking?
Thomas Owen Ripley, Associate Assistant Deputy Minister, Cultural Affairs at Canadian Heritage: Good morning. Thank you, Senator Wallin. Through the chair, I would make a couple of observations from where I sit.
I would just like to remind the committee that when it comes to digital-first creators, there is no possibility of them being considered an online undertaking regardless of how much revenue they earn. That is because of proposed subsection 2(2.1) where it is very clear that an individual uploading content to social media services will not be considered an online undertaking. It doesn’t matter if they earn $3 million, $10 million or $50 million, they will not, for the purposes of the act, be considered an online undertaking.
Senator Wallin: But, again, it’s the same issue we keep coming back to: If you’re going to guide a regulatory body, what you need in legislation is clarity.
Mr. Ripley: Senator Wallin, the government doesn’t disagree that when it comes to the private streaming services, the objective of the online streaming act is certainly to ensure that those big household names that we all know contribute to supporting Canadian culture.
The challenge with a bright-line rule like this — and what I was trying to articulate during our last meeting — is there may be, in certain instances, smaller services — and I highlighted, for example, even our national public broadcasters’ online services, such as CBC Gem and TOU.TV and other public interest broadcasters like CPAC, APTN or TV5 — who in the future may operate an online undertaking and are very well placed to likely contribute to the policy objectives of the act. So if the revenue threshold is set at $150 million, for example, I don’t think those services would be caught. Therefore, you are excluding a series of services that likely are very well placed to contribute to the policy objectives of the act.
Senator Wallin: If the CBC turns its subsidized online activity into a massive operation worth $150 million, then we should be reconsidering how they’re funded.
Mr. Ripley: Thank you, senator. For the purpose of your question, I think that CBC/Radio-Canada already operates in an environment where it is expected to contribute to the policy objectives of the Broadcasting Act, and that gets baked into their conditions of licence right now.
This proposed amendment would essentially say the act does not apply to services which do not have a certain threshold. I’m trying to articulate that there is a risk of excluding services here which fall below that revenue threshold but which, because of the nature of their service, are actually very well placed to contribute to the policy objectives of the Broadcasting Act.
Senator Wallin: Again, I keep coming back to this point: Then it just becomes the judgment call of whoever is sitting in the chair. If there is no actual bright line, if there is no actual number, if you have no other definition, then you can pick and choose and say, “Oh, well, the CBC won’t be subject to this, but this private operation over here will be subject to it and, because I’m the chair of the CRTC, I can just make that choice arbitrarily.”
Mr. Ripley: Thank you, senator. I wouldn’t share the characterization that it’s arbitrary. I acknowledge that the act as currently constructed does not have a bright-line revenue threshold. That is true, but as Senator Gold pointed out, the task of the CRTC is to assess the services. That task will be done through regulatory proceedings. There is no CRTC coming to that conclusion behind closed doors. The task is for them to assess which services are well placed to make that material contribution to the policy objectives of the act.
Senator Wallin: What is the resistance to actually having clear rules? This happens in a lot of other operations, even government-regulated, operations: “If your company generates this much, you fall under . . . you are subject to . . . .” Right? It gives clarity to the players in the field. I know Senator Gold keeps saying he’s worried they’re going to somehow dodge and weave and avoid paying taxes, but I’m not sure that’s a justification that we want to use for not having some clarification for the people who operate, work, in this field and are building businesses.
Mr. Ripley: Thank you, Senator Wallin. My answer remains that the challenge with a bright-line rule like this, of having a threshold of $150 million annually — again, there is a whole host of services that right now, in the Canadian context, would be subject to making a contribution to the policy objectives of the act.
A threshold set this high risks excluding them, and, therefore, you potentially do not have a contribution from them to those objectives of the act.
Senator Wallin: So you just want to leave this totally as a judgment call on the part of the commissioner?
Mr. Ripley: It’s a determination made through regulatory proceedings where every interested stakeholder has an opportunity to put forward whether they believe that service is in a position to contribute to the policy objectives or not.
Senator Wallin: But, again, we’ve had that discussion about the cost of accessing complaints and reviews. All right. Thank you.
Senator Plett: Well, thank you, chair. I was in the middle of asking a question when you called time last week. Senator Wallin has already touched on that, and that’s fine. She does a better job of that than I do, so I appreciate that. But I want to ask a very direct question, which I was in the process of asking.
Both the official and Senator Gold seem to think that this threshold is too high, so my question for the official would be what if we changed that threshold to $100 million or $75 million? That’s lowering the threshold. Would that help?
My second question is — I’ll ask it right away — has your department in fact received correspondence, or have you had smaller online undertakings express concern to you that the bill may apply to them? Our committee has certainly received a lot of evidence on this matter. Those are my two questions. If we lowered it to $100 million, would that in part alleviate your concern?
Mr. Ripley: Thank you, Senator Plett, for the question, through the chair. The challenge remains that it would be a threshold chosen at a moment in time. It is difficult for me to say, sitting here today, what services now and in the future would be put on which side of that line.
The second consideration around it is, as the motion currently stands, it focuses on paid subscriptions and embedded advertising. While I certainly acknowledge that those are two prominent business models today, the challenge remains that the business models of these streaming services may continue to shift. We’ve seen that, right? We’ve seen that, for example, with Amazon, which offers access to its streaming service as part of a broader package of Amazon services. The challenge is in being very specific about the source of those revenues which, again, could lead to challenges in terms of application of that provision.
With respect to your second question, senator, I acknowledge that this certainly has been a point of debate throughout this bill, that there have indeed been stakeholders who have expressed concern that, without a threshold like this, it’s challenging for them to potentially understand how the bill will be applied. Certainly, that’s been a point of debate throughout the bill process on the House of Commons side.
Senator Plett: With all respect, and being a bit blunt, how much of this is being done to protect CBC?
Mr. Ripley: Senator, I don’t think that’s the motivation at all. The point I was trying to make again is that the bill, as constructed, provides a degree of flexibility for the CRTC to look at the nature of the undertaking and assess whether that undertaking, given its nature, given its business model, is well placed to contribute to the policy objectives of the Broadcasting Act.
Certainly, the size of services will be a very relevant factor in that assessment. I don’t dispute that, but it will not be the only factor when the CRTC looks at whether a service can contribute in a material manner to fulfilling the policy objectives of the Broadcasting Act.
Senator Plett: Chair, prior to you calling for a vote on this amendment, I may be wanting to suggest a subamendment, but I’ll wait.
The Chair: Senator Manning has a supplementary.
Senator Manning: I have a question for the official. Is there any threshold — yes or no — that you would be comfortable with or the department or the government would be comfortable with?
Mr. Ripley: Thank you for the question, through the chair. The government’s position is that there should not be a threshold established in the act. As I mentioned, this was a point of debate on the House of Commons side. At the end of the day, the government’s position is that the CRTC is circumscribed by only including those services that are in a position to make a material contribution to the act. That will be determined through regulatory processes, and, ultimately, including a bright-line threshold like this risks the CRTC not being in a position to adequately assess which services, again, are uniquely placed to do that.
The Chair: I have some thoughts to share on this issue as well.
Colleagues, this is an amendment. I know that the government leader diminishes the importance of this amendment, but I won’t go through the plethora of witnesses that came before this committee and thought this was one of the most egregious sections of the bill and needed to be rectified, from digital-content producers to a number of former chairs of the CRTC. Not just one, I believe. There were a number of stakeholders who identified this as problematic.
I heard earlier the government leader say that one of the reasons why they oppose this bill is because it would lead to — if I heard him correctly — Canadians cheating the system, essentially getting around certain rules. Of course, if those rules were not prescribed in the first place, these content producers, who are self-employed Canadians and generating income both for themselves and for the country, wouldn’t be compelled to be cheating.
I find it a little bit disappointing to hear that perspective and that point of view.
We also heard from a former CRTC chairman with a lot of experience, who stated — and I guess this is one of the driving forces for this amendment — that vesting the CRTC commission with such large powers and tremendous parameters will be extremely difficult for the CRTC to manage, coupled with the fact that the government refuses to make the policy directives public.
Every single stakeholder, government leader, will want to go before the CRTC to basically request exemptions from the conditions and argue that they fall within those guidelines. Can you imagine? This will be an unending exercise if the CRTC is as transparent as the chair claimed the CRTC will be in this particular instance. How many years of hearings of stakeholders will they engage in? Or maybe the goodwill that was publicly displayed about their willingness to hear each case and their transparency just isn’t there.
So either the sponsor of the bill or the government leader, whom we have the privilege of having with us, can let me know what will be the result once you get tonnes of stakeholders not being heard by the CRTC because the whole process will become so onerous and these stakeholders won’t be heard? What will be the back-up plan on the part of the government to hear these people out?
Also, would you agree, government leader, that this element of the bill, as well as a couple of others, could be clearly rectified if we had the policy directives made public?
Senator Gold: Out of respect for the chair, I’m not going to refuse to answer a question. I’m not a witness. I’m here stating the government’s position, and I’ve stated it clearly. The issue has been vetted extensively through witnesses, through discussions and by our officials over and over again today.
The government position is clear. I think the issue has been properly vetted. We understand what happened in the other place with amendments like this and subamendments that follow. I hope all Canadians who are watching can see this committee at work.
I think it’s time to call the question.
The Chair: Government leader, again, you’re not a witness, but you still represent the government at this committee. Again, you’re free to take the questions or not.
I was participating in debate. I know that Senator Plett had something to add before we go to the question, as he said on the record earlier.
