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THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS

EVIDENCE

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OTTAWA, Wednesday, December 7, 2022

The Standing Senate Committee on Transport and Communications met with videoconference this day at 6:47 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.

[English]

The Chair: Honourable colleagues, we are meeting a second time today to continue our clause-by-clause examination of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. When we adjourned earlier, if I recall correctly, Senator Manning had presented or was in the process of finishing up his amendment proposal. Maybe give us a quick refresher, Senator Manning, and we can carry on.

Senator Manning: In this amendment, I move:

That Bill C-11 be amended in clause 14, on page 22, by replacing lines 14 to 17 with the following:

“(5) Regulations and orders made under this section

(a) may provide that an expenditure is to be paid to any person or organization, other than the Commission, or into any fund, other than a fund administered by the Commission; and

(b) must ensure that all amounts received from online undertakings are paid to creators whose content is distributed by those undertakings.”.

I’m not very good at doing things very quickly, so I’m just going to summarize as best I can. The primary declared purpose of the bill is to ensure that online platforms pay their fair share into the Canadian broadcast system. If you play, you should pay, is what we have been told, and that the benefits from those payments go to the people who create the content and to ensure they have access to the content they have created, and that the small players across the country, the creative entrepreneurs who are delivering the platforms to us, get reimbursed and remunerated for their creations.

The people we’re talking about are mostly small players. Several of them appeared before our committee over the past several months and have stressed to us that many operate in their own silo and are not in a position to hire lobbyists to fight for them or get into the corridors of power to try to change decisions or change mindsets. Therefore, they came to us as a Senate committee. Hopefully, we can amend Bill C-11 with what I have put forward and that those who have created the content receive the remuneration that they deserve. Thank you.

The Chair: Thank you, Senator Manning.

Senator Simons: I appreciate the intention of Senator Manning’s amendment, but I think he has made a drafting error. The way this is written, it encompasses all online undertakings. This language would mean that Netflix, for example, if it paid into the Canada Media Fund, would get all the money back for more Netflix shows.

Similarly, if Disney paid into the Canada Media Fund, all the money would have to go back to Disney creators. There’s nothing in this amendment that speaks to social media or digital-first small creators. It encompasses all online undertakings. Since most online undertakings in this space are big, multinational media giants, this would completely eviscerate the point of getting them to support Canadian production because, as written, all of their contributions could only be used for their own creators. I’m sure that wasn’t Senator Manning’s intent, but that is what the amendment says.

Senator Wallin: If you’re referring to section (b) — “must ensure that all amounts received from online undertakings are paid to creators whose content is distributed by those undertakings” — it doesn’t say it has to go directly back to the payer.

Senator Simons: But it has to go to their creators to “. . . ensure that all amounts received from online undertakings are paid to creators whose content is distributed by those undertakings.” So all the money would have to go from Netflix to Netflix producers.

Senator Wallin: Yes, but a lot of those producers are not employees, they’re independent producers.

Senator Simons: But you understand what I mean. The way the bill was envisioned, these big, multinational media conglomerates were to be asked to support Canadian production. If we are saying that the money can only be recycled back to their own creators, I think that would actually be prejudicial. What people like the digital creators want is access to the Canada Media Fund. This would cut them off from potentially getting that future access.

Senator Wallin: One of the other concerns was the money collected from the big players would be funnelled back to the CBC or to Rogers, and that’s not a great outcome either, right?

Senator Simons: The point of it is for it to go to independent Canadian producers. This would imply —

Senator Wallin: It says, “to creators.” I just don’t have the concern that this somehow goes back into Netflix’s bank account.

Senator Simons: Not to their bank account but only to Netflix programming. If you think about Spotify, it is an online undertaking, so this says, “all amounts received from Spotify would be paid to creators whose content is distributed by Spotify.” It just recycles and completely cuts out the small digital creators that I believe Senator Manning was seeking to help. I shall shush now.

Senator Wallin: I’m just not sure it restricts in that way. It says “paid to creators.” They may create for Netflix; they may have a YouTube channel. People aren’t one-trick ponies.

The Chair: I would like to weigh in on this. I totally agree with Senator Simons, and I totally agree with Senator Manning. There’s always a logical explanation behind my madness, Senator Manning.

As Senator Wallin pointed out, I believe the objective of the amendment by Senator Manning is to create an equal playing field. Obviously, his amendment talks about all online undertakings. But at the end of the day, I think the objective he has — and I agree with it wholeheartedly — is no Canadian entities that operate in this country that generate taxes for our treasury should be excluded from the Canada Media Fund or any other funding that the government puts forward. At the end of the day, that’s just called fairness in business.

We’ve seen over the last couple of decades how online platform streamers and independent content producers are the driving force of arts and culture in this country. We’ve seen it with our study, and again, I reinforce the point: The whole objective of this Broadcasting Act is to bring the explosion of online platforms in line with traditional broadcasters because traditional broadcasters are having a hard time, which is fine. I don’t think I’ve heard anybody say that everyone shouldn’t pay their fair share. I think I heard that from Senator Manning. But if you’re paying into something, you have to have the right to play as well and have access to Canadian media funding and all the rest of it.

Where I also agree with Senator Simons is that social media services as well have a distinction. Your point is very well taken. You’re both talking about two different things that I believe could be married, of course, if somebody so chose to marry them. But I’ll tell you that if I wasn’t the chair, I’d resolve the issue.

Senator Wallin: Well, before proposing an amendment, I’m just going to say, the simplest one — and I’m sure Senator Simons will weigh in — is to take out the word “those.”

Senator Manning: I may have a better one.

Senator Simons: I don’t think that solves the problem.

Senator Manning: If we were to take out, in (b), “online undertakings” and replace that with “social media services” —

The Chair: That actually marries both points. Senator Simons, it marries your point and it marries his point.

Senator Simons: I think it’s closer to what Senator Manning intended. I’m not sure it works for me, but I think it would get him closer to his original intention.

The Chair: Do you move that subamendment?

Senator Manning: I’d like to advise Senator Wallin that I’d like to take away “online undertakings” and replace it with “social media services.” The rest of it stays the same.

The Chair: Repeat that one more time.

Senator Manning: Replace “online undertakings” in (b) with “social media services.”

Senator Wallin: So it would read, “. . . all amounts received from social media services are paid to creators whose content is distributed by . . . .”

Senator Gold: Thank you, chair. I’m quite confused now. I’m ultimately going to ask Mr. Ripley to try to help us understand exactly how this fits into the actual bill that we have before us, because it’s part of a section which seems to be limited to — I have a series of questions that would be helpful.

One, it seems to be limited to regulations for broadcast undertakings, so I don’t understand how this amendment or subamendment fits in exactly.

More substantively, am I right to worry that this would, in fact, not necessarily help emerging creators but might limit the ability of the CRTC to support them? I’m just not clear: How do funds come into the system from the broadcasters, and how then do they get distributed or looped back? In practical terms, is this workable? Does it advance the objectives of the act, or does it compromise the ability to actually assist online creators or content creators? I could use some help understanding it. Thank you.

Thomas Owen Ripley, Associate Assistant Deputy Minister, Canadian Heritage: Thank you, Senator Gold. First, to the original amendment, to some extent, there are three purposes listed at section 11.1 that expenditures can be used for. You have paragraphs (a), (b) and (c), and that includes developing, producing and promoting programs, it includes supporting and training Canadian creators and it also includes public participation.

The reason I say that is its intention to a certain extent is because, for example, under paragraph (c), expenditures can be made to support the public participation of interest groups before the commission, and that would not be, for example, funding being returned to creators.

To the subamendment, my observation on this for the committee is it would be, to some extent, intentioned with other decisions that the government and the committee have made about the exclusion of social media creators and their content from the ambit of the act. As the act is drafted right now, social media services would be included to the extent that they are distributing — again, to use the shorthand — commercial content. Their expenditures, if they are asked to make expenditures, would be based on the revenue they earn from the commercial content that’s included under the act. They will not be paying into the system based on the revenues earned from social media creators’ content.

