Online Streaming Bill
Bill to Amend--Message from Commons--Motion for Concurrence in Commons Amendments and Non-Insistence Upon Senate Amendments--Motion in Amendment--Debate
April 26, 2023
Honourable senators, I want to reiterate before we get into the crux of the subject matter that we all are so disappointed that we thwarted the opportunity of minority voices in this country to be heard in a legitimate way.
I want to reiterate, government leader, and be clear that none of us have any issue with the government’s right to use the guillotine, to use time allocation. It’s a legitimate rule that exists in procedures of Parliament and Parliamentary body, and the government has the right to make that decision. But it needs to be done in a transparent way. You can’t have your cake and eat it too. You can’t claim to be a non-aligned, independent chamber. All of us who have studied some form of political science, at some level, know that an independent in a parliamentary process, in a parliamentary chamber is someone who isn’t affiliated with a political party.
But I won’t re-engage in this debate; I know it makes you uncomfortable. Earlier today, we tried to reinforce the point that the only reason the Speaker interpreted the rule in the way he did is because he assumes, as well as we do — and that’s why I think he showed elasticity, which the Speaker constantly does to make this new independent Senate work — that you do represent the government, and that government is a Liberal government. In the tradition of Westminster, it’s the leader of the Liberal governing party or the leader of the Conservative governing party, the two parties that have governed this country, who has the right to use time allocation.
Much has been made about the number of the weeks of the committee study, the number of witnesses and the hours of debate that have been spent on this bill. But I reiterate what I said last night: that it’s because the opposition did its job and used every procedural tool available to us to make that happen.
So you can’t, on the one hand, many of you who have argued what a great job we’ve done in this institution; we’ve had so many witnesses; the committee was so robust; look at all the in‑depth studying we’ve done — when we know at every turn it was the opposition that insisted on that. And by the same token, you get up and say, on the one hand, what great work the committee did in the chamber, but, on the other hand, you say we’re obstructionists. Which is it? Either the opposition is obstructionist and we’re abusing our procedural powers or we did a really good job and insisted on all witnesses being heard. You can’t have it both ways. This government likes to have it both ways, to put out this nice narrative for public consumption; it’s a public relations exercise, but the facts sort of bend and differ from reality.
So please stop wearing this as a badge of honour. Yes, the entire committee, all members, did very good work here, but it is beyond disingenuous to now characterize the fact that this legislation was rammed through last summer or in mid‑November as anything other than a credit to the Conservative opposition. We fought tooth and nail every step of the way, at the committee and in the chamber. The fact that we have spent so much time and deliberations on this legislation isn’t justification to now pack it in after one round with the other place, as if that’s somehow the magical number for how many times this house can send legislation back and forth.
Earlier we had an exchange Senator Quinn, and you’re right, Senator Quinn: The other place is the democratic house. But we keep talking about democracy in this place, and somehow democracy is fine in this place because you have 75% of senators appointed by the Prime Minister who wants this legislation passed not now or right away — he wanted it passed a year and a half ago. But it’s incumbent, constitutionally, on us to do our due diligence and to make sure, as I said yesterday in a debate I participated in, that democracy in this place isn’t reflected only by poll results, but by the advocacy that each and every senator here articulates. All I’ve heard so far from independent senators is we have to support the government because they’re the government and carry on. Move along; there’s nothing to see here, trust us.
The fact that we have spent so much time and heard from so many stakeholders is precisely why we shouldn’t automatically acquiesce to the government on this legislation. The more time we spend on the bill, the more time we should spend actually pondering how important our amendments were in the first place.
Senator Quinn, I appreciate the fact that you’re torn. I know you’re torn in regard to this legislation. You’re torn, on the one hand, on your commitment, feeling that we shouldn’t impose our will on the elected chamber, but you have also done your due diligence, and I saw you do it. You asked the right questions. You wondered why so many user-generated content creators and digital-first Canadians have stepped up and are terrified about their future. You know that this isn’t as clear as possible. It’s easy to be satisfied with the observations that Senator Tannas, in goodwill, put forward because he is hoping the government will listen. But, again, we have a constitutional obligation to do sober second thought, to speak for those voices and to insist when we know the government might not have gotten this right.
Otherwise, there’s not much point spending all that time and doing all that work and putting those amendments forward, is there, if we’re just going to fold at the moment when the government says, “We’ve had enough.” And it doesn’t actually correspond to the amount of pushback we’ve gotten from Canadians. This is the moment to justify our $125-million cost to those Canadians. It’s a big cost; it’s a costly institution, so just because we might find this to be a nuisance, or it might interrupt the Prime Minister’s or a minister’s agenda — sorry, I’m not obligated to follow through and cave in right away just because the government is asking us to move along; nothing to see here, trust us.
