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Online Streaming Bill

Bill to Amend--Motion to Authorize Transport and Communications Committee to Study Subject Matter--Debate

May 18, 2022

Hon. Marc Gold (Government Representative in the Senate) [ + ]

Pursuant to notice of May 17, 2022, moved:

That, in accordance with rule 10-11(1), the Standing Senate Committee on Transport and Communications be authorized to examine the subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, introduced in the House of Commons on February 2, 2022, in advance of the said bill coming before the Senate; and

That, for the purposes of this study, the committee be authorized to meet even though the Senate may then be sitting or adjourned, with the application of rules 12-18(1) and 12-18(2) being suspended in relation thereto.

He said: Honourable senators, I rise today to speak to government Motion No. 42, which authorizes the Standing Senate Committee on Transport and Communications to examine the subject matter of Bill C-11, known as the online streaming act.

As honourable senators would know, Bill C-11 is essentially the revised version of the Forty-third Parliament’s Bill C-10 that died at the Senate committee stage at dissolution.

As you would recall, Bill C-10 was the subject of a fulsome and passionate debate at second reading in this place less than a year ago. On that occasion, we heard from the sponsor, Senator Dawson; the critic, Senator Housakos; and the Independent Senators Group legislative leads, Senators Dasko and Simons. As all four still occupy the same roles vis-à-vis Bill C-11, I anticipate we will have a reprise once Bill C-11 arrives to us. We also heard from Senators Richards, Bovey, Loffreda, Wallin, Downe, Colin Deacon and Miville-Dechêne. Different perspectives were shared, but all raised specific issues for the committee to focus on and all agreed on the importance of the committee study.

Today, I’m proposing that the Standing Senate Committee on Transport and Communications be empowered to begin some of this work. As a refresher, and for the benefit of new colleagues in the Senate, rule 10-11(1) allows the subject matter of a bill to be referred to a Senate committee for study and analysis in advance of the bill’s passage in the other place. In essence, the procedure provides for a complementary examination that will work in tandem with the bill’s journey through the parliamentary process.

Bill C-11 will still need to go through each stage of the legislative process when it arrives in this chamber from the other place. In the meantime, members of the Standing Senate Committee on Transport and Communications will have the opportunity to better understand its substance, hear testimony from departmental officials and other witnesses, both pro and con, and begin to delve more deeply into the issues raised in the debates on Bill C-10 in the previous Parliament.

You may notice that the motion does not contain any time constraints for the committee, and that is intentional. The aim is simply to support the committee and ensure it has the tools and flexibility needed to organize and conduct its work as it sees fit, so that it can adapt the course of its analysis to the unpredictable environment of the House of Commons.

Honourable senators, I have heard loud and clear that senators want as much time as possible to focus on studying government legislation. You are insisting that there be sufficient time for adequate study and debate regardless of how quickly or not legislation arrives. It is in that spirit that I am proposing this motion. As masters of our own house, I believe we can and should use whatever tools are available to us so as to provide the critical review of government legislation which is at the core of our constitutional function and mandate. With the consent of this chamber, the authority to pre-study proposed legislation is within our power and affords us the time to properly scrutinize legislation without prejudice to the time that may be required once the bill has passed in the other place.

Government Motion No. 42 proposes that Bill C-11 be examined in advance and, in my opinion, it meets the criteria and the need for pre-study in the Senate. This would allow the committee to do extensive work and give it the authority to undertake the study of a bill at the top of the list of the parliamentary agenda, while having some flexibility with respect to how the work is done.

Colleagues, it is important to note that when Bill C-11 arrives in the Senate from the other place, it will have to go through every legislative stage in the manner and at the pace that this chamber decides.

This motion in no way prejudices the manner in which the Senate may choose to handle Bill C-11. To be clear, the Senate ultimately decides how many days and weeks it chooses to spend on second reading, on committee stage and on third reading of a government bill.

Colleagues, it is perfectly legitimate, healthy and natural for this government or any government to have ambitious objectives. After all, the political parties that form governments run on platforms and on promises made to the electorate. However, as Government Representative in the Senate, whether or not I like it, it is my burden to persuade the Senate to agree to the pacing of the work. All this motion does is launch a study that many senators have been keen on undertaking so that our institution, the Senate, may add value and sober reflection to this important policy initiative.