So the effect of Senator Manning’s amendment in that instance would be to say if they are asked to pay expenditures based and the commercial content, those revenues, rather than be reinvested in things like FACTOR or MusicAction or whatnot would instead be earmarked for a broader group of creators, which would include those. But I think, based on the wording that Senator Manning’s subamendment has included, given the use of the term “creator,” it would also include social media creators, from my perspective, so it would go to a larger beneficiary.

Senator Gold: I have a supplementary question on that. Could you help explain, in practical terms, how that would actually be done? How would the system manage to get it back to the individual musician or other content creator? Is it a workable amendment in practical terms?

Mr. Ripley: The way it works in practice is that the CRTC oversees the payment of certain funds into production funds, for example. So on the audiovisual side, that would include the Canada Media Fund as well as other certified independent production funds, like the Shaw Rocket Fund, or others.

On the music side, it’s paid principally into two funds, FACTOR and MusicAction. If Senator Manning’s amendment and the subamendment proposed by Senator Wallin were to pass, the CRTC would essentially have to place restrictions on how those funds could be used to respect this condition. Again, the original amendment from the government’s perspective would be a little bit intentioned with the three purposes set out in section 11.1.

Senator Gold: Would that, therefore, require the CRTC to direct broadcast undertakings to tell them exactly how they should either identify the creators or the amounts of their revenue that was generated by creator X, Y and Z and direct them to provide that information, and, therefore, funnel the money to those individual creators?

Mr. Ripley: Yes, the CRTC or the recipient organizations would have to work through information-sharing arrangements to that effect. I think it’s fair to say that, yes, it raises program design considerations that would need to be worked through.

The Chair: If I could help clarify the confusion, government leader, it’s pretty simple. I believe the objective of both the amendment and the subamendment is clear. Mr. Ripley, please weigh in on my characterization if it doesn’t make sense. Any money collected off the backs of digital creators will go back to digital creators. The way I see it, it’s the equivalent of collecting revenue off NHL hockey teams and making sure that revenue goes to NHL players instead of field hockey players. Can it be any clearer than that?

Mr. Ripley: What I sought to clarify with Senator Gold, chair, is that given the exclusion of social media creators and their content on social media platforms, any monies paid into the system by social media platforms will not include revenues earned by those platforms off of the content of social media creators. The contributions of social media services would only be based on the commercial content — again, to use the shorthand — that is found on their services. The policy decision that has been made is to scope out social media creators and their content from the framework that provides for how services are to contribute to the system.

The Chair: Mr. Ripley, on digital platforms, where does the revenue come from? Where is the revenue based?

Actually, I’ll ask another question: Do digital platforms create anything? I’ve been in this study for a number of months now, and we all agree that those digital platforms are empty skeletons that get filled up by digital content providers. They are the creators of the content and the revenue. Without them, I can’t see any of these platforms being able to pay you anything because they don’t exist without them.

Mr. Ripley: Thank you, chair. Content on a platform like YouTube comprises content that is created by social media creators — the organic creators, as YouTube might call them. Again, what we have heard from YouTube is that content comprises about 50% of YouTube watch time. YouTube is earning advertising revenue off of that and has arrangements in place to share a revenue split with those creators.

The other 50% of watch time on YouTube is commercial content, sound recordings and art tracks that have been uploaded by record labels. It’s other content that has been placed there by broadcasters. On that content too, YouTube is earning advertising revenues and has revenue splits in place.

Again, in light of sections 4.1 and 4.2, the contribution that YouTube would make would be based on the revenue that they earn from commercial content that’s within the scope of the act. It would not include revenue that they earned from content that’s not within scope.

Senator Wallin: Why is this approach suddenly so much more restrictive for the CRTC in terms of the disbursement of funds than the existing funds? How does this change that, like the media fund or whatever you want to choose?

Mr. Ripley: The original amendment is narrower in scope in that it provides for a narrower scope of beneficiaries than sections 11.1(1)(a), (b) and (c), which recognizes that, yes, creators are included amongst those beneficiaries. Again, that section talks about supporting producers and it talks about supporting and training creators. So yes, creators are one of the beneficiaries, but they’re not the exclusive beneficiary of financial contributions to the system as currently proposed by the act.

Senator Wallin: I’m still not clear on why you think this would constrict the access of creators to publicly collected funds under the auspices of the CRTC.

Mr. Ripley: Thank you, Senator Wallin. For example, section 11.1(1)(c) is about supporting the participation of individuals in CRTC proceedings, so that would be covering costs. That would be supporting funds like the Broadcasting Participation Fund, for example. The entities funded by that can be a broader group of individuals or organizations other than just creators.

Senator Wallin: Like who?

Mr. Ripley: It can include civil society groups. It can include some of the stakeholders that you have heard from who are interested in making sure the CRTC takes into account public interest considerations. The folks that participate in CRTC proceedings are not uniquely and solely creators.

Senator Wallin: So the funds are there to support an NGO that might support some cause or issue?

Mr. Ripley: For example, you have groups like the Public Interest Advocacy Centre that participate in CRTC proceedings to make sure that the CRTC is aware of broader considerations.

Senator Wallin: And they’re funded out of this, and you’re saying this would be restricted to content creators who actually create content?

Mr. Ripley: As it was tabled, all amounts must be paid to creators.

The Chair: Mr. Ripley, section 11.1 contains no limitations and allows the CRTC to set any expenditure requirements using any criteria that they like. Is that accurate?

Mr. Ripley: Thank you for the question. The government wanted to make sure that the CRTC would impose expenditure requirements in relation to methodology, and so that is what you see set out later in that under subparagraph (6), where it is indicated to the CRTC the criteria that any expenditures must be based on.

The Chair: Colleagues, we’re waiting on the subamendment. It’s being printed as we speak.

Senator Miville-Dechêne: I have a question for you, Mr. Ripley. There are a few contradictions, from my point of view, in this amendment, but first, are we talking here about Canadian creators? We could pay funds to American creators who are YouTubers, too, with the way it’s phrased. Am I wrong?

Mr. Ripley: Indeed, there is no qualification of creators.

Senator Miville-Dechêne: That’s one thing. Another thing that, for me, is a paradox and that I don’t really understand is that we are excluding. We made an amendment to scope out, and you said, too, that the creators are scoped out. If they’re scoped out, they’re not part of the Canadian artists who are included in Bill C-11. How can they benefit from the bill if they’re not scoped into the bill? For me, it is a contradiction. Obviously, it seems unfair. Do you follow me or not? It’s really not clear.

The Chair: If I can weigh in on that, we’re talking about —

[Translation]

Senator Miville-Dechêne: Perhaps I will repeat that in French. What I mean is that, first of all, it is not clear in (b) that the creators in question are Canadian. Under this clause, it is quite possible that YouTube would fund American creators under our system, which is supposed to promote Canadian creators. That is the first point.

Also, YouTubers are not supposed to be subject to Bill C-11. They do not want to be included in Bill C-11; they do not want to be discoverable. So it is complicated to say that they will have to pay royalties under Bill C-11.

The Chair: The people who can receive Canadian funding from the Canada Media Fund, for instance, and other existing funding sources, are still exclusively Canadians.

When we refer here to digital content creators — it is automatic —, if a digital content creator is not Canadian, they are not entitled to receive the available funding. Their request would automatically be refused. If it is an American digital creator, they would be excluded from the outset. There are already criteria to give creators access to existing funds, and those funds are for Canadian creators only.

Senator Miville-Dechêne: That is not the case for creators of digital content.

The Chair: That is what we are saying: we want to resolve this and create an equal system, because in Canada right now, digital content creators are paying a lot. The number of those creators is exploding on Canadian markets and those people, through their taxes, generate a lot of revenue for the government, but they do not have the same rights as conventional broadcasters.

Senator Miville-Dechêne: At the same time, they do not want to be subject to Bill C-11. Okay, I have said enough. Let us continue.

[English]

The Chair: The subamendment has been distributed, colleagues. It is moved by Senator Wallin that Bill C-11 be amended in clause 14, on page 22, by replacing “online undertakings” with “social media services.” Shall the subamendment carry?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: I think the “nays” have it, and the “nays” were enthusiastic.

