THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Tuesday, December 6, 2022
The Standing Senate Committee on Transport and Communications met with videoconference this day at 6 p.m. [ET] to study Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Senator Leo Housakos (Chair) in the chair.
[Translation]
The Chair: I am Senator Leo Housakos, chair of the committee.
[English]
I would like to invite my colleagues to briefly introduce themselves.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
Senator Omidvar: Ratna Omidvar, Ontario.
[Translation]
Senator Cormier: Senator René Cormier, from New Brunswick.
[English]
Senator Woo: Yuen Pau Woo, British Columbia.
Senator Klyne: Marty Klyne from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dawson: Dennis Dawson, from Quebec.
Senator Miville-Dechêne: Senator Julie Miville-Dechêne, from Quebec.
[English]
Senator Cardozo: Andrew Cardozo, Ontario.
[Translation]
Senator Clement: Senator Bernadette Clement, from Ontario.
[English]
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Plett: Don Plett, Landmark, Manitoba.
Senator Wallin: Pamela Wallin, Wadena, Saskatchewan.
The Chair: We are meeting to continuing 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 by officials from Canadian Heritage: Mr. Thomas Owen Ripley, Associate Assistant Deputy Minister; Amy Awad, Senior Director, Marketplace and Legislative Policy; and Yao Ahonda, Manager, Broadcasting, Marketplace and Legislative Policy. Thank you again to the officials for steadfastly being here while we do our work.
Honourable colleagues, we adjourned our last meeting by standing an amendment to clause 4. It is 4-10-15, to my understanding.
Senator Miville-Dechêne: At this point, I’m going to read the amendment I’m tabling with my colleague Senator Simons. We both worked on this amendment with our teams.
That Bill C-11 be amended in clause 4, on page 10, by replacing lines 15 to 26 with the following:
“(a) the extent to which a program contains a sound recording that has been assigned a unique identifier under an international standards system;
(b) the fact that the program has been uploaded to an online undertaking that provides a social media service by the owner or the exclusive licensee of the copyright in the sound recording, or an agent of the owner;
(c) the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that
(i) is required to be carried on under a licence, or
(ii) is required to be registered with the Commission but does not provide a social media service.”.
That being said, I will briefly explain in French part of the rationale, and Senator Simons will follow.
[Translation]
As you know, we are dealing with one of the most controversial parts of Bill C-11. This part has generated significant debate and concern. I would remind you that both the government and the CRTC have repeatedly said that social media users and content creators would not be covered by Bill C-11. This has been repeatedly stated.
Despite this, we heard from witnesses and experts that section 4.2 is too far-reaching and that they do not trust the CRTC with such discretionary power. There was a desire expressed during our hearings that we restrict the type of content that the CRTC could regulate on platforms. We also heard that the main target of clause 4.2 is professional, non-amateur content, in particular self-produced and record label music content and related music videos. Our proposed amendment would focus clause 4.2 on the intended target of professional music without unduly curtailing the CRTC’s discretion. Finally, these amendments would have the effect of focusing clause 4.2 on professional music that is downloaded by copyright owners, or that has been played in whole or in substantial part on traditional broadcasting undertakings.
In essence, this means that YouTubers, amateur videos, or any other content which is not associated with professional music are not covered by Bill C-11.
[English]
Senator Simons: You will see we got rid of the very contentious clause of “directly or indirectly generates revenues.” That is off the table. Gone.
The amendment is scoped so that it only includes exactly the people that the government says it wishes to include: the large music producers such as Warner Brothers, Sony and the like. It absolutely does not include social media, as is clarified in point (c)(ii).
We’re hoping that this will allow us to reach a workable compromise. I share the concerns of Senator Manning, Senator Wallin and Senator Plett about clause 4 which, despite the protestations of everybody, clearly includes individual creators. We believe this amendment scopes out all of those people and only includes the very biggest music producers.
This is an amendment that has been arrived at in consultation with YouTube, with TikTok, but also with all sorts of independent Quebecois music producers who provided a great deal of input so we could craft an amendment that we capture the right peoples.
[Translation]
Senator Miville-Dechêne: I hope that is sufficient.
[English]
The Chair: I would like to say that I think it’s a good start. I think it’s a good amendment. I support the amendment. I think it provides greater certainty to small online creators, individual creators. I certainly think any amendment of this nature is welcome, from my perspective.
[Translation]
Senator Cormier: I understand that it targets the sound recording industry. Since it is more restrictive than before, what happens to audiovisual content? I would like to hear from Mr. Ripley on this issue.
We are in a system in transition in which we want to leave room for flexibility. What happens if a film is uploaded to TikTok and it has a commercial reach? What happens in this sector if you only target sound recording? What impact does the interpretation of this amendment have on the act?
Senator Miville-Dechêne: I would say that paragraph (c) covers that aspect. In the case of a film, the film will have been broadcast elsewhere. So, of the three criteria, we can expect — We had this example with a hockey program that had been broadcast on social media; that program would also be broadcast elsewhere by a broadcaster. That criterion would be sufficient to encompass it.
I will let the department’s expert answer the question.
Thomas Owen Ripley, Associate Assistant Deputy Minister, Canadian Heritage: Thank you for the question. My understanding of the senator’s question is that the intention is not that all paragraphs and subparagraphs should be considered cumulatively.
If that is the case, I fully agree with the interpretation of the senator who tabled the amendment; paragraph (c) does not refer to a sound recording and the question of a broadcast therefore always includes an audiovisual broadcast.
I think it is clear that the proposal has a greater emphasis on music, and so paragraph (a) includes programs that are uploaded on social media that include a sound recording. So to my mind, that means there is an emphasis on music.
[English]
Senator Dawson: It comes down to users out, platforms in. If we don’t believe that, it becomes a problem and it’s a hard debate to continue. The reality is that the bill draws a distinction between the users of social media and the platforms themselves. The intention is to exclude individual users from regulations, so if you don’t believe that, I guess I can’t convince you of anything else.
The CRTC has testified that it has no intention to regulate individual content. The government has also been clear that the legislation does not create obligations for social media creators, only for platforms, with a limited exception for commercial content.
The proposed amendment would create loopholes. I’m repeating what Senator Gold said on earlier amendments today. The amendment would create loopholes for social media platforms to avoid contributing to Canadian culture, which, as you know, is the objective of the bill.
The reality is that there are times when social media platforms act exactly like broadcasters. There are also instances where commercial content is uploaded by the owner of exclusive licences. That’s what we’re really concerned about. It creates incentives for companies to share music on a platform like YouTube instead of music services like Spotify and Apple Music. This section was written the way it was to allow flexibility to the system to ensure that all players who are acting as broadcasters are benefiting from the culture and contributing to its sustainability.
The government has been very clear about the kind of content this section is targeting: commercial content like full movies, TV shows and songs. I guess if you don’t believe that, there is nothing we can do about trying to convince you, but that is what the government is proposing.
Senator Wallin: I really appreciate section (a) gone, “directly or indirectly generates revenues,” because that has been a very strong talking point on the part of the government, and they felt that was an important impact of this legislation. It was deliberate. It’s still sitting there.
To Mr. Ripley: If the amendment is accepted, have we once and for all gotten rid of “directly or indirectly generates revenues” in all parts of this bill?
Mr. Ripley: Thank you, senator.
I can do a check, but my recollection is that this is the section of the bill that uses that —
Senator Wallin: It’s the only place where it’s referenced? Thank you for that. We will do the check too.
Senator Simons: I just wanted to say briefly in response to Senator Dawson’s concern that if you read our amendment, it specifically includes exactly what you were worried about:
(b) the fact that the program has been uploaded to an online undertaking that provides a social media service by the owner or the exclusive licensee of the copyright in the sound recording, or an agent of the owner;
We have been very surgical with this amendment. This does not eliminate all of 4.2. It scopes it so that it actually does what the government has told us it wants to do. It makes it very clear that social media users are not included.
I know, Senator Dawson, that you would like us to take the government at its word, but it is that clause about “directly or indirectly generates revenues” that has concerned so many people.
Further, the issue is not that we think individual TikTok makers or YouTube makers are going to be asked to contribute to the system. The question was one of whether they would be captured by discoverability, and this amendment, I believe, limits the degree to which those kinds of users are going to be captured by a discoverability paradigm.
In the interests of brevity, I shall now tais myself. Tais-toi, Paula.
[Translation]
The Chair: Senator Miville-Dechêne has moved that the bill be amended, in clause 4, on page 10, by replacing lines 15 to 26 —
Some Hon. Senators: Dispense!
[English]
The Chair: Dispense.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the oui has it. Carried, on division.
Colleagues, there is an amendment that is going to be distributed. It had reached the clerk but did not make the bundle. It’s one amendment that was sent to the clerk but was not included in the bundle you have. It is clause 4, page 10, 4-10-14, and it’s an amendment from Senator Manning. It’s being distributed as we speak.
Senator Simons: Will some of these amendments not now —
Senator Wallin: Yes.
Senator Simons: — it’s not going to work anymore.
Senator Wallin: But we are still in the middle of that.
The Chair: Well, we’re in that clause, and if it works or doesn’t work, that’s for the debate to determine.
Senator Manning: I would like to move:
That Bill C-11 be amended in clause 4, on page 10, by replacing line 14 with the following:
“mission shall consider the totality — with that totality being determinative and with each factor being accounted for — of the following matters:”.
The amendment I am proposing, I do believe, will strengthen the amendment that we just passed a few moments ago. It will strengthen it by adding the existing words and add certainty for everyone involved — the creators, the platforms and the regulator.
When concerns were raised about user-generated content being captured by this legislation, even if as an unintended consequence, Minister Rodriguez, when he appeared before our committee, referred several times to the criteria that must be considered as a safeguard against this.
When he appeared before our committee, the minister specifically stated:
We listened to the social media creators. We listened to them, we understood their concerns and we brought it back, with the exception of 4.2, which catches only commercial content with the three criteria. That’s it.
The wording I’m putting forward thus makes very clear that the commission will consider these criteria to be determinative. In other words, it is intended to only catch commercial content using the three criteria. It also makes clear that all three criteria need to be considered together and that it is not a question of picking and choosing.
I do believe this captures what the minister said repeatedly, and I do believe that it adds strength to the amendment that we just passed, so I look for your support.
[Translation]
Senator Miville-Dechêne: Very briefly, it seems to me that this amendment goes against what was explained a few minutes ago, namely that the CRTC must be given the flexibility to apply one criterion or another, depending on what we are dealing with. Furthermore, since there is not only professional music — although it is predominant — the idea of saying that the three criteria must be applied — that is my understanding of the French version — strikes me as a straitjacket that we do not want to impose.
[English]
The Chair: I will be equally brief in supporting this amendment by Senator Manning. As I and others have said throughout this debate, it’s all about individual content creators. As much as I’d love to take the word of Senator Dawson, the officials and minister that platforms are in and digital content providers are out, we have heard way too much contradictory testimony and an unwillingness to be as categorical as that.
At the end of the day, when I hear the argument in response for the bill, which is well intentioned, when he says we want platform creators to pay their fair share and all the rest of it, as I have said many times, platforms like TikTok and YouTube are non-existent if it isn’t for the digital independent content providers. They are an empty shell. At the end of the day, whatever the CRTC imposes on those stand-alone platforms, invariably, that regulation, those challenges, those costs and all the rest of it will be passed down to those individual content producers. That’s the way of the digital world.