Let’s talk about those amendments. Everyone in favour of passing this bill keeps talking about the 20 amendments the government accepted. You’re so proud that the government accepted 20 of our 26 proposed amendments, like it’s a big deal. It’s not a big deal. First of all, it just goes to show how deeply flawed this legislation was in the first place. That’s not something to celebrate, colleagues. When you send back 26 amendments, and there were 67 that were debated, that means a lot of senators from a lot of groups thought this bill had a lot of problems.
If we carried on the hours of debate that we did, it’s because we thought there were flaws in this bill. If there is any role for this institution when something is deeply flawed, it’s our job to fix it, push back and call the government on the floor and say, “We’re as much obligated and you’re as much obligated to fix this.”
And, Senator Gold, if the opposition has been so insistent — as you would say, deliberately obstructionist — it’s because we feel on this particular bill it’s the most egregious we’ve seen in the seven and a half years of this government. Because the reason you have not used time allocation — like I said in debate yesterday, this is the first time in seven and a half years — is because on other legislation we didn’t think it was as bad; we didn’t have to go to this extreme. In this particular instance, we felt we needed to go to the extreme because not enough people are listening.
That’s something that has been a disturbing pattern with this government, a pattern that should be giving all of us cause for concern.
But also, the one amendment that was the result of the most criticism of this bill, that took up a great deal of our time at committee —which was crucial because of the lack of time it took up in the other place — the issue that has become the biggest concern for me, my colleagues and hundreds of thousands of Canadians is the inclusion of user-generated content.
The one amendment that dealt with that, and attempted to mitigate the damage — if not fix it altogether — was not accepted.
Colleagues, that deserves more than a rubber stamp. It deserves further reflection and consideration in this place. Given the number of Canadians who are concerned by this, it should concern each and every one of us. It’s not a handful; it’s not a minority. We know why this bill has struggled to move through both this place and the other place for close to three years.
To return to the number of hours that we’ve supposedly been debating, six hours is a generous estimation. A lot of debate that has taken place since we received the message from the government hasn’t been spent debating the government’s refusal to accept the crucial amendments. Much of the six hours, or so, has actually been spent talking about things like the Salisbury Doctrine, and about our obligation not to stand up to the government — because the biggest priority for independent senators seems to be not to offend the government, not to push the government too much and not to hold them accountable too much. And at the end of the day, that’s democracy.
Democracy in this place, as I said, is not expressed by votes. I remind you that you’re all appointed. None of you have been elected, myself included. Your democratic right comes from the prime minister who appoints you, but your tenure here also gives you the independence that you require to speak freely on behalf of the regions and citizens that you represent — and I encourage you to exercise it. Don’t be afraid. I’ve done it a couple of times; it was toward the prime minister who appointed me, and the clouds didn’t fall from the sky. I wasn’t expelled from caucus. I wasn’t given a thousand lashes. Actually, I disagreed publicly with the prime minister who appointed me, and everyone thought it was the end of the world, but, a few months later, I was appointed the Speaker by the same prime minister. According to many Liberals, the former prime minister was very draconian, very hard and very difficult to deal with.
I won’t enter into the debate on that again, but I will say this: If you subscribe to the belief that we’re governed by the Salisbury Doctrine — and I’ve been hearing from Senator Harder that he loves the Salisbury Doctrine — nowhere does it limit how many times a bill can move back and forth between two chambers. Nowhere does it say that senators do not have the right to stand up for their region, citizens, groups or stakeholders. Nowhere does it say that this chamber can’t insist on its amendments to a government that has exercised overreach.
I will reiterate my grave concerns for digital creators in this country as a result of this legislation. These are people from all across Canada, from all walks of life, from all regions and ethno‑linguistic religious backgrounds, who have found incredible success on the internet. These are individuals — your children, your nephews and your neighbours — who are out there conducting independent journalism, documentaries and videos, and posting them on YouTube. Many of these particular Canadians will end up being the next Justin Bieber or The Weeknd — all of these stars were discovered. Canadian superstars and cultural icons are discovered through these new platforms. Not every single Canadian cultural icon was discovered through the CBC and Telefilm Canada. More and more are being discovered through international platforms which, by the way, are not traditional broadcasters.
The truth of the matter is that this bill is a lie right from its premise. The premise of this bill is to bring online traditional broadcasters with the digital platforms. Digital platforms are not broadcasters — not even close. They are only platforms that provide free, open opportunities for people to communicate. It doesn’t matter, as I said, if it’s independent journalists, the media, senators, politicians, local hockey teams or organizations — Google, Facebook and all of these platforms have given all of us an opportunity to expand our horizons, to reach out to people and to sell whatever it is that we’re selling. Some of us sell our political views; others may sell cosmetics. Whatever the case may be, it’s an open, free opportunity for discussion and debate.