[Translation]

Vincent Labrosse, Clerk of the Committee: Honourable Senator Housakos?

Senator Housakos: Yes.

Mr. Labrosse: Honourable Senator Clement?

Senator Clement: No.

Mr. Labrosse: Honourable Senator Cormier?

Senator Cormier: No.

Mr. Labrosse: Honourable Senator Dawson?

Senator Dawson: No.

Mr. Labrosse: Honourable Senator C. Deacon?

Senator C. Deacon: No.

Mr. Labrosse: Honourable Senator Gold, P.C.?

Senator Gold: No.

Mr. Labrosse: Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: Honourable Senator Manning?

Senator Manning: Yes.

Mr. Labrosse: Honourable Senator Martin?

Senator Martin: Yes.

Mr. Labrosse: Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: No.

Mr. Labrosse: Honourable Senator Quinn?

Senator Quinn: Abstain.

Mr. Labrosse: Honourable Senator Saint-Germain?

Senator Saint-Germain: No.

Mr. Labrosse: Honourable Senator Simons?

Senator Simons: No.

Mr. Labrosse: Honourable Senator Wallin?

Senator Wallin: Yes.

Mr. Labrosse: Yeas: 4; nays: 9; abstentions: 1.

[English]

The Chair: Accordingly, the subamendment is defeated.

I will now call the question on the main amendment.

It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 14, on page 22, at line 14 — shall I dispense?

Hon. Senators: Dispense.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: I hear a “nay.” The “nays” have it.

An Hon. Senator: On division.

The Chair: On division.

Colleagues, we will move on now to another amendment moved by Senator Manning.

Senator Manning: Just for a point of clarification, I’m making a small change to my amendment that I had proposed, and I will read out my change in this amendment.

The Chair: What’s the small change?

Senator Manning: I want to change two words in paragraph (b) to change “online undertakings” to “social media services.” When I present my amendment now, I’m going to present it with the change.

The Chair: Repeat the change so we can take note of it.

Senator Manning: In paragraph (b) I’m going to change “online undertakings” to “social media services” so that we don’t have to go through the subamendment process.

The Chair: “Social media services.”

Senator Manning: Yes.

The Chair: Let’s make the changes. Senator, we will prepare the change and distribute it. In the meantime, to save time, go ahead.

Senator Manning: I move:

That Bill C-11 be amended in clause 14, on page 22, by replacing lines 14 to 17 with the following:

“(5) Regulations and orders made under this section

(a) may provide that an expenditure is to be paid to any person or organization, other than the Commission, or into any fund, other than a fund administered by the Commission; and

(b) must ensure that at least one-third of all amounts received from social media services are paid to creators whose content is distributed by those services.”.

Honourable senators, I had hoped that my previous amendment would be supported, but in light of that, I will keep on trucking.

However, should we not ensure that at least some of the funding — I repeat, some of the funding — that may be extracted from online platforms is actually required to stay with those who created the content from which others are to benefit?

Again, I note that the brief filed by the Internet Society Canada Chapter very fairly declares that:

By definition, a system that will impose burdens upon Internet streaming services without extending to them the benefits of the regulatory system will not create a level playing field.

It is inequitable to create a system whereby those who create the content will not have legislatively protected access to those same benefits. I’m trying to get the money into the hands of the people who actually create the product.

Again, it is important to recognize that these are mostly small players. We heard from many of them over the many months that we’ve been here dealing with Bill C-11. In their view — and I agree with them — they have been sidelined and largely ignored by this legislation. I believe that we, as a committee, have an obligation and an opportunity to correct that.

One of the historic functions of the Senate, as I mentioned earlier, is to speak for political minorities in our country. I believe strongly that one of those political minorities whom we have seen here at our committee is the community of creators across this country. I believe we must ensure that those who create the content are the ones who actually benefit from the system that we are proposing to establish through Bill C-11.

I therefore propose that we amend Bill C-11 to ensure that at least one third of the amounts received from digital services are paid to those who have created the content. I urge and ask for your support for my amendment.

Senator Quinn: I have a question of clarification for Senator Manning so that I understand this. One third of the money that is collected from the big platforms will be paid back to the content creators?

Senator Manning: To the people who create the content.

Senator Quinn: I’m just wondering if that would include the millions of people who upload to YouTube and TikTok and things like that.

Senator Manning: The money that they generate would be paid into the Canada Media Fund or into some other fund, and then it will be distributed to those creators. We’ve heard from many of them here before our committee. In many cases, this is their only source of income. This would give them the opportunity to at least benefit from their creations. But, yes, you’re right; this will be an opportunity for the money to go back to them through whatever mechanisms the CRTC will put in place to make that happen.

Senator Quinn: If I were a content creator, would it be proactive for me to approach the fund to seek support? I’m trying to visualize how you’ve got this structured.

Senator Manning: The money would be paid into the Canada Media Fund or whatever fund the CRTC determines. The creators then could apply. There’s a process now in place, but from what I understood — and I stand to be corrected — from the conversations we had here at committee, a lot of these people don’t have access to the Canadian Media Fund. This would create a piece of legislation that would guarantee them that at least one third of the funds raised would go back into their hands.

There would have to be a mechanism put in place to ensure that would happen because the law would state that one third of the funds will go back to them.

The Chair: Senator Quinn, maybe I can participate in that debate. I think this is very clear. It’s up to the CRTC to determine all kinds of things in this Broadcasting Act. We’ve left it to the CRTC to decide content, to decide who hears what, to decide if they’re actually going to flex their muscles with the platforms. They will determine what the benchmarks are.

Again, we would, unfortunately, leave it up to them to determine how to create a fund for creators. We have the Canada Media Fund, for example, which is for traditional broadcasters in this country. Maybe the CRTC can create a digital creators fund. That is the way of the future.

Again, this is such an essential amendment because we are trying desperately to create an opportunity to defend the future of communications in this country. Millennials and those who are going to follow them clearly will be using these platforms. We’re trying to use some common sense in maintaining their freedom at the end of the day.

We’ve heard from all these digital creators. It doesn’t matter if it’s Indigenous groups, ethnic groups, minority groups, majority groups — they have, with the current platforms in place, the freedom to choose what they post, when they post it and how they post it. We’ve seen so many cases — it’s become a massive industry — of self-employed people who are generating gazillions of dollars. The Canadian state is benefiting. These individuals are former broadcasters, people who have come from radio, from entertainment sectors and non-profit groups who have come before us. We need to protect them because they, again, are worried about the maze of regulations that is coming down the pike. They know that they will be forced or bent into the traditional broadcasting system into which they naturally do not fit.

One of their concerns is that we will continue to pay more. We’ve heard the response from the officials, at the end of the day, that platforms have to pay their fair share. Who is kidding whom? Platforms are not going to pay their fair share. Their fair share means they will be taking more from Canadian content creators to pay that fair share. That’s the one power those platforms have. They control that revenue stream for now, but who is there defending the Canadian independent digital creator? Who?

Right now, under this broadcasting proposal, these people are helpless. No one seems to care about these hundreds of thousands of Canadians who have been crying to be given a door, an opportunity, to go to the CRTC — this is what this amendment is doing — and to say to the CRTC, “Please, cut us a piece of the pie. If you’re asking us to become such a huge part of the pie, cut us out a little piece, please, to make sure there is some protection for us.”

Colleagues, I see no further debate, but I see a willingness to go to the question.

The clerk has asked me to read subclause (b) as changed by Senator Manning from the original amendment:

(b) must ensure that at least one-third of all amounts received from social media services are paid to creators whose content is distributed by those services.

Is everyone clear with those changes?

I’ll take that as a yes.

It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 14, on page 22, at line 14 — shall I dispense?

Hon. Senators: Dispense.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: I think the “nays” have it. We will have a recorded vote.

[Translation]

Mr. Labrosse: Honourable Senator Housakos?

Senator Housakos: Yes.

Mr. Labrosse: Honourable Senator Clement?

Senator Clement: No.