I supported Senator Miville-Dechêne’s and Senator Simons’ amendment, which, as I said, is a good start and a good step. I find this amendment goes a step further in defence of those content creators.
Senator Quinn: I want to support what you just said, chair, because we are here today, but it’s about the next three, four, five or ten years and how it will be interpreted. I would endorse exactly what you said in terms of needing to have the clarity to ensure that those folks who the government today says are out are indeed out.
Senator Wallin: Senator Miville-Dechêne, why do you think this is contradictory? I do not see the contradiction. It says “may make regulations” in the original. This goes on to say that the commission shall consider all of the things that you just laid out, which was passed by the committee. That’s what this thing says, which is that they must listen to this.
Senator Miville-Dechêne: Our amendment starts with the sentence — I’m sorry. I’m looking for my amendment. I have too many papers.
Senator Wallin: You start on line 14 or something.
Senator Miville-Dechêne: Before this line, it says, “In making regulations under subsection (1), the Commission shall consider the following matters:” That is what stands now as the preamble.
Senator Wallin: The paragraph above it.
Senator Miville-Dechêne: Yes, so if you want —
Senator Wallin: It says, “For the purposes of paragraph 4.1(2)(b), the Commission,” and then it creates more options, “may make regulations prescribing —” et cetera.
To the point which has been expressed repeatedly by witnesses in front of this committee and members of this committee, clarity is what we’re all seeking. This says “shall” consider all of the things that we all just voted and agreed on.
Senator Miville-Dechêne: Yes.
Senator Wallin: It says “shall” rather than “may,” so it makes sure that this will be recognized.
Senator Miville-Dechêne: I understand. What I’m saying to you, and I think I still stand by what I was saying “shall” constricts the CRTC —
Senator Wallin: “Shall.” Yes. It’s in here.
[Translation]
Senator Miville-Dechêne: I will answer in French. What I mean is that, because of the way the amendment is worded, in French at least, “il faut tenir compte de la totalité des critères ci-après étant déterminants et chaque critère étant considéré” —
So, yes, this amendment is poorly translated, let’s be honest. From my point of view — and others may have a different one — your proposed amendment removes the CRTC’s flexibility in establishing the determining criteria. That is my interpretation.
[English]
Senator Wallin: I’m sorry, are you saying that the translation of Senator Manning’s motion is not clear to you, or what? I don’t understand what translation you’re talking about.
Senator Miville-Dechêne: This one, yes. The translation, to me, is not particularly good, but what I’m saying is that, even if I take it in English, I think this clause gives less flexibility to the CRTC than what we have —
Senator Wallin: That’s the point.
Senator Miville-Dechêne: I know, but I’m against that.
Senator Dawson: Lost in translation.
Senator Miville-Dechêne: I think it’s the translation.
The Chair: I think the question for Senator Wallin — and I’ll ask the supplemental question — is that this amendment actually strengthens your amendment because your amendment is a lot less prescriptive to the CRTC. This makes clear to the CRTC what the directive is.
Senator Miville-Dechêne: Don’t tell me what my amendment means.
The Chair: I’m interpreting. I’m allowed to interpret what both amendments mean. I’m asking you the question, do you agree or disagree? You have the right to disagree.
Senator Miville-Dechêne: What we have done is taken out a portion.
[Translation]
Everything related to income generation was removed, because it was considered to be an unimportant criterion, given that many content creators earn income. So that criterion was removed. It says that the CRTC will evaluate these different criteria. Indeed, this is what is written here: “The Commission shall consider the following matters,” and that gives it the latitude to do so. Personally, that is how I see this set of criteria.
[English]
Senator Simons: Maybe Mr. Ripley could speak to this. I don’t understand if this means that they would have to consider every criterion equally. Can you interpret for us, in the best sense, what this amendment would actually do? Then can you comment on whether the French translation does the same thing as the English?
Mr. Ripley: Thank you, senator.
If I understand what Senator Manning is seeking to do, it is to essentially render the three criteria cumulative so the content that would be scoped in under any regulation made under 4.2 would have to hit all three criteria. That’s my understanding of what Senator Manning is seeking to do through this.
Based on the conversation that took place on the floor when the previous amendment was tabled, my understanding, based on the answer that Senator Miville-Dechêne gave to Senator Cormier, is that it was not intended that all three factors necessarily needed to be considered in a cumulative fashion.
Senator Simons: Some think it won’t fit. Something that might be rebroadcast, like a rebroadcast football game, is not going to have a unique identifier of music. All right. Now that I understand, I appreciate the sentiment, but I don’t think it works.
Senator Plett: This is just an observation more than anything else, and it’s very short. Yesterday, we discussed discoverability. Senator Manning had an amendment that I think was very close to the amendment he is making today and exchanged the word “ensure” to “allow,” and the same people who are now saying we are being too prescriptive, yesterday said we weren’t being prescriptive enough when we said “allow.” I think there is a very bit of inconsistency in some of these arguments, chair.
Senator Woo: I do not see the difference between “shall consider the following matters” and “shall consider the totality,” et cetera. Even if you were to argue that using the word “totality” and all those other words in between suggests considering the cumulative effect of all the factors, it’s impossible to determine whether, in fact, there was a cumulative calculation. The fact of the matter is that the current version, as amended, already requires through the use of the word “shall” to consider all the factors. We will not know what weighting the CRTC will place on each of the factors, but based on the amended version, they have to consider all of those factors. To that extent, totality is already covered. To my mind, this is superfluous and possibly an example of inelegant legal drafting.
Senator Wallin: What we are talking about is for the purposes of 4.2(1), which is not in any way changed by the amendment. The amendment starts after that. Is that not correct?
An Hon. Senator: Yes.
Senator Wallin: Yes. So the paragraph in question is, for the purposes of paragraph blah blah, the commission may make regulations prescribing programs in respect, et cetera.
An Hon. Senator: That’s the next clause. It’s not amending that clause.
Senator Wallin: Oh, it’s not dealing with that one. Okay, I’ve got that.
I just want to go back to Mr. Ripley. It says the commission shall consider the totality, with that totality being determined with each factor being accounted for, so you don’t see each factor being accounted for as meaning (a), (b)(i), (ii) and (c)?
Mr. Ripley: Thank you, Senator Wallin.
No, based on how Senator Manning presented his amendment, what I understand him to be seeking to achieve is that the CRTC, in making regulations under section 4.2, would have to consider all three factors, and the regulations would have to have accounted for all three factors.
Hon. Senators: Question.
The Chair: It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 4, on page 10, at line 14 — may I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I think the nos have it. Recorded vote.
[Translation]
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: No.
Mr. Labrosse: Yeas: 5; nays: 9; abstentions: none.
[English]
The Chair: Accordingly, the amendment is defeated.
Senator Wallin: I have an amendment that has been — I don’t know whether you want me to withdraw it now or if we’re still going in some order.
The Chair: You’re withdrawing an amendment?
Senator Wallin: I’m withdrawing C11-4-10-17, which had to do with the direct or indirect revenue language, which has now been excised.
The Chair: The next amendment is C11-4-10-32r, Senator Manning. All of you have the amendments, obviously. Senator Manning, you have the floor.
Senator Manning: The purpose of my amendment is to add a monetary threshold to mitigate inclusion of user-generated content, and it adds some new text.
That Bill C-11 be amended in clause 4, on page 10, by adding the following after line 32:
“(4) The regulations shall not prescribe a program of a broadcasting undertaking that generates annual revenues of less than $25 million.”.
Colleagues, a principle issue related to this bill is the question of to whom this legislation should apply. The government has repeatedly stated that there is no intention to regulate user-generated content and that there is no intent to apply this legislation to smaller players, yet there are no boundaries in the legislation to ensure that this does not happen. There are no boundaries to provide the certainty that digital creators have told us they require. We have heard from numerous witnesses who very clearly stated that the bill had to incorporate a revenue threshold in order to ensure that the legislation focuses on services that are truly of consequence in the digital marketplace.
Tim Denton of the Internet Society Canada Chapter said that “any online service that earns less than $150 million in Canada annually” should be excluded from the act, from any regulation or obligation to contribute to Canadian content production. Mr. Denton stated that Bill C-11 captures ordinary Canadians, while section 2.3 of the bill excludes some instances of streaming services that would otherwise be caught by the act. These provisions, Mr. Denton argued, do not go nearly far enough in ensuring the legislation focuses on services that are truly of consequence in the digital marketplace. For instance, neither charities nor religious organizations are exempt, nor does section 2.3 shelter the online activities of individuals, whether professional or amateur. Mr. Denton said that social media platforms are far from the only places on the internet where entities and individuals may transmit audio or audiovisual content on the internet. Individual and community websites abound with such content. Neither section 2.3 nor section 4.1 addresses the much broader regulatory reach of Bill C-11.
Konrad von Finckenstein, a former chair of the CRTC, told our committee that vesting the commission with
such large powers with such vague parameters will prove extremely onerous for the CRTC. Every single stakeholder will come forward with specific requests for exemptions of conditions and argue they fall within the vast powers given to the CRTC.
One of the smaller creators who came to our committee, Justin Tomchuk, an independent filmmaker, told our committee on September 27 that Bill C-11, as currently drafted,
makes it clear that my business will fall under the call of the CRTC’s directives, as I derive direct and indirect income through my artistic efforts.
Oorbee Roy, content creator and skateboarder, told our committee:
As a digital creator, I feel that if 4.2 goes in as it stands, then I have to go look for a full-time job. It’s a depressing reality for me to see that my content is going to be pushed aside. I’ve just gotten this platform. I’m not young; I’m almost 50, and I’ve been working really hard to get to a place where I can do something like this. I haven’t done it with a lot of help. For someone else to come in, push me aside and dictate what my audience wants to see, I can’t fight that. I’m very discouraged. That’s how I feel.
Colleagues, I believe we have an obligation to respond to what an overwhelming number of witnesses have told us. I look forward to your support for my amendment.
The Chair: Thank you, Senator Manning.
Again, I think that Senator Manning is proposing an essential amendment. We have heard non-stop testimony, and it has been a concern of many about this bill, again despite the assurances of the government that it will not sweep in and overcome smaller players, user-generated content producers. There are no boundaries and nothing in the legislation, no thresholds or limitations, in order to eliminate the regulatory uncertainty these small, important digital creators are sensing or feeling.
We all know from the testimony during our long and arduous study that the Broadcasting Act does give the CRTC powers to do essentially what they want, both with the platforms and with the content creators. I think this is a reasonable amendment, creating a very reasonable threshold and limitations, that will give security and certainty to all of these new digital content producers across the country.
We have all, at one time or another during this committee, spoken about this passionately in questions that we asked these individual content providers and producers who came before us. They pleaded. As we all know, half the testimony at this committee was with regard to these Canadians who create this modern-day digital Canadian content. They are pleading for some certainty, and we are their last hope to provide those parameters. If not, colleagues, we will be leaving it exclusively and wide open to the CRTC and, by extension, to Canadian Heritage to determine those directives.
Senator Plett: My question is for Mr. Ripley. Mr. Ripley, currently, are there any limitations in the act related to its application to online undertakings who may have more limited revenues and paid subscriptions when compared to bigger players?