Senator Plett: Thank you, chair. I do.
Senator Gold is correct. This was debated, and I also, as Senator Gold, hope Canadians are watching and seeing that there are, in fact, people here who are trying to give this sober second thought and trying to correct things, because no matter who is the government, mistakes are made occasionally, and we believe this government has made some.
I certainly share Senator Gold’s desire in hoping that Canadians are watching this committee and seeing that we are giving this thorough debate and that it is not being rushed through as was done in the other place.
The amendment on the floor, chair, for discussion at the committee meeting on November 29, adds a new exclusion, and it currently reads as follows:
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.”.
I would like to propose a subamendment that the amount of $150 million be changed to $100 million, and we also rephrase the amendment to read:
This act does not apply to online undertakings whose revenues in Canada from paid subscriptions and embedded advertising do not exceed $100 million annually and which have more than 100,000 subscribers in Canada.
Chair and colleagues, when we last considered this amendment from Senator Batters during our meeting on November 23, Mr. Ripley had just responded to a question and noted the government’s concern about the amendment. He stated:
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.
Mr. Ripley stated again:
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.
I wonder if one way to address that is to lower the threshold in the amendment from $150 million to $100 million. This amount would be consistent with the testimony we heard from Mr. Konrad von Finckenstein, who is a former chair of the CRTC.
Mr. von Finckenstein appeared before our committee. He proposed the following:
. . . I would urge you to amend the bill to add subclause 2(4), which would state as follows:
This Act applies only to online undertakings which have more than 100,000 subscribers in Canada or revenue in excess of 100 million from Canada.
Mr. von Finckenstein supported his proposal by stating:
. . . vesting such large powers with 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. One cannot forget that the CRTC is a court 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.
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.
Colleagues, I think the subamendment would perhaps address the concerns raised by Mr. Ripley on behalf of the government.
The Chair: Senator Wallin on the subamendment.
Senator Wallin: I am seeking another point of clarification from Mr. Ripley, if I could. It’s related to this. I’m looking at the testimony from Morghan Fortier from Skyship.
She said:
While we earned only $370,000 here at home, we paid $3.1 million in Canadian taxes. That’s because we’re taxed on global revenue, and like most digital creators, the majority of our views and revenue come from outside Canada.
In your view about how you’re going to capture people or exclude people, how is that considered?
Mr. Ripley: Thank you, Senator Wallin, for that question. My understanding of Ms. Fortier’s business model is that her company is a social media creator in that their distribution of their content is over social media platforms. So, because of proposed subsection 2(2.1), which I pointed to earlier, Ms. Fortier’s company is not considered an online undertaking because she relies on social media services for distribution. The question isn’t applicable in the sense of, again, it doesn’t matter what Ms. Fortier’s revenues are because she and her company are not considered an online undertaking under the bill as drafted. There is no question of any regulatory obligations being imposed on her company as a broadcasting undertaking.
Senator Wallin: However, if you are looking for money, which is the intent of this section, and you’re taxing people and therefore aware of what their global income is and how they generate that —I keep coming back to the same issue. It’s completely arbitrary. If this company gets bigger and generates globally even more than the amount that she noted here, the CRTC could decide that it is subject to the act; this would be in the purview of the commissioner.
Mr. Ripley: To the extent that the business model is one that is relying on social media services for distribution, the CRTC does not have the discretion to suddenly determine that they are a broadcasting undertaking and subject to the act. Proposed subsection 2(2.1) says that “a person” — and that can be a company —
. . . who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service —and who is not the provider of the service, or the provider’s affiliate, or the agent or mandatory of either of them — does not, by the fact of that use, carry on a broadcast undertaking for the purposes of this Act.
The CRTC has no discretion to suddenly determine —
Senator Wallin: Except for the three tests that they may be subject to.
Mr. Ripley: The three factors are in relation to the content posted on a social media service, but it’s not a question of Ms. Fortier and Skyship Entertainment suddenly being determined to be an online undertaking. The issue is that YouTube, the social media service, the distribution platform, may be subject to the contributing to the system, yes.
The Chair: I have a couple questions on the subamendment and in general to Mr. Ripley. Would officials agree that incorporating a threshold would lessen the regulatory burden? If you agree that it would lessen the regulatory burden, what would be the drawback?
Mr. Ripley: Right now, the starting point in the conventional broadcasting system is you can’t operate a broadcasting undertaking without a licence. We’re a licence-based system, and the only way to operate a broadcasting undertaking presently in Canada without a licence is to be exempt from licence. Moving forward, that is not the case for online undertakings. The starting point for online undertakings is you can operate any internet-based service in Canada without permission of the CRTC. The starting place is there is no requirement to seek authorization to operate. It’s proactive inclusion.
We expect that the CRTC, as it goes through its regulatory processes, will use things like thresholds to say companies earning above such and such an amount, or with such an amount of Canadian subscribes, or other factors they will work out, are expected to the contribute to the broadcasting system. If you don’t meet those criteria, you don’t need to seek an exemption. You’re not caught. You’re not subject to any regulations. There is no need for an exemption. The bill recognizes that the starting place, when it comes to the internet, is that no permission to operate is needed.
There is a shift here that’s happening. I recognize that in the current conventional system there was a need to seek an exemption. However, there is no need to seek an exemption for an internet-based online undertaking.
The Chair: There is no need but we leave it to the CRTC to determine is what you’re saying.
Mr. Ripley: The CRTC will determine how services that meet certain criteria will contribute to the system. They will articulate that, yes, there is an expectation, for example, as we previously discussed in certain meetings, that such and such services that meet these criteria will have to spend a certain amount on Canadian programs every year. Those obligations will be outlined through orders or regulation.
Senator Wallin: When you say that there is a set of criteria, are these the kinds of things that will be laid out in the regulations that we haven’t seen?
Mr. Ripley: The regulations or orders that the CRTC puts out will be clear about their application. Again, that’s already the case. Senator Plett quoted a passage from me from the previous meeting. For example, right now there are different regulatory instruments that apply to different undertakings depending on the number of subscribers they have. We can expect that as the CRTC moves to put in place regulatory obligations with respect to streaming services, it will be similar.
Senator Plett: Mr. Ripley, how do you square this circle when a past chair, Mr. von Finckenstein, completely contradicts what you are saying? In fact, the amendment is what he suggested. Last week, you clearly stated that the threshold of $150 million remains too high. If we’re trying to lower that threshold, tell us the number and tell us Mr. von Finckenstein is wrong. Again, with respect to you Mr. Ripley, this is what the former chair of the CRTC has told the committee that we should do.
Mr. Ripley: Thank you, Senator Plett. The former chair is certainly entitled to his opinion. He obviously has experience to speak from on these issues. It’s not for me here today to change the government’s position. That’s not on me. This is an issue for parliamentarians to consider. I have stated the government’s position and the reasons for it. Unfortunately, it’s not for me to determine a financial threshold.
Senator Plett: Thank you, Mr. Ripley. At least you clarified something, namely, that it’s not your opinion but it is the government’s opinion. So I appreciate your forthrightness there.
Senator Manning: So, Mr. Ripley, at the present time we’re not going to have any threshold in the act. If the CRTC decides later on to create a threshold to the regulatory obligations or to the criteria, would they be able to institute a threshold of some level? Would it be in the hands of the CRTC to do that even though it is not in the bill at the present time?
Mr. Ripley: Thank you, Senator Manning, for the question. The answer is yes. In fact, we would expect that in its regulations and orders, the CRTC will be clear about the application of those orders and regulations and it will be in relation to some sort of criteria or threshold. I pointed out, for example, that right now there are rules in place for larger, medium-sized and smaller broadcasting undertakings that are generally in relation to a subscriber threshold.
The CRTC will work through what makes sense given the environment.
The Chair: The more replies I hear on these issues and the more we’ve debated and the more we’ve heard from the minister, the government and the current chair of the CRTC, I constantly get this feeling of, “I reserve the right to do tomorrow what I am promising not to do today.” That is really my concern, and that’s why I do support the subamendment. It’s time for the question on this subamendment, if there is no more debate.
Hon. Senators: Agreed.
The Chair: Senator Plett, can you repeat the subamendment for the law clerks?
Senator Plett: I move that:
This Act does not apply to an online undertaking whose revenues in Canada from paid subscriptions and embedded advertising do not exceed $100,000,000 annually and which have more than 100,000 subscribers in Canada.
The Chair: The text is being printed up and will be distributed in a few seconds.
Colleagues, during the vote, be kind enough to press your mic button when you declare your vote. Some viewers of the proceedings have expressed an interest in knowing how senators vote. If you don’t press on your button, they can only read lips. They do hear the result, though.
Colleagues, you all have the subamendment before you. It is moved by the Honourable Senator Plett:
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 $100,000,000 annually.”.
— and which have more than 100,000 subscribers in Canada.
Shall the subamendment carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “no” side has it.
Senator Plett: A recorded vote, please, chair.
The Chair: We have a demand by Senator Plett for a recorded vote.
[Translation]
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: 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.
[English]
The Chair: Accordingly, the subamendment is defeated.
We turn to the question on the main amendment. Some are in a hurry to do work quickly; others more diligently.
Honourable senators, is there agreement on the amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: It seems like the “no” side has it.
Senator Plett: A recorded vote, please, chair.
The Chair: We have a demand for a recorded vote on the main amendment.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: 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: Yes.
Mr. Labrosse: Yeas: 4; nays: 10; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated.