Mr. Labrosse: Honourable Senator Cormier?

Senator Cormier: No.

Mr. Labrosse: Honourable Senator Dawson?

Senator Dawson: No.

Mr. Labrosse: Honourable Senator C. Deacon?

Senator C. Deacon: No.

Mr. Labrosse: Honourable Senator Gold, P.C.?

Senator Gold: No.

Mr. Labrosse: Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: Honourable Senator Manning?

Senator Manning: Yes.

Mr. Labrosse: Honourable Senator Martin?

Senator Martin: Yes.

Mr. Labrosse: Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: No.

Mr. Labrosse: Honourable Senator Quinn?

Senator Quinn: Yes.

Mr. Labrosse: Honourable Senator Saint-Germain?

Senator Saint-Germain: No.

Mr. Labrosse: Honourable Senator Simons?

Senator Simons: No.

Mr. Labrosse: Honourable Senator Wallin?

Senator Wallin: Yes.

Mr. Labrosse: Yeas: 5; nays: 9; abstentions: none.

[English]

The Chair: The amendment is defeated.

[Translation]

Senator Cormier: Mr. Chair, there is an amendment that I did not include in the list of amendments; it is on page 21. With your permission and that of the committee, I would like to table and present this amendment, please.

The Chair: Absolutely; it will be distributed to our colleagues.

Senator Cormier: Thank you, because it was not on the list.

The Chair: This is not standard procedure.

Senator Cormier: The amendment refers to pages 21 to 22, under “Regulations — expenditures.” This amendment should really have been presented after Senator Simon’s motion regarding organizations such as CPAC, APTN, Omni TV and TV5 was defeated.

I am concerned about how the bill can support these organizations that contribute to the objectives of the broadcasting policy. I will read the amendment and will then provide a few details.

I therefore propose the following amendment:

That Bill C-11 be amended in clause 14,

(a) on page 21,

(i) by replacing line 30 of the English version with the following:

“ing by broadcasting undertakings;

(b.1) supporting broadcasting undertakings offering programming services that, in the Commission’s opinion, are of exceptional importance to the achievement of the objectives of the broadcasting policy set out in subsection 3(1);”,

(ii) by replacing line 34 with the following:

“Act; or

(d) supporting the development of initiatives — including tools — that, in the Commission’s opinion, are efficient and necessary for the achievement of the objectives of the broadcasting policy set out in subsection 3(1).”;

(b) on page 22, by replacing line 2 with the following:

“out in paragraphs (1)(a) to (d).”.

There are two parts to the amendment. The first pertains to what I just mentioned about financial support for organizations that offer public programming services, such as APTN, TV5, CPAC, OutTV and ICI Télévision. This amendment would mean that the new funds collected from digital enterprises in particular could support these important programming services, which contribute to the objectives of the Broadcasting Act.

The second part pertains to the funding of initiatives that, once again, contribute to achieving the objectives of the act. Those include, for instance, tools that facilitate access for persons with a disability, which has been supported by the Enabling Accessibility Fund for decades. This fund supports important research, development and innovation activities, but would become increasingly less financially viable without this amendment.

The amendment could support important objectives, specifically, promoting diversity, equity and inclusion. What I am saying is that the legislation does not at present provide for funding to be redirected to that type of fund.

[English]

The Chair: Senator Cormier, I’d like to ask a question, because the language is very legalese and we didn’t have a chance to see it before.

[Translation]

I think you are referring to conventional broadcasters that are local and regional.

Senator Cormier: Yes, that is who I am referring to, and in the following context: under the Broadcasting Act and with this review, how can we strengthen these conventional broadcasters, who are important and present in all territories? The idea is that the CRTC could give these organizations contributions that would enable them to strengthen their activities and influence.

The Chair: If I understand correctly, digital content creators are not entitled to access other funds or other support from the CRTC. We would however be willing to give that support to those existing undertakings that are having a lot of difficulty?

Senator Cormier: Let me say something about the intent of the amendment, and I do not mean to oppose the digital creators from these organizations. We all know that these organizations contribute to the objectives of Canada’s broadcasting policy. In the current digital transition, we must support and continue to recognize the importance of these organizations, without hurting other organizations.

Since this is consistent with the objectives of the Broadcasting Act, the CRTC could make it possible for support to go to these networks, which are very important to Canadians today and to our country. That is the objective, Mr. Chair.

The Chair: I appreciate that, but I cannot support that amendment.

[English]

I find it incredible, colleagues, how we don’t have a problem choosing winners and losers and what is important and what isn’t important of our Canadian broadcasters, creators and streamers. Again, I have nothing against the organizations you’re trying to support with this amendment. I know some of them. I have met with many of them, and I understand they’re having difficulty. I’ll give in public the same response I gave to them when I met them: They’re having difficulty because their business model is no longer attracting viewership, audiences and customers. At the end of the day, I guess everything we do in this town is to follow the money.

The creators who are developing wealth right now, they’re growing, they’re attracting audiences, they’re attracting customers, advertisers and so on and so forth, and this is really the objective of this bill. This fits into the objective of the bill. We want them to pay more so we can help those who aren’t doing as well. I just find that, as a parliamentarian, I have a great deal of difficulty creating privileges for certain groups, for a variety of reasons. As much as the objective is honourable, I personally have difficulty with it. That’s just my opinion.

[Translation]

Would other senators like to join in the debate? Does the government support this amendment, Senator Gold?

[English]

Senator Gold: The government supports this amendment.

The Chair: I’m not surprised.

It is moved by the Honourable Senator Cormier that Bill C-11 be amended in clause 14, on page 21, at line — shall I dispense? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: I think the “yeas” have it. On division. Do you want a recorded vote?

[Translation]

Mr. Labrosse: Honourable Senator Housakos?

Senator Housakos: No.

Mr. Labrosse: Honourable Senator Clement?

Senator Clement: Yes.

Mr. Labrosse: Honourable Senator Cormier?

Senator Cormier: Yes.

Mr. Labrosse: Honourable Senator Dawson?

Senator Dawson: Yes.

Mr. Labrosse: Honourable Senator C. Deacon?

Senator C. Deacon: Yes.

Mr. Labrosse: Honourable Senator Gold, P.C.?

Senator Gold: Yes.

Mr. Labrosse: Honourable Senator Klyne?

Senator Klyne: Yes.

Mr. Labrosse: Honourable Senator Manning?

Senator Manning: No.

Mr. Labrosse: Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: Yes.

Mr. Labrosse: Honourable Senator Martin?

Senator Martin: No.

Mr. Labrosse: Honourable Senator Quinn?

Senator Quinn: Yes.

Mr. Labrosse: Honourable Senator Saint-Germain?

Senator Saint-Germain: Yes.

Mr. Labrosse: Honourable Senator Simons?

Senator Simons: Yes.

Mr. Labrosse: Honourable Senator Wallin?

Senator Wallin: No.

Mr. Labrosse: Yeas: 10; nays: 4; abstentions: none.

[English]

The Chair: Accordingly, the amendment is carried.

Honourable colleagues, next we have an amendment that’s being moved by Senator Manning.

Senator Manning: I move:

That Bill C-11 be amended in clause 14, on page 22, by adding the following after line 17:

“(5.1) If a foreign-owned or -controlled online undertaking is required under this section to pay an expenditure to a person or organization or into any fund, that undertaking shall be eligible to receive the benefits made available by the person or organization or fund as if the undertaking were Canadian-owned or -controlled.”.

Colleagues, this is an issue that has been raised several times in our committee by numerous witnesses. When Konrad von Finckenstein, a former chair of the CRTC, appeared before our committee, he noted that:

 . . . the CRTC has the power to make regulations requiring undertakings to make expenditures and contributions to funds for the production of Canadian content. Most likely, this requirement will be to make contributions something like the Canadian Media Fund, which we have right now. Entitlement to the benefits from such expenditures should not be limited to Canadian ownership or control of producers or Canadian ownership of intellectual property rights —

He also stated that:

Under the Canada-United States-Mexico Agreement, or CUSMA, such restrictions, while falling under the cultural industry exception and, thus, technically allowed, allow our partners to take retaliatory measures of equivalent commercial effect. Since most streamers are U.S.-based, you can expect that to happen.

