THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, November 30, 2022
The Standing Senate Committee on Transport and Communications met with videoconference this day at 6:45 p.m. [ET] to study the subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Senator Leo Housakos (Chair) in the chair.
[Translation]
The Chair: My name is Leo Housakos, and I am a senator from Quebec and the chair of this committee. I would like to introduce the committee members attending the meeting, starting on my left.
[English]
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Cormier: René Cormier, New Brunswick.
Senator Miville-Dechêne: Julie Miville-Dechêne, Quebec.
[English]
Senator Dasko: Senator Donna Dasko, Ontario.
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dawson: Dennis Dawson, Quebec.
[English]
Senator Gold: Marc Gold, Government Representative in the Senate, Quebec.
Senator Sorensen: Karen Sorensen, Alberta.
Senator Quinn: Jim Quinn, New Brunswick.
[Translation]
Senator Clement: Bernadette Clement, Ontario.
[English]
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Plett: Don Plett, Landmark, Manitoba.
Senator Wallin: Pamela Wallin, Wadena, Saskatchewan.
The Chair: Honourable senators, we’re meeting to continue our clause-by-clause examination of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Once again, we are joined as well by officials from Canadian Heritage, Mr. Thomas Owen Ripley, Associate Assistant Deputy Minister; Amy Awad, Acting Senior Director, Marketplace and Legislative Policy; and Charles Kouri, Policy and Research Analyst, Marketplace and Legislative Policy. I thank all three of them again for being patient with us and being present. It is very much appreciated.
Colleagues, I would also like to announce that I’ve been informed by the clerk that Senator Manning and Senator Plett, on behalf of the Conservatives, have withdrawn up to seven amendments for clause 3, I understand, in order to reduce some of the traffic load for clause 3. Hopefully, that is a sign of good things to come.
Honourable colleagues, we adjourned our last meeting by standing an amendment to clause 2 proposed by Senator Dasko. I understand that amendment is ready to be distributed to all colleagues. Do you all have it? Can we please have that amendment distributed? It is being distributed as we speak, in advance.
The chair only works with what the chair is fed. I have limits. It is the members who control what the chair dictates.
I believe you all have Senator Dasko’s proposed amendment. Senator Dasko, if you’re ready, you have the floor.
Senator Dasko: Thank you, colleagues. My amendment today is very short. I hope to add the word “innovation” to the bill. I hope to amend subparagraphs 3(1)(d)(iii) and (iv); that’s the main amendment. The amendment adds two words, essentially, in front of the existing words in the clause. The amendment would read, “promote innovation and be readily adaptable to scientific and technological change.” It adds the words “promote innovation” in front of the words “be readily adaptable to scientific and technological change.”
Colleagues, the word “innovation” does not appear in the current Broadcasting Act. I think this is a really important omission for a country that prides itself on being an innovative country, embracing innovation and exporting original Canadian content to the rest of the world.
By failing to include “innovation” in a modern Broadcasting Act, Bill C-11 is missing an opportunity to encourage the type of innovation that has given Canadian musicians, record labels, publishers and creative people a platform to bring their content to the world.
By adding the words “promote innovation” to the bill, we are talking not just about technological innovation; we’re talking about creative talent. We’re talking about the creative people in this country and how innovative they are.
This is a very brief amendment, as I just read to you. I just want to say a few more words about this.
The word “innovation” has been used by many witnesses when they’ve come here to speak about the Canadian cultural community. As well, encouraging innovation appears to be a clear priority for this government. For example, the Speech from the Throne from 2021, includes the word “innovation”:
By focusing on innovation and good, green jobs, and by working with like-minded countries — we will build a more resilient, sustainable, and competitive economy.
That’s an example of the use of the word “innovation” by the government.
Canada has a Minister of Innovation, Science and Industry, and the word “innovation” is used in many other government documents.
On that note, I hope that you will consider voting in favour of adding the two words “promote innovation” in front of the words “and be readily adaptable to scientific and technological change.”
I so move:
That Bill C-11 be amended in clause 3,
(a) on page 5, by replacing line 1 with the following:
“(3) Subparagraphs 3(1)(d)(iii) and (iv) of the Act are re-”;
(b) on page 6, by adding the following after line 8:
“(iv) promote innovation and be readily adaptable to scientific and technological change;”.
The Chair: Are there any comments on this, or are we ready to go to the question?
Some Hon. Senators: Question.
Senator Wallin: “For those communities,” comma, and then a new thought — okay.
Senator Dasko: Right, it’s a new beginning to the clause that’s already there.
The Chair: Are members ready for the question?
Senator Manning: I support the amendment put forward by Senator Dasko. As a matter of fact, that was one of the amendments we were looking at ourselves. It’s a step in the right direction, so we fully support the amendment and rest our case on that.
The Chair: It is moved by the Honourable Senator Dasko that Bill C-11 be amended on clause 3, page 5, at line 1. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried unanimously.
Senator Manning, you’re withdrawing your next amendment; is that correct?
Senator Manning: Yes, chair. We withdraw the amendment, which was exactly the same as Senator Dasko’s.
The Chair: You received a row of the last, so the next amendment was Senator Manning’s and he is withdrawing it. It’s a similar amendment.
Senator Cormier: I wonder if the list is the same.
The Chair: They will distribute a new list. There are a number of them that were withdrawn right before the meeting and the one that was withdrawn.
Senator Cormier: On the list we have here, you said some amendments were withdrawn.
The Chair: That’s an update.
Senator Cormier: That’s an update of it?
The Chair: It doesn’t reflect the ones that were just removed.
Senator Cormier: Can you tell us which ones were withdrawn?
The Chair: I’ll ask the clerk to run through the ones that were withdrawn. He can do that.
Vincent Labrosse, Clerk of the Committee: To be precise, in the road map you have for clause 3, it was recently brought to our attention that the following should be withdrawn. That would be DNP-C11-3-5-1. Number 3 is the one we just carried. Number 4 has been withdrawn. Number 9, 10, 11, 14 and 20 — that would summarize the updated list. Thank you, senators.
The Chair: The next amendment on that list, as I understand it, for clause 3, is Senator Clement, and the number is BC-C11-3-5-6.
Senator Clement: Good evening, colleagues. Does everybody have the motion or does it get distributed now?
The Chair: Has the motion been distributed? It’s being distributed. We’ll give everybody a chance to get it in their hands and read it.
Senator Clement: I’m going to read it into the record. I move:
That Bill C-11 be amended in clause 3,
(a) on page 5,
(i) by replacing line 6 with the following:
“Canadians from Black or other racialized communities and Cana-”,
(ii) by replacing line 46 with the following:
“Black and other racialized communities and the diversity of the”;
(b) on page 6,
(i) by replacing line 3 with the following:
“carried on by Canadians from Black or other racialized communi-”,
(ii) by replacing line 6 with the following:
“Black or other racialized communities and diverse ethnocultural”;
(c) on page 7, by replacing line 21 with the following:
“of Canadians from Black or other racialized communities and di-”.
On June 1, 2022, the Black Screen Office proposed an amendment in the House to specifically highlight Black communities where the term “racialized communities” was mentioned. This amendment was agreed to, so there were changes made as a result of the presentation made by the Black Screen Office — however, only in 4 of the 10 references. This motion is to include it in the five remaining references in the bill.
This amendment is to ensure that the needs of Black communities are adequately represented and incorporated through this bill by solving the multiple discrepancies of where the term “Black communities” is and is not mentioned in the bill. This amendment was born out of the requirement to reflect the specific needs of Black communities. Black communities have a history of increased discrimination compared to other groups. During the period of 2001 to 2016, the unemployment rates among the Black population were consistently higher than in the rest of the population. This was the case even at higher levels of education. For example, among those with a post-secondary education in 2016, the unemployment rate for the Black population was 9.2% compared to 5.3% for the rest of the population.
I want to quote Joan Jenkinson who was a witness before this committee, and the Executive Director of the Black Screen Office:
We welcome these references in Bill C-11 to serve the needs and interests of racialized Canadians. But wherever the word “racialized” is used, we ask that it be replaced with the phrase ”Black and other racialized.” We request this amendment as a recognition that there has historically been oppression of Black Canadians and greater barriers to inclusion than with other racialized Canadians.
For example, in a 2019 Statistics Canada survey, 45% of Black Canadians expressed that they had experienced discrimination in the past five years compared to 27% for other visible minorities. This discrimination can play itself out in education, healthcare, employment, housing and, yes, the Canadian screen industries.
Furthermore, the provisions that were not updated are significant. There are discrepancies. Some were agreed to, and some were left out, and they primarily deal with supporting the needs of racialized communities through employment and entrepreneurial opportunities. I’m referring to clause 3(3)(iii).
This discrepancy not only fails to correctly capture the needs of Black artists, producers and the communities as a whole, but it also poses a risk of delivering a negative impact to Black communities. Given the methods of statutory interpretation, this discrimination is worrisome, because it could cause the danger of certain provisions being interpreted to not apply to Black communities at all.
I want to say that I did have meetings with the Black Screen Office. We went over these discussions and went through all of this with the Law Clerk as well.
You may notice the “and” and the “or” difference. I just want to speak to that and then open up for questions.
The amendment will read as “Black and other racialized communities” in some provisions and “Black or other racialized communities” in others. This discrepancy is to ensure that the provision is as inclusive as possible.
Where we’re talking about Canadians, and where we reference “Canadians,” we use “or.” When there’s no “Canadians,” and it’s just “Black and racialized,” we have to be careful, because if we say, “Black and racialized,” it might mean that you would have to be a member of the Black community and a racialized community to apply. It’s a grammatical difference. When “Canadians” are referenced, it’s “or,” and when it’s not, it’s the other. That’s the discrepancy there.
That’s it, Mr. Chair.
The Chair: The only question I have is — and maybe I’m missing something — aren’t members of the Black community already a racialized community? What’s the distinction between people who are racialized and the Black community?
Senator Clement: It’s to respond to the statistics that I just quoted in terms of there being greater employment barriers for Black communities, even Black communities with levels of education. When you compare them to other racialized communities and White communities, the numbers show greater barriers.
When the Black Screen Office presented this to us, it was based on those statistics — the fact that Black populations have greater barriers, historically.
The Chair: I remember the witness specifically. I remember the presentation. Again, I’m all for making sure that legislation is sensitive to all minorities, regardless of who they are.
To me, we are already hyphenated Canadians in so many ways, and we have many étiquettes, as I say. “Racialized” for me is anybody who doesn’t fit into that majority mainstream English, franco — and, again, I’m very careful with my language, because today definitions can be narrow or can be broad, depending on where you stand.
I appreciate your explanation on that.
Senator Plett: You asked my first question, but I appreciate the answer.
My question is for Mr. Ripley: Have other marginalized communities raised concerns about nonrecognition with your department?
Thomas Owen Ripley, Associate Assistant Deputy Minister, Canadian Heritage: Thank you, Senator Plett, for the question. Good evening.
Through the chair, in the development of the bill and throughout the bill process, we certainly engaged with a number of marginalized, racialized and ethnocultural communities and their organizations, seeking to make sure that the language in the bill was reflective of them, because one of the things that the bill does is make sure that the policy objectives are more inclusive of all Canadian communities.