Mr. Ripley: Thank you, senator.
The primary limitation remains the one we discussed a couple of days ago, namely, that the CRTC is only to regulate those undertakings where it is of the opinion that they are in a place to contribute in a material way to the policy objectives of the act.
The second element that is relevant is a recognition that the CRTC should regulate in a way that is responsive to the nature of the undertaking, which speaks to some of the issues that you raised in your question.
Senator Plett: Would you agree that incorporating a threshold would lessen the regulatory burden?
Mr. Ripley: Thank you for the follow-up question.
The drafting is a little bit ambiguous, but if Senator’s Manning’s intention is to attach the $25 million threshold to the broadcast undertaking and not to the program — if that is the intention, because I believe the amendment could be read both ways. If the intention is to attach the threshold to the undertaking, what that would mean is that the CRTC could only scope in content on social media platforms where that social media platform earned or generated revenues over $25 million. So it would be clear that if you had a small social media platform generating less than that, there would never be a situation where content uploaded to that social media platform, even if it met the factors at 4.2, would be included.
Senator Plett: I guess you need to make a determination whether incorporating a threshold would lessen the regulatory burden. Regardless of what Senator Manning is intending, something is going to be written into this legislation.
Has your department received correspondence or have you had concerns expressed to you by smaller online undertakings that the bill may apply to them? Our committee certainly has received much evidence on this matter. How many smaller online undertakings have expressed concern to your department with regard to this matter?
Mr. Ripley: With respect to this section of the bill, I would say that the greatest source of concern has been from social media creators. Having said that, I believe there is still a degree of confusion in terms of understanding that, for a social media creator, an individual uploading their content to a social media platform, there is no question of them being considered a broadcasting undertaking under this bill, and that’s because of the previous section 2, subparagraph 2.1, which we have looked at.
The question at 4.2 relates to what is the content uploaded to a social media service that is scoped in with respect to the act, but the obligations are on the social media service. There is not a question of those obligations being placed on social media creators. Social media creators have also expressed a concern about the impact of YouTube being asked to contribute and the impact that may have on their business model. I would say these are two separate concerns.
I want to be very clear that with respect to the former concern, there is no question of them being considered a broadcasting undertaking no matter how much money they make as a YouTuber, for example.
Senator Gold: I will honour your request to be brief. The government opposes this amendment. I think we are ready for the question.
The Chair: It is moved by the Honourable Senator Manning that Bill C-11 be amended on clause 4, page 10, at line 32 —
An Hon. Senator: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I think the “nays” have it.
Senator Manning: Recorded vote, please.
The Chair: A recorded vote is requested by Senator Manning.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No. I am saying no. I apologize for getting distracted. Thank you, colleagues, for saving me from that embarrassment.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: No.
Mr. Labrosse: Yeas, 3; nays, 11; abstentions, nil.
The Chair: Accordingly, the amendment is defeated.
Honourable colleagues, shall clause 4, as amended, carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Moving right along, we’re on clause 5, C11-5-11-22.
Senator Simons: I will be presenting this amendment on behalf of my colleague Senator Dasko. This just adds the word “innovation,” as Senator Dasko had added it earlier on, with unanimous content. So question, I guess, if no one has any questions. After line 22.
The Chair: Senator Simons, can you read the amendment in its entirety?
Senator Simons: It’s new language. The amendment would create a paragraph 5(2)(c):
That Bill C-11 be amended in clause 5, on page 11, by adding the following after line 22:
“(1.1) Paragraph 5(2)(c) of the Act is replaced by the following:
(c) promotes innovation and is readily adaptable to scientific and technological change;”.
This is language that mirrors Senator Dasko’s amendment that we passed last week.
The Chair: Can you remind us of the overall objective?
Senator Simons: The overall objective was to put in the word “innovation,” which did not exist elsewhere in the bill, and to emphasize the importance of technological change at a time when these platforms are evolving and sprouting up so quickly.
Senator Manning: I support this amendment. As we all know, the internet is very dynamic. It should not be regulated without taking into account the importance of innovation. When you look through the entirety of the bill before us, there are very few references to innovation at all. This gives us an opportunity to put that in. The amendment at least acknowledges that, even if the bill itself runs counter to innovation in many ways. I support the amendment.
Senator Quinn: I thank my colleagues for their commentary. I agree with it. I’m only questioning what the rationale is for the word “scientific.” “Technological change” is technological change. Adding “scientific” — does that mean something different?
Senator Simons: It’s not my language, and I hesitate to speak for Senator Dasko. I know her overall intent was to add to the bill a sense of urgency about embracing innovation and technological change. I don’t think the word “scientific” there is doing any harm. What do you call a scientific versus a technological change if we are talking about artificial intelligence, for example?
Senator Quinn: I understand that, and we all have different backgrounds. I agree 100% with the “innovation and technological change.” I’m stumbling over “scientific,” which has a different meaning in my world. I just wanted to ask that question. I am not going to introduce a subamendment.
Senator Simons: Thank you. Question.
Some Hon. Senators: Question.
An Hon. Senator: What did the original paragraph say?
Senator Simons: There isn’t an original. This is a new one.
The Chair: It is moved by the Honourable Senator Simons, on behalf of Senator Dasko, that Bill C-11 be amended in clause 5, on page 11, at line 22 — may I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: The amendment passes, on division. Thank you for your patience. The chair is a little bit tired.
Colleagues, we are moving on to C11-5-11-36a. That is Senator Dawson, the sponsor of the bill.
Senator Dawson: Senator Plett, since I’m going to be talking about you, I want to say that I don’t often agree with you but you have asked a few times, “Why didn’t the government do it before?” It’s never too late to do well. On the privacy issue, we will be creating an amendment that deals with the issue, based on the testimony of the Privacy Commissioner gave in front of us. I know you have mentioned that in the past — why not before? That’s why we have a Senate — to have sober second thought. Tonight I am going to be presenting a motion that goes in that direction.
[Translation]
Privacy issues were raised by a number of witnesses throughout our study of Bill C-11, including the Privacy Commissioner of Canada. The reality is that online streaming services already collect a great deal of personal data.
[English]
On top of that, many of these services run through smart TVs and other intermediaries that collect vast amounts of personal information from Canadians in order to provide relevant content and better targeted advertising.
[Translation]
Some services collect and aggregate speech inputs, viewing and browsing data from users. There is a pressing need to discuss privacy in the context of the Broadcasting Act. We therefore strive to do so as we move into the 21st century.
[English]
However, it is important to make sure we are adding these provisions where they will be the most effective.
[Translation]
Section 5 of the Broadcasting Act sets out the factors that the CRTC must take into account when developing regulations. With the inclusion of a privacy provision in section 5, the CRTC will make protecting privacy an explicit objective of broadcasting regulations.
[English]
This amendment would ensure that the CRTC regulates in a way that protects Canadians from threats to their privacy and misuse of their data when they stream online content. This would result in stronger privacy protection for consumers when compared to adding privacy language to section 2 of the act — which we did — as adding language to the interpretation section of the act would ensure privacy protection only as it relates to the operation of the CRTC itself.
[Translation]
The issue of privacy is one that the government takes very seriously. I believe there is consensus among committee members that language to protect the privacy of Canadians online should be included in the Broadcasting Act. That is why I am pleased to propose:
That Bill C-11 be amended in clause 5, on page 11, by replacing lines 36 to 38 with the following:
“ing out “and” at the end of paragraph (f) and by adding the following after paragraph (g):
(g.1) protects the privacy of individuals who are members of the audience for programs broadcast by broadcasting undertakings; and”.
[English]
This is in line with the testimony of the Privacy Commissioner, who appeared at the beginning of these meetings a few months ago, I would say. For those who don’t remember, I could quote his comments, but we have been quoting a lot these days, so I will pass.
The Chair: Thank you, Senator Dawson.
Let it not be said this chair does not have an open mind, because I fully support the government’s sober second thought on this. I’m glad to see the government listen carefully to the recommendation of the Privacy Commissioner. This is a very good amendment.
Why didn’t the government equally listen to the testimony of so many witnesses, including former chairs of the CRTC, with regard to algorithm manipulation or user-generated content to make sure it is withdrawn from the various clauses or, more importantly, making sure that “customer protection” is mentioned at least once in the act? Why the discrepancy on this?
Senator Dawson: Chair, as you know, if we tried to satisfy every witness that came before us and asked us for an amendment, we would have a 600-page bill that would be a catastrophic, because not all witnesses agree the same way. Our responsibility as a committee is to take the best of the comments. The one by the Privacy Commissioner on the Privacy Act was, I think, the one most specialized. It may be late, but it is never too late to do good.
The Chair: Thank you.
Senator Plett: I want to take the opportunity, Senator Dawson, to express my appreciation that the government is listening to the opposition party in presenting this amendment. I’m not sure why they wouldn’t have listened to the opposition at the start. It could have been written a little differently, and we wouldn’t have had to do this amendment. But, Senator Dawson, thank you on behalf of the Conservative caucus for listening and, as the chair said, having sober second thought and seeing the proverbial light.
Senator Dawson: I hadn’t seen yours dealing with the same issue. Sorry, maybe I passed it.
Senator Manning: I just want to say I support this amendment. I find it strange that the Privacy Commissioner would not be consulted on a bill of this magnitude at the beginning. I just want to state that. It is a very important bill. We have had several witnesses before us, but especially with the Privacy Commissioner, it makes you wonder why he wasn’t consulted at the beginning.
I want to make sure that Senator Dawson has consulted with Senator Gold on this before he moved it. Have you? I wouldn’t want you to be embarrassed again.
Senator Dawson: I did not talk to Senator Gold about this amendment.
Senator Plett: I would like to hear from Senator Gold.
Senator Manning: I wouldn’t want you to be embarrassed.
Senator Dawson: I did obviously, as sponsor of the bill, talk with the government. I have been supporting this bill. I have been talking to the people. I didn’t have to ask. I could have asked our witness to say that I think what I’m doing is right. But he trusts me, and I trust him.
Senator Wallin: I would like to support the amendment. I voted against Senator Miville-Dechêne’s motion much earlier on regarding age verification methods because that requires invasion of privacy generally of the family of the child involved. I find these two things a little contradictory. I think that if we want to protect privacy, we need to protect privacy. That is my only comment. Thank you.
The Chair: Question?
An Hon. Senator: Question.
The Chair: It is moved by the Honourable Senator Dawson that Bill C-11 be amended, clause 5, page 11 at line 36 —
An Hon. Senator: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
The Chair: Agreed unanimously. On division?
Senator Miville-Dechêne: I don’t know. Whatever.
The Chair: On division.
Colleagues, 5-11-44b is an amendment. Senator Manning, sir, you have the floor.
Senator Manning: Thank you, Mr. Chair.
I would like to move:
That Bill C-11 be amended in clause 5, on page 11, by adding the following after line 44:
“(i) recognizes that market forces, competition and the growing choice of programming made available to Canadians over the Internet are contributing to achieving the objectives of the broadcasting policy set out in subsection 3(1);
(j) encourages all forms of competition to ensure that high-quality and innovative programming is made available to Canadians using the most effective technologies available at reasonable cost; and
(k) ensures that regulations made under this Act are efficient and proportionate to their purpose.”.
The purpose of my amendment is to insert language in respect of consumer choice and market competitiveness.