We heard from a number of other witnesses who made the same point. We have all read recent press statements from a myriad of trade authorities on the same matter. They certainly don’t seem to be mincing words when it comes to this concern. It is vital we adopt this amendment, both on the principle of fairness and to ensure that Canada does not run afoul of its international trade obligations and risk retaliatory action, which will then negatively impact Canadian businesses and workers. Again, I urge you to support my amendment. Thank you.

[Translation]

Senator Miville-Dechêne: I have a question for Mr. Ripley. That is not our approach because foreign streamers do not contribute to a fund, but is there anything elsewhere in the bill regarding the inclusion or non-inclusion of foreign platforms and the fact that, when an undertaking contributes to the fund, it can also benefit from it?

Mr. Ripley: I would point out that those benefiting from the Canada Media Fund are not broadcasters, but producers. The issue raised by this amendment is who can trigger the market test so a producer can receive funding from the Canada Media Fund.

Senator Miville-Dechêne: You are right, and I know that.

[English]

The Chair: Colleagues, not everybody at once. I gather there is no willingness to debate the issue. We will go to the question.

It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 14, on page 22, at line 17 — may I dispense?

Some Hon. Senators: Dispense.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: The “nay” side has it, Senator Manning. Recorded vote.

[Translation]

Mr. Labrosse: Honourable Senator Housakos?

Senator Housakos: Yes.

Mr. Labrosse: Honourable Senator Clement?

Senator Clement: No.

Mr. Labrosse: Honourable Senator Cormier?

Senator Cormier: No.

Mr. Labrosse: Honourable Senator Dawson?

Senator Dawson: No.

Mr. Labrosse: Honourable Senator C. Deacon?

Senator C. Deacon: No.

Mr. Labrosse: Honourable Senator Gold, P.C.?

Senator Gold: No.

Mr. Labrosse: Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: Honourable Senator Manning?

Senator Manning: Yes.

Mr. Labrosse: Honourable Senator Martin?

Senator Martin: Yes.

Mr. Labrosse: Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: No.

Mr. Labrosse: Honourable Senator Quinn?

Senator Quinn: [Technical difficulties].

Mr. Labrosse: Honourable Senator Saint-Germain?

Senator Saint-Germain: No.

Mr. Labrosse: Honourable Senator Simons?

Senator Simons: No.

Mr. Labrosse: Honourable Senator Wallin?

Senator Wallin: No.

Mr. Labrosse: Yeas: 3; nays: 10.

[English]

The Chair: Accordingly, the amendment is defeated. Honourable colleagues, we’re still in clause 14. We have an amendment being moved by Senator Manning.

Senator Manning: Thank you, Mr. Chair. After this one, I promise to give my colleagues a break, from me, anyway. I move:

That Bill C-11 be amended in clause 14, on page 22, by adding the following after line 23:

“(a.1) the contributions already made by the persons carrying on broadcasting undertakings to support Canadian culture;”.

Colleagues, this section of the bill provides that regulations and orders made under this section may provide for expenditures to be calculated by reference to any criteria that the commission will consider appropriate.

This section specifically lists several criteria that must be referenced including, (a), the revenues of the person carrying on broadcasting undertakings; (b), the performance of the persons carrying on broadcasting undertakings in relation to objectives established by the commission, including objectives for the broadcasting of Canadian programs; and, (c), the markets served by the persons carrying on broadcasting undertakings.

What is missing are the contributions that the undertaking already makes to support Canadian culture. Again, I believe that we have a problem related to equity and fairness. Numerous witnesses who appeared before our committee have raised this matter as one that I believe needs to be addressed.

Garrett Levin, President and Chief Executive Officer of the Digital Media Association, told our committee that:

We propose creating a new section to explicitly require the CRTC to examine the full range of benefits that streaming services provide.

He also noted that:

Bill C-11 should ensure that the CRTC considers the significant financial and non-financial contributions made by streaming services to Canada and Canadian artists. From substantial royalty payments to concerted efforts to highlight and support Canadian music, all of streaming’s benefits should be considered during the regulatory process.

Mr. Levin went on to say that, “On average, audio streaming services pay out 65 to 70% of their revenues in royalties.”

Wendy Noss, the President of the Motion Picture Association — Canada, told our committee that global studios operating in Canada train and provide opportunities for 200,000 of Canada’s most talented, creative workers. In 2021, across Canada, they spent more than $5 billion, now accounting for more than half of all production in Canada and 90% of the growth over the last decade. They invest more in Canada-owned productions than the CBC, Telefilm and the Canada Media Fund. They supported more than 47,000 Canadian businesses last year.

While there’s been a lot of talk about making the big foreign streamers pay their fair share, we have to recognize what they are paying and how it benefits our film and television sectors and other residual sectors, if we’re truly being fair.

Colleagues, all this amendment proposes is that their contribution should be considered by the commission as it makes regulations and orders related to expenditures. Once again, I seek your support for my amendment. Thank you.

The Chair: It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 14, on page 22, at line 23 — may I dispense?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Nay.

Some Hon. Senators: Yea.

The Chair: I think there’s a loud “nay,” Senator Manning. If you can’t get debate, at least you get a recorded vote, senator.

[Translation]

Mr. Labrosse: Honourable Senator Housakos?

Senator Housakos: Yes.

Mr. Labrosse: Honourable Senator Clement?

Senator Clement: No.

Mr. Labrosse: Honourable Senator Cormier?

Senator Cormier: No.

Mr. Labrosse: Honourable Senator Dasko?

Senator Dasko: Abstain.

Mr. Labrosse: Honourable Senator Dawson?

Senator Dawson: No.

Mr. Labrosse: Honourable Senator C. Deacon?

Senator C. Deacon: No.

Mr. Labrosse: Honourable Senator Gold, P.C.?

Senator Gold: No.

Mr. Labrosse: Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: Honourable Senator Manning?

Senator Manning: Yes.

Mr. Labrosse: Honourable Senator Martin?

Senator Martin: Yes.

Mr. Labrosse: Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: No.

Senator Quinn: No.

Mr. Labrosse: Honourable Senator Simons?

Senator Simons: Yes.

Mr. Labrosse: Honourable Senator Wallin?

Senator Wallin: Yes.

Mr. Labrosse: Yeas: 5; nays: 8; abstentions: 1.

[English]

The Chair: Accordingly, the amendment is defeated.

Honourable senators, shall clause 14, as amended, carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Clause 14 is carried, on division.

Honourable senators, shall clause 15 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Clause 15 is carried, on division.

We’re moving on, colleagues, to clause 16, where we have an amendment from Senator Cormier.

Senator Cormier: Thank you, Mr. Chair. I will read the amendment in English but will give the explanation in French.

I move:

That Bill C-11 be amended in clause 16, on page 23,

(a) by replacing line 18 with the following:

“16 (1) Paragraph 18(1)(c) of the Act is replaced by”;

(b) by adding the following after line 22:

“(2) Subsection 18(2) of the Act is replaced by the following:

(2) The Commission shall also hold a public hearing in connection with the following matters unless it is satisfied that such a hearing is not required in the public interest:

(a) the amendment or renewal of a licence;

(b) the making of an order under subsection 9.1(1) or 11.1(2); and

(c) the making of any regulation under this Act.

(2.1) A hearing in connection with a matter referred to in paragraph (2)(b) or (c) shall be held after the proposed order or regulation in question is published.”.

[Translation]

Colleagues, this amendment is essentially intended to provide greater transparency in the CRTC’s making of orders and regulations. In short, the amendment means that, unless the CRTC considers that is not in the public interest, it will be required to hold public hearings when making orders pursuant to subclause 9.1(1), which pertains to the operating conditions for broadcasting undertakings, or pursuant to 11.1(2), which pertains to orders regarding expenditures or regulations.

The act already includes a mechanism for public hearings. In particular, such hearings must be held before licences are awarded. A number of witnesses pointed out the benefits of public hearings, in particular because they allow participants to hear everyone’s point of view and to state their views, and because they afford some balance in the representations.