Colleagues, for all intents and purposes, Bill C-11 has been in Parliament since 2020. Its predecessor, Bill C-10, received robust study in the other place. It was referred to the Senate committee on June 29, 2021. What I am proposing is simply this: that we allow the committee to pick up where it left off and do some advance work.

Many concerns were raised at second reading when we initiated our work on the former Bill C-10. The committee can utilize some of those concerns to organize its work and to determine if some of the original concerns or issues were addressed by the changes introduced in Bill C-11, which the bill purports to do.

All can agree that this bill requires serious scrutiny. We all know that Bill C-11 is politically charged. That is why I believe that this bill needs the Senate. It needs a less partisan, more independent lens and I believe it needs it now. At the same time, it is important to understand that, should Bill C-11 be delayed, hundreds of millions of dollars targeted for allocation to Canadian content and Canadian creators of content would be lost. A delay would perpetuate the void in the Broadcasting Act for minority and marginalized communities.

Esteemed colleagues, pre-studies in the Senate are neither new nor rare. They are also not limited to money bills. In 2001, in his ruling, the Speaker of the Senate described the purpose of a pre-study in Senate practice as follows:

Pre-study has been a feature of Senate practice for more than thirty years. . . . Its purpose was to allow the Senate more time to examine bills, particularly complex or controversial bills, while accommodating the broad legislative time-table of the Government. At the same time, it permitted Senators greater input into the legislative process by allowing the work of the Senate to have some influence on the study of a bill while it was still in the other place.

Honourable senators, because we do such good committee work in this place, there are significant benefits to pre-studies.

By undertaking a pre-study, the committee has the opportunity of becoming aware of certain issues, of having the concerns of stakeholders heard in a timely manner, of eliciting formal comments and of suggesting changes that the other place could integrate into the bill before it is passed.

There’s also a significant benefit to the identification of core issues that the Senate may wish to focus on once it has received the legislation.

This is a factor that is not mentioned very frequently, but in my experience, it can be critical in preparing the Senate to deal with complex legislation.

Colleagues, with respect, I fundamentally disagree with the argument that pre-studies somehow undermine the Senate’s fundamental role of sober second thought. This is simply not my experience. I have seen the tangible impact of pre-studies in bringing issues ignored in the House to the forefront and ultimately bringing about real change, either through the House or the Senate.

In the Government Representative Office, we know how important they are because we routinely work to resolve issues arising out of Senate pre-studies through the House process or through targeted government and stakeholder engagement. Even when that is not possible, colleagues, our pre-studies ensure that the Senate is particularly ready to focus on core issues, often leading to sober second thought improvements accepted by the other place.

You will remember, esteemed colleagues, that when we debated the bill on medical assistance in dying, the issue of excluding mental health emerged as a major concern during the pre-study. When we received the bill, we knew that it was a fundamental issue, and we had the opportunity to discuss it fully, to carry out a comprehensive study, and, ultimately, to propose amendments that were accepted in the other place. We were ready to receive the bill, and our work made a difference.

I would also note that pre-studies are far from a new phenomenon, even as it pertains to non-budgetary matters. A cursory review of past parliaments reveals that there were 16 Senate pre-studies during the Forty-first Parliament alone under the former government. These included not only budget implementation acts or supply bills, but proposed legislation on topics as diverse as citizenship, national elections, First Nations rights, changes to the Criminal Code, the updating of the Canadian Security Intelligence Service, or CSIS, and free trade agreements. Going back nearly 50 years to the Thirtieth Parliament in 1974, the Senate pre-studied 22 bills that included constitutional amendments, prevention of violent crime, authorities for pipeline construction, changes to unemployment insurance and the rules for the calling of national referendums.

Colleagues, I should like to add that both the Forty-first Parliament and the Thirtieth Parliament were majority governments led by Prime Minister Harper and Prime Minister Pierre Trudeau respectively, and the governing parties also held the majority of Senate seats during these years. Both chambers were in control of business, including the agenda and pacing of legislation, and yet, colleagues, Senate pre-studies were authorized and completed on numerous occasions before proposed legislation from the other place reached the Senate.

Now as colleagues well know, in a minority situation, the timing and passage of legislation are not in the government’s immediate control. This, as we know, complicates the downstream work that the Senate is expected to conduct. Colleagues, we have no control over the business of the other place. We do, however, control how it is handled here.