I don’t think there’s some nefarious strategy on the part of the Prime Minister or the ministers to sit in some corner trying to mind control Canadians. What I do think is that the traditional broadcasting industry is in decline; they’re heading toward bankruptcy because their business model just doesn’t work anymore. People are receiving information and exporting information in these new, modern technical and digital ways. The Prime Minister wants to find a way to help his buddies, who are the big multi-million-dollar traditional giants in this country. I’ll call them out; I’m not afraid. They are Bell Media, Quebecor, Rogers and the CBC — of course, they don’t get enough of the $1.2 billion trough of taxpayer money; they want more. They want the digital companies to give them more because that’s going to increase ratings.
This government also says that they have embraced innovation, as well as that they have embraced a lack of barriers, and they have done it without government intervention. I can think of so many incredible digital creators from whom we heard at committee: Darcy Michael comes to mind, as he is the self‑described gay pothead who testified about the importance of owning the work that he does, rather than CTV owning his work. Do you remember him, Senator Quinn? He’s a young, bright fellow. I think of Jennifer Valentyne, who spoke about aging out of legacy media as a woman. Do you remember her? And then there was Vanessa Brousseau, a proud Indigenous woman who expressed concern that, yet again, she’s going to have to prove that she is Canadian and that her product is Canadian content.
Senator Housakos, I’m sorry for interrupting you, but your time has expired. Are you asking for five more minutes?
I’d love to have five more minutes.
Is leave granted, honourable senators?
I’m sorry, Senator Housakos; I hear a “no.”
Honourable senators, I rise today to speak in support of Senator Plett’s amendment on the message on Bill C-11. I really wish we had more time to debate because this is a topic that has engaged Canadians like few others, but the Trudeau government has decided to force this bill through, cutting off debate for its own political ends. First, they rammed it through the House of Commons, and now it’s the Senate’s turn. For all the crowing that Senator Harder and Senator Gold have done in the past about the Trudeau government not using time allocation, it is ironic that the government has chosen to invoke it now on this bill about online censorship.
We shouldn’t be surprised, I suppose, as the Trudeau government has routinely demonstrated its fear of the free and fair debate of challenging issues — it’s kind of their default. Why accept further debate on an online censorship bill when you could shut down debate unilaterally, and then make changes that work to your political advantage? Why have a public inquiry into Beijing election interference when you could instead stage‑manage a long-time family friend and Pierre Elliott Trudeau Foundation member to do it for you in private? After all, we know how the Prime Minister admires basic efficiency. It’s too bad that it is at the expense of the democratic right to the freedom of expression, but here we are.
After the nearly 70 hours that senators invested in close examination of Bill C-11 at committee, and after the additional time that senators took to draft and discuss amendments, we’re now at a crossroads in determining the future of this legislation. The Trudeau government considered our 26 Senate amendments, but they only accepted the most inconsequential ones. While the government did accept one of my own amendments to harmonize the definition of “decision” with that of the Telecommunications Act, it was not even close to the most significant of those that I had proposed at the Senate committee. The Trudeau-appointed senators at committee rejected two of my other much more substantive amendments that dealt with the meat of the bill on the issues of discoverability and threshold.
Now the Trudeau government has rejected all of the most substantive amendments put forward by the Senate — even reasoned amendments like the one proposed by Senator Miville-Dechêne and Senator Simons that would have explicitly removed user-generated content from the long reach of Bill C-11. Instead, the Trudeau government has asked senators and, by extension, Canadians to just trust them to exempt user-generated content from their Bill C-11 plan. Of course, they refuse to put such assurance into the actual legislation where it would be binding. Instead, they have inserted a clause into the motion accompanying the Senate’s message where it can — and will — be summarily ignored and forgotten. Senator Scott Tannas suggested this was a sufficient compromise. He said it contained enough “bread crumbs” to protect users. I disagree. Honourable senators, this is not good enough for Canadians. They want and deserve bread, not crumbs.
The motion originally proposed by the Senate government leader read this way:
That the Senate take note of the Government of Canada’s stated intent that Bill C-11 will not apply to user-generated digital content and its commitment to issue policy direction to the Canadian Radio-television and Telecommunications Commission accordingly.
Senator Tannas’ suggested amendment, now passed, replaced the words “stated intent” with “public assurance.” Thus, it now states in that motion:
That the Senate take note of the Government of Canada’s public assurance that Bill C-11 will not apply to user‑generated digital content and its commitment to issue policy direction to the Canadian Radio-television and Telecommunications Commission accordingly.