When she appeared before the committee on November 16, 2022, the CRTC’s general counsel warned us of the following:

. . . requiring a public hearing for every order made by the CRTC would involve excessive resources that are out of proportion to those available for us to put together a proper public record for submission to the CRTC so that it can reach a decision.

That is why, colleagues, the amendment I am proposing stipulates that the CRTC will not be required to hold public hearings if it is not necessary for the public interest. The criterion of public interest is already set out in section 18 (2) of the Broadcasting Act.

In short, the amendment therefore addresses the concerns of several witnesses as to broadening the scope of public hearings — particularly, the Coalition for the Diversity of Cultural Expressions, which brings together 49 francophone and anglophone organizations in the cultural sector in Canada, Mr. Pierre Trudel and Mr. Robert Armstrong — while also bearing in mind the CRTC’s concerns.

In closing, we all know that the CRTC will have to review the definition of a Canadian program through regulations once this bill is passed. So I think it is essential that public hearings be held during that review to allow for input from interested parties, ranging from YouTube content creators to representatives of the cultural sector and online broadcasting platforms.

That is all, Mr. Chair. Thank you.

Senator Miville-Dechêne: I have a question for Senator Cormier. I completely agree with you, of course, regarding the hearings. As to orders, I find that harder to understand. For licence renewals, hearings are held, but for orders, there is no transparency, no public participation.

What I have more trouble with is not just the orders, but also the making of all regulations under the current act, under paragraph (c). I understand the public interest, but why should there also be public hearings regarding regulations since there is a risk that holding so many public hearings could more or less paralyze the CRTC as an institution?

Senator Cormier: The amendment offers the CRTC the latitude not to hold public hearings if it does not consider that to be in the public interest. It already holds certain public hearings when it deems them to be important.

The big issue with the ability of individuals and organizations in Canada to express their views to the CRTC — of course there is a mechanism whereby the CRTC publishes something on its website and people may comment — is that it does not include all Canadians.

This idea derives from a desire for some fairness in allowing citizens to be heard, to qualify their statements, and to state their views during public hearings. Let me reiterate that, as it is worded, the amendment does not force the CRTC to hold hearings if it does not consider that to be in the public interest, and I believe it is able to determine what is in the public interest and what is not.

[English]

Senator Manning: Senator Cormier, I’m leaning toward supporting your amendment, but I want to raise a point in connection to (b)(2) in your amendment, which reads:

The Commission shall also hold a public hearing in connection with the following matters unless it is satisfied that such a hearing is not required in the public interest . . . .

Again, we heard from many witnesses their concerns about the transparency of the CRTC and the fact that many of the hearings are held behind closed doors and not necessarily made public. I’m just a bit wary, to be honest with you, in relation to creating an exception for the commission where they’re not satisfied. They alone will determine if it is in the public interest.

We’ve had several witnesses who have put forward to us their concern that the decisions made at that level don’t necessarily — it may be for a certain portion of the population but not necessarily for some of the — I’m concerned with the smaller creators, the “solo” creators, I call them. This creates a loophole for the commission. I just wanted to voice my concern with that, but at the same time I support where you’re going with this. I wish we had a better way of allowing the smaller players in the game to have access to the commission.

[Translation]

Senator Cormier: Thank you for expressing your concern, Senator Manning. In this context, the CRTC will have to answer for its decision anyway. If it considers that it is not in the public interest when it is, it will have to justify its decision. That is what reassures me about the structure of the amendment. It will, as it already has, have to give answers about these kinds of public hearings.

Thank you.

[English]

Senator Gold: Thank you for the amendment, Senator Cormier, but the government is not in a position to support it. As we know, all the orders that the CRTC will make under sections 9.1 and 11.1 will go through a public consultation process. There are already lots of mechanisms and resources available to ensure that all stakeholders can fully participate.

The effect of this amendment would be very labour intensive for the CRTC and, frankly, will be, in the government’s view, less effective and responsible than the online system and the digital consultation processes that are in place. Essentially, it would slow down the regulatory process by requiring more public hearings on very granular matters, such as orders under sections 9.1 and 11.1. The government’s intention is to try to make the system more agile and responsive given the rapidly changing market.

The commission is an administrative tribunal, and it would conflict with their basic practices as an administrative tribunal because it would require them to potentially hold hearings after they render decisions. I’m not sure this will help the smaller participants, who I understand have made representations to this committee with the challenges in participating in hearings. I’m not sure that this assists them in the same way that the government wants to assist them by providing funding and other resources so that they can better participate.

For all of those reasons, the government is, unfortunately, not in a position to support it.

[Translation]

Senator Cormier: Thank you, Senator Gold. I understand the position.

When you say that the CRTC is also an administrative tribunal, in fact, this amendment does not affect the decisions that the CRTC would make in the context of administrative tribunals. It affects the regulations that it makes.

Secondly, I believe that we are in a very important transitional period for our broadcasting system. It’s a key moment where the CRTC also needs to be able to take a pulse in a very, very specific way with respect to the broadcasting system, with respect to businesses and with respect to Canadians.

This amendment is not intended to burden the CRTC with additional duties, but rather to say that in certain contexts, and in the current context of this transitional period, it is extremely important that hearings be held. Particularly since in our experience — and this is not for lack of openness on the part of the CRTC — organizations on the ground, independent producers and small producers often do not have the same access to the CRTC with the same resources.

That’s the bottom line here. It’s to allow smaller producers across the country to have access to the CRTC through public hearings, and for it to be a transparent process that educates Canadians in the right way about the constraints of a broadcasting system like ours.

[English]

Senator Manning: Senator Cormier, once again you’re singing from part of the same hymn book that I’m singing from. My singing is almost as good as my French, so I’m not going to try that.

If I go back to our discussion earlier, you mentioned that the CRTC will be accountable for — if I took you correctly, and I stand to be corrected — making the decision not to have a public hearing. I just wonder how —

Senator Cormier: If they consider that it’s not in the public interest, they won’t have to do public hearings.

Senator Manning: No, but how — so the CRTC decides they are not going to do a public hearing. Will the reason for the decision that they have made be a public decision?

Senator Cormier: It’s their decision. It will be their decision as an organization to say, “Here is the explanation why we consider that it’s not in the public interest to do public audiences.”

Senator Manning: It won’t be just a yes or no; they will say, “We made this decision because” — we hope.

Senator Cormier: Well, I imagine they will do that; otherwise there will be a lack of transparency. It’s important for them to do that. I won’t speak for the CRTC. It will be the responsibility of the CRTC, because they’re already using that elsewhere. It’s part of the bill already. It’s in the public interest. It’s already there as a concept. They’re already using this concept to take some decisions. So here the only thing it does is applies it to these different items.

Senator Manning: We will live in hope.

The Chair: Mr. Ripley, is this amendment proposed by Senator Cormier, in your opinion, prescriptive? It seems to me to be flexible in nature more than prescriptive. Am I right in interpreting it that way?

Mr. Ripley: The bill as drafted without the amendment leaves the discretion to the CRTC to make the determination of how it would engage with the public on any order or regulation it makes. That could take the form of a public hearing. They have the discretion to do a public hearing under the bill as drafted, or they could, for example, do what we would call a written process, where they would post a notice and invite individuals to make submissions, and those submissions would get submitted, and then the CRTC would publish its decision.

Senator Cormier is correct that, right now, the CRTC is required to hold a public hearing unless it is of the opinion it is not in the public interest when a licence is renewed. A licence is renewed every five to seven years.

The government’s position and what it is grounded in is it recognizes we’re moving from a licence-based system to more of a regulatory-based system, where there will likely be more regulatory decisions. The reason the government did not impose a public hearing on the CRTC, for the reasons that Senator Gold outlined, is that it is a high burden in terms of it being an in-person hearing, and so the balance here is between the speed of decision making coming out of the CRTC and the questions around how you ensure transparency and fairness.