Once again, when Konrad von Finckenstein, the former chair of the CRTC, appeared before our committee, he noted that it is Canadian consumers who choose what they want to watch. Mr. von Finckenstein noted that this choice was driven by market forces and only modified when necessary by regulatory mechanisms.
Tim Denton of the Internet Society Canada Chapter made a similar point when he appeared before our committee, noting that the principles of respecting user choice and recognizing that competition and market forces are contributing to achieving the objectives of the act must be principles that are incorporated in this bill. Mr. Denton stated that nowhere in this bill do we read of competition and consumer choice.
The Digital Media Association brief filed with this committee stated:
The misconception that appears to motivate many of the Bill C-11 amendments is that digital streaming services do not currently make substantial financial and other economic contributions to the Canadian broadcasting system. This assumption is incorrect.
DiMA members already offer access to more Canadian content and contribute more revenue to artists, songwriters and rightsholders than many organizations in the regulated Canadian broadcast system do today. DiMA members also provide a wide variety of benefits to Canadians artists of all size, including opportunities to showcase and advance their music to fellow Canadians and global audiences alike.
I don’t know how many senators take the time to read and go through the different briefs that we have had, but they provide evidence related to the considerable input that forum platforms are providing to invigorate the Canadian culture scene.
When Wendy Noss of the Motion Picture Association — Canada appeared before our committee, she pointed out that private sector companies spent more than $5 billion across Canada in 2021, now accounting for more than half of all production in Canada and 90% of the growth over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented, creative workers. They assisted in financing new infrastructure and in supporting over 47,000 Canadian businesses in 2021 alone. What these stats demonstrate is that the current market system has served Canada and Canadians very well.
I would encourage and seek your support for my amendment.
The Chair: Thank you, Senator Manning, and thank you for your consistent patience in trying to make sure consumer choice is somewhat represented in this piece of legislation. We have had this discussion throughout the study, and again throughout the debate. Consumer choice is nowhere to be found whatsoever, nowhere considered in this legislation.
The question I have for the officials, Mr. Ripley, is a simple question: Why was consumer choice not on the radar at all when, at the end of the day, digital platforms are all about consumers and audiences/consumers?
Mr. Ripley: Thank you, chair, for the question.
We had a discussion the other day about how Canadians are reflected throughout the policy objectives of the Broadcasting Act. It’s not a question of consumers not being factored in.
Again, there are certainly decisions that the CRTC takes, strongly grounded in considerations related to consumers; for example, regulation of cable packages, the skinny basic package and maximum costs that can be charged to consumers. These are questions that are regularly considered by the CRTC.
The policy objectives are primarily cultural policy objectives. The Broadcasting Act is fundamentally about promoting cultural expression, while recognizing that that takes place in an evolving broadcasting system where technology and services continue to evolve.
The Chair: I understand the importance of trying to define Canadian content and promoting Canadian content. I understand all those objectives, and trying to streamline the various digital platforms within some kind of a regulatory framework. The question is whether there is any element of this bill where competitive and competition objectives are set out in this bill. If there isn’t, why not?
Mr. Ripley: I would characterize it that there are policy objectives in section 3, which we just reviewed, that speak to making sure that Canadians have choice in terms of the programming that they have access to. There are certain provisions and objectives there that have been inserted that speak to ensuring reasonable costs and packaging of services. Again, from my perspective, it’s not that these questions are absent, although I acknowledge they are not as explicit as Senator Manning is proposing.
The Chair: That’s my next question. Will this bill make it more explicit and basically create that concern when it comes to competitive objectives?
Mr. Ripley: The proposal by Senator Manning would, indeed, require, as the CRTC implements its regulatory policy, to consider questions of competition. To some extent, it creates or states a presumption that market forces, competition and choice contribute to fulfilling the policy objectives of the act. Yes, inserting these provisions requires the CRTC to consider these things through the regulatory policy.
The Chair: Would this amendment in any way hinder the core objective of the bill as the government has laid out that objective?
Mr. Ripley: It would require the CRTC to balance these things and also the achievement of the other policy objectives which, again, are primarily cultural policy objectives; it would require them to balance these things with those other objectives.
The Chair: Thank you.
Senator Plett: Chair, I think you have asked all the questions I had. I’m going to maybe even ask for a little more of an explicit answer on what I already think was your question, but mine as well. Would adopting this amendment in any way interfere with the bill’s primary objective?
Mr. Ripley: Thank you, Senator Plett.
The CRTC would still be required to seek to give effect to the policy objectives of the Broadcasting Act. That would still be at its core —
Senator Plett: They could do that, and it would not —
Mr. Ripley: They would have to do it in a way that respects the concepts that Senator Manning is proposing here that they take into account in doing that. Again, from my perspective, it is a balancing of various interests, and Senator Manning’s proposal would ask them to balance these interests in giving effect to the cultural policy objectives of the Broadcasting Act.
Senator Gold: Again, I will try to be brief. I will explain why the government opposes this amendment as a matter of policy. It does, in the government’s view, undermine and weaken and shift the balance in the role that is played by noncommercial broadcasters.
Market forces play an important role in so many aspects of our life, but there are some areas where there are market failures or, if not market failures, then the market serves us less well. That includes French content in the current environment. That includes Indigenous content or content in languages or in cultures that are not the otherwise dominant cultures. The government opposes this because it skews the decision making in the CRTC in a way that compromises some of the core objectives of promoting the availability of such content as French-language content, Indigenous content and the like. That’s all I have to say.
Senator Wallin: I am a little puzzled by your concerns, Senator Gold. It says here:
recognizes that market forces, competition . . . are contributing to achieving the objectives of the broadcasting policy . . . encourages all forms of competition to ensure that high-quality programming is made available to Canadians . . . .
I don’t understand why you think that would somehow infringe on — I don’t know — existing outlets. It doesn’t preclude anything.
Senator Gold: I stated the position of the government and the rationale for it. I really have nothing else to add. I offer that for the consideration of the committee. I encourage us to call the question.
Senator Plett: I think we should debate it for a while longer.
Senator Wallin: I just don’t think — well, anyway, I won’t get into that.
The Chair: I’ll weigh in on this a little bit.
Government leader, we appreciate you’re not a witness before the committee, and we appreciate you’re stating the government’s position, but it’s fair to ask the government, who is stating their position, some supplementary questions as politely and as respectfully as possible.
The truth of the matter is, to Senator Wallin’s question, we’re just putting into words, in this legislation, something that the bill should be already looking at according to the wording, and the CRTC, according to the officials, will be compelled, because of that wording, to take a balanced approach to make sure, in addition to Canadian content, that there is an alignment between new digital platforms and old-style broadcasters and independent content providers, and competition also means some sense of consideration for consumer choices and so on and so forth. There doesn’t seem to be anything in this amendment that tears away at the gut of the objective of the bill.
With all due respect, government leader, we had Indigenous independent content producers come before this committee, and they unanimously said that life is great in Canada right now, unregulated, with these new platforms. They are exposing Canadian Indigenous culture around the world. I’m using their language where they said that they would be feeling a lot more secure if the government just got out of their way. That’s the language used by five Indigenous witnesses that Senator Klyne had arranged to come here before this committee.
Again, I think having an amendment that is going to guarantee some competition objectives is not a negative thing; it’s a positive thing.
Senator Wallin: Correct me if I’m wrong, Mr. Ripley, but I understood you to say in answer to this that it in no way restricts or limits existing operations.
Mr. Ripley: My answer was that this would have the impact of requiring the CRTC to balance these concepts that Senator Manning is proposing — market forces, competition — with the achievement of the other policy objectives, which are primarily cultural in nature.
Senator Wallin: Balancing. Yes, thank you.
The Chair: It is moved by the Honourable Senator Manning that Bill C-11 be amended on clause 5, page 11, at line 44 — may I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
The Chair: I think the nos have it. We will have a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Yes.
Mr. Labrosse: Yeas: 7 nays: 7.
[English]
The Chair: Accordingly, the motion is defeated.
Colleagues, shall clause 5, as amended, carry?
Some Hon. Senators: On division.
The Chair: On division. Clause 5 is carried on division.
So we are genuinely moving right along, colleagues.
Senator Simons on a complication?
Senator Simons: We are now moving to clause 7?
The Chair: I’m having a complication here too, so one second.
Senator Simons: We just voted on clause 5, and there is no clause 6.
Senator Omidvar: There is. The act is amended at the bottom of page 11.
Senator Simons: Sorry. I missed the 6. Pardon me. No, that’s still clause 5. This is all still clause 5.
The Chair: There are no amendments to clause 6. Shall clause 6 carry as is?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Now we come to clause 7, but I don’t have the amendments.
Senator Simons: We were told not to submit a written amendment but to speak to it to vote against it. My office was in touch with the clerk’s office.
The Chair: Yes, you can.
Senator Simons: This is complicated, but I’m acting on the advice of the legal clerk who said not to write the text for this amendment.
This is regarding clause 7, at the bottom of page 12, lines 28, 29, 30 and 31. You’ll recall that this clause is proposing a new subsection 7(7), which would give new powers to the Governor-in-Council and take away traditional powers from the CRTC as a quasi-judicial body.
We’ve heard a great deal of testimony about this from experts Monica Auer and Robert Armstrong, both former lawyers for the CRTC, who told us that this clause would give extraordinary new powers to the government to make political decisions about things. That was affirmed for us by Ian Scott, when he spoke to us as the chair of the CRTC; he also suggested that we remove this clause. Conversely, Mr. Ripley told us last week that he didn’t think there would be much effect in removing this clause.
I propose that we do not adopt 7(7).
An Hon. Senator: Yes.
Senator Simons: I think moments when we agree is why it’s -40 in Edmonton right now.
Senator Wallin: I think there’s a full moon.
The Chair: I wholeheartedly agree as well with Senator Simons. Senator Gold, maybe we’ll hit the trifecta and get everyone to agree.
Senator Gold: No, I’m afraid I’m going to disappoint you, chair.
I would like clarification from the officials. It is not clear to me at all that this adds new powers to the CRTC, despite what a witness may have said. It’s a “for greater certainty” clause only. I just wonder whether the officials would clear that up for us so we can make an informed decision on this matter.
Mr. Ripley: Certainly. This is indeed a “for greater certainty” clause. When I appeared before this committee with the minister, I explained that the origin of this clause was to articulate the subjects that could be dealt with through a policy direction by the Governor-in-Council to the CRTC. Because sections like 9.1 and the 11.1 regulations are new, this was simply meant to express that it’s appropriate for the Governor-in-Council to provide direction on matters falling under those regulatory powers. It was not in any way, shape or form intended to suggest that the Governor-in-Council could apply direction vis-à-vis a particular organization or a specific regulatory decision of the CRTC. That would indeed be undue interference in the CRTC and the CRTC’s decision making. That was the origin of the provision, again, acknowledging that there is a transition that’s proposed in Bill C-11 with essentially a greater reliance on the policy direction power to provide guidance to the CRTC in lieu of petitions to cabinet under section 28.
Senator Simons: I would just like to stress to Senator Gold, who was not with us for all of the hearings, that we heard I think half a dozen witnesses who flagged this as an issue, including, as I said, Monica Auer of Canada’s Forum on Research and Policy in Communications; from Ian Scott, the chair of the CRTC; and from various lawyers and academics who testified before us and who, in addition to testimony, have been writing about this.