Resuming debate on clause 2, colleagues. Are there any more amendments?
Senator Miville-Dechêne: It was distributed but maybe we can distribute it again. It’s C11-2-4-5.
The Chair: We will distribute Senator Miville-Dechêne’s amendment again.
[Translation]
Senator Miville-Dechêne: I’m going to read the amendment in French. Does everyone have it?
That Bill C-11 be amended in clause 2, on page 4, by replacing lines 5 and 6 with the following:
“broadcasting undertakings;
(b) the right to privacy of individuals; and
(c) the commitment of the Government of Canada to”.
It’s not exactly easy to understand in that format, but I’ll explain it much more simply. What’s being added is paragraph (b) on page 4 of the bill. The idea is to add a provision on individuals’ right to privacy.
[English]
So in English, we are adding on “the right of privacy to individuals.”
[Translation]
I didn’t come up with this. It’s straight from a recommendation made by the Privacy Commissioner of Canada, Philippe Dufresne. He appeared before the committee in September, when we first began the study. I’ll quote what he said:
Given this and in light of the fundamental importance of privacy, the committee could consider amending section 3 of the Broadcasting Act to include the protection of the privacy of persons as a policy objective of that act. This would be similar to the approach taken in the Telecommunications Act and would ensure that privacy is fully considered in the interpretation and implementation of the bill, by the CRTC, regulated entities and courts.
Those are the words of the Privacy Commissioner of Canada, Philippe Dufresne. As a reminder, further to our research and decision-making, we opted to put that provision under the heading “Interpretation,” on page 4. Indeed, it’s an interpretive clause to ensure that the right to privacy will inform how the entire bill is interpreted, especially for all of the stakeholders affected by the bill. Given that the internet raises serious privacy concerns, as you know, having a provision that applies broadly is vital in order to minimize infringements on people’s privacy.
I’ll leave it there. If anyone has questions, I’d be happy to answer them.
[English]
Senator Manning: I have a couple of questions for the officials, Mr. Chair, if I could start there, and then I may have a subamendment to the senator’s amendment.
Was the Privacy Commissioner consulted prior to introducing the bill? If the answer to that question is yes, did the Privacy Commissioner raise the concern that Senator Miville-Dechêne is raising now? If that is the case, why weren’t they already incorporated into the bill? This is for the officials.
Mr. Ripley: Thank you for the question, senator. Our recollection is that the Privacy Commissioner was not formally consulted before the introduction of the bill. However, as you know, he has participated in the parliamentary process, including appearing before this committee.
Senator Manning: You would think that would be part of the earlier discussions. Why would the bill be drafted and not address the privacy protections that were put forward by Senator Miville-Dechêne? Privacy is a very large concern that we have here. Many of our witnesses have brought that forward. I am wondering why we would be moving an amendment now. Is there any reason it wasn’t addressed in the beginning?
Mr. Ripley: Thank you for the question, Senator Manning. In part, it’s because our assessment is that the privacy implications flowing from the Broadcasting Act are already adequately addressed through the fact that the CRTC is subject to the Privacy Act. If you look at the Privacy Act, you will see that the CRTC is listed in the schedules there. Therefore, it must respect the obligations of the Privacy Act.
The Broadcasting Act does not have as its core purpose the protection of individuals’ privacy. That’s not why the act exists. However, that does not detract from the fact that the CRTC must respect its obligations to protect the personal information and privacy of individuals.
I see the amendment that’s being moved as putting a marker down that the CRTC needs to remember that it is to interpret the act in a manner consistent with the privacy rights of individuals. Further, I would note that the amendment as drafted refers to the concept that allows it to continue to evolve both as privacy frameworks continue to evolve and as the understanding of that term continues to evolve in the Canadian context.
Senator Manning: I would like to move a subamendment to Senator Miville-Dechêne’s amendment. After the words “the right to privacy of individuals,” I would like to add, “more substantive language regarding the protection of personal information and unauthorized sharing or disclosure.” The section, as amended under the subamendment, would then read:
(3) This Act shall be construed and be applied in a manner that is consistent with:
(a) The freedom of expression and journalistic creative and programming independence enjoyed by the broadcasting undertakings;
(b) The right to privacy of individuals, including the protection of their personal information against any unauthorized sharing or disclosure; and
(c) The commitment of the Government of Canada to enhance the vitality of official language minority communities and to support and assist their development as well as to foster the full recognition and use of both English and French in Canadian society.
I am moving the amendment because when the Privacy Commissioner appeared before our committee, he noted potential privacy implications of the bill and stated:
. . . the implementation of the bill in a way that ensures that requested information is de-identified or anonymized will be essential and my office will be available to provide the necessary advice and guidance.
He recommended that the bill be amended in a similar way to the approach taken in the Telecommunications Act and would ensure that privacy is fully considered in the interpretation and implementation of the bill by the CRTC, regulated entities and courts.
Fenwick McKelvey, Associate Professor, Concordia University, when he appeared before our committee, also recommended that due to discoverability provisions of the bill that it be amended to contribute to the protection of the privacy of persons and to recognize the public and cultural significance of information about them.
The solid amendment proposed here will make it clear that privacy protections include the protection of their personal information against any unauthorized sharing or disclosure. The subamendment is designed to ensure that in this age, when so much personal information is online and discoverable, that Canadians, to the greatest extent possible, retain control over that information.
Colleagues, we live in an age where technology has a tremendous capacity to impinge on people’s privacy. As the Privacy Commissioner noted, the bill itself incorporates numerous signals that there is an intent to discover a considerable degree of information about Canadian creators and consumers, about their viewing habits, their nationality, their preferences, their intentions and so on. This warrants at least a nod to privacy protection as an essential objective of the Broadcasting Act.
I support Senator Miville-Dechêne’s amendment and suggest that we further strengthen it to respond to the Privacy Commissioner’s recommendation by incorporating this subamendment. Thank you.
The Chair: Senator Manning, would you happen to have the subamendment in writing, the actual text?
Senator Manning: No, I don’t.
The Chair: You don’t have it in a text form? Would you be able to repeat it?
Senator Manning: The following is Senator Miville-Dechêne’s: “(b) The right to privacy of individuals.” I want to add “including the protection of their personal information against any unauthorized sharing or disclosure.”
The Chair: “Unauthorized sharing of disclosure.”
Senator Manning: “Unauthorized sharing or disclosure.”
Senator Gold: The government supports the idea behind invoking privacy in this bill. The protection of privacy is an important concern, as we all know and respect. However, the government does not support this particular subamendment.
It’s the government’s position that an amendment to ensure that the CRTC regulates in a manner that respects the privacy of individuals is better placed in a substantive section, to wit section 5 of the act, and not in an interpretive section. Indeed, this would accomplish the same goal.
I understand there is an amendment that will be introduced when we get to section 5 by the sponsor. But it would actually result in stronger privacy protections for Canadians who use streaming and broadcasting services. It would add the privacy of individuals to the criteria that the CRTC must take into account when developing regulations.
We support the idea of privacy. Thank you, Senator Miville-Dechêne, for bringing this forward. We think there is a stronger protection and a better way to protect it in section 5. For that reason, we oppose this subamendment.
The Chair: Mr. Ripley, we have confirmed now that the department and the government did not consult the Privacy Commissioner before drafting the bill. Was the Justice Department asked to provide an opinion on the privacy issues regarding this bill?
Mr. Ripley: Thank you, senator. The Department of Justice was indeed consulted on looking at the bill in relation to the Charter, which does, obviously, include some elements of privacy. It would have been through that lens that it was looked at.
The Chair: Would the department be able to share that opinion with this committee, just related to the privacy issue?
Mr. Ripley: As you likely know, chair, I would refer you to the Charter statement that is published with each bill that is tabled by the government that looks at all the applicable provisions of the Charter.
The Chair: Senator Miville-Dechêne, I’m one who appreciates this amendment. I appreciate the government now on the “five minutes to midnight” kind of thing, recognizing that they failed on protecting privacy elements. I find it quite egregious.
When it’s all said and done, we are revamping the Broadcasting Act in an era of digital platforms, yet the department and the government did not think it essential to have ironclad protection of privacy in this bill and did not think it essential to get an opinion in regard to this bill from the Privacy Commissioner appointed by this Parliament and this government.
Honestly, we know that all pieces of legislation are imperfect, but with something of this nature — which will be impacting hundreds of thousands, if not millions, of Canadians — where there wasn’t a simple effort made to get in writing a concrete opinion from the Privacy Commissioner, both the former and the new incoming one, it really causes one to shake one’s head.
I, for one, do support this amendment. I look forward to any other amendments and clauses that would strengthen the privacy element. I don’t think one excludes the other, but that’s my opinion on this particular amendment.
Senator Plett: Chair, you said what I wanted to say. I find it very troubling. This isn’t a question but more of a comment.
What Senator Miville-Dechêne rightly says in her amendment about the right to privacy of individuals is to address the concerns raised by the Privacy Commissioner. The government didn’t accept that immediately and is still fighting that. We possibly have an amendment coming along that will deal with this, but we don’t know. We know what we have in front of us today.
I also support this. I’m quite troubled by the fact that the government would not have taken more seriously the concerns raised by the Privacy Commissioner.
I will be supporting Senator Manning’s subamendment, but most certainly will also be supporting the amendment by Senator Miville-Dechêne. Thank you.
[Translation]
Senator Miville-Dechêne: I want to clarify something regarding Senator Manning’s subamendment.