We heard from organizations representing Indigenous communities. We heard from organizations representing multicultural communities. We heard from organizations representing the Black community. Indeed, as Senator Clement outlined, one of the requests from the Black community was, in the context of “racialized,” not to use just the term “racialized” but to distinguish the Black community as having faced particular unique barriers compared to other racialized communities.
Senator Plett: Thank you.
I respect what the Black community is asking for here, but you mentioned, at least, Indigenous, and there are other racialized or marginalized communities. My question, still, is: Have they raised similar concerns?
Senator Clement is advocating for one community, and I appreciate that. But have other marginalized communities advocated that they also would like to have — and I hate using the phrase “special recognition,” but maybe that is a term. Have they advocated for special recognition as well? If so, how many have, and which ones have?
Why wasn’t this amendment included? Because, again, according to Senator Clement, it’s mentioned in other areas of the bill, so why wasn’t it mentioned here?
Now, I know that’s a number of questions. I’m not opposed to the amendment, but I would like clarification.
Mr. Ripley: I would say the government on the whole has been responsive to requests from marginalized communities throughout the bill process, so there’s been a couple of other changes that I would point you towards.
For example, Indigenous organizations and communities wanted to make sure there was a distinctions-based approach adopted in the bill.
Senator Plett: Is there, for the Indigenous community?
Mr. Ripley: Yes. There was a change —
Senator Plett: Exactly like what Senator Clement is asking for?
Mr. Ripley: For example, Indigenous: In the context of the bill, it now references the definition in the Constitution Act, which recognizes First Nations, Inuit and Métis peoples, for example.
There was a request from, I would say, multicultural and ethnocultural communities to make sure that there were policy objectives not only to programming for those communities but to make sure that the system also supports broadcasting undertakings operated by those communities. That was another change that was made throughout the bill process.
Senator Clement is right that this change around the language of “Black or other racialized communities” was made in certain places in the bill in the other place, as you would say, but there were some places where that change was not carried through, so I believe her —
Senator Plett: Inadvertently?
Mr. Ripley: I can’t speak to the intention of the movers on the other side, but the government position would be that we would say that there is value in consistency in language, which is what I understand the motivation of Senator Clement to be.
Senator Plett: According to you — and not that I’m an advocate for the government, just in case anybody might think that I am. Let me be clear.
Does the government support this amendment? Maybe I should ask Senator Gold that.
Senator Gold: Thank you, Senator Plett.
The government does support this amendment.
Senator Plett: Thank you.
Senator Sorensen: For me, the motivation for support is consistency in the language.
The Chair: It’s time for the question, colleagues. It is moved by the Honourable Senator Clement that Bill C-11 be amended in clause 3, on page 5, in line 6.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried unanimously.
Senator Clement, I believe this next amendment is also yours. They will distribute that amendment to all colleagues.
Colleagues have all received the amendment.
[Translation]
Senator Clement, the floor is yours.
Senator Clement: Thank you, Mr. Chair.
[English]
I’ll read this one. I move:
That Bill C-11 be amended in clause 3, on page 5, by replacing line 14 with the following:
“ples and languages within that society,”.
This amendment is to add, “languages.” We already referenced Indigenous peoples and it is to add “languages” to that particular line.
Indigenous peoples and Indigenous languages are not the same thing, and so they should be represented separately here. There is a need for a deeper understanding about and for revitalization of Indigenous languages as part of the reconciliation and healing process. We now have a Commissioner of Indigenous Languages.
I want to say that I consulted Jesse Wente from the Indigenous Screen Office. We went through this change, and he certainly approved of this change. This paragraph talks about people and languages in the rest of the paragraph and in many aspects of Canadian life, so it is consistent to include both Indigenous people and Indigenous language.
I’ll refer to the testimony of Bert Crowfoot, Chief Executive Officer of the Aboriginal Multi-Media Society of Alberta:
The thing that we struggle with is that, when it comes to language, the spectrum of people speaking language ranges from non-existent to fully fluent. When a lot of the government legislation talks about language, they just assume that it’s either English or French and everybody understands it. There is a difference. There should be some effort made to understand more about the state of Indigenous language in Canada today.
Shannon Avison, Assistant Professor from the Indigenous Communication Arts Department of First Nations University of Canada said:
It’s important to empower those people who have the language. Language is my focus. It’s not the only thing that Indigenous broadcasting does. It also creates community. Through COVID, it was extraordinarily important. But for me especially, my focus with this presentation today is language, so it’s making sure that people who want to speak the languages and share the languages, such as in conversation, with birthday greetings, just giving the weather, doing moose calls and bringing in elders, have the support they need.
So the inclusion of the word “languages” is to make sure that there is a highlight around Indigenous language, not just Indigenous people, but the fact that Indigenous languages require revitalization and support in doing so.
Senator Plett: I have a question for the senator. I’m not sure why any language would be excluded by the way the wording is now. I am certainly not at all convinced that I am opposed to what you are suggesting. I just don’t see the need because, if you are not excluded, you are included.
Senator Clement: Thank you, Senator Plett, for the question. I do understand it. The point of this amendment is to really highlight the issue of languages. I think Indigenous languages merit their own highlighting process in this section. We now have a Commissioner of Indigenous Languages, and we speak of languages in the Truth and Reconciliation Commission — the TRC — in particular, and in UNDRIP — the United Nations Declaration on the Rights of Indigenous Peoples. So I think it is important to not just highlight that Indigenous peoples are present in that section and that clause, but that we also highlight that Indigenous languages need to be highlighted. It is not a question of exclusion. It is a question of highlighting.
Senator Plett: Thank you for that. I’m not going to vote against the motion. I don’t see the need for it. I will let it continue, but if it comes to a vote, I at least would want it on division.
The Chair: I hear where you are going with this, Senator Plett. I understand the objective. You’ve articulated it clearly. At the end of the day, where does the Official Languages Act in Canada stand when it comes to all our pieces of legislation when we put any other language? As Senator Plett says, in this particular instance, the Broadcasting Act doesn’t exclude any language. We’re a multicultural society. We license multicultural radio and so on and so forth. But when the objective here is to just elevate the importance of First Nations languages, for example, where does the Official Languages Act, in your opinion, fall into that?
Senator Clement: It is not to elevate; it is to redress. It is to deal with the reckoning that we are in as a society. You have highlighted a point of discomfort, because in terms of official languages — and I am a francophone. When you are a francophone in a minority context, there is a survival piece to language. But we’ve got to get beyond linguistic duality, I think. That’s another conversation, but I think you are getting to that with your point.
Official languages — French and English — are constitutionally protected. And now we need to move into conversations around highlighting Indigenous languages and the importance of revitalizing those languages and the support that they need to support the TRC, UNDRIP and the healing and reckoning that we are going through as a society.
The Chair: Again, I don’t ask the question in opposition to your amendment, but as you said, it is a question that many in the country are asking. Very often, being Canadians, we are very polite and we ask it very quietly. I find it funny, because in my province of Quebec, I’ve never decided if I am a francophone or an anglophone. They gave me a new étiquette. I am an allophone, wherever that falls in the basket of hyphenated Canadians.
Again, I believe laws are important. We do have an Official Languages Act, and we are trying to fit all those puzzles into this reality called Canada.
[Translation]
Senator Cormier: I have a comment and a question.
Senator, I’m going to go back to the question you asked about official languages, because it is very clear in Bill C-11 that official language minority communities are recognized and that the concept of linguistic duality has been integrated. The understanding that Canada has two official languages is firmly established.
In the case of Indigenous languages, I think you are making progress by wanting to integrate them, but we are talking about broadcasting, which involves producers and broadcasters. We have Indigenous citizens, whether they be First Nations or Métis, who work in English and possibly also in French. Do you think the inclusion of Indigenous languages would help support artists or producers who also produce content in Indigenous languages? Is that part of the spirit of your amendment?
Senator Clement: It’s not just that. It’s to stress that Indigenous languages... This clause talks about languages: official languages, Indigenous languages and languages in general. It is not the same thing as talking about an Indigenous people. An Indigenous people needs language to communicate.
The aim is to highlight that we should recognize that indigenous peoples will be producing content in French, English and in the over 70 Indigenous languages that exist in the country.
So to answer your question, that is part of the spirit of my amendment. In this clause which talks about languages, I wanted to stress that it is something that should be highlighted, regardless of the expression “Indigenous population.”
Senator Cormier: I will support your amendment, especially because here in Canada, we have creators that work in Indigenous languages. What’s more, I think that it will be crucial for the future of our country and for creative activity in Canada if we support production and highlight Indigenous languages as creative languages that allow us to represent and express what Canada is.
Senator Clement: Thank you for that comment.
[English]
Senator Klyne: Maybe I’ll underscore what Senator Cormier just said, but really more to answer Senator Plett’s question, I understand your question, and I’ll see if I can give a fuller answer on that. The reference to this and where it has gone, I agree with. I agree with the amendment that’s being made. It largely came from the Indigenous witnesses that we had before us. It was very clear with them. I will remind the committee that Bill C-91, which enacted the Indigenous Languages Act is still a work in progress, and it was voted in by the Senate and carried to the other house. It is appropriate.
Senator Quinn: I want to thank Senator Clement for raising this because it is not just a question of the case of the constitutional protection that Aboriginal populations have in this country, but it is also in recognition of the truth and reconciliation work undertaken in our country, and one of the fundamental issues was dealing with the eradication of Indigenous languages over many decades. This is recognizing that those are important pieces of Indigenous culture in our country. I think this is a good amendment, and I think it recognizes exactly what we are doing in our full reconciliation efforts. I plan on supporting it.
Senator Plett: I think I will just leave it.
The Chair: We will go to the question. It is moved by the Honourable Senator Clement that Bill C-11 be amended in clause 3, on page 5, in line 18. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried, unanimously.
We are moving right along, colleagues, to amendment C11-3-6-8a. It is my understanding that this is Senator Dasko’s amendment.
Senator Dasko: May I have the amendment distributed, please?
The Chair: It is in the process of being distributed. Everyone will get a copy. Senator Dasko, you can read out the amendment before you go on debate.
Senator Dasko: I move:
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;”.
Colleagues, we started this topic yesterday on the discussion of the importance of audiences to the Broadcasting Act. We had a very good preliminary discussion of this topic, and I wanted to propose this amendment and place it where it is placed here in this amendment.
We are talking about the section in the bill that deals with the goals of our broadcast system. In this description of the goals, we see a very broad and significant representation of those who produce culture — cultural producers. We have a representation of online streamers and Canadian broadcasters. Language, cultural and diversity communities are represented — independent producers, creative sectors, including online creators and many others. The interests of all of these producer groups are addressed throughout this bill.
I support much of this bill with respect to the focus on producers. However, there is no mention of the audiences — that is, those people who watch, listen and consume all of the products of the broadcast system. Surely this system is meant for audiences as well. How can we have a broadcast system without consideration of what people want to watch, what they want to listen to and what their engagement is in this system? I am saying that audiences are essential to the broadcast system.
This was brought home to me while listening to the testimony of digital creators, who spoke frequently and constantly about their audiences, the people who follow them, listen to them and watch them, how important their audiences are to them and how they feel these audiences might be vulnerable. I felt this amendment might help assure them that this is a consideration for the broadcast system.