This is a not-insignificant thing. I have spoken with academics, with broadcast lawyers, including Michael Geist, who have expressed to me grave concerns that this amendment gives heretofore-unknown powers to the CRTC and gives to the Governor-in-Council much more political influence over broadcast regulation.
The CRTC is an independent, quasi-judicial body. Its decisions are publicly adjudicated. I feel that it is important that we are very clear that we do not wish to politicize decisions that relate — because this is one of those clauses that, when I first read it, I did not understand its import. But because proposed subsection 7(7) speaks to “subsection 9.1(1) or 11.1(2) or regulations made under subsection 10(1) or 11.1(1),” it has a cascading effect all through the bill.
Having been cautioned before that I’ve been speaking too long, I’m now going to stop.
The Chair: Before I pass it over to Senator Wallin, I wholeheartedly agree with Senator Simons. We heard from many witnesses. This is not a partisan issue. We’ve created the CRTC to be arm’s length from government, regardless of political stripes. Clearly, this section is an overreach and, again, it’s consistent with Mr. Ripley’s response to Senator Gold. He’s been transparent and honest enough to tell us exactly the parameters and the power that this section gives to the ministry, the minister and cabinet. There should be a divide when it comes to our broadcasting regulation.
I know Senator Quinn and I would both have concerns with the fact that the government still hasn’t released the regulatory guidelines that accompany this bill. In addition to that, if we were to give this kind of authority and power to the cabinet, to the minister, I think it would be going down a slippery slope.
Senator Manning: Is there any particular reason why we’re not getting this amendment in writing? You mentioned earlier the advice you were given. I am just wondering why.
Senator Simons: Because that was the advice we got from the law clerk. If you’re just rejecting, all we have to do is vote no.
The Chair: We’re voting on a whole clause. Senator Simons is proposing to defeat clause 7, so, as a result —
Senator Manning: To take out section 7 altogether?
Senator Simons: No, I am just referring to rejecting the proposed subsection 7(7).
The Chair: Rejecting a clause does not require writing something because you would have a blank piece of paper.
Senator Wallin: I want to reinforce this because some of us went subsequent to the testimony that we heard repeatedly from those whom I think of as quite valid sources: former commissioners, commissioners, academics, lawyers who work in this field and have litigated and written extensively about it. The list is long. This wasn’t just a couple of people who didn’t want their online business interrupted. This was people for whom this is their livelihood, their profession, their study. I really do think the potential for this is most concerning and that the most effective way to deal with it is just to excise it. Thank you.
Senator Woo: To the extent that this clause is a “for greater certainty” clause, it presumably echoes something that’s been already mentioned earlier in section 7 of the act. Section 7 already says that the Governor-in-Council has quite extraordinary powers. Are you against that as well? I’ll read it to you, if it’s helpful.
Senator Simons: Yes.
Senator Woo: Section 7 of the act says:
Subject to subsection (2) and section 8, the Governor in Council may, by order, issue to the Commission directions of general application on broad policy matters with respect to
(a) … or
(b) …
And so on and so forth.
To the extent that this is simply reiterating what subsections 7.1(a) and (b) already say, are you also opposed to subsections 7.1(a) and (b)?
Senator Simons: No, because, for the very good point you just raised, it’s general application. This was the differentiation that the expert witnesses made before us, that that is about broad general principles. Thank you for allowing me to clarify this. The concern about 7.7 was, because it flows through all these other clauses, it would allow a specificity of direction that is not encompassed in the original language of the bill.
Senator Woo: Well, if I could just continue. It refers to 9.1, which is also general powers. That’s what you’re referring to in terms of the overreach on specificity?
Senator Simons: 9.1(1), 11.1(2) —
Senator Woo: Yes.
Senator Simons: — 10.1 and 11.1(1) —
Senator Woo: Yes, and 9.1 is described as general powers. You feel that the Governor-in Council should not have any say over those instructions?
Senator Simons: No, I’m not saying they should have no say. What I am saying is that we heard from a significant number of expert witnesses — not lobbyists, not people pushing a political agenda — including the commissioner of the CRTC, who presumably knows his onions, who said this section was problematic and it would be better off if it were to be removed.
Senator Woo: Thank you.
The Chair: Shall clause 7 carry, colleagues?
Some Hon. Senators: No.
The Chair: So it is carried? Clause 7 is defeated. The amendment carried; the clause is defeated.
Senator Gold: I was confused. Can you rephrase the question, please. Were you asking whether —
The Chair: I asked if clause 7 would carry.
Senator Gold: Please register “on division.”
The Chair: So it carries, on division.
Senator Gold: Thank you.
The Chair: It is defeated. The amendment carries on division. Clause 7 is defeated, on division.
Next up in the queue, we are looking at amending and doing clause-by-clause on Bill C-11, clause 8.1 and amendment 8.1-13-14. Senator Quinn, you have the floor.
Senator Quinn: I don’t want to take a lot of time. This morning we dealt with an amendment that I proposed, and I respect the results of that discussion and the vote of my colleagues, but I want to talk to it for a minute. What I proposed this morning was in the interests of Canadians having the ability to have a clear understanding of what we’re proposing in Bill C-11. It is a complicated act, and I think Canadians would like to have clarity and a safety net when it comes to the powers of the CRTC. Hence the amendment I proposed this morning, and it was suggested that what I proposed was not part of the parliamentary process. I want to clarify for my colleagues on this committee that, in fact, it is. It’s in the Interpretation Act, section 39. It clearly states what I was proposing is a valid parliamentary process. Just as I mentioned in June, for those of us involved in those discussions, I asked for the briefing binders and the clause-by-clause. There was some confusion about whether they exist. In fact, they do. We found out because we received them. The Interpretation Act is a valid act in the parliamentary process.
I reflected this afternoon on whether I should withdraw this amendment or not, and I thought, “No, I’m going to stick with this amendment to underscore the importance of what the Interpretation Act is meant to do,” and that is for acts that have complications in them, to allow the lawmakers — those of us in Parliament, and we all are members of Parliament, whether we are in the upper or lower chamber — the opportunity to see the decisions and directions of the CRTC, which are of concern to so many Canadians. Again, this evening we heard discussion about the CRTC’s role and what it may or may not do. I think it is important we have that check and balance in place on behalf of Canadians that allows parliamentarians to ensure that what is being proposed in a bill that becomes law is, in fact, able to be looked at by parliamentarians who enacted the law to see whether it is consistent with what was intended.
Therefore, I will put forward the amendment that I have here. I anticipate the result will be the same as this morning. Nevertheless, I felt compelled to put this forward as a valid piece of parliamentary process.
My motion is:
That Bill C-11 be amended on page 13 by adding the following after line 14:
“8.1 The Act is amended by adding the following after section 8:
8.1 (1) Despite subsection 7(1), the Governor in Council may issue to the Commission directions of general application respecting online undertakings only if those directions are
(a) made by orders subject to affirmative resolution of Parliament; and
(b) on broad policy matters described in paragraphs 7(1)(a) and (b).
(2) An order subject to affirmative resolution of Parliament and laid before each House of Parliament for that purpose is not subject to any tabling requirement under sections 7 and 8.”.
That’s my motion. I underscore the word “online.”
I also want to underscore, when you look at clause 8, please pay attention to proposed subsection 2 on the top of page 19 where the bill proposes a change to at least 30 days from the day on which the notice was published. That’s 30 calendar days, whereas in the existing bill it is 40 sitting days, which at least gives Parliament the opportunity to consider that which has been proposed.
That’s my motion.
Senator Dawson: I heard Senator Gold’s comments this morning, and I have been encouraging you to try to find a way to do this. That being said, I also told you that I didn’t understand how we would frame it.
Mr. Ripley, maybe you could give a comment on this amendment?
Mr. Ripley: Thank you, Senator Dawson.
Section 8 right now requires a couple of things before a policy direction can be made. Section 8 is clear that the minister must publish any proposed policy direction in the Canada Gazette and invite individuals and organizations to make representations on that, and that must be for a period of at least 30 days.
For those of you familiar with the Canada Gazette process, you know there is a decision to be made about how the government responds to Canada Gazette consultations, but in this case, the act is clear that the government must publish all the representations made to the minister received as part of that. That is, again, with a view to being completely transparent about the feedback that the government gets on the draft policy direction. Then the proposed direction must be laid before both Houses of Parliament.
If I understand what Senator Quinn is proposing, he is proposing that with respect to policy directions touching on online undertakings — so it is not all policy directions, but those touching on online undertakings — there would be an additional procedural step whereby, for that direction to be enacted, it would be conditional on an affirmative resolution of Parliament.
So before that policy direction moves forward — I’m assuming, Senator Quinn, and please correct me if I have misunderstood this — an affirmative resolution of Parliament from my perspective would include both houses. That essentially would give Parliament a veto, so to speak, on whether a policy direction could proceed or not.
Senator Quinn: That’s correct, Mr. Ripley.
One of the things I’m concerned about and that I don’t understand is why the current bill went to 30 days, which is 30 calendar days, versus 40 sitting days. It seems to take a step back from the parliamentary involvement in what heretofore had been Parliament’s role, so we are removing Parliament’s role. What I’m suggesting is, no, we shouldn’t remove Parliament’s role. But what we should do for online activity and regulatory matters is have that provision that allows Parliament — we are the lawmakers — to have the opportunity on behalf of Canadians to understand that what the CRTC is proposing is, in fact, consistent with the law. If we have doubt, we could have a short presentation to the committee so that they can say, “Yes, this is right or this is wrong,” and we respect that process. But it is a check and balance that we have heard from so many.
I have to underscore, today in particular, there have been so many discussions in this room about what the CRTC can do or cannot do or may do that I’m at a bit of a loss why we wouldn’t want that provision. But again, I respect the wisdom of my colleagues.
The Chair: If I understand correctly, your amendment is very much an oversight of what the CRTC would be presenting, but it would not be directing.
Senator Quinn: It is with respect to online streaming activities that are included in this bill.
Colleagues, we are taking a 31-year-old piece of legislation and trying to import today’s internet activity, streaming. There have been a lot of concerns raised not only by our witnesses but also through the discussions I have heard today and previously. Maybe I have misheard, but there is a lot of concern about what they may or may not do. All I’m suggesting is let’s give some certainty that we at least give both houses the ability to look at what is being proposed so there is greater clarity in that particular law.
Senator Manning: I support Senator Quinn’s amendment. Through the process of our meetings over the past number of months, we have certainly heard considerable concerns raised by witnesses about the scope and powers the government would grant itself under this bill, and there has been a concern about the politicalization of broadcasting. To ensure that we don’t go down that road, I think that Senator Quinn’s amendment certainly takes us in that direction. For all intents and purposes, it puts a modest check in place on the powers that this bill is giving, and it gives us an opportunity, as Senator Quinn just touched on, to create some checks and balances so we at least have the opportunity to address concerns that may be raised in the future.
There is no doubt that the world has changed a lot in the last 30 years in relation to the Broadcasting Act, and there is no doubt in my mind that it will continue to evolve and change. Therefore, we need to have checks and balances in place. We need to be able to question things from time to time. I think this amendment gives us the opportunity to do that, so I support the amendment.