You mentioned that Philippe Dufresne referred to the Canadian telecommunications policy in his remarks, so I wanted to point out that the policy makes only one reference to privacy, “to contribute to the protection of the privacy of persons.” It doesn’t contain anything that would amount to a lengthier amendment that covers all the privacy implications.
Since Commissioner Dufresne is more qualified than I am to come up with an amendment that deals with privacy as broadly as possible, I disagree with your subamendment. It seems repetitive to me. At the very least, it provides only a partial or incomplete description of the right to privacy. I think we should stick to what it says in the amendment, as per the Privacy Commissioner’s very specific recommendation. We opted to go with what he recommended exactly since he’s the expert.
Moreover, I’d like to thank Senator Gold for mentioning the importance of including a privacy provision. Obviously, the CRTC is subject to the act. Although I’m well aware of that, the bill involves more than just the CRTC. It applies to many private companies, foreign platforms, in particular. That’s why the bill needs to state clearly that they, too, have to respect people’s privacy.
The reason I included the amendment in this particular clause — keep in mind that this is an interpretive clause, not a substantive one — has to do with subsection 5(3) of the original Broadcasting Act, which reads as follows:
[English]
(3) The Commission shall give primary consideration to the objectives of the broadcasting policy set out in subsection 3(1) if, in any particular matter before the Commission, a conflict arises between those objectives and the objectives of the regulatory policy set out in subsection (2).
So I will translate. It means that if there is a conflict, the section that has priority would be that proposed in my amendment to clause 2, rather than subsection 5(2).
My belief, after some research, is that if we place the wording in subsection 2(3), as I have done, it has more chance of being largely applied than in section 5.
The Chair: Senator Miville-Dechêne, would you take a brief question?
Senator Miville-Dechêne: Yes.
The Chair: Without an amendment, like the subamendment from Senator Manning or your amendment, do you believe that this bill would not survive a constitutional challenge before the courts when it comes to protecting privacy issues?
[Translation]
Senator Miville-Dechêne: You’ll forgive me if I don’t answer that.
I’m not a lawyer, Mr. Chair. My focus is on trying to protect everyone who will be affected by the bill, audiences and content creators alike, the small fry and big players.
Of course, there are laws in place, and the collection of data is permitted when it’s done for the purposes of legislation enacted by Parliament, but the use of those data is subject to all kinds of limits. It’s also very important — and we talked about this — to ensure that the data are anonymized so it’s possible to get a sense of who is doing what without jeopardizing individuals’ personal information. However, I won’t go down that road. Thank you for your question.
The Chair: Thank you.
Senator Dawson: I want to confirm that I will be moving a substantive amendment to clause 5. The government heard the commissioner, who appeared before the committee. We’ve held many meetings and consulted extensively. We’ve heard from a lot of stakeholders. We listened to what the commissioner had to say, and we will be proposing an amendment that meets your requirements. It’s never too late to do the right thing — hence our role as the chamber of sober second thought.
The Chair: That’s appreciated, Senator Dawson.
[English]
Senator Quinn: Thank you, Senator Miville-Dechêne. I really appreciate your commentary about the substantive versus the interpretive clause. My question is can we do it in both spots, to have the floor covered?
Senator Miville-Dechêne: Maybe we should ask our experts.
Senator Quinn: Yes. Thank you. I’ll direct that question to the official.
Mr. Ripley, can we do it in both spots?
Mr. Ripley: Thank you, Senator Quinn, for the question. The short answer is, yes, the committee could do it in both spots. It would serve slightly different purposes. Again, where Senator Miville-Dechêne is proposing the amendment, it’s an interpretation section that applies across the whole act. My understanding of where the government leaders propose that it would be inserted is specifically asking the CRTC to consider it in the context of regulatory policy. Broadly speaking, those things would be consistent.
Senator Quinn: Thank you.
Senator Manning: Just to follow up, I understand that the Privacy Commissioner certainly has great experience in dealing with this. That’s why I fail to understand why he wasn’t consulted in preparation of the bill.
I have also been around long enough to know that nobody knows everything. As Senator Dawson rightly put it, it’s never too late to do it properly, to quote his words.
My concern is just with the words “the right to privacy of individuals.” While it’s an opportunity to address the concern, the fact is, it’s an open-ended question. I was just trying to close the gap with the subamendment to ensure that, as I said, in this age when there’s so much personal information discoverable online, that Canadians should, to the greatest extent possible, retain control over their personal information.
The purpose of the subamendment was to expand on what Senator Miville-Dechêne has put forward to ensure that the individuals, who may not even be aware that their information is available out there, may be protected in some way, shape or form. That’s the purpose of my amendment. I’ll leave it at that now. Thank you.
Senator Plett: I also appreciate what Senator Dawson said, that the government saw the light and decided to do something about it, but as Mr. Ripley just pointed out, the bill could be amended in two areas. Of course, the government then has the wonderful opportunity of deciding, when the bill comes over there, whether they want to accept one or the other or both of the amendments.
We are certainly not taking anything away from the government by amending it in two places. I will be fully supporting the subamendment. Whether the subamendment passes or not, I have full intentions of supporting the amendment.
The Chair: If there are no other interventions, we will call the question on the subamendment.
It is moved by the Honourable Senator Manning:
That Bill C-11 be amended in clause 2, on page 4, by replacing lines 5 and 6 with the following:
“broadcasting undertakings;
(b) the right to privacy of individuals; and
(c) the commitment of the Government of Canada to”.
And:
That the motion in amendment be amended by replacing the text of its proposed paragraph (b) with the following:
“(b) the right to privacy of individuals, including the protection of their personal information against any unauthorized sharing or disclosure,”
Shall this subamendment carry?
Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “nays” have it. A recorded vote is requested by Senator Manning.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: I’m going to abstain.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas: 4; nays: 9; abstentions: 1.
[English]
The Chair: Accordingly, the subamendment is defeated.
Senator Plett: Chair, I’m sorry, but we’re going to have to belabour this a little bit longer. I will be suggesting another subamendment.
The Chair: Do you have it handy?
Senator Plett: I do not have it written out, no. It’s a very short one. It is to add the words “and creators” after the words “broadcasting undertakings.”
This section as amended under the subamendment would then read:
(3) This Act shall be construed and applied in a manner that is consistent with
(a) the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings and creators; and
(b) the right to privacy of individuals; and
(c) the commitment of the Government of Canada to enhance the vitality of official language minority communities and to support and assist their development, as well as to foster the full recognition and use of both English and French in Canadian society.
Colleagues, we have heard considerable testimony from creators related to their concerns about this bill. Morghan Fortier, co-owner and chief executive officer of Skyship Entertainment, told our committee:
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.
Scott Benzie, managing director of Digital First Canada, expressed his worry that what the bill actually covers is the entire internet. That scope of coverage requires guardrails.
Oorbee Roy, a content creator and skateboarder, told our committee:
It’s a depressing reality for me to see that my content is going to be pushed aside . . . . 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.
On the other hand, creators have also talked about the tremendous opportunities that freedom of expression in the modern digital age has meant to them. Frédéric Bastien Forrest, animator and content creator, who appeared before our committee, said:
When it comes to culture, 90% of Canadian kids in their twenties are watching YouTube, and a lot of them are watching Canadian creators — Manitoba creators, Ontarian creators, Albertan creators, Quebec creators and Francophonie creators.
Mr. Bastien Forrest referenced watching Franco-Saskatchewan rapper Shawn Jobin on YouTube. He said:
Some of his videos have had more than 100,000 views. That’s our francophone culture, which is alive, circulating and being exported.
He noted that:
My own YouTube channel is in French and has more than 30,000 followers. The vast majority of views on my channel come from Quebec and French-speaking Canada. Approximately 20% to 30% come from Europe, France and Belgium. At least one European consumes Quebec culture on my YouTube channel every day. For your information, my channel gets between 4,000 and 100,000 views a month. That’s small beer for many people, but it’s enough for us to earn a living in Quebec.
Morghan Fortier’s company Skyship Entertainment, which provides children’s content, was only founded in 2015 but since that time has built a global audience that on any given day can reach as many as 30 million families, classrooms and daycares. This includes many of the over 1 million families here in Canada that have preschoolers at home.
Oorbee Roy found fame on TikTok and told our committee that with some of this online opportunity, she is making a living inspiring children and so many more people. She said:
These are opportunities on a global scale. It’s really exciting. I’m carving out a full-time living for myself as a relatively small creator. I don’t have millions of followers. I don’t make millions of dollars.
Colleagues, what we have heard from witnesses is that creators are enjoying freedom of expression online and showing their creative and programming independence. However, we have also heard that they feel insufficiently recognized and protected. In fact, they fear the implications of this bill. We can at least give them a nod through this subamendment. We can affirm that their freedom of expression and their creative programming independence is also recognized.
Senator Simons: I actually very much appreciate the spirit of Senator Plett’s comments, but he is speaking to a different clause. It doesn’t relate to the amendment on the table. It would be an amendment of 3(a) where, as I understand it, Senator Miville-Dechêne’s amendment creates a new 3(b).
The Chair: Senator Plett, do you want to withhold that amendment?
Senator Simons: I don’t know if we can go backwards —
The Chair: We can go back if it’s not a subamendment — You’re saying it’s in section 3?
Senator Simons: I am saying Senator Plett was speaking to section 3(a). I don’t necessarily disagree with him, but we are currently debating section 3(b).