In this debate on this motion, we may hear that a pre-study may not be useful because there is a possibility that Bill C-11 could be amended in the House and that, when it arrives here, some of the provisions may be different than that which we would be studying in the pre-study. Again, respectfully, colleagues, this is not a compelling or persuasive argument.

Of course it is possible that Bill C-11 will be amended, but I just don’t know, nor does anybody else in this chamber. Every time a pre-study is approved in this place, that is a possibility — that is a variable. If the mere possibility that the bill may be amended by the House is a reason for the Senate not to proceed with a pre-study, then we would never pre-study any bills. If anything, House amendments brought after or during a pre-study are frequently responsive to concerns and issues highlighted not only by the opposition parties in the House but also in the Senate. This occurred on Bill C-12, the net-zero emissions bill and more recently on Bill C-3, the paid sick leave bill. This is one of the objectives of a pre-study. Who knows? It may very well happen on Bill C-11, and we should be glad if it does.

Once we have received the legislation and conducted a pre-study, we can examine whether the concerns expressed by the Senate were, in fact, addressed sufficiently or at all. If changes are indeed brought in the House, it’s entirely within the Senate’s prerogative to examine these changes, and it can do so in a very focused way because it has had the benefit of the previous draft of the bill and the findings of the pre-study.

Now, I have also heard it said dans les coulisses, as we say in French, that a pre-study is not useful because we may not even get this bill in time. Again, respectfully, this is not persuasive; this is entirely speculative.

I stand here as the Government Representative, and I’m telling you I do not know when it will arrive. It is nonetheless a top priority of the government that is doing all it can to get it to the finish line. It’s also because we don’t know when we’re going to get it — we don’t know when the bill will be with us — that a pre-study with no constraints and with a flexible frame of operation is helpful. Even if Bill C-11 does not make it to the Senate before the fall, I cannot see why a pre-study would be a waste of our time. The key point is this: I am proposing that we conduct some work, the work we do best, so that we may be in a position of preparedness for whenever we receive Bill C-11.

In my view — and I know this is a view shared not only in this chamber but by those interested observers of the work of the Senate over many, many parliaments — our committee work is our best work. I know that any advance work we do on Bill C-11 will pay dividends regardless of when we receive it.

Colleagues, it’s wise for us to have the foresight to use the tools we have to adapt to the challenges that we all experience posed by the capacity of our committees to meet and the unpredictability of the House’s passing of priority bills. Of course, we could simply wait and do nothing, but I prefer to propose government Motion No. 42 as a tool to manage these challenges.

I think we should take advantage of the time that we now have but may not have later, given the considerable constraints affecting committees. In fact, the adjustments we very recently made with respect to a hybrid Senate were intended to ensure that committees would have the greatest flexibility possible to carry out their work on government business in an appropriate and thorough manner.

This motion will allow for the committee to have the time to determine its work and to avail itself of additional committee slots as needed.

Colleagues, we all know that it will be difficult to ask committees to do intensive work at the tail end of our sittings because of the constraints that have been discussed ad nauseam in this chamber. As well, the unpredictability of house business may see bills arriving here sooner than anticipated. One simply cannot know. If this were the case with Bill C-11, a pre-study could morph into a formal study once second reading was complete and it had been referred to the committee.

It is also conceivable that even though a bill comes to us late, capacity issues around committee availability may have made it impossible to complete a pre-study. In such a scenario, the advance work that was achieved will be crucial to the review. We simply cannot let the capacity limitations that we face prevent us from achieving the work that Canadians expect us to do.

To quote our colleague Senator Saint-Germain when she spoke to Motion No. 30 on March 29:

We have the ability to do pre-studies on bills that we know will arrive late for our consideration in accordance with rule 10-11(1). This practice is beneficial because it allows us to be ready for debate and, eventually, amendments when the bills arrive in circumstances requiring a diligent and timely response.

Colleagues, isn’t that our job description? Isn’t that what we were summoned here to do — to be informed, to be ready for debate, ready for review, and, if necessary, ready to improve legislation by amending it?

I understand your frustration at my inability to provide you with a predictable time frame for the passage of these priority bills. I do wish I could give you a clearer picture. However, our work must still get done, and we’re the ones to make it happen. It is our responsibility to use whatever tools we have at our disposal to see that these bills aren’t given short shrift.