The question here is: Do you leave that to the CRTC to assess what’s best, given the context — and that’s the government’s position — or as Senator Cormier has proposed, do you make the default rule that in every instance for the provisions that he has specified, the default rule is an in-person public hearing?

The Chair: On the one hand, we’ve seen throughout this bill that there are a lot of impositions put on the CRTC. Most of this bill will depend on the public hearings, consultations and determinations of the CRTC. Again, in principle, I see the pros and cons of the amendment by Senator Cormier, but all of a sudden the government says they’re very concerned about overburdening the CRTC with public hearings. When did that concern kick in? The CRTC has about two years of hearings, from what we’ve seen from this study so far, before they come to a regulatory determination.

Mr. Ripley: Thank you, chair.

The government is concerned about the speed of decision making at the CRTC. A frequent criticism of the CRTC is that it takes too long to make decisions. Again, the CRTC’s decision making has to be transparent and it has to be fair. One of the ways that you allow them to manage their workload is by leaving them the discretion to decide when a public hearing is merited versus when a written process will suffice.

The Chair: In Bill C-11, and in all the consultations that they’re obligated to exercise in the course of implementing this legislation, will it reduce their workload and their burden, or will it add to it, in your opinion?

Mr. Ripley: Thank you, chair, for the question.

The CRTC will need to do a fair bit of work once Bill C-11 comes into force. As you know, chair, there are a number of regulatory questions that need to be looked at.

The Chair: Mr. Ripley, thank you as always for your concise answer.

Senator Dasko: I have a question for Mr. Ripley, and it is with respect to the provision in the current act, which reads that:

The Commission shall hold a public hearing in connection with the amendment or renewal of a licence unless it is satisfied that such a hearing is not required in the public interest.

What percentage of the amendments or renewals would have gone to a public hearing? If you happen to know, that would be very interesting for me.

Mr. Ripley: I’m afraid I don’t have that figure handy, Senator Dasko. The most recent example is the CBC/Radio-Canada licence renewal. There was a public hearing, for example. You see it in the case of major licence renewals.

Senator Dasko: Yes. It would be hard to get away without that with respect to the CBC, I would say. Thank you.

The Chair: It is moved by the Honourable Senator Cormier that Bill C-11 be amended in clause 16, on page 23, at line 18 — may I dispense?

Hon. Senators: Dispense.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: I think the “yeas” 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: Yes.

Mr. Labrosse: The Honourable Senator Cormier?

Senator Cormier: Yes.

Mr. Labrosse: The Honourable Senator Dasko?

Senator Dasko: Yes.

Mr. Labrosse: The Honourable Senator Dawson?

Senator Dawson: No.

Mr. Labrosse: The Honourable Senator C. Deacon?

Senator C. Deacon: 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 Martin?

Senator Martin: Yes.

Mr. Labrosse: The Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: 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: Yeas: 10; nays: 4; abstentions: nil.

[English]

The Chair: Accordingly, the amendment is carried.

Colleagues, shall clause 16, as amended, carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 16, as amended, is carried, on division.

Honourable colleagues, shall clause 17 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 17 is carried, on division.

Shall clause 18 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 18 is carried, on division.

Shall clause 19 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 19 is carried, on division.

Shall clause 20 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 20 is carried on division.

Shall clause 21 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 21 is carried on division.

Shall clause 22 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Chair: Clause 22 is carried on division.

We will continue with an amendment to clause 23 put forward by Senator Cormier.

[Translation]

Senator Cormier: I will first read the amendment and then give you the explanation. I move:

That Bill C-11 be amended in clause 23, on page 28, by replacing line 2 with the following:

“tion 9 to issue, amend or renew a licence or makes an order under subsection 9.1(1) or 11.1(2), the Governor in”.

This is page 28, colleagues, and it’s about the power of the commission.

One of the purposes of the amendment is to give a tool to agencies that decide that a CRTC order should be reviewed because it is not consistent with Canadian broadcasting policy objectives.

The mechanism for review of a CRTC decision by order of the Governor in Council is to grant, amend or renew a licence that already exists by law. The purpose of the amendment is to ensure that this mechanism can also apply to orders under subsections 9.1(1) and 11.1(2).

This mechanism has been used very recently. It is a testament to its importance for organizations in the cultural sector. You may recall, colleagues, that in September 2022, the Governor in Council referred the renewal of CBC/Radio-Canada’s licences to the CRTC for review. What was at issue in this case was the removal of certain obligations, particularly with respect to the programming threshold for independent productions, local news, French-language programming and children’s programming. Many organizations felt that these obligations were essential to the fulfillment of the public broadcaster’s mandate.

To be very clear, colleagues, the power of the Governor in Council is to ask the CRTC to review its decision, not to decide on content. This is an extremely important distinction. We are not asking the Governor in Council to decide on content, but we are asking it, through this amendment, to be able to review certain CRTC decisions, as it did for the CBC licence.

Requests for review to the Governor in Council are rarely successful, but when they are, they can make a real difference by allowing civil society to make legitimate arguments that were not upheld by the CRTC.

In addition, review by order in council can also save less fortunate organizations from spending large sums of money on legal fees to appeal a decision to the Federal Court of Appeal in the event of an error of law or jurisdiction.

[English]

Senator Dawson: The government is opposed to this amendment. It would have the effect of allowing concerned parties to petition cabinet and would turn into more political interference. There are more appropriate and alternative channels in place to challenge decisions. The CRTC is like any other quasi-judicial tribunal. Review mechanisms exist and will continue to exist under Bill C-11.

I also note that the Governor-in-Council’s appeals and petitions for licensed broadcasters are alternative mechanisms, and Bill C-11 does not change that. They will still be allowed.

As part of the level playing field, appeals to the Federal Court of Appeal will now be available for questions of conditions of service in section 9(1). The new category of unlicensed broadcasters created by Bill C-11 will still have the option to appeal decisions of the CRTC to the Federal Court of Appeal. We should trust in our quasi-judicial system, and those processes will remain.

[Translation]

Senator Miville-Dechêne: Why the difference in treatment between retaining an appeal to the Governor in Council for licences but not granting it for orders?

Senator Dawson: It’s the quantity. If we encourage appeals to cabinet, we will increasingly politicize decisions. We want the CRTC to have more independence. This way, if we make it too easy to appeal to cabinet, everyone will go to cabinet to appeal, whereas if they are not satisfied, they can opt for other solutions. The reason why there is a difference is that you open up a new field of decision if you include orders.

Senator Miville-Dechêne: Exactly, but at the same time, it still amounts to a difference in treatment.

Senator Dawson: A clear double standard. Again, we are not denying the right to appeal to cabinet, we are limiting the right to appeal to cabinet.

Senator Miville-Dechêne: We are limiting it for traditional media.

Senator Cormier: I will make two clarifications.

I have before me, for the benefit of everyone, the exhaustive list of requests that have been made to the Governor in Council. On this list, since 1992, I unfortunately do not have the number, but the Governor in Council only agreed to intervene with the CRTC on seven occasions. That’s the first thing I would say. It’s very rare that the Governor in Council intervenes. It has that power to decide not to go back to the CRTC.

On the issue of the ability to appeal, the historical challenge is the financial resources to appeal. We are talking about significant financial resources. This has always been the case. In the circles that I personally have been involved with, this has always been the challenge. This margin, this capacity, this instrument that is the Governor in Council, in this case, knowing the limits, in fact, of its capacity to intervene — since it does not intervene very often — at the very least, provides a possible entry to less fortunate organizations. There are many who are less fortunate. That’s what happened with the CBC.

[English]

Senator Dawson: Maybe Mr. Ripley could comment.

Mr. Ripley: Indeed, the consideration the government had to reflect upon was the degree of independence of the CRTC. The status quo was not an option. It was either you limit your petitions to cabinet or you expand petitions of cabinet to include a greater number of decisions from the CRTC.

At the end of the day, the government decided that it was important that the CRTC’s independence be protected from political considerations to a greater extent, recognizing judicial appeal is available. There is the appeal mechanism that Senator Cormier mentioned in sections 30 and 31, so there are oversight mechanisms in that.