[Translation]
Senator Miville-Dechêne: I would add that the amendment has little to do with the right to privacy. Right now, the main amendment pertains to the right to privacy. Senator Plett is proposing some important and interesting stuff, but it relates to another section. Usually, we go through the sections in order. I don’t think it’s a subamendment to my amendment. It’s a different one.
[English]
The Chair: It does sound like more of a stand-alone amendment. It would require —
Senator Plett: I’ll withdraw it for now, and I’ll make a separate amendment.
The Chair: It would require leave to go back. So, Senator Gold?
Senator Gold: No, thank you, I have nothing to add.
Senator Simons: I have a question on Senator Miville-Dechêne’s amendment.
The Chair: Senator Plett, you can stand your amendment for a later time.
Senator Plett: Can we go back?
The Chair: We cannot go back without leave unless it applies at another time.
Senator Plett: Well, I’m asking whether or not there would be leave granted to go back and do this.
Senator Wallin: But then you can’t go back.
The Chair: Then we can’t go back. That’s why he is asking for leave to go to the previous item.
Actually, I apologize, the clerk tells me I don’t need leave. You can go back to it, this clause 2, in the next meeting. But you can stand it if you want, Senator Plett.
Senator Plett: I can stand it, and then we can go back?
The Chair: Yes.
Senator Plett: Okay.
The Chair: Are there any questions on Senator Miville-Dechêne’s amendment?
It is moved by the Honourable Senator Miville-Dechêne that Bill C-11 be amended on clause 2, page 4, at line 5. Is it your pleasure, honourable senators, to adopt the motion in amendment?
More consensus, so carried.
Senator Gold: I register an abstention on behalf of the government.
The Chair: Yes, thank you. Therefore, it’s carried on division.
Colleagues, are there any other amendments on clause 2?
Senator Plett: Chair, is this where I would make my amendment?
The Chair: Yes. But we would stand it to the next meeting. You make your amendment, but we stand it to the next meeting.
Senator Plett: Okay. Well, I have it as a subamendment, but I can do it at the next meeting.
Senator Wallin: You can just make it an amendment.
The Chair: Now I understand why the clerk wants to stand it. It’s because we’re translating your amendment to French. We need to stand it in order to present it.
We’re still on clause 2. Are there any other amendments on clause 2? There are no other amendments on clause 2.
Senator Plett’s amendment is being distributed.
Honourable colleagues, the amendment from Senator Plett is as follows:
That Bill C-11 be amended in clause 2, on page 4, by replacing line 5 with the following:
“broadcasting undertakings and creators;”.
Senator Manning: I don’t have a question for Senator Plett, but I have a couple of questions for our officials.
During the debate on the bill and from several witnesses, we heard considerable concern about inadequate protection provided to creators in the bill, and I will quote a couple. Was this matter discussed internally as the bill was drafted in regard to the protection? I don’t see the world “creators” used anywhere in the bill, so I’m wondering why were they not explicitly recognized when we heard so much from them during our discussions.
Mr. Ripley: Thank you, Senator Manning, through the chair. The entity — that is, the regulated entity or the subject of regulation under the Broadcasting Act — is the concept of “broadcasting undertakings.” The Broadcasting Act is fundamentally about broadcasting undertakings and the contributions that they make to the system. As per my previous exchange with Senator Wallin, when it comes to social media creators, the bill clearly excludes them and indicates that they shall not be considered broadcasting undertakings for the purposes of the act.
To your first question, senator, the government did indeed consider very much the question of social media creators when it tabled Bill C-11. That was the main motivation in reintroducing proposed section 4.1, which excludes content uploaded to social media services, with the exception in section 4.2 for commercial content.
Just because the word “creator” isn’t reflected in the bill, it’s not at all a reflection that we did not consider their interests. Primarily, it’s because the bill does not seek to regulate creators. The focus of the Broadcasting Act is on regulating broadcasting undertakings.
Senator Manning: You feel that the creators are covered or protected under the act as it reads there now?
Mr. Ripley: I would draw your attention to a couple features of the bill that are intended to reflect the interest of creators, namely, proposed subsection 2(2.1), which is the exclusion for them being considered online undertakings when they distribute their content via social media, and proposed section 4.1 as well, which is an exclusion of content uploaded to social media services.
My read of the amendment that is being moved is to broaden the interpretive clause that currently speaks to freedom of expression and journalistic and creative programming independence not only to reference broadcast undertakings — which, again, is the primary subject of regulation of the Broadcasting Act — but also to make reference to creators. That would require the CRTC to consider whether there are implications for creators as they go through their regulatory processes, again acknowledging that creators are not actually subjects of regulation in the Broadcasting Act.
Senator Manning: Would the language proposed in the subamendment by Senator Plett cause any challenges in terms of the implementation of the bill as it stands now? Would the addition of these two words cause challenges in terms of the implementation?
Mr. Ripley: I do not see any challenges. At the end of the day, it would require the CRTC to consider the freedom of expression, journalistic, creative and programming independence enjoyed by creators where their interests may be engaged in decisions that the CRTC is making. That would primarily be in the space of social media. That is what I would expect.
Senator Plett: Mr. Ripley, you at least in part answered my question just now in your reply to Senator Manning. However, as I said in my comments earlier, we have heard from witnesses that creators are enjoying freedom of expression online and are showing their creative programming independence. We have also heard that they feel insufficiently recognized and protected. In fact, they fear the implications of this bill.
If there is not a downside to it, would you not agree that this would give them a level of comfort and would do nothing negative to the bill but, rather, would give these creators a level of comfort? I think I heard you say it will not negatively impact the bill.
Mr. Ripley: Again, it’s not my role to express an opinion on these matters. The government’s intention is not to undermine the freedom of expression and creative independence of creators. That is not the government’s intention in doing so. Again, I see this proposed amendment as consistent with that in terms of asking the CRTC to bear that in mind throughout its decision-making.
The Chair: Mr. Ripley, did the department at any point in time consider reviewing the Canadian content, or CanCon, definition? At the end of the day, we have undertaken to amend the Broadcasting Act and tried to bring the digital creators in line with traditional broadcasting CanCon policies. We have been thrown a bunch of these aspects in terms of regulations to be determined by the CRTC. Did the department at any point in time realize that many of the digital creators would not fit into the traditional CanCon definition? Does the government plan to broaden or narrow the CanCon definition to fit modern day digital reality?
Mr. Ripley: On the question of revisiting the definition of “Canadian program,” where that sits in our work plan is that this something the CRTC will have to do once Bill C-11 passes. In part, that’s because there are live amendments that provide greater texture to what Canadian programs should be moving forward.
You see that at proposed subsection 10(1.1) of the bill. Right now, the Broadcasting Act is actually silent on the question of what constitutes “Canadian program.” One of the proposed changes is to provide greater texture about what inputs into that definition should be considered by the CRTC. So the bill has to pass and then the CRTC can do that work.
With respect to the intersection between the definition of “Canadian program” and “social media creators,” the intention of the government is not to subject social media creators to any definition of “Canadian program.” The government, through proposed section 4.2, is seeking to focus on commercial content, whether it is music content that meets the MAPL definition or because it is audiovisual content that may meet the definition of “Canadian program.” The intention is not to extend that definition to social media creators.
The intention on social media services like YouTube is to let those two ecosystems continue to co-exist as they do now.
The Chair: Colleagues, I think this amendment is very important. This is another example where it is incumbent on parliamentarians to set those parameters that Mr. Ripley is talking about. I understand many had the reflex to think that the CRTC will come back with these answers, but I believe it is incumbent on parliamentarians, on the government and on the ministry to give clearer directives in terms of both the legislative and the regulatory perspectives.
Senator Wallin: I think I heard Mr. Ripley say this but I want to clarify it. By adding the words “and creators,” you in no way fear this constrains, prohibits or limits anything else in the bill? It’s not a problem?
Mr. Ripley: Thank you, Senator Wallin. My response was: The government’s intention is not to limit the freedom of expression or creative independence of creators in any way through this bill. The Broadcasting Act is fundamentally about promoting cultural expression.
Senator Wallin: So by stating it, we would just be stating their intention. That works.
The Chair: Colleagues, on Senator Plett’s amendment, it is moved by the Honourable Senator Plett that Bill C-11 be amended — I can dispense or read the amendment?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion, in amendment?
Hon. Senators: Agreed.
The Chair: I think the “agreed” have it. A recorded vote is asked for by the government.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Yes.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: Yes.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
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: Yes.
Mr. Labrosse: The Honourable Senator Sorensen?
Senator Sorensen: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas: 10; nays: 4; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is passed.
Are there any more amendments, colleagues, on clause 2?
Shall clause 2 carry, as amended?
Hon. Senators: Yes.
The Chair: Agreed. Clause 2 is carried, as amended.
Moving right along, colleagues. Shall clause 3 carry?
Senator Manning, could you read your amendment?
Senator Simons: Could you tell us the number so that we have them in the correct order?
The Chair: C11-3-4-21, Senator Manning. We will distribute that amendment. We have it on hand.
The clerk has been reluctant to do that because there was no agreement to share them in advance.
Senator Cormier: Not sharing, but just — okay.
The Chair: He doesn’t even share them with me.
Senator Miville-Dechêne: Is there an objection on the other side that we share the sequence?
The Chair: Colleagues is there an objection to sharing the sequence in clause 3? Just the sequence of it so we know who is lined up. Show the road map, exactly, so each senator knows and doesn’t miss their turn, because there are a number of them. Just the sequence for clause 3.