My amendment includes consideration of audiences as one of the goals of the system. To me, having a broadcast system without audiences is like having a transportation system without passengers. How could we run such a system? It is the same with the broadcast system. I feel this amendment provides a balance to the vast focus in the bill on producers. As I said, I support the focus on producers, but I feel we need to recognize audiences, too.
This amendment was proposed by the former chair of the CRTC, Konrad von Finckenstein. I will quote one of his statements from June 21 of this year:
. . . while the act is to protect, promote and foster Canadian broadcasting production —
— as I said, the producers —
— the Canadian Radio-television and Telecommunications Commission, or CRTC, should not forget it is Canadian consumers who choose what they want to watch. . . . This principle should be included in section 3 of the act, which spells out broadcasting policy of Canada.
These are the arguments I want to put forward. We note that this section reads along the lines of “it should.” This does not prescribe to what extent audiences are considered, whether they should be considered in a certain way or whether they should or should not be considered in every production. I know there may very well be considerations made by broadcasters, whoever they may be in the system, that do not take into account audiences. This doesn’t say that audience considerations have to be taken into account in every aspect of broadcasting. It doesn’t say that at all. It simply says that audiences are a part of the system. That is the way I see it, and I think it is important for us to recognize this.
As we said the other day, audiences are mentioned in some parts of the bill in a kind of niche way. There is a mention of audience measurement, and obviously, audience measurement must be important to some people because it is mentioned here in the bill. There is mention of audiences with respect to community broadcasting and in a couple of other small places. But there is no inclusion of this concept or this segment of this important part of our system in the consideration of the goals of the system.
That’s the purpose behind the amendment. I hope that my colleagues will consider this and vote in favour of including this aspect in the bill.
The Chair: Thank you, Senator Dasko. I think it’s a good amendment and it solves about half the problem, in my opinion. The other day, we had a prolonged debate on audiences versus consumers, and you are right. This bill only mentions audiences in passing on about 12 occasions, and not as specifically as it should. There is no mention of consumers, consumer choices or Canadian consumer audiences. I think there is a complete distinction. You are absolutely right that the Broadcasting Act is all about audiences and consumers. Without consumers, there is no broadcasting.
Of course, the only broadcaster that cares about audiences, and even that not very well, is the CBC. The truth of the matter is that the paying customer is nowhere identified, and I’m still profoundly disappointed by that, and I think it is just blatantly wrong.
An audience is usually spectators or listeners of a public event. That’s the definition. I just googled the definition of “audience.” The definition of “customer” is a person who is a paying individual receiving service.
I don’t know if you would be open, in order to try to achieve both goals and satisfy both needs here, where your amendment says, “reflect and be responsive to the preferences and interests of various audiences,” to say, “and in the interests of various consumers and audiences.”
Because, again, I think there is a great distinction, and I find it offensive to the customer audiences, who — when we subscribe to our channels, which the CRTC, in many cases, forces us to subscribe to certain channels and pay for certain services — are nowhere identified, and have zero importance in this bill.
Again, I find that very difficult as a parliamentarian, where we work here for consumers and taxpayers, that we are constantly putting demands on these taxpayers, particularly through the CRTC and the broadcasting industry, to pay for certain services. We don’t even ask them if they are acceptable to them, and now we are ready to extend it also to a digital platform, and nobody seems to be offended by it, except me — profoundly, it seems — and a couple of others, I hope.
I don’t know if you would like to respond to that, Senator Dasko, or whether you would be open to making your amendment even a little more flexible, to be all encompassing.
Senator Dasko: I don’t really favour adding the word “consumer,” because I think the term “audience” — audiences are the consumers, the customers of the broadcast system. That’s the way I see it.
Consumers are a larger category. Audiences are the consumers in this system, and that’s the way I see it. I don’t favour adding the term. I don’t think it really helps. The fact that the word “consumer” is not in the bill at all, I think, is important. That the word “audience” is already there in, as you say, 12 places — I counted fewer than you, but, still — it is in there, so the concept of audiences is used. The concept of consumers is not, and I think we should stay with the terminology that describes the consumers of this particular system, the broadcasting system. They are audiences.
The Chair: But in your definition — and this is your term — that audiences are consumers, why would you be hesitant to just put it in black and white in the bill?
Senator Dasko: I just don’t feel it is necessary. I don’t think we need to do that.
I have spoken with Mr. von Finckenstein about this. I’ve had conversations with him, and we’ve talked about the possible implications of this. I would like to keep this as it is. I think it is very adequate. I think it encompasses precisely what we’re talking about, and I see no need to include any other terminology with it.
Senator Plett: My first question, again, will be for Mr. Ripley.
Was a matter of incorporating preferences and interests of audiences discussed in the course of drafting the bill, and why was this principle not incorporated into the bill?
Mr. Ripley: Thank you, Senator Plett.
Through the chair, I’ve been following the debate on audiences and consumer audiences, and, indeed, these ideas were considered as part of the development and throughout the bill process.
The government’s position would be that although the use of the specific term “audience” is limited in the bill, the interests of Canadians are well reflected in the policy objectives of the act. The terminology that is used is often talking about Canadians. One of the examples I would point you to is subparagraph 3(1)(d)(ii) that talks about “a wide range of programming that reflects Canadian attitudes, opinions, ideas, values, and artistic creativity.”
It also talks about “a Canadian point of view.”
The following paragraph talks about the “. . . interests of all Canadians . . . .” Further on in the policy objectives, in subparagraph (i) that talks about the programming of the system, we see that it should be “. . . varied and comprehensive . . .” and provide “. . . a balance of information, enlightenment and entertainment for people of all ages, interests and tastes . . . .” You see that it should be “. . . local, regional, national and international sources . . . .”
The position of the government would be that there is reflection of the fact that the system is there to serve us all and recognition that we all come from a different identity and perspective. I believe that concept is captured in the act.
Senator Plett: We voted down a similar amendment just a few days ago, and now one of the people who voted against the amendment wants the amendment in a different place.
Nevertheless, what would the words “consumers” and “audience,” in your opinion, do? Would it add or subtract from the bill or from the amendment, or would it be somewhat neutral as far as what it does in the final iteration of the bill?
Mr. Ripley: Thank you, Senator Plett.
The purpose of the policy objectives of the act are the things that guide the CRTC through its decision making at the regulatory level. The way this works in practice is when the CRTC is making a decision, that decision is made in reference to these policy objectives. When stakeholders and interested parties come forward, they put forward arguments that the decision should look like X, Y or Z, based upon the policy objectives of the act.
In response to your question, Senator Plett, my answer would be that on inserting the concept of “consumer” and “audience,” the notion of “consumer,” to me, has a particular connotation about a concern with the cost of services or financial implications for audiences. I believe that without the notion of “consumer” that the concept of “various audiences” is broader.
Certainly, the cost of services is an element of that, but I believe it’s broader. Inserting the concept of “consumer,” in my mind, gives it that particular kind of focus on the financial implication for audiences.
Senator Plett: Just for the record, chair, and so that we can maybe get a vote on the record on it, I would like to make a subamendment that would include the word “consumer.” So it would be “consumers/audiences.”
The Chair: Right after “various” — “consumers/audiences”?
Senator Plett: Yes.
The Chair: It should be not that difficult to prepare this subamendment quickly. We will continue debate on the subamendment while that is prepared.
Senator Simons: I have worked in private radio and public radio; I have appeared on private television and public television, and I think it is a false dichotomy to think that only public television has audiences, and the private sector has consumers.
Because, first of all, when we listen to the radio or watch television, we are not paying for that service. It is paid for by advertising. I think it is even more concerning to insert this word at a time when we are moving away from subscription‑based models.
Nobody on TikTok or YouTube is paying to see what they are seeing, except for some very — on YouTube, I think, there might be some very particular subscription services. But in the main, that consumer model that we all grew up with is evaporating before our eyes. I think the word is — not to insult all of us in this room — an old-fashioned term and one that is no longer en courant. I also think, and this is perhaps a more philosophical perspective, we “consume” food, we “appreciate” as an audience what we see, hear and read. To me, the word “consumer” is kind of demeaning to the audience experience, whether you’re listening to music, watching a film, watching a TikTok video or an Instagram Reel. You’re not consuming. That’s such an animalistic metaphor. I think the word “audience” is both more reflective of the way people watch and absorb entertainment and news today. It is also not going to date itself and seem to be an archaic term five years from now.
I’m going to vote against the subamendment.
Senator Wallin: I would like to go back to some of the comments made by Mr. Ripley. You’ve described this as the placement of this amendment, prior to the subamendment, as a guide to the CRTC on the regulatory level that decisions are made to reflect the stakeholders, et cetera, and that somehow “consumer” has the connotation of a financial focus, when in fact the very changes that are being made here in this bill are to embrace a whole new and different sector. It’s about extracting money from that sector to compensate or subsidize other parts of the sector.
I don’t know why finance is okay when we’re talking about it there, but somehow it becomes an offence when we’re talking about the audience or the consumer.
Mr. Ripley: Thank you, Senator Wallin. I don’t believe I passed judgment on it. I was simply offering my observation about the change in connotation that inserting that word would bring about, which was Senator Plett’s question. But I tried not to pass judgment on it one way or the other.
Senator Wallin: But what is the “connotation” of mentioning money or the consumer? Why is that a negative thing?
Mr. Ripley: The point I was trying to make is that, at least to me — and we can look up a definition of “consumer,” but I think Senator Simons provided a good explanation — the notion of a “consumer” has the idea of a transaction or of an individual consuming something. Often we pay for something, but there are other places. That’s what I was trying to communicate. By inserting that word, from my perspective, it narrows the notion of audiences by putting that particular focus on it.
Again, to my first point, I was simply trying to bring that to the senator’s attention. I wasn’t passing judgment on that one way or the other.
Senator Wallin: But it’s not “consumer” instead of “audience.” We’re embracing new technologies and new platforms where “consumer” is actually really relevant in terms of how they function. That’s why I guess I’m having a problem understanding why there was resistance or perhaps even a deliberate decision to leave it out when, in fact, it describes exactly what the relationship is with the new participants that are now being included under this umbrella now.
Mr. Ripley: Thank you, Senator Wallin. My point, to recap, is trying to communicate that I believe there are many places in the current policy objectives of the act that speak to the interests of Canadians. I believe that Canadians are reflected in the policy objectives of the act. I understand the particular amendment that is being moved would very explicitly put in a policy objective with respect to the preferences and interests of various audiences. That would have the effect, as the CRTC moves into the regulatory processes, of providing an opportunity for interested parties to bring forward arguments about how that should be reflected in various regulatory decisions.
I understand the debate currently on the table is whether the concept of “consumer” should be inserted into that. All I was simply trying to bring out is that, in my mind, it adds a particular connotation. I certainly don’t want to speak for Senator Plett in terms of what his motivation is, but I believe the emphasis of his proposed amendment is to require the CRTC to think about the consumer interests of audiences as part of their decision making.