Senator Wallin: I think Senator Quinn’s point is correct in that this is a radical change to the Broadcasting Act, trying to embrace this new creature called the internet in very old school broadcasting rules. In a very general sense, I think it is a good idea that legislators take a look at new stuff from time to time to see if it is actually working.
One of the other reasons it appeals to me is that we have heard throughout this process, and confirmed by the sitting chair of the CRTC, about the process of appealing decisions. There will be a lot of new people impacted by this legislation now that were not ever impacted before. It is all well and good for big major players that have teams of lawyers to appeal decisions, complain about decisions, have media campaigns, whatever. This is a way that people could have a voice through us, given their concerns about the depth and breadth of this and whether, in fact, it is working.
For that reason, I will support this. I do think it is our job to give voice to those who may not have one.
Senator Dawson: I am sorry, Senator Quinn, but as sponsor of the bill, I believe in the bill and I believe in the CRTC. I have always been a supporter of the CRTC. I don’t have any doubts, and I’ve made it clear since we’ve been here.
I will be opposing your amendment. I encouraged you to try to find a way, but opening it up to this bill and what it would mean to a whole bunch of other legislation if we had the same approach, having seen how quickly we act here, which is not very quickly — I want us to get involved as much as possible, and that’s why we are modernizing the bill, but not trying to have an additional obstacle in implementing the policy when it has already been two years in the making. I would strongly oppose your amendment.
The Chair: We are focused on quality over speed in the Senate, that’s for sure.
Senator Quinn: Thank you, Senator Dawson. I did try to desperately find that avenue we spoke of. I thought that using a current and valid parliamentary procedure would be a valid way to do that.
Again, the purpose of the amendment is limited to online activities that the CRTC will now be involved in. We have heard from a lot of Canadians. We all know that. We have also had a lot of discussion. If there’s one thing I would say in this room and for those who are listening, there is a lack of clarity with what the CRTC can do and cannot do.
At this stage of our evolution, I think we should put something in that is not overly burdensome. As we go forward, those who follow may say that we no longer need that particular item, but until we understand how that regulatory agency is going to function against this new world that we are taking into an old piece of legislation, we should take a precautionary measure so that we don’t end up in regulatory messes by having all kinds of legalities later on. I just put that to you.
[Translation]
Senator Miville-Dechêne: It seems to me we are ready to vote.
The Chair: Senator Quinn has the last word.
Senator Miville-Dechêne: Of course.
[English]
The Chair: It is moved by the Honourable Senator Quinn that Bill C-11 be amended in clause 8, page 13, line 14 — may I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the no side has it.
Senator Quinn: Recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: No.
Mr. Labrosse: Yeas: 5; nays: 9; abstentions: none.
[English]
The Chair: Accordingly, the amendment is defeated, colleagues.
We are moving along, colleagues. Shall clause 8, as amended — no, there is no amendment. Shall clause 8 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator Quinn: I think there needs to be an amendment in clause 8. You went so quickly that I didn’t have the opportunity. We were distracted.
The Chair: We are still in clause 8, so if you want to come back, we have done it throughout the process.
Senator Quinn: I’m going to come back to clause 8 in the bill, page 13, top of the page, lines 1 through 5.
The Chair: This is an amendment you are proposing now?
Senator Quinn: Yes.
The Chair: Could you clearly propose it so we can take note of it?
Senator Quinn: Yes. I think that lines 1 through 5 should be deleted from the bill. On page 13.
The Chair: Clause 1 through 5?
Senator Quinn: Lines 1 through 5. “The Minister shall,” right to line 5.
The Chair: Could you read that again, senator?
Senator Quinn: Page 13, lines 1 to 5 should be deleted. That results in it going at least back to the current act.
The Chair: So the deletion of lines 1 to 5.
Senator Quinn: Yes, lines 1 to 5. In other words — I think you said it earlier, chair — if you delete something, it would automatically revert back to the existing act.
The Chair: This is not the whole section. This is part of the section.
Senator Quinn: Part of the section.
The Chair: Again, it should be easy. He is talking about removing the lines. There is nothing to translate. This is a section of the section. It’s not quite the same, but this doesn’t require great law clerk intervention.
Senator Quinn: Essentially, I’m saying let’s eliminate 2(a), to be precise.
Senator Simons: Can Mr. Ripley tell us what the effect of that would be?
The Chair: Senator Quinn, you’re deleting a part, but you’re leaving Section 2(b), right? That would require a written amendment. You’re not deleting the actual section. You’re deleting part of the section.
Senator Quinn: Because (b) refers to (a), and if we go back to the original act — the 40 sitting days — perhaps it is (a) and (b).
What I am proposing is that we go back to the existing act that’s been in place for 31 years and seems to have served that purpose well and go away from the 30 calendar days. Because 30 calendar days takes place, for example, from mid-June to mid-September. That means that regulatory direction can come forward and be passed without any involvement of Parliament. The existing act says 40 sitting days.
The Chair: Senator Simons?
Senator Simons: I have a question for Mr. Ripley. What would be the impact of deleting this section?
Mr. Ripley: Thank you.
I stand to be corrected by the law clerk, but if Senator Quinn’s desire is to revert to section 8 as it currently stands in the act, it would be simply voting against the adoption of the clause, which would then defeat any amendments to section 8.
Senator Simons: What does the original language say?
Mr. Ripley: With the partial deletion, I would be concerned about unintended consequences, because the government’s changes to section 8 — Senator Quinn is accurate that the current mechanism is one that is heavily reliant on the policy direction being tabled before both houses. There is currently no real regulatory policy. Part of the changes the government is making to section 8 is actually, from our perspective, to modernize section 8 to make it more akin to a modern regulatory process where the proposal is published in the Canada Gazette and stakeholders have an opportunity to participate while still recognizing that both Houses of Parliament may have an interest in that policy direction, which is why it would still be required to be tabled.
Again, I certainly don’t want to speak for you, Senator Quinn, but if your objective is to simply keep the current section 8 as drafted, it would be just simply voting against adoption of clause 8.
The Chair: Before we go on with the debate here, let’s get this straight for the law clerks, Senator Quinn. You’re proposing that clause 8 be amended by deleting lines 2 to 5 in section 8, correct?
Senator Quinn: Yes, but when I read it again, section (b) may not even be required, if I’m not mistaken. I would ask for Mr. Ripley’s advice on that. That’s what you basically said. I would eliminate the section and that reverts it back to the current act.
The Chair: If that’s the case, it makes it a lot easier. We vote on the clause. Clause 8.
Senator Quinn: Right.
I want to make sure that colleagues are clear that it’s maintaining that which exists in the current law rather than what has been proposed in this bill.
The Chair: That is clear to me. Is it clear to colleagues?
Senator Plett: Clear as mud.
The Chair: Can we call question on that?
Senator Quinn: Question.
The Chair: Senator Dawson, are you okay?
Senator Dawson: I’m okay.
The Chair: So, colleagues, shall clause 8 carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: The nos have it. Then clause 8 does not carry.
Let’s be clear. The question here as proposed by Senator Quinn is that clause 8 doesn’t carry. So, shall clause 8 carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the yeses have it.
Senator Plett: Well, I don’t know if they did. Recorded vote.
The Chair: That’s what the chair heard. I will honour the call for —I thought I heard yeses, but I’m getting of a certain age, I guess.
[Translation]
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 Dawson?
Senator Dawson: Yes.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Yes.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: Yes.
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: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: No.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Yes.
Mr. Labrosse: Yeas: 9; nays: 5; abstentions: nil.
[English]
The Chair: Accordingly, the chair heard right and clause 8 is carried.
Colleagues, we’ll continue. Shall clause 9 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator Dawson, some people say we don’t move with quickness.
Senator Dawson: I’m congratulating you every hour today.
The Chair: Colleagues, we move on to clause 10 and DNP-C11-10-14-23. Senator Manning has the floor.
Senator Manning: I would like to move the following amendment:
That Bill C-11 be amended in clause 10, on page 14, by deleting lines 23 to 25.
Colleagues, I proposed this amendment because it is not appropriate, in my view, for the commission to delve into matters such as proportional programs to be broadcast that shall be devoted to specific genres. This strays into the micromanagement of programming policy and infringement on broadcast freedom.
In section 3(1) of the current Broadcasting Act, it is noted that the Canadian broadcasting system should:
(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,
(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,
It also currently notes in subparagraph (iii) that:
(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society …
However, the act does not attempt to delve into the proportion of programs to be broadcast that shall be devoted to specific genres. In a number of places in the bill, the government has strayed far from the appropriate lane for government. The fact that government and government agencies are in this role is both unnecessary and intrusive. In this internet age, people will have ways of watching what they want notwithstanding whatever rules are set by the government.
I therefore submit this amendment to the act. If appropriate, I therefore ask senators to support my amendment to delete the subclause in question. Thank you.
Senator Wallin: I certainly agree with that, but I want to hear from Mr. Ripley on the question of what was intended by “specific genres.”
Mr. Ripley: Thank you, Senator Wallin.
The origin of this, by my recollection, was to ensure that the CRTC was explicitly given the power with respect to certain genres of programming. The impetus for that was recognizing that right now, for example, they require a certain amount to be spent on what are called programs of national interest. That would include documentary, drama and kids’ programming. This was in recognition that there was a desire to ensure that the CRTC would have that same power in the online environment. Right now, programs of national interest are incorporated as conditions of licence for traditional broadcasters.
Senator Wallin: I don’t even know if that made sense then, but it’s more understandable in the broadcasting world where, in a 24-hour day, you have comedy, drama and news, but a lot of the material that we have online does not fit into legacy categories. Without some kind of definition on what that would mean in the online world, people are going to have to sit down and invent that and determine what the genres are in an online world. Without some understanding of that, this is, again, something that will go on behind closed doors and could come out meaning almost anything. It’s one of those things that doesn’t translate from the broadcasting world to the internet. That’s my concern.
Senator Plett: This is for Mr. Ripley. What discussion have officials had with broadcasting undertakings in relation to what is being proposed in 9.1(1)(d)?
Mr. Ripley: Thank you, Senator Plett.
Again, my recollection is the origin of this was an opposition amendment in the House committee. The concern was, again, primarily grounded in considerations around making sure that the CRTC does have those powers with respect to specific types of programming which are seen as quite culturally important.
To my recollection, broadcasting services have not engaged me directly in any way on this provision. Broadcasting services have generally sought a recognition that there is a diversity of business models now in broadcasting and that it’s important that the nature of broadcasting services be taken into account and that there be flexibility for the CRTC to look at contributions that match the nature of those services. That’s how I would characterize some of their principal concerns in the context of this bill.
Senator Plett: Has a legal analysis been done with respect to the varied authorities that will be granted to the commission to set broadcasting policy as proposed? Have any legal risks been identified in terms of potential interference with broadcast freedoms?
Mr. Ripley: Thank you, Senator Plett.
The starting point for the purposes of the bill is that it must be interpreted and applied in a manner consistent with the freedoms enjoyed by broadcasting undertakings. That’s already part of the Broadcasting Act and is set out in the interpretation section at the beginning.
As to your question, we have consistently analyzed the amendments to ensure that they are grounded in the constitutional authority given to the federal government. We have looked at them through the lens of our trade obligations and, of course, we have looked at them through the lens of the Charter and questions around freedom of expression and creative expression.