We can continue the debate while he does that.
Senator Manning: Thank you, Mr. Chair. As foreign broadcasting undertakings that provide programming to Canadians are included in the Canadian broadcasting system, I would like to make the following amendment:
That Bill C-11 be amended in clause 3, on page 4, by replacing line 21 with the following:
“the services provided by the undertaking and reflective of the fact that foreign broadcasting undertakings that provide programming to Canadians are included in the Canadian broadcasting system;”.
Therefore, the words “and reflective of the fact that foreign broadcasting undertakings that provide programming to Canadians are included in the Canadian broadcasting system” are added to the words “the services provided by the undertaking.” The purpose of my amendment is to ask the committee to take into consideration that foreign online streaming companies are global undertakings and recognize the difference in content strategies versus Canadian broadcasters that operate only in a closed domestic market with legislative and regulatory benefits and protections.
Colleagues, we have heard numerous witnesses speak about the significant contributions made by foreign broadcasting undertakings in Canada. Wendy Noss of the Motion Picture Association-Canada told our committee that global studios spent more than $5 billion across Canada in 2021, now accounting for more than half of all production in Canada and 90% of the growth over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented creative workers.
They assisted in financing new infrastructure and supporting over 47,000 Canadian businesses in 2021 alone. They also contributed to equity and diversity, both in front of and behind the camera.
Garrett Levin, President and Chief Executive Officer of Digital Media Association, told our committee:
On average, audio streaming services pay out 65 to 70% of their revenues in royalties. As I discussed with your colleagues, those royalties are the cost of licensing and using the works. The similar cost to licensing and using the works by commercial radio broadcasters sits at roughly 8.2% of their revenue.
He also stated:
While I understand the desire to say that’s not enough of a way to look at the contributions to the Canadian market, it is certainly the most direct contribution to the Canadian market that is being made by DiMA’s members.
In her testimony, Ms. Noss summarized the position of her organization by stating:
. . . the broadcasting policy objectives in section 3 must be flexible enough to allow each unique streaming service to best contribute. To achieve this outcome, we urge the committee to adopt an amendment that recognizes global undertakings are now being included in the Canadian regulatory system . . .
This approach recognizes the fundamental differences in content strategies between streaming services with unique business models competing around the world, and Canadian broadcasters who operate only in a closed domestic market with access to legislative and regulatory benefits and protections.
I believe it is only fair to recognize the contributions made by these undertakings and also to recognize that they are constructive partners in our broadcasting system.
We have also heard witnesses speak about the potential consequences of treating foreign undertakings unfairly, and we need to be mindful of that.
Konrad von Finckenstein, former chair of the CRTC, cautioned that while the CRTC has the power to make regulations requiring undertakings to make expenditures and contributions to funds for the production of Canadian content, entitlement to the benefits from each expenditure should not be limited to Canadian ownership or control of producers or Canadian ownership of intellectual property rights. Doing so will put Canada at high risk of creating a conflict with the United States, in particular, under the Canada-United States-Mexico Agreement.
I believe that we can begin to incorporate appropriate balance in this legislation by acknowledging in this clause that foreign broadcasting undertakings that provide programming to Canadians are an integral part of the Canadian broadcasting system, and I urge senators to support my amendment.
Thank you, Mr. Chair.
Senator Plett: I have a couple of questions for Mr. Ripley, if I could. Mr. Ripley, when Wendy Noss of the Motion Picture Association-Canada appeared before our committee, she noted that global studios spent more than $5 billion across Canada in 2021, now accounting for more than half of all production in Canada and 90% of the growth over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented creative workers and assisted in financing new infrastructure and in supporting over 47,000 Canadian businesses in 2021 alone.
My first question is very simple: Would you or the officials dispute any of these figures? And I have two more questions.
Mr. Ripley: Thank you, Senator Plett.
On the whole, I believe that’s accurate. I’m not in a position to confirm the exact figures. There is a publication every year, a profile report that breaks down the amount of audiovisual production in Canada and looks at questions about foreign location shooting versus Canadian programs. That is broadly consistent with the trends that we’re seeing, but I can’t confirm exactly the figures that she cited.
Senator Plett: I certainly appreciate that. But overall, you would think it’s fairly accurate and reflective.
How important would you say global investments are for Canada’s broadcasting industries?
Mr. Ripley: Thank you, Senator Plett.
The presence of global companies here in Canada is critical and very important to the audiovisual production system. Canada has a long history of balancing the interests of foreign companies who want to come here and take advantage of good infrastructure and good talent and our framework that is in place with the need to produce domestic production that is reflective of Canada.
Senator Plett: Thank you very much.
My last question: Why was this recognition not specifically acknowledged in the bill, and was it discussed for incorporation?
Mr. Ripley: Thank you, Senator Plett, for the question.
I would suggest that the bill is fundamentally about recognizing the presence of foreign streaming services and including them in the broadcasting system. If you look at proposed paragraph 3(1)(a), which is the one that precedes the provision that is proposed to be modified, you will see that it says “and it is recognized that it includes foreign broadcasting undertakings that provide programming to Canadians.” So the government is recognizing that those services, moving forward, will be part of the broadcasting system.
Senator Plett: So then the amendment again would simply solidify that?
Mr. Ripley: Thank you, Senator Plett.
I believe that, yes, it’s largely a reiteration of that preceding paragraph.
The Chair: On debate. My view is, again, this is a thoughtful amendment that really hits close to the core of the issue over here. Yes, of course, it recognizes foreign undertakings and wants to put them under the Broadcasting Act. That’s the whole point.
Of course, the issue that has been debated. These are not necessarily your typical broadcasters. Obviously, we’re trying to regulate them as such, and that is where the uncertainty is taking place. I think this clause just puts forward the idea that there are relevant players in our broadcasting system. I think this is the first amendment of others that need to come in other sections.
At the end of the day, there is no disputing the investment by these foreign broadcasting undertakings. There is no disputing the fact that at the beginning of this legislation being crafted, even the U.S. Embassy called in — one of the ministers of the government — to voice their concern about how the bill might be overstepping on creating protectionism and not respecting our free trade agreement.
There are a number of witnesses who have brought up the risk of retaliation, particularly from our large trading partner in the United States. There is no denying these foreign broadcasting undertakings have invested billions into our arts and culture in this country. You see it coast-to-coast. You see it in Montreal, Toronto and rural parts of Canada. For the first time in decades, Canada is on the map in making movies and making documentaries. We have seen the retombée, as we say in French, the economic benefits in the industry, where artists, broadcasters, writers, producers, actors, actresses are working at levels never seen before in Canada, bringing in revenue to the Treasury Board. That doesn’t seem to be enough. We still want to regulate them further, yet we don’t want to give them access to the Canadian Media Fund that traditional broadcasters will benefit from and will continue to benefit from under this bill.
We have seen the investment in the music industry in comparison to traditional radio when it comes to paying royalties to artists and so on and so forth.
This amendment is only logical. Colleagues, we should support it, and like I said, we should add to it in future sections in order to recognize the critical investment. Canada has benefited even when it comes to tourism from the simple fact of modern-day digital streaming and platforms that have exposed the beauty of our country, all regions of our country, and we have seen a spike in tourism over the last decade, in large part in relation to some of these broadcasting undertakings.
That’s my thought on this amendment.
If there are no other interveners, we will call the question.
It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 3, page 4 at line 21 — may I dispense?
Some Hon. Senators: Dispense.
Senator Plett: No. Read it.
The Chair: It is moved by the Honourable Senator Manning:
That Bill C-11 be amended in clause 3, on page 4, by replacing line 21 with the following:
“the services provided by the undertaking and reflective of the fact that foreign broadcasting undertakings that provide programming to Canadians are included in the Canadian broadcasting system;”.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
The Chair: I think the “nays” have it.
Senator Plett has requested a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: 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.
[English]
The Chair: Accordingly, the amendment is defeated.
Are there any other amendments in clause 3?
Next one is amendment 3-4-30. I believe that is Senator Manning. A copy will be circulated.
Senator Manning, you have the floor.
Senator Manning: I would like to move the following:
That Bill C-11 be amended in clause 3, on page 4, by adding the following after line 30:
“(i.1) reflect and be responsive to the preferences and interests of its audiences,
(i.2) to the extent possible, rely on market forces to ensure that Canadians obtain the programming of their choice,”.
The purpose of my amendment would be to enshrine the principle of consumer choice which is overlooked, in my belief, throughout the bill.
Colleagues, we have heard from many witnesses about the importance of ensuring that our broadcasting system is responsive to the preferences and interests of Canadians. We live in a democracy and were our broadcasting policy to attempt anything other than being responsive to the preferences and interests of Canadians, we would likely have many people questioning the functioning of our democracy. Once again, Konrad von Finckenstein, former chair of the Canadian Radio-television and Telecommunications Commission, appeared before our committee in June. He argued that while the act is to protect, promote and foster Canadian broadcasting production, the Canadian Radio-television and Telecommunications Commission, the CRTC, should not forget it is Canadian consumers who choose what they want to watch. The choice is driven by market forces and is only modified when necessary by regulatory mechanisms.
He argued that this principle should be included in section 3 of the act, which spells out the broadcasting policy of Canada. Tim Denton of the Internet Society of Canada Chapter made a similar point in arguing that the broadcasting policy of Canada should incorporate the principle that CRTC regulation respects user choice and recognizes that competition and market forces are contributing to achieving the objectives of the act. Mr. Denton also stated that while Bill C-11 implicitly assumes that in large measure the burden of Canadian programming production is to be taken up by foreign — read American — streamers competing with Canadian broadcasters, nowhere in this bill do we read of competition and consumer choice.