The Chair: I’d like to highlight a couple of important ideas. I’m going to read this right off the website of directions and key objectives from Canadian Heritage:
In exercising its powers and performing its duties under the Telecommunications Act, the Commission must implement the Canadian telecommunications policy objectives set out in section 7 of that Act, in accordance with the following:
(a) the Commission should consider how its decisions can promote competition, affordability, consumer interests and innovation, in particular the extent to which they
(i) encourage all forms of competition and investment,
(ii) foster affordability and lower prices, particularly when telecommunications service providers exercise market power . . .
It goes on to keep talking about consumer interests here on this particular site.
From what I understood on a number of occasions, the government has said they have a renewed approach. They’ve said this publicly, but not in the bill. Again, this seems to be this reflex of saying to trust us to do tomorrow what we’re not willing to do today, and I stand by that. In the telecommunications policy, the government specifically referred to consumer interests.
I don’t see the hesitation for why we don’t want to broaden the term. With all due respect, Senator Simons, “consumer” is not an archaic word en passé because you’re right, you don’t pay for the service of TikTok or YouTube yet, but you certainly pay when you’re streaming on Netflix or ordering on Disney+ or Crave. I can go on and on. There’s a great deal of fear that all Canadian consumers will be paying a lot more once the CRTC is done demanding these particular streamers and platforms start paying their fair share, which all of us are in favour of happening. What that means in code — them “paying their fair share” — is that the consumer will be the one who bears that burden. That’s how it works. I don’t think that’s foreign to any of us who understand how the consumer market works. In 2022, it’s not any less archaic. Not only is it not archaic, if it weren’t for consumers, for example, the government wouldn’t be getting the taxes it’s been getting over the last few weeks while we’ve been dealing with inflation at the pumps and at the cash register whenever we’re buying goods and services.
This is not a philosophical debate. This is a practical debate. I believe that we’re dealing with the consumer audience, not just some audience that isn’t a consumer. I believe the amendment that Senator Plett is proposing only strengthens.
First and foremost, I want to reiterate that this subamendment in no way diminishes the objectives that Senator Dasko has in this particular clause. If we don’t accept the subamendment, what it does is narrow it and weaken it, and again, we will have not one word about consumers in this broadcasting reform bill — nowhere.
Senator Klyne: I don’t want to see this get carried on; I just want to follow in behind the path that Senator Simons has led us down. Content of any form that is engaging, enlightening and entertaining on any platform, whether it’s free or paid for, will create audiences. Those audiences are monetized and rented to advertisers who help pay for all of that. The content is the commodity.
Audiences either listen, watch or read, but they’re audiences. They subscribe to these things. It could be free, or it could be charged through a subscription, but it is those audiences that actually get monetized, being rented to advertisers. That’s the simple model of all of this.
It doesn’t matter what it is — performing arts, journalism, a hardcover book, a digital read — it’s content, and advertisers either pay for it or they enjoy it free. It doesn’t matter. That’s the simple model of all of this.
Senator Clement: I have a question about the subamendment and the amendment. I’m going to ask the question to Mr. Ripley, and Senator Dasko may want to comment.
I’ve said around this committee table that I worry about audiences creating their own cozy listening experiences, and I am someone who believes in disruption. I want to know, Mr. Ripley, when you spoke about how injecting “consumer” would make it less broad and you would have concerns about that, if you could flesh that out, and then maybe answer whether this amendment, in general, would prevent positive disruption of cozy listening experiences.
Mr. Ripley: Thank you for the question. I did have the opportunity to look up the definition of “consumer,” which is a person who purchases goods and services for personal use. That’s one definition.
The point I was trying to make is the amendment, as tabled right now, reads “reflective and be responsive to preferences and interests of various audiences.” As drafted, “preferences and interests of various audiences” would include concerns or interests around consumers, but in my mind, I understood it to be broader, and it could include other interests and preferences of audiences not related to concerns around being a consumer.
I believe Senator Plett’s amendment is actually to have “consumers/audiences,” but my comment was about the notion of consumer audiences. By qualifying “audiences,” again, from my perspective, I just think, from an interpretation perspective, it puts that kind of focus or nuance or emphasis on the idea of how “audience” should be understood.
With respect to your second question, what I would say is this amendment is proposed in the section of the policy objectives that talk about what the Canadian broadcasting system should do. By including this kind of amendment, at the end of the day, it would be an opportunity for interested parties — and I suspect it would primarily be broadcasting services that would come forward — to talk about the need for a framework that allows them to launch new services that are responsive to what audiences are looking for and to their interests. So that is the kind of argument that you would potentially hear in CRTC regulatory hearings.
Senator Clement: So it would not prevent the work that Bill C-11 is trying to do elsewhere in the act?
Mr. Ripley: No. There are many different policy objectives in the act, as the Senate committee is aware. This would insert a new one, which, from where I sit, has a particular emphasis.
Again, I’ve tried to give you some sense of potentially how interested parties — again, my sense is it would probably be broadcasting services arguing for a particular kind of regulatory context to make sure that their services can continue to meet the needs and interests of audiences.
Senator Wallin: I don’t know how to ask this any other way; I’ve tried three or four times. What is the problem with referencing consumers in this bill, Mr. Ripley?
Mr. Ripley: Thank you, Senator Wallin. I haven’t said that there’s a problem with it. I believe referencing has an impact, including —
Senator Wallin: Let’s just stop there, then. What is that impact that would be problematic?
Mr. Ripley: The impact of it would be that there would be a specific reference in the policy objectives that the CRTC would be expected to look at in terms of its decision making. Consumer interests are already things the CRTC considers through its regulatory decisions.
Senator Wallin: So what is the problem with stating that, then?
Mr. Ripley: Again, I believe it’s a decision for this committee to make about whether to state it or not. If the committee was to choose to make this subamendment and reference it, it would reinforce or stress the importance of the CRTC considering consumer interests in its decision making.
Senator Plett: We passed two amendments earlier tonight where somewhat of the same argument was used: It may not be necessary, but what harm is there? I would say the same thing here.
I haven’t heard any argument that says this is a bad thing. I may have heard arguments that say it’s not necessary, but not that it’s a bad thing. Senator Wallin has tried to find out what specifically is the harm in that, and we’re not getting an answer on that.
Beyond that, chair, I’m as happy as I’ll be and ready to call the question.
The Chair: I care a lot about your happiness, but I have two more senators on the list.
Senator Plett: And I’m happy to listen to them.
Senator Dasko: I just wanted to speak to Senator Clement’s comments about cozy audiences. I think there are all kinds of audiences in this country. There are large ones. An audience watching a Leafs game or the Olympics might be large. Those are very large audiences. There are small, niche audiences. Audiences can be temporary or permanent. There is a vast way to look at audiences.
I don’t quite understand. There may be cozy audiences. Maybe that’s a small group of people who are always watching a certain show such as “Highway Thru Hell.” There are all these guys who watch these shows. I think they’re probably a niche audience. Maybe they’re very cozy. Two members of the audience are right here. A cozy audience of guys — they’re all men, I’m sure — who watch these trucker shows where the trucks are going over the cliff on the Coquihalla. That may be a cozy audience.
I’m trying to say that there are all kinds of qualities to different audiences, and you could never characterize every audience as a cozy group who just stick to themselves, if that’s what you were suggesting.
Senator Wallin: Silos. Cozy silos.
Senator Dasko: Some may be silos, others would be completely non-siloed, such as people watching the Olympic Games. There’s a group of people who come in and out of watching this or that, and it is very flexible and fluid.
Senator Manning: I’ve been listening to our debate and discussion, and it’s very interesting. With regard to “consumer” and “audience” or “consumer” versus “audience,” I find that, in my world, anyway, we’re all consumers. I don’t know of anyone who watches TV in Canada today anywhere who doesn’t pay for the service in some way, shape or form, whether it’s with Rogers, Netflix, Disney+, Crave or whatever. There’s always a cost associated with it.
In my world, if you’re paying for something, even if it’s to Rogers or Bell — just last week, I was working on some service for my home, and there’s a package for your phone, a package for your internet and — I’ll get it in a minute. But there’s a transaction that takes place between myself, as a consumer, and the person who’s providing the service to us. So we can’t say that there’s not a transaction. If you want to participate in this, you pay something.
Putting the word “consumer” in there, if I heard Mr. Ripley correctly, would enhance the CRTC’s relationship with the decision making in dealing with consumer interests. It would take consumer interests as part of the discussion, as part of their debate and their decision making. You would think that would be the right thing to do, that if they’re making a decision that affects audiences that are consumers, that bringing that forward in the legislation is not going to take anything away from the decision making; it’s just going to enhance the decision making. You would think that would be better for the consumer.
While I certainly have no issue with Senator Dasko’s amendment as it stands, it’s just that I think Senator Plett’s addition of the word “consumer” puts more meat on the bones, more or less. Certainly, when I hear Mr. Ripley’s answer to Senator Wallin’s question, it doesn’t do anything to diminish the legislation or to hurt what we already have here. I think it may be something that in the long run may be of benefit to the people who pay for the service, wherever they are in the country and whatever service they are paying for. Because you pay for whatever service it is now. It doesn’t really matter. Nobody is watching TV in their living rooms now in any way, shape or form without paying something along the line. You have to pay. If you don’t pay your bill to Rogers, you don’t watch TV. Or if you do, you’re watching one channel. That’s just my five cents’ worth, Mr. Chair.
[Translation]
Senator Cormier: I have nothing to say on the subamendment, as I agree with Senator Simons’ comments about “consuming” creative work.
I do have a question for Mr. Ripley on the amendment. May I ask a question about the amendment, even if there is a subamendment?
The Chair: Right now, we are only dealing with the subamendment; we will get back to the amendment afterwards.
Senator Cormier: I will wait, then.
Senator Miville-Dechêne: I also have a quick comment on Senator Dasko’s amendment.
The Chair: We are currently discussing the subamendment. We will get back to the amendment afterwards.
Senator Miville-Dechêne: I don’t agree with the amendment, but that doesn’t matter.
The Chair: I will put your name on the list for the debate on the amendment.
[English]
Very quickly, on the subamendment, again, colleagues, what I read earlier was very specific about consumer rights. It is in the Telecommunications Act. So we have the Telecommunications Act, which clearly doesn’t have a problem with stating consumer interests. We know one of the CRTC’s many objectives is supposed to be taking into consideration consumer interests. For me, at the end of the day, the word “audiences” is very much a passive word. “Consumer” is very much an active word.
I do agree with Senator Dasko that there are all kinds of audiences. I agree with you. There are racialized audiences, francophone audiences, anglophone audiences and audiences that are consuming non-charging issues and what have you — free services and paid services. But one thing that customers are is customers. They are people who pay for a service. At the end of the day, we should not be offended by including them.
I do not understand why there is such a propensity to push back against — we are willing to include any group under the sun in the act so we can be inclusive, but we’re not willing to include consumers, which takes into account all the people. I don’t understand the severe push back on something which, to me, should be at the top of our priority list, in my humble opinion.
Senator Klyne, you seem to be the one with the last word on the subamendment.
Senator Klyne: There are millions of audiences that are watching user-generated content for free. That escapes your definition of “consumer.” They’re an audience.
Senator Wallin: [Technical difficulties]
Senator Klyne: You have a phone, you download an app, you can watch all the stuff you want.
The Chair: But you pay for that service. It’s not free.
Senator Klyne: To my 14-year-old grandson it is. The millions of audiences that are watching user-generated content for free — they are audiences, and those audiences get monetized by advertisers paying for that audience. Thank you. Those are my final remarks.