Senator Cormier’s amendment would have the effect of expanding the types of decisions that could be appealed to cabinet to include any decision made under any order under sections 9.1 or 11.1(2). That just creates a risk where we’re going to see increased resort to appealing decisions of the CRTC to cabinet with a view of having cabinet weigh in on those decisions.

Senator Wallin: I’m sorry, Mr. Ripley, but we heard from the CRTC chair himself and others that this bill extends the power and the influence of the government over the supposedly arm’s-length relationship it has had with the CRTC. It does seem to be contradictory.

Mr. Ripley: I agree that we had that discussion, Senator Wallin. Indeed, this committee removed that subparagraph in question. There are differences between — as Senator Cormier said — the right to appeal a decision to cabinet versus the concerns I think this committee had with section 7(7). They are in the same spirit about the appropriate oversight of individual CRTC decisions and what the appeal mechanisms should be. The government’s position is that they should be limited to the courts, and Senator Cormier is proposing to maintain the petition-to-cabinet mechanism that currently exists for licences.

Senator Wallin: I think what we heard testimony about was that people have access through their politicians if they don’t have a lot of money to appeal and make their concerns known, whereas not everybody can afford to go to court. Is that correct?

Mr. Ripley: The petition-to-cabinet process is a formal one where you write the Clerk of the Privy Council, and you submit a petition. The minister then brings forward a memorandum to cabinet. The CRTC decision is reviewed by cabinet, and cabinet ultimately makes a decision about whether it can refer back the decision or set aside the decision. That’s the mechanism that’s in discussion.

The Chair: Mr. Ripley, can you tell us approximately how many times a year that is effectively done?

Mr. Ripley: I don’t have the exact number. There were recent petitions on the CBC/Radio-Canada licensing decision, chair. There were petitions on the decision to award the licence to Omni Television for their multilingual, ethnic service. There were petitions on what we called the group-based licensing decisions, which were the major licensing decisions of Bell, Rogers and Quebecor. Those are three since about 2016, I would say, but I don’t have the exact figure.

The Chair: Would you say approximately three every six years?

Mr. Ripley: My recollection, chair —

The Chair: Approximately.

Mr. Ripley: My recollection is that since 1991, we’ve seen 90 to 100 petitions to cabinet.

The Chair: So you’re confirming about it’s about two or three a year, give or take.

Mr. Ripley: The challenge is that the status quo wasn’t an option. So the question was this: Do you extend that same power to other regulatory decisions the CRTC will now be making? Because right now, that tool is limited to the issuance or renewal of a licence decision. So the question is: Should that same mechanism be available to regulatory decisions that the CRTC makes under, as Senator Cormier is proposing, sections 9.1 and 11.1?

[Translation]

Senator Cormier: The list included 49 orders-in-council that were refused. There have been seven since 1992 that have been accepted. Mr. Ripley, when you testified yesterday on clause 7(7), you mentioned the transition proposed by Bill C-11. As I understand it, instead of being able to revise decisions by order-in-council, the proposed transition would allow for greater reliance on the policy-making power in clause 7 (7).

Since the committee voted to remove clause 7 (7), would it not be consistent for clause 28, review by order in council, to also apply only to orders in clauses 9.1 and 11.1.2?

Mr. Ripley: Thanks for the question. The government’s view on clause 7 (7) is still that the political direction must be of general application. The government’s view is that the concerns that this committee had were unfounded, because in our view it has always been an obligation to ensure that it is generally applicable.

So, for us, it was never a question of saying that in the case of such and such a decision, the government did not agree, to ensure that the framework respected certain political objectives. So we did not have the same interpretation as some of the speakers who came here to amend this paragraph.

Senator Cormier: Thank you, Mr. Ripley.

[English]

Senator Gold: I just want to make sure that I understand correctly. The government position is that it does not want to encourage or increase the politicization of the CRTC.

Mr. Ripley, did I understand correctly that the reason the government is not extending this form of appeal or petition to cabinet for the new range of decisions and orders that the CRTC will make under this bill — as opposed to the older regime of licensing — is that you anticipate a significantly larger number of decisions and regulatory decisions with greater frequency? Therefore, the numbers that have been cited in the past really are an unhelpful guide to the volume of work and, therefore, the volume of potential petitions and the extent of potential political interference with otherwise independent decisions of the CRTC. Do I understand you correctly?

Mr. Ripley: Yes, that’s correct.

Senator Gold: Thank you.

Senator Downe: Chair, I’m not a member of the committee, but I would like a question. I can’t understand the distinction. CRTC commissioners are Governor-in-Council appointments. They’re selected by cabinet. They’re not permanent public servants. Therefore, they’re political. How do you keep political interference out of the selection of the nominees for the CRTC?

Mr. Ripley: Thank you, Senator Downe. Indeed, CRTC commissioners are Governor-in-Council appointees. However, once they are appointed, they have a mandate under the Canadian Radio-television and Telecommunications Commission Act and the Broadcasting Act, and they are members of an independent tribunal that has very prescribed ways in which the government can interact with them once they are appointed. It’s incumbent on them to act within their mandate and pursuant to the legislative frameworks in which they make decisions.

Senator Downe: They are political appointees.

Mr. Ripley: They are political appointees.

The Chair: That’s a very relevant question, Senator Downe. It’s like Senate appointments — very similar.

Senator Downe: Just as an aside, I used to be the director of nominations appointments in the Prime Minister’s Office, and one of my biggest surprises was that there was more competition for the CRTC appointees than there was for senators.

The Chair: It is moved by the Honourable Senator Cormier that Bill C-11 be amended in clause 23, on page 28 — may I dispense?

Hon. Senators: Dispense.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chair: I think the “nays” have it. Do you want to have a recorded vote? I’ve been off once or twice.

[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 Dasko?

Senator Dasko: No.

Mr. Labrosse: The Honourable Senator Dawson?

Senator Dawson: No.

Mr. Labrosse: The Honourable Senator C. Deacon?

Senator C. Deacon: No.

Mr. Labrosse: The Honourable Senator Gold, P.C.?

Senator Gold: No.

Mr. Labrosse: The Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: The Honourable Senator Manning?

Senator Manning: No.

Mr. Labrosse: The Honourable Senator Martin?

Senator Martin: No.

Mr. Labrosse: The Honourable Senator Miville-Dechêne?

Senator Miville-Dechêne: No.

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: Yes.

Mr. Labrosse: Yeas : 3; nays : 11.

[English]

The Chair: Accordingly, the amendment is defeated.

Honourable colleagues, shall clause 23 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Clause 23 carries, on division.

We only have three minutes, colleagues. There’s an amendment being circulated for clause 24.

Shall clause 24 carry, colleagues? There is an amendment on clause 24.1. Clause 24 has to be adopted before she moves, at the end of 24, the amendment she’s planning to move on clause 24.1. That’s what I got from the clerk and the Law Clerk.

Shall clause 24 carry, colleagues?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: On division.

Now, colleagues, we are coming up to 8:43, and I think it’s pointless, but Senator Wallin has moved an amendment on clause 24.1, which we will pick up on when we reconvene tomorrow morning. They can be distributed.

Senator Simons: It’s not the same one that’s in the package.

The Chair: Actually, in the remaining two minutes, maybe you can introduce it on the record, Senator Wallin, and then we will continue tomorrow.

Senator Wallin: I move:

That Bill C-11 be amended on page 28 by adding the following after line 27:

“24.1 The Act is amended by adding the following after the heading “Decisions and Orders” before section 31:

30.1 Despite any other provision of this Act, the Commission shall not make an order under this Act that would require the use of a specific computer algorithm or source code.”.

The Chair: Thank you, Senator Wallin.

Colleagues, tomorrow we will pick up where we left off with this amendment. I remind colleagues to provide to the clerk any observations that groups and senators might have for this report.

Tomorrow morning we reconvene at 10:30. We have two hours tomorrow, from 10:30 to 12:30. If required, we will sit from 3:30 to 5:30 tomorrow.

Colleagues, again, for the benefit of time, please bring any observations you may have.

(The committee adjourned.)