I believe this amendment corrects that gap. There may be a tendency to believe that everything the CRTC does is for the greater good of Canada and Canadians. However, we have heard from many witnesses whose experience does not entirely reflect that assumption.
Enshrining this principle in the bill is important for balance. It is important to underscore the principle that in a free society, it is the people who must guide the process of cultural consumption, not government organizations. Therefore, I move that we approve this amendment to incorporate the market principle and the principle that the choice of Canadians must be recognized and respected. I ask for your support. Thank you, Mr. Chair.
The Chair: Thank you, Senator Manning. On debate, I think this is a very important issue as well. There is no doubt that a great deal of time in this bill has been focused on giving the CRTC free rein to regulate. As I said earlier, there seems to be a propensity when it comes to this bill to say, “Trust us. We will do the right thing. Believe us. We’re not going to play with algorithmic manipulation. Believe us. We’re not going to force generated content to be censored, but we can force platforms, of course. We can force platforms to manipulate algorithms in order to get certain outcomes.”
At the end of the day, we have seen time and time again that, as much goodwill there might be, with any government agency to regulate, it’s always the consumer that gets the short end of the stick. That’s why, in large part, we have some of the largest telecommunication bills here in Canada. We pay a lot, but we get very little back.
For a number of years, we have seen the digital industry be a genuine free market. They have had the opportunity to give platforms to Canadian-content producers who are flourishing, creating strong businesses. Again, this amendment reflects in a positive way the interests of the audience. There is nowhere in this piece of legislation where the consumer comes first. We have seen throughout the study endless number of witnesses that have come before the committee that have made it crystal clear that, regardless of how many attempts we make to regulate the internet, people will always choose on the basis of a click. They will choose what they want to watch and what they don’t want to watch. The only thing regulation does is create lack of competition. It drives out investment when regulations become too cumbersome. They never, ever seem to bring the desired results that are required.
Another concern I have, which is addressed by this amendment, is we have heard from many witnesses before this committee that the CRTC has a track record that is lagging when it comes to transparency, accountability and access. A number of witnesses who came before this committee raised specific examples where deliberations were done by the CRTC in private and where rulings were done in private and made public only months later. Of course, there is no denying from the testimony of witnesses that the CRTC is an ivory tower of arbitrators where only those with the financial means are able to benefit from presenting their case.
As I said earlier, many independent content producers don’t have the financial means in order to compete with the Bell Media, the Rogers or the Quebecor of the world. As important as those platforms are in broadcasting, there are others. I think this amendment does address the fact that consumer choice needs to be highlighted and needs to be protected. For that reason, I am supporting this amendment.
Senator Plett: Thank you, chair. To echo your last point, there seems to be a complete lack of consumer choice and consumer protection in this bill. It seems that consumers always appear to be a secondary consideration when it comes to this government.
Mr. Ripley, was the matter of incorporating preferences and interests of audiences discussed in the course of the drafting of Bill C-11?
Mr. Ripley: Thank you very much for the question, Senator Plett. Yes, we are aware of these kinds of amendments that have been proposed in the House of Commons’ study of the bill as well. While it is not put as you are proposing it, I would suggest that when you look at the policy objectives of the Broadcasting Act, the interests of Canadians are there. Fundamentally, the Broadcasting Act is about ensuring that we have programming in both official languages and that we see ourselves in that programming. Provisions have been adopted on the House of Commons side that speak to reasonable terms of carriage, packaging and retailing. There are certainly elements of the broadcasting objectives that speak to the interests of Canadians in this system.
Senator Plett: Yet, I would think that the principles are not clearly incorporated in this bill. Are you suggesting that they are?
Mr. Ripley: The challenge with respect to the language about market forces is particularly an issue in the English market. In part, the history of the Broadcasting Act is a response to the fact that in English Canada in particular, you saw the market being flooded with American programming. So, in part, the Broadcasting Act at its core is a response to that. While there is nothing that limits the presence of either American programming or foreign programming in the Canadian market, the Broadcasting Act is about ensuring that there is a continual investment in domestic production, domestic music and domestic stories.
Senator Plett: Thank you, Mr. Ripley.
Senator Dasko: Colleagues, I have proposed one part of this as an amendment, but I feel it should go in a different section. I, too, think it’s important to recognize that audiences are part of the broadcasting system, and this bill doesn’t recognize audiences anywhere else. There is mention of audiences in a couple of different spots in the bill, but I feel it’s important to recognize that they are part of this system, not in a prescriptive way, but that they should be considered.
I have a different spot for this amendment. My amendment is very slightly different from this one. It reads, “. . . reflect and be responsive to the preferences and interests of various audiences.”
I feel it should be in paragraph 3(1)(d), but it should be a separate phrase. That’s what I think is a better location for this and a slightly better wording for this.
I have not included and I’m not proposing — perhaps somebody else might — the phrase about market forces, because I feel, as Mr. Ripley just said, that having a phrase about market forces would negate a lot of the elements of the Broadcasting Act that we have created over the decades, partly, as was just articulated, as a response almost contrary to some market forces. Market forces are always part of the system, but I felt including the phrase “market forces” would not be helpful. I felt that it would be very helpful to have something in about audiences.
Obviously, there are different ways to deal with this, but I feel that the clause in the location I have it is better than this one, and I don’t support the clause that deals with market forces.
I wanted to put this on the table for consideration, and it is:
That Bill C-11 be amended in clause 3, on page 6, by adding the following after line 8:
“(3.1) The Act is amended by adding the following after subparagraph 3(1)(d)(iv):
(v) reflect and be responsive to the preferences and interests of various audiences;”.
That is what I would like to propose. I want to signal that to my colleagues, that I think it’s a slight improvement in terms of grammar, and I think it’s a better fit in terms of location. I would be happy to speak to the issue at the time in terms of audiences.
I think the bill is very strongly supportive of producer communities. Producers, in the bill, get a lot of attention. I support that, but I think we also have to recognize that what people prefer, what they want to see and watch, should also be reflected as part of the system.
The Chair: I look forward to that amendment as well, and I’m pleased that, like myself, you recognize that the word “consumer.” Colleagues, just to give you an idea, the words “consumer,” “consumer choice,” “user-generated choice,” “choice” or “Canadian consumer choice” appear in the bill — and, government leader, you can correct me on this, or the officials — zero times. Again, one has to shake one’s head.
What I do see in the bill is traditional broadcasting. We talk about the legacy traditional broadcasters and how we have to bring digital and streamers and digital platforms in line, but nowhere do we talk about consumers or consumer choice or user-generated choice or Canadian consumer choice.
Again, it is mind-numbing that this broadcasting bill will have such an impact on hundreds of thousands or millions of Canadians in terms of what they choose to post and how they post it and how they watch, but nowhere — nowhere — did anybody think of those poor suckers who pay the bills.
I find that egregious, personally. Some people say I have been very vocal about opposing this piece of legislation. Yes, I have, and I’m unapologetic about it, because I think at the end of the day, I have a job here to do on behalf of taxpayers, not just traditional broadcasters and not large corporations that are coming into Canada and streaming and making a fortune, even though they are providing a platform that is creating hundreds of thousands of opportunities for Canadian culture and broadcasting it around the world.
Senator Dasko, I support this amendment, and I support any amendment where consumers’ rights, choices and interests will be defended by this Parliament and this committee.
Senator Wallin: First, just a comment from Mr. Ripley on this: Do you have any issue with “reflect and be responsive to the preferences and interests of its audiences”? Does that in any way create a problem?
Mr. Ripley: Thank you, Senator Wallin, through the chair.
I will once again refrain from offering an opinion on it. It would add an additional policy objective that specifically speaks to the preferences and interests of audiences, so that would be something the CRTC would have to consider.
One observation I would make is, as I tried to communicate to Senator Plett, if, for example, you look at proposed subparagraph 3(1)(d)(iii), it talks about serving the needs and interests of all Canadians. That is a recognition that the objectives of the act, the objectives of the broadcasting system, through both programming and employment opportunities, need to serve the interests of all Canadians.
Senator Wallin: The problem with that is that “needs” means somebody else is adjudicating that; whereas, “choice” means the individual is adjudicating that.
I was going to suggest a friendly amendment to a friendly amendment, whether Senator Manning would be prepared to split these two amendments so they could be dealt with separately. I’m not even sure that we couldn’t have it in both places, as suggested by Senator Dasko. I don’t think there is any harm in reinforcing this in different places of the bill.
I will begin by asking Senator Manning.
Senator Manning: Certainly, I mean, to follow up on Senator Dasko’s comments, the audiences are not referenced in the bill, and it certainly is a way of highlighting them as a part of the broadcasting system. I’m open to whatever it takes to make sure that audiences are addressed in the bill to the full extent that they are here. If we need to do it twice in different parts of the bill, I’m fine with that. There is nothing like driving things home sometimes to make sure that the message is brought forward.
We can look at proposed paragraph 3(1)(i.2) somewhere else in the bill.
The Chair: Well, given that without consumers, we don’t have any platforms and any broadcasting, I think even if they are mentioned more than two times, it would be a good thing.
Senator Sorensen hasn’t moved it yet. It is still on debate.
Senator Dasko: I thought there was a direct question to Senator Manning if he was willing to split the motion.