The Chair: On the subamendment, it is moved by the Honourable Senator Plett:
That the motion in amendment be amended by adding "consumers and" after "various".
This would amend Senator Dasko’s proposed amendment in clause 3, on page 6, by adding “consumers and” after the word “various.” “Consumers/audiences” is not a legal term, so the resulting text would be “consumers and audiences.”
Shall the subamendment carry?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Chair: I think the “nays” have it.
Senator Plett: I think we’ll ask for a recorded vote.
The Chair: Senator Plett is requesting a recorded vote.
[Translation]
Mr. Labrosse: Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: Honourable Senator Dasko?
Senator Dasko: No.
Mr. Labrosse: Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Honourable Senator Sorensen?
Senator Sorensen: Abstention.
Mr. Labrosse: Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas: 5; nays: 8; abstentions: 1.
[English]
The Chair: Accordingly, the subamendment is defeated.
Now we will return to the main amendment.
[Translation]
Senator Cormier: I have a question for Mr. Ripley about what is contained in Senator Dasko’s amendment.
How will this amendment fit in with the concept of discoverability included in the bill?
Mr. Ripley: Thank you for the question, senator.
This will give stakeholders’ the opportunity to submit arguments when there are regulatory decisions to be made on discoverability. It could be a case of stating that people should have access to certain recommendation systems that are in line with their interests, for example.
This will no doubt create a policy goal that could also take into account the context of a regulatory decision on discoverability. This would be made available to stakeholders, broadcasting services and social media, but also to cultural stakeholders, who could submit arguments explaining why certain decisions would better reflect the interests and preferences of a varied audience. It is difficult to guess what arguments could be brought up in that context, but you are right: I think there is a link between the policy goal and the concept.
Senator Cormier: Thank you.
Senator Miville-Dechêne: I have certain reservations about my dear colleague Donna Dasko’s amendment, because when we look at the platforms and the new ways of consuming culture, the platforms are only reflecting the preferences of the public and the audiences. I don’t see how reflecting that in a bill that tries to promote Canadian, Quebec and Indigenous content... I don’t see how this phrase adds anything, because the whole platform setup whereby people choose what they want to watch already exists. Of course, efforts will be made in terms of recommendations and discoverability, but I think that the customer is always free to decide if he or she watches or not what is being suggested and recommended.
I will vote against the amendment.
[English]
The Chair: Thank you for your interventions, colleagues. I will call the question on the original amendment. It is moved by the Honourable Senator Dasko:
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;”.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yay.
Some Hon. Senators: Nay.
Senator Plett: I would like a recorded vote, chair. I want to know how you are voting.
[Translation]
Mr. Labrosse: Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: Honourable Senator Dasko?
Senator Dasko: Yes.
Mr. Labrosse: Honourable Senator Dawson?
Senator Dawson: Yes.
Mr. Labrosse: Honourable Senator Gold, P.C.?
Senator Gold: Yes.
Mr. Labrosse: Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: Honourable Senator Manning?
Senator Manning: No.
Mr. Labrosse: Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: Honourable Senator Plett?
Senator Plett: No.
Mr. Labrosse: Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: Honourable Senator Sorensen?
Senator Sorensen: Yes.
Mr. Labrosse: Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas: 8; nays: 6; abstentions: nil.
[English]
The Chair: Accordingly, the amendment passes. Thank you, colleagues.
We are continuing our clause-by-clause consideration of Bill C-11. We are on clause 3. If I can have the next amendment up, I think it is Senator Wallin’s. Is that what you have?
Senator Wallin: I believe that’s the case.
The Chair: I will let you read your amendment, table it and we will go on from there.
Senator Wallin: Honourable senators, I move:
That Bill C-11 be amended in clause 3, on page 6, by adding the following after line 8:
“(3.1) Paragraph 3(1)(d) of the Act is amended by striking out “and” after subparagraph (iii), by adding “and” after subparagraph (iv) and by adding the following after subparagraph (iv):
(v) ensure freedom of expression and journalistic independence.”.
Is everybody following along? It may have changed because I think there was another amendment in that spot, so I guess it will follow that. I don’t know if it remains subparagraph (v), or whether we need to fix that.
I will explain a little bit about this amendment. The amendment will add at the end of section 3(1)(d) a subclause that basically states that Canada’s federal broadcasting system should ensure freedom of expression and journalistic independence. This amendment is consistent with language found throughout the bill and at the beginning of section 3, in section 4.2 and in section 10.1. I believe it will provide the added security needed to assure current and future content creators that they won’t be censored in any way by the Broadcasting Act.
So the question is: Why have I decided to include this here when it actually appears earlier in the clause? If you look at section 3 of the act, it is applicable to the whole act but not to our federal broadcasting system. There is the Broadcasting Act and the broadcasting system specifically. It is an important distinction, one that I believe should be made by including the amendment in the two places.
Some Hon. Senators: Question.
Senator Wallin: He just doesn’t believe it, that’s all.
The Chair: I just want to give the government leader an opportunity to interject if he wants to. I saw him showing concern. Would you like the floor, government leader, or should we carry on?
Senator Gold: I do appreciate the indulgence, but I was just trying to get clarification.
The Chair: Shall I call the question? Senator Dasko, go ahead.
Senator Dasko: Subparagraph (v), I believe I already —
Senator Wallin: Yes, it has to be called something else now.
Senator Dasko: Okay. Sorry. Thank you.
The Chair: It was moved by the Honourable Senator Wallin that Bill C-11 be amended in clause 3, on page 6, at line 8 — shall I dispense?
Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried unanimously. Congratulations.
Senator Wallin: Thank you.
The Chair: Thank you, colleagues. We will move right along after we give the clerk a second to register the amendment.
I have an amendment here from Senator Manning, I believe, or Senator Plett? Sorry, false information.
[Translation]
Senator Cormier, you have the floor. We are distributing the amendment.
Senator Cormier: I’m going to make my presentation in French; I would like to thank the interpreters for their wonderful work.
I am proposing the following amendment:
That Bill C-11 be amended in clause 3, on page 6, by replacing lines 11 to 27 with the following:
“(f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation, production and presentation of their Canadian programming, unless the nature of the undertaking renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources to the extent that is appropriate;
(f.1) each broadcasting undertaking shall strongly contribute in an equitable manner to the creation, production and presentation of Canadian programming;”.
My reasons for submitting the amendment are the following:
The bill seeks to include foreign undertakings in our Canadian broadcasting system and put these undertakings and Canadian undertakings on an equal footing.
However, in my opinion, paragraphs 3(1)(f) and 3(1)(f.1) send a different message.
The differential treatment afforded to foreign online undertakings and Canadian ones, as currently provided for in the bill at paragraphs 3(1)(f) and 3(1)(f.1),could bring about looser criteria for foreign online undertakings when it comes to spending on Canadian shows and the use of Canadian labour, for example. What’s more, 3(1)(f) and 3(1)(f.1) are the only clauses in the bill where a differential treatment is afforded to online undertakings, Canadian undertakings and foreign online undertakings.
There’s also another very important issue: Paragraph 3(1)(f.1), as it reads currently in the bill, does not specify that the use of Canadian human resources by foreign online undertakings is linked to Canadian programming, which gives the impression that the use of human resources is linked to all programming by foreign online undertakings.
The amendment that I am proposing today seeks to rectify the situation, as it clearly indicates that the criteria for the use of Canadian human resources and the contribution to creation, production and presentation solely apply to Canadian programming, and not all programming. It standardizes the criteria applied to Canadian and foreign online undertakings for the use of Canadian resources and the contribution to creation, production and presentation. The amendment that I am proposing to paragraph 3(1)(f) brings flexibility to the options for the use of Canadian resources depending on the nature of the undertaking.
Paragraph 3(1)(f) specifies that broadcasting undertakings must employ and make maximum use of Canadian resources, and in no case less than predominant use, unless this isn’t practicable because of the nature of the undertaking. When I say nature of the undertaking, I am talking about online undertakings, as well as traditional radio and television undertakings. Those undertakings will have to use Canadian resources as much as possible where it is practical and convenient to do so. The amendment seeks to offer flexibility in the options of use.
Paragraph 3(1)(f.1) talks about contributing to the creation, production and presentation of Canadian programming according to the criterion that states that undertakings must “contribute in an equitable manner to strongly support,” as this is one of the goals of the bill.
The criteria used in both paragraphs give a certain leeway to the CRTC in terms of interpretation, which is in keeping with the spirit of the bill.
I will add that this amendment is supported by 49 francophone and anglophone professional organizations from the cultural sector across Canada, such as members of the Coalition for the Diversity of Cultural Expressions, the Canadian Independent Screen Fund or the CISF, which works with Black and people of colour creators, the Saskatchewan Media Production Industry Association, the Indigenous Screen Office, the Alberta Media Production Industries Association and the Film Producers Association of Newfoundland.
I will conclude by saying that I’m convinced that the amendment, which seeks to strike a balance, is reasonable and will be beneficial to the work of artists and workers within the cultural sector of Canada. Moreover, the presence of Canadian workers in this ecosystem will help to ensure the diversity of cultural expression and give a Canadian vision within the programming of Canadian content done by foreign online undertakings.
[English]
Senator Gold: The government cannot support this amendment, and I will be brief in my reasoning. As you see from the section in the bill itself, it splits the provisions governing the use of Canadian resources into two categories: Canadian broadcasters and foreign broadcasters. We are dealing in the context of this bill with large multinational corporations, and we need to recognize the reality that foreign players operating in Canada have global business models. It is just not realistic, in the opinion of the government, to expect that foreign broadcasters who operate in a global marketplace to be subject to the same provisions as Canadian broadcasters, notwithstanding the flexibility that Senator Cormier introduced in the language of his amendment.
I’m also advised that the minister has noted publicly — or I am certainly putting it on the record here — that our trade partners would have serious issues with these proposed changes were they adopted. In that regard, I might ask the officials to elaborate on what the threat might be of foreign companies challenging these provisions under the terms of our trade agreements, notably CUSMA. Mr. Ripley?
Mr. Ripley: Thank you very much, Senator Gold, for the question, and through the chair, what I would say is that throughout the bill process, the government has borne in mind its trade obligations. We’ve talked about that and the importance particularly of ensuring that any obligations are non-discriminatory in nature with respect to Canadian services and non-Canadian services. That certainly has been one element of it.
I would characterize or say the second element we have borne in mind is a recognition of action that may be perceived as a trade irritant, as putting in place a framework that does not have sufficient flexibility to accommodate those global business models that you referenced, senator. The current paragraph (f) has indeed been elaborated and interpreted in a context where the only participants in the system have been Canadian broadcasters.
There has been a long debate on these two provisions over the course of the former Bill C-10 and the current Bill C-11. The current drafting that is in the bill was the ultimate balance that parliamentarians who looked at Bill C-10 decided this achieved the appropriate balance in terms of that issue, a recognition that there are many stakeholders who believe that maximum use standard is very important, but at the same time recognizing that when it comes to those global streaming services, there has indeed been concern expressed about the impact that could potentially have on the business models.
The Chair: Thank you.