Unfortunately, honourable senators, you can be publicly assured that promise won’t amount to a hill of beans. It’s no more than a legislative pinky swear for a government with a well-earned reputation for repeatedly breaking their own promises. I don’t even have time to recount them all. There was the promise to never raise the carbon tax above $50 a tonne — broken. The promised $4.5 billion Canadian mental health transfer — Canadians haven’t seen one red cent of that. Electoral reform — thrown overboard. How about the Liberal promise that we would have only two years of $10 billion deficits before returning to balance? Goodness knows, the Trudeau government has blown the doors off that one.
It just goes on and on. It’s fair to say the only thing you can count on is that you just can’t count on this Trudeau government to keep their word.
Still, the 2019 Liberal election platform gives us a hint as to the Trudeau government’s true intentions regarding this bill. Their 2019 platform stated that a Liberal government would:
move forward, in our first year, with legislation that will take appropriate measures to ensure that all content providers — including internet giants — offer meaningful levels of Canadian content in their catalogues, contribute to the creation of Canadian content in both official languages, and promote this content and make it easily accessible on their platforms.
From that description of “all content providers,” honourable senators, it sounds an awful lot like the Trudeau government and the Liberal Party never had an intention to exempt user-generated content creators from regulation. Why should we believe they will now?
The Liberal government claims that because changing the Broadcasting Act was an electoral promise, senators have no right to delay passage of Bill C-11 now, but this is really overstating the issue. The election promise in the 2021 Liberal election platform was very vague. Perhaps this was intentional given the backlash the government had encountered on Bill C-10, the precursor to Bill C-11. The 2021 platform stated that a Liberal government would:
Within the first 100 days, reintroduce legislation to reform the Broadcasting Act to ensure foreign web giants contribute to the creation and promotion of Canadian stories and music.
The Broadcasting Act hadn’t been updated in 50 years. No doubt it was due for a refresh, especially given the rapid advancements in technology. However, the broad generic terms used to describe the promise in the Liberal 2021 election platform certainly gave no indication that they intended to regulate user-generated content, one of the most contentious issues arising from Bill C-11.
In any case, claiming that the Senate must follow the Salisbury Convention now because Bill C-11 was explicitly an electoral promise is far-fetched at best.
The Trudeau government and independent senators in this place frequently laud the amendments passed on bills in the Senate as evidence of their new system’s efficacy, but most of the time the Senate amendments — the ones that are accepted by the Trudeau government — either originate with the government and are their way to clean up their shoddily drafted legislation at a late stage of the legislative process or the amendments are inconsequential and uncontroversial. Rarely will the Trudeau government accept amendments that significantly alter their legislation. That’s what we’ve seen with Bill C-11.
I’ve said it before and I’ll say it again: That simply is not good enough. How many times have we heard independent senators state during debate, “Don’t let the perfect be the enemy of the good,” dissuading senators from passing amendments to government bills?
Honourable senators, in the Senate of Canada, we should strive to make legislation more perfect. That is quite literally our jobs. We don’t have to attempt amendments only once and then throw up our hands when the government pushes back. While the government may still not accept Senate amendments that are sent back to the House of Commons twice, the upper chamber’s insistence certainly makes the government sit up and take notice.
Bill C-11 is important enough to Canadians that we should be doing that here. The Senate is well within its rights to insist on its amendments. As then Senate government leader Peter Harder stated in his paper on complementarity:
Since 1960 . . . seven bills involved a decision by the Senate to insist on some or all of its amendments once the House had rejected them.
We even have quite recent precedent for this. Some of you might remember that in 2018 the House of Commons rejected several Senate amendments on Bill C-49, An Act to amend the Canada Transportation Act, but the Senate insisted on two of their amendments and sent the bill back to the House a second time. The House again refused, and the Senate deferred.
The point is, honourable senators, that it is not unprecedented, and in the case of Bill C-11, it would be justified for us to insist a second time on our amendments.
To the Trudeau-appointed independent senators in this chamber, you should demand better of the government that appointed you. If you are as independent as you claim to be, take this opportunity to push back again on this message from the House of Commons on behalf of Canadians. It is time to flex your muscles. Try it. You never know. You might like it.
Honourable senators, if there is ever a time for the Senate to insist on its amendments, Bill C-11 would be it. To acquiesce so easily to the Trudeau government in dismissing the Senate’s substantial amendments on this bill is to disrespect the time and the work that the Senate committee has done on Bill C-11. The government should not be meddling this way in the free expression of Canadians. This bill is a serious threat to the livelihoods of Canadian content creators. It could have the effect of stunting our cultural and entertainment industries on the world stage. Above all, it is an unnecessary and unprecedented impingement on the freedom of Canadians.
With this in mind, I ask you to join me and vote to stand up for our Senate amendments for the good of all Canadians. Thank you.