Allow me to quote from Senator Tannas, from February 8:

I think that the more tools we can have within our Rules, like pre-study — there is a process by which we approve that — the better.

On this, I agree with Senator Tannas. Honourable senators have been requesting and, in some instances, demanding more time for the review of proposed legislation.

On the same subject, I would like to quote my good friend Senator Plett, who said the following on November 16, 2011:

. . . I am proposing a pre-study in order to give this legislation the appropriate amount of time for discussion and debate.

He was requesting and brought forward a motion concerning a pre-study on, then, Bill C-18, Marketing Freedom for Grain Farmers Act. Senator Plett went on to say:

Our chamber must begin a pre-study to allow for the proper amount of study the bill deserves. As we are anticipating that this legislation will be before this chamber shortly, a pre-study would allow us the extra time to properly study this legislation — instead of rushing it through the committee process — just as Senator Peterson has asked us to do.

Ultimately, colleagues, his motion was not required, as I understand that closure was imposed in the other place, and the Senate was able to receive the bill in a timely way. However, the rationale that Senator Plett offered is demonstrably relevant to the issue before us today.

Motion No. 42 relies on much the same rationale as Senator Plett argued regarding Bill C-18. This is a request for time. In the same speech of November 16, 2011, Senator Plett also said:

If we are to pass this important piece of legislation, it is imperative that it receive Royal Assent before the Christmas break to allow Western Canadian farmers ample time and opportunity to find markets for their wheat and barley for the next crop year.

Colleagues, there is similar importance to moving forward with Bill C-11.

As I mentioned earlier, the delay in passing this bill will result in the loss of hundreds of millions of dollars for the stakeholders, our Canadian artists and creators. Furthermore, any delay would extend the current void in Canadian content for marginalized and minority communities and their artists.

There are some in this chamber who may want to make the debate around this motion one that is about us and the role of the Senate. Honourable senators — and I’m saying this with the utmost respect — this motion is not about us. It’s about the Canadians who create content and the constant efforts by Canadian content creators who have been waiting for years, if not decades, for the legal landscape in which they operate — and for which we as parliamentarians are responsible — to be modernized.

For those who may argue that there is no urgency in passing Bill C-11 and that it is not time-sensitive, again, I would respectfully disagree. In my view, depriving Canadian artists of deserved, earned income and tacitly permitting the absence of Canadian content in our broadcasting is an urgent, time-sensitive issue, and it is also a priority of this government.

To those of you in this chamber who have been tweeting their reservations around this legislation for nearly two years, I hope you will support this motion, because it will provide you with an early opportunity to test your assertions.

While some of you may not agree with Bill C-11, that is no reason to deny content creators the benefit of our work, of our due diligence. There is also no reason to tell content creators to wait again and to wait longer for the Senate to begin its work.

Whether we support Bill C-11 or not, our message as parliamentarians should be that we care about this industry, and we’re prepared to get down to business now.

I urge honourable senators to approve this motion and authorize the pre-study of Bill C-11. This bill must not be hastily studied because of time constraints over which we have no control. We have the power and the tools required to start our work as soon as possible, and it is incumbent upon us to use them.

I would like once again to quote the current Leader of the Opposition:

. . . for now I simply ask that all honourable senators join me in support of this pre-study motion. We are not, honourable senators, asking you to support the bill today. We are today asking you to support a study.

I couldn’t have said it better myself. Thank you.

The Hon. the Speaker [ + ]

Senator Gold, there are a number of senators, both present and virtual, who wish to ask questions. Are you prepared to take questions?

Senator Gold [ + ]

Of course.

Hon. Donald Neil Plett (Leader of the Opposition) [ + ]

I couldn’t have said it better myself either. Oh, I did say it myself.

Yesterday in my office, when my staff and I did a bit of a debrief in the afternoon, we got on the topic of arguing with oneself. I said I like arguing with myself; I win all the arguments. That’s what I heard here today, you arguing with yourself, because you seem to know exactly all the reasons why we would get up and tell you why we didn’t agree to it. So thank you, at least, for preparing our notes for us. We appreciate that.