This is a perfect opportunity for me to ask Mr. Ripley a question. It has come up many times, and it is a follow-up to the government leader’s question. Of course, we are going at it probably from a different context, but we heard many instances from witnesses about fear of retaliation, particularly from our biggest trading partner, and other trading partners, when it comes to the impact that Bill C-11 might have on our relationships.
Today there was a meeting between Katherine Tai and Canada’s Minister Ng. I have here a transcript that brought to my attention that:
United States Trade Representative Katherine Tai today met virtually with Canada’s Minister of International Trade, Export Promotion, Small Business, and Economic Development, Mary Ng.
Ambassador Tai and Minister Ng acknowledged the close relationship between the two countries and emphasized the importance of U.S.-Canadian cooperation in strengthening North American economic integration. They also discussed cooperation in multilateral fora, as well as the ongoing consultations under the United States-Mexico-Canada Agreement . . . .
Ambassador Tai expressed concern about Canada’s proposed unilateral digital service tax and pending legislation in the Canadian Parliament that could impact digital streaming services and online news sharing and discriminate against U.S. businesses.
The two agreed to continue to collaborate on addressing these and other issues.
Mr. Ripley, it was about a year ago when discussions between one of our ministers and the U.S. embassy here specifically touched on the issues in Bill C-11 — or, back then, Bill C-10. Our biggest trading partner has expressed concern today — this meeting took place on November 30, so that’s today — between the two trade ministers.
What impact will this have? We’ve been told there are ongoing discussions. It’s been minimized by witnesses, government officials and others. Is this something that should concern us because it has reared its head again?
Mr. Ripley: Thank you, chair, for the question. I have a question for clarification as to your question about what impact it has: Is that question with respect to the amendment on the table or with respect to the conversation that you alluded to?
The Chair: Both.
Mr. Ripley: With respect to the relationship with the United States, throughout the bill process, the government has worked hard to ensure that U.S. officials, as well as the U.S.-based services that could be impacted by these legislative changes, understand the government’s objectives in this. I would say that, generally speaking, they understand what the government is seeking to do with respect to modernizing the Broadcasting Act and they respect what the government is seeking to do. We have consistently heard from them about the importance of making sure that, at the end of the day, the framework is sufficiently flexible and that they are able, from their perspective, to continue to operate in the Canadian market. My answer to Senator Gold was to the effect that we have consistently borne that in mind. Obviously, I was not privy to the conversation today that you alluded to, but we have certainly worked hard to make sure that our U.S. counterparts continue to be informed about the bill as it’s moved through and about any changes that have been made to the bill.
As for the change proposed by Senator Cormier, I believe he described it well in the sense that right now there are two standards, so to speak, when it comes to the use of Canadian creative and other human resources: one that is right now applicable only to Canadian broadcasting services, the existing standard that’s in the Broadcasting Act; and then there is a second standard that is applicable to non-Canadian broadcasting services that has two elements. The first element is that they should make the greatest practicable use, which recognizes that, to the extent that they have a big market presence and footprint here, they should make the greatest practicable use of that. Regardless, the second element of that clause is that all non-Canadian services shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming. That was a reflection that one of the government’s key objectives is to make sure that all broadcasting services, Canadian or non-Canadian, are contributing in a fair and equitable manner.
The Chair: Number one, we’ve had that answer from the government before that there are ongoing discussions, we’re cognizant of the situation with the United States and we will continue to work cooperatively to find solutions. We’ve been hearing that for a year and a half to two years, but now we have their trade commissioner clearly concerned about our streaming legislation. She refers to Bill C-11 and Bill C-18, and a year and a half later, the U.S. comfort level doesn’t seem to be rising; it still seems to be contentious. That’s a concern to me with our biggest trading partner.
The second thing is a question more specifically about Senator Cormier’s amendment. My understanding is that the bill already gives the CRTC enough leeway to make sure that streamers and all platforms are compelled to pay their fair share. This has been the whole point of this legislation. In your opinion, does this amendment strengthen or make a contribution or is it actually just not necessary, from your point of view?
Mr. Ripley: Thank you, chair, for the question. The effect of the amendment would be to subject all broadcasting services to the same standards. The starting point would be that they make maximum use of Canadian creative or other human resources, and in no case less than predominant use. Those concepts have been interpreted in the existing regulatory system in a particular manner. For example, “no less than predominant use” is generally understood as 6 points out of 10 for Canadian programming, for example.
The amendment that Senator Cormier has proposed is more flexible than the current paragraph (f) in the existing Broadcasting Act in that it recognizes that there may be services whose nature does not allow them to contribute either to maximum or predominant use. The standard that I believe he’s proposing is that they shall then make the greatest practicable use. It recognizes that there are situations where that just is not going to be feasible or practicable. The existing language in the act references services that offer a specialized format or content or the use of languages other than French or English. Senator Cormier’s amendment doesn’t replicate that language but rather has, from my perspective, a more flexible approach.
Senator Manning: For section 3(1)(f) to be amended to require global companies to make maximum and no-less-than-predominant use of Canadian creative and other human resources in the creation, production and presentation of programming, it will be subjecting them to the same inflexible standard developed many decades ago for Canadian broadcasters, who have a completely different business model involving making local news, sports and content for local audiences, only to be a completely different business of a global streaming service. Doing this is not equitable when those same Canadian broadcasters enjoy exclusive market benefits granted by the CRTC. I use the analogy Senator Housakos used a few weeks ago of turning the horse-and-buggy into a Lamborghini.
The phrase “each broadcasting undertaking” captures all types of undertakings, including distribution undertakings and online undertakings that do not commission content or have programming control over the content of their services. The proposed amendment put forward by Senator Cormier raises some serious questions such as: Would this proposed change raise trade concerns under CUSMA? We just heard the discussion you’ve had in relation to our largest trading partners and what U.S. officials have raised with the government with regard to the obligation. We heard the trade commissioner raising concerns as late as today.
How do we define predominant? The current regulatory bargain consists of Canadian broadcasters’ undertakings making predominant use of Canadian resources in return for exclusive market protections extended to them by the CRTC. If we do not extend those same protections to foreign online undertakings, how can the legislation now require them to be subject to the same standard?
The concept of predominant use flows from the current definition of Canadian programming requiring at least 6 out of 10 points for key creative personnel. The government has said that the definition of a Canadian program needs to be redefined to reflect bringing foreign online undertakings into the Canadian system with this bill. It makes no sense to apply the same standard of predominance to foreign online undertakings when there will be a new definition of Canadian programs. How would an undertaking that does not commission content directly, but instead simply hosts content that others provide, comply with the obligation to make predominant use of Canadian creative and other resources? Would they have to flow that obligation down to those who are uploading content? Would that distort the offerings available on online undertakings?
In testifying before the Senate committee on November 22, the Associate Assistant Deputy Minister of Cultural Affairs with Canadian Heritage — Mr. Ripley — stated that we are trying to strike a balance. We want to be ambitious and challenge streamers to do as much as they can. It is possible that we have streaming services that operate under an international business model that may not be in a position to make a predominant investment.
So section 3(1)(f.1) was drafted so that as much as possible it recognizes that, yes, we want to be ambitious and these services, and the expectation, is that they do everything they can and that contribution must be fair as well.
I’d also like to remind colleagues that both Conservatives and Liberals in the House voted against getting rid of section 3(1)(f.1), instead imposing a single regressive inflexible standard in 3(1)(f). Both Minister Rodriguez and Mr. Ripley testified in front of this committee, and it appeared that this was because the goal of the “Online Streaming Act” is about global streaming services making an equitable contribution to the broadcasting system, not an equal or the same contribution made by Canadian broadcasters.
Colleagues, we’ve heard and we believe there’s a very real concern that amendments such as this could result in the opposite of the desired effect by causing streamers to avoid continuing to invest in Canada at the same rate as they have been doing. Wendy Noss of the Motion Picture Association of Canada told our committee that global studios spent more than $5 billion in 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 in supporting over 47,000 Canadian businesses in 2021 alone. I guess we have to ask ourselves: Are we as a committee prepared to risk putting that in jeopardy?
A better approach would be to maintain the current approach proposed in section 3(1)(f) and 3(1)(f.1) to ensure streaming services are incentivized to make use of Canadian creative and other human resources in the creation, production and presentation of programming intended for a global audience, in addition to more use of Canadian creative and other human resources in the creation, production and presentation of programming for audiences in Canada already achieved in other aspects of the legislation.
John Lewis from IATSE, which represents the vast majority of those working in the film and TV industry in Canada, had this to say:
Maintaining the language in 3(1)(f.1) is fundamental to how Bill C-11 seeks to incorporate foreign online undertakings into Canadian broadcasting framework by recognizing the differences between streaming services with unique business models and content strategies competing around the world as opposed to Canadian broadcasters who operate only in the closed domestic market making content for local audiences and enjoying a variety of exclusive, legislative and regulatory benefits and protections.
He went on to say:
Seeking to treat both segments of this industry in an identical fashion ignores the operational reality of domestic and foreign service sectors but it also poses a real and substantial threat to the well-being of the industry.
The proposed amendment for a single standard for Canadian broadcasters and all global online services was rejected in the House and should also be rejected in the Senate as it would violate and conflict with the bill’s core objective as set out in the preamble and in the overall policy objectives in section 5; conflict with the statements made by government and Minister Rodriguez as Bill C-11 would foster equitable but not equal requirements in recognition of the different nature of global online services, their different business models and content strategies and act as a deterrent to global studios to continue bringing major production projects to Canada. If Bill C-11 were to include a provision requiring foreign undertakings to be subject to the same standard as Canadian broadcasters — maximum use, and in no case less than predominant use, of Canadian creative and other resources — it would be a disincentive to bring the very kinds of projects that are employing the vast majority of IATSE members, the majority of Canadian film and TV workers and bringing over $5 billion to Canada each year.
Colleagues, I think it’s clear that this amendment puts investment in Canada and our film and TV industry together at serious risk, and that’s why I will not be supporting the amendment.
Senator Dasko: I have a question for Senator Cormier. I’m sorry if I missed this, but it says here the phrase “unless the nature of the undertaking renders that use impracticable.” So what undertakings would you envision would fall into this category?
[Translation]
Senator Cormier: In fact, with respect to the notion surrounding the type of business, in the context of the CRTC having to establish, based on the various criteria, how businesses, be they online or conventional businesses, are to be treated, the CRTC’s assessment will determine the type of business targeted based on the nature of the business.
What the amendment seeks to do, in essence, is to provide the CRTC with flexibility in the areas where we know it has to regulate. That way it can take into account the types of businesses, whether they are online businesses or traditional ones.
The other thing is that I think the amendment — we should keep this in mind, and it’s actually to the advantage of the proposal in the bill, in a sense — only targets Canadian programming. Because of the way the current text of Bill C-11 is articulated, the use of human resources is unclear.
What Bill C-11 says at paragraph 3(1)(f.1) is that foreign online companies are required to make the greatest practicable use of Canadian creative and other human resources.
As for this section, nothing indicates that it is directed at Canadian programming. The amendment therefore lowers the requirements for foreign undertakings, because this first part of paragraph 3(1)(f.1) can be interpreted as applying to all programming that foreign online undertakings will produce within Canada.