Senator Simons: I share Senator Wallin’s concern about attempting to tell online streaming services things about the genre. However, I’m worried that if we strip this language out, it would deny to the CRTC the power it’s had since 1968 to tell broadcasters who have traditional licences what they have to do in terms of genre.
Mr. Ripley, I’m very sympathetic to the issues raised by Senators Manning and Wallin, but if we take this out, would that deny to the CRTC their long-standing, 55-year powers to tell the CBC, CTV and various radio stations what genres they have to play and represent?
Mr. Ripley: Thank you, senator.
This regulatory power that is being proposed is a new one. The equivalent power in the current Broadcasting Act would essentially be section 10(1)(a) that talks about the proportion of time that should be devoted to the broadcasting of Canadian programs. The specific formulation here is a new addition. I do not believe it would impact the way in which current broadcasters are currently regulated.
It’s difficult for me to speak to the mover, but, based on the wording, it’s putting down a marker about the recognition that some genres are seen as important and ensuring that the CRTC has a degree of regulatory tools available to itself. This specific one is about proportion of programs to be broadcast.
Senator Simons: This is specifically for online, so taking this out —
Mr. Ripley: This isn’t specifically for online. Section 9.1, unless otherwise specified in specific regulatory heads of power, applies to all broadcast undertakings.
Senator Simons: When I asked you about taking it out, you said it wouldn’t have an impact on traditional license broadcasters.
Mr. Ripley: Correct, because right now the CRTC is requiring a certain investment, for example, in programs of national interest based on the existing regulatory powers at section 10. The current formulation of what is being proposed here isn’t in the act, so the CRTC is already relying on existing heads of power, so to speak, to do that.
Senator Simons: That’s very helpful.
The Chair: Question, colleagues?
Senator Simons: Question.
Senator Wallin: The flip side of that then, in your answer to Senator Simons, is that first, if it doesn’t impact traditional broadcasters, then, because this is new, it is only about online undertakings.
The question I asked earlier was about the language we are using, which is traditional and which is about old broadcasting undertakings, and can’t really apply in the new world. I’m not sure how you would say to Amazon or YouTube — let’s stick with YouTube — you must have “X” hours of Canadian cultural programming or programming to fit all genres, which, as I said earlier, you can do when you’re mandating a 24-hour day. You can do that to CBC and CTV because they only broadcast for 24 hours and you can control it, but the internet is infinite. It’s a little hard to make a proportional instruction about how much programming they must do proportionally on an infinite category or an infinite instrument. I don’t know how you would do that.
Mr. Ripley: Thank you, Senator Wallin.
I agree that the nature of the obligation would need to reflect the nature of the service. Subparagraph (d) does not apply exclusively to online undertakings. It is new. I agree it’s being inserted in a context where the discussion is heavily focused on online undertakings, but the powers of 9.1 apply broadly to all online undertakings unless otherwise specified. Again, our recollection is that subparagraph (c) and subparagraph (d) were moved at the same time. I think it’s a recognition that the mover wanted to emphasize the cultural policy objectives.
Senator Wallin: I get that general category. What I’m asking is about how it could apply. Just tell me how you would have a proportion of programs to be broadcast on YouTube that shall be devoted to specific genres in order to ensure diversity. How would you do that in an infinite world?
Mr. Ripley: Just to be clear, subparagraph (d) could not be used with respect to YouTube because of subparagraph 6, which is clear that paragraphs 1(a) through (d) cannot be used with respect to programs over which there is not programming control, and social media services do not have programming control. I want to be clear on that.
There are, Senator Wallin, certain types of online services nonetheless, such as FAST Channels, for example, that have programming that is non-stop and linear in nature where there still may be a question of whether these kinds of powers should be used in that context. I also think of, in the music context, playlists, for example. These are some of the contexts where it may be relevant.
Senator Manning: I have a follow-up. I understand the reason for the provision in the act to ensure diversity of programming, but I think if we remember, a brief was filed with us by the Digital Media Association that referenced the fact that many platforms are already doing this without government interference at the present time. Their brief referenced a few examples of the impact of the diverse investments already being made, including Amazon Music partnering with Canadian artists across all stages of their careers and investing in on- and off-platform support for the most popular Canadian artists today by helping customers discover the next generation of Canadian superstars. It was also noted in that brief that Amazon Music regularly delivers Canadian customers content that celebrates the diverse artistry of this country, with playlists and programs focused on supporting Indigenous, BIPOC and LGBTQ+ creators across Canada in both languages. It’s already being done, I guess. I want to make sure that it drives home the reason for the amendment.
The Chair: Question. It is moved by the Honourable Senator Manning that Bill C-11 be amended on clause 10, page 14 at line 23 — may I dispense? Is it your pleasure honourable senators to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I think the agreed side has it. I heard the agreed side. I heard more agreed and fewer nos.
An Hon. Senator: Recorded vote.
The Chair: Okay.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Yes.
Mr. Labrosse: Yeas: 8; nays: 6; abstentions: nil.
[English]
The Chair: The chair heard it right again. The amendment is carried. I thought I heard a lot of yes.
Colleagues, we are at C11-10-14-26. Senator Manning, you have the floor.
Senator Manning: Thank you. Once again, I would like to move:
That Bill C-11 be amended in clause 10, on page 14, by deleting lines 26 to 30.
Colleagues, the issue I have with this clause is the term “programming services.” The government has now stated on multiple occasions, even though it’s not a defined term under the Broadcasting Act, that the term “programming services” in Bill C-11 and its previous version Bill C-10 refers to apps.
This is another instance in which the government’s attempt at regulation of online broadcasters, such as Crave, Netflix and Amazon, to ensure they invest more in Canadian content has given way to heavy-handed regulation about individual users and small entrepreneurs and creators. We heard from many during the testimony over the past number of months. Home workout, cooking, gaming and other assorted apps should not be regulated for discoverability. That’s what we heard from our witnesses, many before us, and is certainly is a major concern that was levelled to us as committee members. Therefore, I move this amendment to address that concern that was raised with us on several occasions.
Senator Gold: I simply want to register the government’s opposition to this, especially since it would remove the concept of discoverability of Canadian programs and programming services. Again, this defeats a major purpose of this bill, which is to make Canadian content discoverable in any number of ways, beyond algorithms, I hasten to say. This is an important feature for many minority communities that are looking at the modernization of the act. The government opposes it for that reason.
The Chair: Given there is nobody else on debate, I will call the question. It is moved by the Honourable Senator Manning that Bill C-11 be amended clause 10, page 14, at line 26.
An Hon. Senator: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: I think the no side has it.
An Hon. Senator: Recorded vote.
The Chair: Recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: No.
Mr. Labrosse: Yeas: 5; nays: 9; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated.
Colleagues, we move on to clause 10 and amendment 10-14-27.
Senator Manning: I’d like to move:
That Bill C-11 be amended in clause 10, on page 14, by replacing lines 27 to 30 with the following:
“services for selection by the public;”.
An Hon. Senator: Question.
Senator Manning: No, hold on now.
The Chair: On debate? We might as well hear out Senator —
Senator Manning: Colleagues, the previous issue isn’t the only concern I have with this particular section.
This amendment proposes to limit the application of clause 9.1(1)(e) as it applies to discoverability and algorithm manipulation. As amended, the clause will put citizens in the driver’s seat when it comes to selecting the types of programs that they wish to watch. We know that most will often choose Canadian content, but they will be making the choice themselves. By proceeding in that way, we will not be putting creators at risk.
I reiterate a point that has already been made many times by witnesses who have appeared before our committee, that this bill contains no definition of “discoverability,” despite many references to the term in the bill. This leaves the matter wide open for regulation, and when it comes to potential algorithm manipulation, the CRTC chair has been very clear in saying that we don’t want to manipulate the algorithms. The commission will set the policies so that the platform can do it.
The committee has clearly heard from witnesses that the use of active discoverability — “active” meaning forced upon users, instead of “passive,” which means the use of a search function or a menu option by the consumer — poses significant problems for Canadian creators, in particular digital creators who produce user-generated content. On the other hand, we have also heard from witnesses that a potentially expansive use of the term “discoverability” is unnecessary for consumers who are seeking Canadian content since it is hardly difficult for those who wish to do it on the internet to do so. The CRTC commissioner himself argued this point with one breath and then still claimed that the commission needs the tool of active discoverability.
It is clear that active discoverability is a very serious problem for Canadian creators, and I’ll give you some examples.
When Scott Benzie, Managing Director of Digital First Canada spoke to our committee, he said:
Section 9.1 needs to be clear that dynamic changes to algorithms are off the table, because messing with them is messing with Canadians’ businesses and access to their audiences.
Justin Tomchuk, an independent filmmaker, told the committee on September 27, 2022:
If Bill C-11 disrupts the discoverability of Canadian creators globally, I can see a scenario where some companies with few physical ties will leave the country entirely so they can continue to work unimpeded by these aggressive mandates.
Colleagues, these are not idle threats, and they are not the types of potential consequences serious parliamentarians should ignore. We need to be cognizant of what representatives of platforms themselves have told our committee.
Jeanette Patell, Head of Canada Government Affairs and Public Policy at YouTube told our committee:
Proposed section 9.1(1)(e) explicitly gives a government regulator authority over what content is prioritized and how and where content is presented to Canadians, handing the CRTC the power to decide who wins and who loses.
We believe that this would actually backfire for the very creators that it attempts to support. Building and growing an audience today is about connecting with the most fans who will love your content, whether they are in Canada or around the world.
. . . Overpromoting content to audiences because of where they live rather than because of what they are interested in leads to audiences tuning out, and those signals train our systems to demote that content for global users. Doing so would strike at the heart of Canadian creators’ success and their bottom lines.
These unintended consequences are not what the government had in mind with Bill C-11. The minister has said that the content of online creators should not be subject to the act, and the algorithms are not in play. However, it’s clear that the regulator, who will interpret and apply this act, sees considerably more authority granted in the legal text than the minister intends.
I certainly hope the senators around the table actually hear and listen to what so many witnesses have clearly told us over the last couple of months. They are very concerned, and that’s why I bring forward this amendment. I urge senators to provide their support.
Senator Wallin: I hesitate to do this at 8:35 p.m. I would like to propose a subamendment. It would read in the following way, on the existing one, which, I guess, we can’t see here on this page. I will just read it:
The presentation and promotion of programs and programming services for selection by the public.
After the word “presentation,” I am adding the words “and promotion.” I don’t think we need to print that out. I think it is simple enough.
The Chair: Can you repeat it again?
Senator Wallin: Under the new amendment by Senator Manning, which ends with (e) at the word “public,” he just takes the first two lines and ends it at “public.” I would then propose adding after the second word, the “presentation” right at the beginning of (e), the words “and promotion,” and then it carries on, “of programs and programming services for selection by the public.”
Senator Klyne: So you want to keep line 27, then?
Senator Wallin: Well, it would end at “public.” Yes. All I’m adding is two words, “and promotion.”
The Chair: Senator, as the clerk huddles to prepare this, on debate — go ahead.
Senator Wallin: Well, the reason I’m doing it is because, as the government leader has said on a million occasions at the very least, the whole point of this is to make it discoverable. As we have heard on dozens of occasions from people, including the CRTC commissioner and others, these things can be accomplished not always by manipulating algorithms but through promotion and advertising and all of those things. I’m trying to find a middle ground between taking it all out and putting in some responsibility to promote, thereby making the content more discoverable, trying to find that middle ground between the two views of the world.