The Chair: And he said yes, but she hasn’t moved it yet.
Senator Dasko: I didn’t hear that.
The Chair: He said yes.
Senator Wallin: There are some comments I would like to hear.
The Chair: We are still on debate.
Senator Plett: I think Senator Wallin has a perfectly good solution, possibly.
I do agree there is no harm in mentioning this in a few places. We dealt with that just a few minutes ago, how we were going to deal with an amendment that we passed here and an amendment that possibly Senator Dawson is going to move later on, which will be complementary to each other or maybe even duplication.
I would certainly support Senator Dasko’s amendment, if and when we get to that. Having it reflected in two places clearly isn’t an issue for me. But I would also be supportive if Senator Manning is receptive to, as Senator Wallin suggested, splitting this. That might or might not satisfy what Senator Dasko did. My main concern is that these get mentioned, and I would like to see the “market forces” in there, but I am certainly willing to split it if that is more amenable to others to at least pass part of the amendment. I will leave at that. Thank you.
Senator Dasko: Thank you, chair. Just a point of clarification. The word “audiences” is used in the bill in other places, perhaps not consumer choice but “audiences” is there in a limited way, for example, there is mention of collecting data on audience measurement. There is a comment about audiences in the section on community broadcasting. So that word is there. Obviously, “audiences” are in the bill. But they’re not in the bill in a way that takes them into consideration as a factor in the system. So that is what I am trying to do.
I don’t think in this case it’s useful to have the same thing in two places. They’re in the same clause. It would be totally redundant to have it at the beginning of the clause and the same thing at the end of the clause. It’s precisely the same part of the bill. I don’t think we should do that. It’s just kind of silly. It doesn’t look very good.
I think it’s better where I am going to propose it. It’s definitely an amendment I’m going to propose. Whether it passes or not, we shall see. I’m just saying, I don’t think it’s of value to repeat the same thing in two places that are right in the same clause.
So you can propose whatever you wish, but I don’t think that’s the way to go when it comes to this.
The Chair: Again, Senator Dasko, I hear your point of view. “Audience” appears 12 times in a massive bill.
Senator Dasko: That was my point; it’s there. The word is used.
The Chair: What’s not used is “consumers.” There is a big difference between “consumers” and “audiences.” Consumers are a whole different story from audiences. Audiences are something that is measurable; consumers are something you can tax and regulate. Again, more importantly, there is “consumer choice” — maybe you even want to use the phrase “audience choice” or “Canadian audience choice” — but a “consumer” is somebody that’s a driving market force that keeps a platform in business.
Senator Dasko: Senator, the word “consumer” is not here. It’s “audiences.”
The Chair: It’s not, but it should be. That’s what I am saying. There is a substantive difference between audience and consumer. A consumer is a payer, somebody who is a free market, driving force. An audience is something that is measurable but doesn’t necessarily pay. That’s the big difference. If you look at the bill where “audience” is —
Senator Klyne: You haven’t paid, you can’t watch it.
The Chair: There is no one who will disagree that there is a significant difference between “audience” and “consumer,” and I invite you to look at the bill where “audience” is being used, and it’s being used in areas where they are measuring content more than anything else. That’s my humble opinion.
Senator Wallin: I’m going to go back and ask Senator Manning whether he would consider splitting this. Can I make a motion to that effect?
The Chair: When you say splitting, subamendment?
Senator Wallin: I would like to have these proposed as two different amendments.
The Chair: It has to be in the form of a subamendment.
Senator Wallin: My subamendment would be to delete proposed paragraph 3(1)(i.2) from the main amendment.
That would leave it with the first one. Is that what I have accomplished? I don’t know whether he could move that again as the second part, if he so chooses.
Senator Plett: Chair, if I could, with respect, I don’t think that accomplishes what we would want at all. I think if the subamendment just simply says to split these in two is one thing, but what you’re suggesting, Senator Wallin, is actually taking part of it out completely.
Senator Wallin: I don’t know how else to do it.
Senator Plett: Neither do I. I’m sorry.
Senator Wallin: I’m asking the clerk for advice.
Senator Plett: The clerk maybe needs to tell us how what you’re trying to accomplish can be accomplished.
Senator Wallin: I know you want to stand. I’m not trying to deny you the right to put that forward. There are lots of places in this bill where I think it calls for reiterating a certain concept or idea. I think this may be one of them, where we can —
The Chair: Senator Wallin, would you be amenable to putting in “consumer audiences?”
Senator Wallin: Preferences and interests —
The Chair: Of consumer audiences.
Senator Wallin: Yes, or an “and.” I don’t know. It is two separate things. I understand your point. Consumers have a broader — we consume lots of things.
The Chair: But it’s also people who are making the choice as the audience.
Senator Wallin: I heard your point earlier, and I think it’s real. I’m trying to solve the other problem of not undoing Senator Manning’s intent but just splitting.
The Chair: If your subamendment passes, I think Senator Manning said he would be comfortable with it.
Senator Manning: To split, not to remove.
Senator Wallin: To split.
The Chair: The clerk’s advice is that we withdraw paragraph 3(1)(i.2), as suggested by Senator Wallin, and we vote on the amendment —
Senator Wallin: But, I don’t want to take away Senator Manning’s right to propose his amendment.
The Chair: The clerk says to take the two amendments and vote on them separately, and that way we split the amendment. So the first one would be on proposed paragraph 3(1)(i.1), on Senator Manning’s amendment, and then the second one would be a vote on Senator Wallin’s amendment. That way we achieve splitting.
Senator Manning: I have an amendment on the table now for the complete amendment.
The Chair: No. What Senator Wallin is proposing is that we would remove your proposed paragraph 3(1)(i.2), and we would vote on the proposed paragraph 3(1)(i.1) separately, and then we vote on the second amendment that Senator Wallin is proposing.
Senator Wallin: Instead of removing that, I will propose that we vote on proposed paragraphs 3(1)(i.1) and 3(1)(i.2) separately. I don’t know how that qualifies as an amendment, but I’ll go with whatever the clerk says.
Senator Plett: I’m sorry.
Let’s just say, for example, if we do what has been suggested and the proposed paragraph 3(1)(i.1) is defeated, then could paragraph 3(1)(i.2) stand by itself?
The Chair: Technically, but it would be a bit discombobulated.
For starters, what I would like to propose to Senator Manning is that we amend your amendment in paragraph 3(1)(i.1) to say, “reflect and be responsive to the preferences and interests of consumer audiences.” That would be my amendment, and leave it at that.
Senator Plett: And take out paragraph 3(1)(i.2) completely?
The Chair: I’m okay with leaving paragraph 3(1)(i.2) in and having a vote, and then we will address whatever issue Senator Wallin has to address separately. Does that make sense?
Senator Wallin: We can do yours first; it doesn’t matter what order.
Senator Plett: I’m not sure if you can move a subamendment, but I’m happy to move that subamendment, chair, as you worded it there, and we vote on the entire amendment and see where it takes us.
Senator Manning: Just for clarification, if the subamendment that Senator Plett is bringing forward to add “interests of consumer audiences” —
Senator Plett: Paragraph 3(1)(i.2) still stays.
Senator Manning: We’re voting on just that subamendment, so my amendment still stands.
Senator Wallin: We’re adding the word, “consumer.”
Senator Manning: If Senator Wallin wants to move the subamendment —
The Chair: We will wait two seconds for the final version in French and English.
The subamendment from Senator Plett is now being distributed.
It is moved by the Honourable Senator Plett:
That Bill C-11 be amended in clause 3, on page 4, by adding the following after line 30:
“(i.1) reflect and be responsive to the preferences and interests of its audiences,
(i.2) to the extent possible, rely on market forces to ensure that Canadians obtain the programming of their choice,”.
Subamendment 1 is as follows:
That the motion in amendment be amended by replacing the word “its” with the word “consumer”.
Colleagues, are you in favour of the subamendment?
Some Hon. Senators: No.
The Chair: I got a “no.” Senator Plett is calling for a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: 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: Yes.
Mr. Labrosse: Yeas: 4; nays: 10; abstentions: nil.
[English]
The Chair: Accordingly, the subamendment is defeated.
We can vote on the original, and then you can propose a stand-alone amendment.
You can have a subamendment to remove the second clause, which, I think, is what you originally recommended, correct?
Senator Wallin: I will do that.
The Chair: It is moved by the Honourable Senator Wallin that Bill C-11 be amended in clause 3, on page 4, by removing the proposed paragraph 3(1)(i.2).
Honourable colleagues, are you in favour of the subamendment?
Some Hon. Senators: No.
The Chair: I think the “nays” have it again. Senator Plett wants a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: 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: Yes.
Mr. Labrosse: Yeas: 4; nays: 10; abstentions: nil.
[English]
The Chair: Accordingly, this subamendment is defeated. Now we will have a vote on the main amendment from Senator Manning.
It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 3, page 4, at line 30. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Seems like the “nays” have it.
Senator Plett: Why don’t we check to see who all votes which way?
The Chair: Senator Plett wants a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: 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: 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: Yes.
Mr. Labrosse: Yeas: 4; nays: 10; abstentions: nil.
[English]
The Chair: This amendment is defeated.
Are there any more amendments, colleagues, on clause 3?
The next amendment on the roll call is C11-3-5-1, and that is Senator Dasko’s amendment. Given the fact that we’re 30 seconds away from adjourning, we will have that up on roll call at the next meeting. Thank you, colleagues. This meeting is adjourned.
(The committee adjourned.)