To me, this argument is extremely important; the flexibility offered by the amendment means that there is a reasonable case to be made. The constraint is lessened, since the amendment describes how flexibility is provided in the application options pertaining to the need to hire Canadian resources.
So there is flexibility; the CRTC, which will be responsible for regulating, will have flexibility through this language to determine what type of business this applies to.
[English]
Senator Sorensen: I’m trying to think about where Senator Cormier was about to go down. I think my question is actually for Mr. Ripley. In the current language in the bill, is this clause making reference to foreign undertakings that they want certified as CanCon, or is it actually referring to any content that they happen to be producing in Canada? I’m assuming it’s the first, but again, I need that point of clarity when reading it.
Mr. Ripley: Thank you, Senator Sorensen. Subparagraph (f.1) in the bill, as drafted, references the creation, production and presentation of Canadian programming. So that is a reference to, yes, essentially certified Canadian programming. It recognizes that these services may nonetheless do other forms of production and foreign location shooting here in Canada, but that would not apply to them.
I believe Senator Cormier was pointing out that there is a discrepancy where (f) does not reference Canadian programming. It uses the existing language of the bill where there was, again, an understanding that we were talking inherently about Canadian broadcasting services making programming in the Canadian context.
Senator Sorensen: Thank you.
[Translation]
Senator Cormier: By way of introduction to what I have already said, recognizing and acknowledging contributions made by foreign online undertakings is a given. I consider the contribution that foreign online companies make to our broadcasting system to be very important indeed.
This bill seeks to ensure a certain fairness and balance between creation, production and programming carried out within Canada by our artists and cultural workers, and the need as a country to encourage hiring these resources as much as possible. I believe that this amendment proposes a reasonable balance and should not alarm foreign online companies. I do not know whether the minister has seen this latest draft of the amendment, because I believe that it has evolved considerably. The amendment we have before us offers a great deal of flexibility.
I am considering the entire Canadian broadcasting system and the importance of Canadian resources. We have a Broadcasting Act because we have creators and human resources in our country. In my view, the balance provided by the amendment allows us to take this into account by welcoming foreign online businesses.
[English]
The Chair: I don’t see any other intervenors, colleagues, so I assume you’re good to go to the question.
It is moved by the Honourable Senator Cormier that Bill C-11 be amended on clause 3, page 6, at line 11 — may I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Chair: I hear the “nays” have it.
[Translation]
A formal vote has been requested.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Yes.
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: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: No.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Sorenson?
Senator Sorensen: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas: 3; nays: 11; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated, colleagues. Next in the queue we have an amendment from Senator Clement.
Senator Clement: There’s a motion that’s going to be handed out. I will read it once it’s handed out.
The Chair: It’s being distributed as we speak.
Senator Clement: I will read it. I move:
That Bill C-11 be amended in clause 3, on page 7, by adding the following after line 22:
“(ii.2) reflect the importance of Indigenous language revitalization by supporting the production and broadcasting of Indigenous language programming, in accordance with articles 13 and 16 of the United Nations Declaration on the Rights of Indigenous Peoples and in response to the Truth and Reconciliation Commission of Canada’s Calls to Action numbers 14, 84 and 85,”.
I’m continuing on the idea of language revitalization. I do want to say that I met with Jesse Wente of the Indigenous Screen Office and this is an amendment definitely proposed by that office. They requested the amendment. I’m going to continue on the issue of Indigenous language revitalization, and I’m going to remind you that we had testimony from Bert Crowfoot, which I cited earlier, and Shannon Avison from First Nations University of Canada, who spoke eloquently to this committee about Indigenous languages and their importance not only to community but to reconciliation.
I’m going to read a different quote from Shannon Avison:
The Truth and Reconciliation Commission documented the brutal ways that residential schools prevented children from learning and speaking their languages. Communication technologies have also undermined Indigenous languages and cultures.
So I want to remind everyone that we’ve committed to UNDRIP and the TRC, and our commitment to Indigenous languages in both of those documents needs to be reflected in Bill C-11 in order to give specific instruction, be measurable and ensure accountability.
I don’t quote specific sections of both those documents. I do just refer to them generally. But I do want to read the first part of Article 13 of UNDRIP:
Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
In Article 16, UNDRIP says:
Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.
I’m also referencing the Truth and Reconciliation Commission. I don’t specifically reference Call to Action 14, but I will read it:
We call upon the federal government to enact an Aboriginal Languages Act that incorporates the following principles:
i. Aboriginal languages are a fundamental and valued element of Canadian culture and society, and there is an urgency to preserve them.
ii. Aboriginal language rights are reinforced by the Treaties.
iii. The federal government has a responsibility to provide sufficient funds for Aboriginal-language revitalization and preservation.
iv. The preservation, revitalization, and strengthening of Aboriginal languages and cultures are best managed by Aboriginal people and communities.
It is very heartening to see that there is a Commissioner of Indigenous Languages in this country. I have met with him and spoken to him, certainly at the beginning of my term here as a senator, and I feel that this addition is in keeping with the commitments this government has made, particularly around Indigenous languages.
I’ve changed somewhat the proposal made by the Indigenous Screen Office — ISO — to make sure the wording is consistent with other sections of Bill C-11 and the Broadcasting Act to refer to production and broadcasting. It’s essentially proposed by the ISO, but when my office and I met with the Law Clerk — thank you to the talented staff in my office, by the way — we did see the need to make sure that the language was consistent with the rest of the act.
Senator Plett: I just have one very basic question for Mr. Ripley: Why isn’t it already reflected in the bill?
Mr. Ripley: Thank you very much, Senator Plett, for the question.
As we’ve moved through the process, the government has certainly borne in mind that Canada has officially brought in and enforced legislation to implement UNDRIP. The government is also committed to implementing the TRC’s Calls to Action. Although those things are not explicitly spelled out, as Senator Clement is proposing, I would argue that the government has certainly considered those and worked to ensure that the changes being proposed to the act are consistent with UNDRIP and seek to bring about the changes required by UNDRIP.
Senator Plett: So it wasn’t an oversight; it was intentionally not put in there.
Maybe I have to ask Senator Gold again, but is the government opposed to this amendment? Because I would think, with all the attention that has been paid over the last few years to UNDRIP, to truth and reconciliation and all of those issues, that this is something the government should have been aware of. It should not have had to come up in an amendment at this point. Maybe I am wrong on that. I don’t want to point fingers, but I would at least like some clarification.
Senator Gold: Thank you, Senator Plett. The government supports this amendment. I know you are of the view that the government can think of everything in its highest — the truth is —
Senator Plett: The right government could.
Senator Gold: The truth is that the government has been listening to the proceedings, both in the House and in the Senate. As the sponsor of the bill, the minister and I have said, it remains open to amendments that improve the law. I think this is one of them, so the government is happy to support it.
Senator Wallin: I have a point of clarification, Senator Clement.
Your amendment reads, “. . . reflect the importance of Indigenous language revitalization by supporting the production and broadcasting of Indigenous language programming . . . .” So the TRC calls on the federal government to support that activity, but what about the other players in the private sector? Do you think that this encompasses everybody, or does it just obligate the federal government?
Senator Clement: I would think that players all over this country, in the private sector and the public sector, are looking toward doing this. This is the language that is proposed by the Indigenous Screen Office. I believe we want to have a broad interpretation of this. I feel like adding this in this particular section makes sense, and referring specifically to the UN declaration and to the TRC are appropriate in Bill C-11.
Senator Wallin: Maybe I will ask Mr. Ripley.
The TRC calls upon the federal government specifically. It is different than a piece of legislation that’s going to encompass a whole lot of private-sector players. What is your interpretation of that, Mr. Ripley? Are they obliged to do this? Whether they choose to is another question, but are they obliged?
Mr. Ripley: Thank you for the question, Senator Wallin.
My expectation on how this would play out is that the CRTC would look at which services or entities are well placed to support production that seeks to revitalize Indigenous languages. There are Indigenous broadcasters operating in the system; we have the Indigenous Screen Office and others.
My expectation is that the CRTC would look to fulfilling those kinds of objectives by relying on those entities.
Specifically about the TRC, there are two recommendations that are really relevant to the one at hand, which speaks to the importance of media and fostering language revitalization. That’s the particular role of CBC/Radio-Canada in this space, as well as APTN. Those are the two broadcasters specifically highlighted in the TRC’s Calls to Action as having an important role in this space.
Senator Wallin: But does it give the CRTC the power or the right to oblige others?
Mr. Ripley: Yes, the CRTC could, through conditions of service, require investments in the production of content in Indigenous languages.
Again, the way I expect this to play out, though, is the CRTC would look at which services are best suited to doing that. Again, it would likely look to those services that seek to serve Indigenous audiences or that have a public-interest mandate in terms of connecting the rest of Canadians with Indigenous programming.
Senator Manning: I support the amendment, but I am somewhat concerned that, in 2022 — almost 2023 — we are all familiar with the articles under UNDRIP and the recommendations of the TRC. As Senator Clement has touched upon, we have a Commissioner of Indigenous Languages now. But way back in 2019, Parliament enacted the Indigenous Languages Act to support Indigenous languages.
Somewhere along the line, you would think that, in developing this piece of legislation, part of that other piece of legislation would be incorporated into this so that we wouldn’t necessarily have to deal with this amendment — but we are.
I have a couple of questions for Mr. Ripley. What would this amendment add to what the government is already doing? Is this amendment needed so the government does something that it is not yet doing, if you follow where I’m going with this?
What actions has the government taken to implement the Indigenous Languages Act since 2019, which I believe should be part of the development of Bill C-11?
I have other questions, but I will try those two first.
Mr. Ripley: Thank you for the question, Senator Manning.
As you note, Parliament passed the Indigenous Languages Act, which is part of responding to TRC Call to Action 14. That piece of legislation is in the process of being implemented, including establishing the office of the commissioner, et cetera. That is in the process of being implemented.
It has at its heart the preservation and revitalization of Indigenous languages.
I would characterize the Broadcasting Act as being about promoting the cultural expression of Indigenous peoples. The Broadcasting Act is really about fostering that expression and recognizing that Indigenous communities may choose to produce content in English or French and also in Indigenous languages.
So to the extent that the bill references Indigenous languages, it recognizes that it is a form of cultural expression in Indigenous communities, and the broadcasting system should make resources available to support the broadcast and production of expression in Indigenous languages and not just in English and French.
Senator Manning: You just touched upon my next question in regard to the resources that will be made available. With regard to the Indigenous Languages Act and its implementation, do you have some idea of how much funding the government has allocated to address that concern and the money being spent to ensure that the Indigenous Languages Act will be implemented the way that we hope it will be?
Mr. Ripley: Thank you, Senator Manning. That’s not my area of responsibility. I do know that the government is working with Indigenous partners in the implementation of the Indigenous Languages Act. If there is interest, I can certainly come back to you. We can follow up with you, Senator Manning, in terms of getting you the specifics about where we are at in that process and the funding that has been allocated. I am happy to take that back to my Indigenous language colleagues at the department and bring you that information.
Senator Manning: Thank you. I would appreciate it if you could get that information to us.
The Chair: Senator Clement, thank you for this amendment. I do support it. As many of you know, I believe Senate committees do important and vital work. This is an example of it, because each and every witness from the Indigenous communities who came before the committee requested this — Mr. Wente and all the others, if I remember correctly. I hope we all take note of what witnesses request us to do, particularly when there is overwhelming demand for something.