The Chair: Senator Wallin, you have hit the nail on the head in terms of some of the concerns, again, that we have heard from so many witnesses and from so many digital creators. We had an ongoing debate about user-generated content — if it is in or if it is out. The government says it is going to be the platforms, not the content providers, but, of course, algorithm manipulation. The general sense that I got from the study here, as someone who is a new arrival to technology, is that you can’t create an outcome using the digital platforms without manipulating algorithms. We heard from the CRTC chair who said they will not manipulate algorithms in order to define content, manipulate content or control the content of digital creators, but they can get the platforms to do it. Again, I have been arguing non-stop that it’s the same thing. Platform creators don’t exist without the digital content providers.
We are told — and I keep repeating this — that we’ll reserve to do tomorrow what we promised not to do today. Again, it is the concern they have, and that’s why amendments of this nature when it comes to discoverability and having some kind of parameters are vitally important. We heard from many witnesses that there are other ways to control discoverability besides manipulating algorithms. I’m still not convinced, and I don’t know exactly —
Senator Wallin: No, but they do argue. The chair of the CRTC at his last appearance here argued vociferously that promotion would be as good a substitute for algorithmic manipulation. This is a chance to see if that works.
The Chair: My question to the government leader or the sponsor of the bill — because we keep hearing over and over that that’s not the objective of the bill — would the government be amenable to an amendment or a subamendment like we have here before us?
Senator Gold: The government is not supportive of this subamendment because despite the efforts to define it — thank you, Senator Wallin, for that — it still does effectively remove discoverability, at least as understood in the whole structure of the bill. Thank you for the question, but no, we will not be voting in support of the subamendment.
Senator Wallin: That’s what the argument was — that promotion would lead to discoverability and that you don’t have to manipulate algorithms. If you promote it, they will find it.
The Chair: Colleagues, go ahead while we wait for the amendment.
Senator Plett: First, I would be happy to support Senator Wallin’s amendment.
My question is really related to the main one together with the subamendment. To Mr. Ripley, to what extent has the government considered the economic impact should creators decide to opt out of Canada? Some of the witnesses, like Mr. Tomchuk, expressed their concern about this at committee. To what extent was that risk considered as the bill was being drafted?
Mr. Ripley: Thank you, Senator Plett. This relates to the point we were discussing earlier that there are — I would characterize them as two distinct concerns that have been expressed.
One concern is this: Is there a risk that an individual social media creator be considered a broadcast undertaking and suddenly be subject to obligations? On that point, I again want to be very clear that risk does not exist because the bill is very clear that an individual social media creator will not be considered a broadcast undertaking.
The second concern relates to social media creators who carry out their business activities on social media services and rely on those services for the distribution of their content. They are concerned about obligations that social media services may have with respect to the commercial content, again, as defined in relation to the factors in this bill — indirect effects on their business models.
Those are two distinct concerns, in my opinion. They are important concerns that have been expressed, but on the question of relocation, it relates to the former about whether they are going to be subject to some sort of regulatory obligation in Canada and they would therefore need to relocate to another country to avoid it. There is no question of a regulatory obligation being placed on them as a businessperson.
The Chair: As a follow up to that, all these platforms already have very rigid auditing internal guidelines when it comes to their discoverability. If the CRTC potentially goes too far in asking them to manipulate their algorithms in ways that their guidelines do not allow or that they don’t find acceptable, has the department and government considered the risk of some of these huge platforms pulling out? I’m not talking about the content creators but the platform themselves saying that they are not interested in working in an environment where they are asked to manipulate outcomes, which would be the first jurisdiction in the world.
Mr. Ripley: Thank you for that question, chair.
There are a few points I will make. One observation is a reminder to the committee that the subparagraph in question is not explicitly only about social media services, so a reminder that discoverability in showcasing power is a power the CRTC has vis-à-vis all broadcast undertakings. I say that because those broadcasting undertakings — those streaming services — all look different. While we have focused heavily on social media services — and YouTube is often used as an example — discoverability on YouTube is highly algorithmically dependent. YouTube’s business model is about figuring out content that folks want to watch and using algorithms to drive us to the content they think we want to watch.
I would make the point that that business model is not the same for every streaming service. In fact, I would characterize other streaming services as having hybrid models, where, yes, they look at our consumption habits and seek to make sense of that, but they are also making programming decisions about what content to promote and push to their audiences. How that power is used, and if it is used, I would argue, is going to be highly dependent on the nature of the service to which it applies. It will not be used in the same way.
So it is quite possible that how it is used vis-à-vis a service like YouTube, which is highly dependent upon algorithms, might look very different than where it is used on a service like Netflix or Crave where there are certain decisions already being made behind the scenes. At a programming level, there are human curatorial and editorial decisions being made about what content to promote to audiences.
I make that point, chair, simply to remind the committee that the power is structured in a way where it is flexible enough for the CRTC to use in a variety of circumstances, acknowledging that its use will look different in different circumstances.
The government does not believe that it should be used in a way where it is prescriptively used to tell a service how to modify its algorithm. We have had the discussion on that point. At the same time, I recognize that it can be used in a way that, right now, as drafted, could require the dynamic promotion — to use the terminology that has been used here tonight — of Canadian programming.
Senator Wallin: Those concerns are very interesting and even concerning on some issues.
I just want to come back to whether “presentation and promotion” captures the general sentiment of this clause, number 8.
Mr. Ripley: Thank you, Senator Wallin.
My observation is that the clause as currently drafted reads, “the presentation of programs and programming services for selection by the public, including the showcasing and discoverability . . .” The structure of the clause suggests that showcasing and discoverability are part of the concept of presentation. That’s how the clause is currently drafted.
Your proposed subamendment builds on the concept of presentation — which is how we see content, how content is presented to us — to highlight the fact that that can also include what I would characterize as off-service promotion or marketing, or even on-service promotion and marketing. But the concept of promotion speaks to the concepts that you highlighted, yes.
Senator Quinn: A question for Mr. Ripley: The subamendment that is proposed includes dropping the lines “including the showcasing and the discoverability of Canadian programs and programming services, such as original French language programs.”
Of course, that’s a subset of 9.1(1), which refers back to 3(1). What does the differentiation that those words that are being proposed be dropped emphasize or add to 3(1), and in particular, 3(1)(a.1), which says that it refers to the entire section 3? What specifically does that do to add value?
Mr. Ripley: Thank you, Senator Quinn.
The structure of the act is that Parliament sets out the policy objectives at the front end of the act, and then the sections that we are in now are the specific tools that the CRTC has to give effect to those. When you have policy objectives at the front end that speak to the promotion of Canadian programs, of French language programs, of different types of services, this is one regulatory power that the CRTC would have to give effect to those policy objectives. Those policy objectives are supposed to be the policy orientation of how the CRTC uses these tools.
The specific clause that is being proposed to be deleted gives a flavour of how the government intended the concept of presentation to be understood, specifically that the concept would include discoverability and showcasing of programs.
Senator Quinn: Just a follow-up, if I may. Thank you for that, but I would think that if you read 3(1), all of those concepts are involved in there. The new concept is not defined. I understand what you are trying to do with respect to discoverability, but section 3(1) seems to cover all of these things that you’ve just referred to.
Again, the amendment is proposing to remove words that one could argue are covered up in the earlier section of the act, in section 3, with the exception of the word “discoverability,” which we’ve agreed does need to have a definition. I’m not sure what the harm is with the amendment.
The Chair: Question?
Hon. Senators: Question.
The Chair: This is the subamendment of Senator Wallin. It is moved by the Honourable Senator Wallin:
That the motion in amendment be replaced by the following:
That Bill C-11 be amended in clause 10, on page 14, by replacing lines 26 to 30 with the following:
“(e) the presentation and promotion of programs and programming services for selection by the public;”.
Shall the subamendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: I think the nos have it.
An Hon. Senator: On division.
The Chair: The subamendment is defeated on division.
Shall the motion in amendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: I think the “nays” have it. They would like a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: No.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: No.
Mr. Labrosse: Yeas: 5; nays: 9; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated, colleagues.
Colleagues, the next amendment is 10-14-42, and that is Senator Simons.
Senator Simons: I will begin the presentation of this amendment. I move:
That Bill C-11 be amended in clause 10, on page 14, by replacing line 42 with the following:
“tion undertaking or an online undertaking that provides the programming services of other broadcasting undertakings to carry, on the terms and conditions”.
And then the clause continues.
Now, to translate that — not into English or French but into language we can understand — this amendment comes out of our consultations with the Independent Broadcast Group. These include the 9(1)(h) mandatory carriage public interest broadcasters, including Aboriginal Peoples Television Network, or APTN; OUTtv, Telelatino Network, TV5, CPAC and all the other public interest broadcasters who currently have mandatory carriage on cable.
You will recall that their concern is that, as traditional broadcasters and cable operators move away from traditional broadcasting models and towards doing their own work online, they would lose the privilege they have with mandatory carriage. The Canadian government decided a long time ago that these not-for-profit services — I guess maybe some of them are profit driven, but that these public interest services were important not just to the national culture but to national safety in the case of The Weather Channel, to understanding our democracy in the case of CPAC, and important to reconciliation in the case of APTN.
This language in this amendment comes in part from Brad Danks of OUTtv and in part from Joel Fortune, who is acting for CPAC and others. The intention is to make sure, as broadcasters wind down their cable operations and move online, that the mandatory carriage channels aren’t left behind due to a technicality.
There is a part 2 of this amendment coming up in a minute.
The Chair: Senator, if I understand the amendment correctly, you are empowering the CRTC with more powers to regulate local broadcasters; correct?
Senator Simons: No. It is already part of the CRTC’s mandate. They have already established that there is mandatory carriage. If you get your cable from Shaw, Rogers, Bell or whomever, they must include these services. The government made a decision at some point that it was important for Canadians to see CPAC. I’m sure that for all the thousands of you watching us on CPAC, you will understand the importance of this. It has given services like APTN, which has blossomed into an extraordinary broadcasting powerhouse, an opportunity to reach audiences. The CRTC figured — and I think correctly — that if you asked people, “Do you want to buy this service?” they might say no. By making it mandatory carriage, they ensured that public interest services were seen —
The Chair: In a nutshell, if more viewers want to watch this Senate hearing on ParlVu instead of CPAC, CRTC will tell the partners of CPAC they still have to carry this free service; correct?
Senator Simons: Well, CPAC wants to carry the free service.
The Chair: Right. That’s what they get paid for.
Senator Simons: Over the course of these hearings, I think it’s come through to all of us that, in time, there will be very few conventional broadcasters broadcasting via cable or a traditional signal. There is going to be a move towards putting everything online. What all of these mandatory carriage channels have told us is that they don’t want to get left behind. They don’t want to be in a world where streaming — as everything becomes over the top, they don’t want to be left on the bottom.
The Chair: Well, this is a very interesting amendment.
Senator Simons: You can sleep on it.
The Chair: We’re a minute past nine o’clock. Colleagues, we will carry on tomorrow. We have, as you all know, two sessions tomorrow, one in the afternoon and one in the evening. We will continue this debate. Thank you, colleagues.
(The committee adjourned.)