I’m particularly proud of having been appointed by a Prime Minister who had the leadership to strike the Truth and Reconciliation Commission. I think it is important that legislation as important as this to culture and broadcasting reflects all Canadian realities.
Last week, a couple of similar amendments proposed by Senator Batters were also proposed by the same stakeholders, using the same language and pretty much on request. Unfortunately, a majority of senators did not embrace those particular amendments. I hope this one will be embraced because I think it reflects witness testimony and what this bill should reflect.
I don’t see anyone else willing to make an intervention, and I see there is a consensus for the question. It is moved by the Honourable Senator Clement that Bill C-11 be amended in clause 3, on page 7, at line 22 — shall I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried unanimously.
We are moving right along. Next, in the documents, we have, behind door 23 — or 15. I’m looking at a different numbered list. Don’t worry, we’ll get back to where we are supposed to be. Thank God, Senator Plett, you withdrew a bunch of amendments.
Senator Plett: Exactly.
The Chair: Next is an amendment, I believe, that was proposed by Senator Cormier.
[Translation]
Senator Cormier: I therefore suggest:
That Bill C-11 be amended in clause 3, on page 7, by deleting lines 30 to 35.
This means, colleagues, that we would go back to the current Broadcasting Act and the wording found in the current Broadcasting Act.
To be clear, my amendment reverts to what is in the current Broadcasting Act, which says that there should be a significant use of independent producers.
My reasoning is as follows. This amendment seeks to return to the current version of subparagraph 3(1)(i)(v) of the Broadcasting Act, which states that the program offered by the broadcasting system must “make significant use of independent Canadian producers.”
I remind you, dear colleagues, of the testimony we heard from Ms. Hélène Messier, from the Association québécoise de la production médiatique, who told us that, thanks to such measures, over the past decades, dozens of independent production companies have been created in Canada and provide the equivalent of more than 82,000 jobs annually. Subparagraph 3(1)(i)(v) of the current Broadcasting Act has served as the basis for broadcasters’ obligations with respect to independent production for over 30 years. The CRTC has imposed the following criterion on all broadcasters: that a minimum of 75% of their expenditures for programs of national interest be spent with independent production companies.
There is one essential element that must be understood and mentioned, which is that independent production companies are located throughout Canada and are guarantors of several fundamental objectives of Canadian broadcasting policy, namely that production and programming must draw on local and regional sources, take into account the linguistic duality and multicultural nature of Canadian society, and reflect Indigenous cultures. Thus, independent producers in Canada play a crucial role in representing Canadian diversity on screen.
Stakeholders supporting the amendment include the Documentary Organization of Canada, the Canadian Media Producers Association, the Quebec English Language Production Council, the Association québécoise de la production médiatique and the Alliance des producteurs francophones du Canada.
We also received letters from the governments of Nova Scotia and British Columbia, which reiterated the importance of returning to subparagraph 3(1)(i)(v) as it appears in the Broadcasting Act, as this is critical to the future of the independent production industry in their provinces, and, I might add, across Canada.
Finally, I would say that independent production houses, in the current context of broadcasting and of our broadcasting ecosystem, are still at a disadvantage compared to broadcaster-owned or broadcaster-affiliated companies. So, the current context shows that independent producers and independent production companies have contributed to our system for years; they have been successful and want to continue to reflect the diversity of our country in productions.
Before I answer any questions, Mr. Chair, I would like to remind you that independent production companies can be found across Canada in our regions.
[English]
The Chair: We don’t have a plethora of questioners. Government leader, do you have an opinion to express on this matter?
Senator Gold: No. For the reasons Senator Cormier expressed, the government would be supportive of this amendment.
The Chair: I will read out the amendments, colleagues. I’ve been told that there are a number of people in the audience following us who want to hear the amendments before we vote. It is moved by the Honourable Senator Cormier that Bill C-11 be amended in clause 3, on page 7, by deleting lines 30 to 35.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
An Hon. Senator: On division.
The Chair: On division.
The next amendment, colleagues, is proposed by Senator Clement.
Senator Clement: It is the last one from me for the evening, senators — just letting you know. I move:
That Bill C-11 be amended in clause 3, on page 8, by replacing line 16 with the following:
“broadcasting system in order to serve Indigenous peoples where they live;”.
So this one also is a result of a meeting and conversation with Jesse Wente from the Indigenous Screen Office. His point was an interesting one. They like the clause. It does speak to programming that reflects Indigenous cultures within community elements which are positioned to serve smaller and remote communities.
His point is that probably more than 50% of Indigenous people actually live in larger centres. So by adding this and saying “in order to serve Indigenous peoples where they live,” we’re capturing smaller remote communities, but also larger urban centres where many, if not most, Indigenous people reside.
It could be higher — 70%? I’m being corrected in my stats. I appreciate that.
So that’s the amendment, Mr. Chair.
The Chair: I get a sense there might be consensus. It is moved by the Honourable Senator Clement that Bill C-11 be amended in clause 3, on page 8.
Honourable senators, are you ready to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
The next proposed amendment is from Senator Wallin. You have the floor.
Senator Wallin: Thank you. I move:
That Bill C-11 be amended in clause 3, on page 8,
(a) by deleting lines 31 to 34;
(b) by replacing lines 44 to 46 with the following:
“guages as well as in Indigenous languages;”.
It would also remove the part that reads, “. . . and ensure that any means of control of the programming generates results following its discovery . . . .”
On the first section, I have several issues. To me, the language is problematic where the bill seeks to:
. . . ensure the discoverability of Canadian programming services and original Canadian programs, including original French language programs, in an equitable proportion . . . .
First, this is online undertakings that provide programming services of other broadcasting undertakings that are then going to be required to ensure the discoverability of Canadian programming services in both languages in equitable terms. The use of the world “equitable” is also extremely confusing in terms of what that means. “Equitable” is a different word than “equal,” and it suggests that each person or each undertaking or each entity would do that to the best of their ability. It is just an odd word — “equitable proportion.”
I could not find a way to clean it up or make it clearer, so I thought the best thing to do would be to delete it.
In the second deletion — to “. . . ensure that any means of control of the programming generates results allowing its discovery . . .” — this just speaks to me of the issue that someone is going to be ordered to take control of algorithms to do this. Again, I don’t see how else you could accomplish that. I think that goes to the heart of the discussion we’ve had with the current commissioner of the CRTC on repeated occasions. Thank you.
Senator Simons: I agree with the second half of Senator Wallin’s amendment. Indeed, it is exactly the same as my amendment that’s a few doors down on the chart. But I want to understand better from the officials about the first half of the amendment, because now that I am reading this paragraph, I also find this a bit perplexing.
Does this language mean that services would be compelled to provide discoverability to an anglophone of an equal amount of French? Does it mean that they would have to provide to a francophone an equal amount of English?
I want to make sure that I understand what that clause says, but I agree with Senator Wallin that getting rid of the line “. . . and ensure that any means of control of the programming generates results allowing its discovery . . .” does deal with a lot of my unease about the manipulation of algorithms.
Mr. Ripley: Thank you, Senator Simons. The origin of this, I believe, was an amendment made in the House of Commons committee. It wasn’t a government amendment, so I cannot speak to the intention of the mover. What I can say that the way is the way the provision is currently structured is that subparagraph (q) — “online undertakings that provide the programming services of other broadcasting undertakings . . .” — is really code for aggregators. That would be, for example, Amazon channels or any other virtual broadcast distribution undertakings, or BDUs — that type of service.
The first subparagraph speaks to an objective of ensuring the discoverability of Canadian programming services — in other words, Canadian TV services on that aggregation. Then you have as well, “. . . original Canadian programs, including original French language programs, in an equitable proportion . . . .” Equitable does not mean equal. My understanding of the motivation behind this is to ensure, given the challenges facing the French-language market in particular, that there is an effort to ensure the discoverability of original French-language programs, as well as those Canadian programming services.
Senator Simons: At risk of a chasm opening and swallowing me, I would like to propose a subamendment to, rather than delete all of lines 31 to 34, amend it to say, “to ensure the discoverability of Canadian programming services and original Canadian programs in English and French.”
That would allow for passive discoverability, which I do not believe Senator Wallin objects to. Even those of us who are most critical of this bill want to make sure that, when people go to Netflix, they can discover Canadian content.
The Chair: Senator Simons, before you continue with your debate, could you clearly repeat the subamendment for the clerk?
Senator Simons: Sure, since I just made it up.
The Chair: Yes. Take your time. He just needs to have the subamendment clearer.
Senator Simons: That it be amended to say, “ensure the discoverability of Canadian programming services and original Canadian programs in English and French.”
The Chair: Can you repeat that slowly for the clerk?
Senator Simons: That it be amended to read, in subamendment, “(i) ensure the discoverability of Canadian programming services and original Canadian programs in English and French . . . .” There would be a comma at the end of that, and then continue on to take Senator Wallin’s language.
The Chair: Carry on, on debate, senator.
Senator Simons: I can write it down.
Senator Wallin: You are saying you will end it after “English and French,” or “French and English?”
Senator Simons: Yes.
Senator Wallin: Not “. . . programs, in equitable proportion . . .” as we are taking that out.
Senator Simons: That’s right.
Senator Wallin: We are taking that out. That is my problem. I have been trying to get a definition.
Senator Simons: I will write it down.
Senator Wallin: I do have another question.
The Chair: Senator Wallin, ask your question.
Senator Simons will write it down for the clerk, and we will get right back to the senator.
Senator Wallin: I want to ask Mr. Ripley since, again, it is open to interpretation.
The online undertakings in subparagraph (q) that provide the programming services of other broadcasting undertakings should ensure the discoverability — I’m trying to figure out how they are going to ensure that discoverability; do you mean of the undertakings or do you mean of the end user, consumer or audience?
Mr. Ripley: Thank you, Senator Wallin.
To me, that subparagraph is speaking to ensuring the discoverability of Canadian programming services and original Canadian programs to the user of the online undertaking or the aggregator.
Again, using the example of either Rogers Ignite or Amazon Prime Video Channels, ensuring that when you use those services you are able to find Canadian TV channels or Canadian programming services.
Senator Wallin: The way it is written, it makes it sound as if the online undertakings that are going to use these other services — I don’t know how you would ensure that other than through non-carriage.
Mr. Ripley: It comes back to ensuring that those Canadian services are not buried, that they can be found when you log into those aggregation-type services and that there is promotion of them.
Senator Wallin: Promotion is a separate item which is further down.
I’m just trying to deal with this language. You could interpret this to somehow require them to ensure the actions of the end user. I don’t know how that is even remotely possible. If you are going to ensure discoverability, that somehow implies that the person has to discover it.
The Chair: Honourable senators, it is now 9:45 p.m. As such, the meeting has come to an end.
The subamendment will be ready. It will be the first item that will be dealt with on Tuesday at our next meeting. I will return to my current list, which is Senator Simons on debate on her subamendment, followed by Senator Wallin and Senator Manning.
Colleagues, today we got through many amendments. Thanks to everyone for their cooperation. We are looking forward to continuing our clause-by-clause consideration on Tuesday.
(The committee adjourned.)