Since you’ve been quoting a bit, let me quote one person here myself, honourable colleague, in this chamber before I ask you a few questions. I’ll start with reading the quote:

. . . the use of pre-study in this chamber is occasional where the appropriate circumstances present themselves. Obviously, that has been more regularly on budget matters.

That was said by none other than the former government leader in the Senate, Senator Peter Harder, on May 30, 2018. I couldn’t have said it better myself.

Senator Gold, you had some numbers on previous governments. Let me ask you whether you know the exact number of nonfinancial pre-studies that the Harper government did in the nine and a half years that they were in government — half of those, by the way, in a minority government, not a majority as you alluded to — versus the four and a half years that the Trudeau government had in all of but the last six months in a majority government. Let’s forget about what father Trudeau did; let’s just focus on those two governments. Do you have the numbers on non-financial pre-studies?

Senator Gold [ + ]

No, I don’t have the specific numbers, but thank you for raising it. It is the case that although we tend to think of pre-studies in terms of budget bills and supply bills, as I said in my speech, and as I’m sure you will make us aware when you do address us in debate, I do know that a significant number of pre-studies were done in non-budget bills. As I tried to underline in my speech, and I won’t repeat myself, they produced salutary results for the legislation and for Canadians, and did honour to the Senate in terms of its contribution to the policy debate.

Senator Plett [ + ]

Thank you, again, as is typical in Question Period, for that non-answer.

Let me tell you. I won’t wait until the debate to let you know. I’ll let you know now.

Prime Minister Harper, from 2006 to 2015, with half of that time being in a minority Parliament, had 10 pre-studies on non‑BIA bills. Prime Minister Trudeau, in four and a half years, has had 14, plus 7 on BIA. I would say that is a trend, especially for somebody who has a majority government.

I will obviously speak to this. The problem here, Senator Gold, is a complete lack of management by an inept government. As Senator Tannas has said — and I’m not quoting him here — but something along the lines of your inability to manage your time is not our emergency, something like that. I would agree with that.

The ineptness of this government not being able to bring its legislation — you yourself said that Bill C-10 had been before the other house in the previous parliament. They had four years to bring it in. They failed. Now they wait again. They can’t give us a deadline. You can’t give us a timeline, but let’s pre-study it just in case they send it to us sometime.

If there is such urgency, why did the government not put any urgency, and why is the government again treating us like a second-class house by demanding that we get something done, when they are not able to control their own time schedule?

Senator Gold [ + ]

Well, thank you for confirming my assumption that some would like to make this a debate about the Senate or the government.

My position and the position of this government, the position of this Senate, which approved each and every one of the pre‑studies — it wasn’t the Prime Minister approving pre-studies in the Senate to which you referred, it was the Senate agreeing to doing pre-studies because the Senate collectively believed it was the appropriate thing to do.

It is my position as Government Representative that pre‑studies are a useful tool for the Senate to discharge its constitutional obligation. That’s why I’ve put this proposal forward. It is to give us the ability to do our jobs, to do our jobs freer from the constraints of time and in response to the legitimate demands and concerns expressed by so many of you in this chamber that we not be rushed to do our work.

I will not apologize for promoting the idea that this pre-study on this bill is a good thing. On the contrary, it is a very good thing. It is a good thing because it allows us to do our job for which we were summoned to do.

The Hon. the Speaker [ + ]

Senator Plett, the process that we’ve been following so far is that senators will ask one question and one supplementary. Time permitting, we will go to a second round. I have you on the list for a second round.

Hon. Scott Tannas [ + ]

Senator Gold, thank you for your speech. As Senator Plett has mentioned, it is a relatively rare occasion. Our research bureau, I think, tallied it at somewhere around 20 pre-studies that had been nonfinancial in the last 32 years, of governments of all stripes and majorities and minorities, et cetera.

I agree, there are times when we should consider this, and this may, indeed, be one of them.

My understanding is this bill hasn’t even had a committee meeting yet in the House of Commons. It strikes me as almost a little too keen of us, a bit of apple-polishing to be running ahead of even the House of Commons and their committee meetings. Is that right? Am I clear that the committee has not yet met or seen witnesses on Bill C-11? If that is the case, would you suggest maybe we ought to wait until they’ve at least started their study and had a few witnesses so we can see where the direction is?

Senator Gold [ + ]

Thank you for the question. Respectfully, I don’t agree. You’re correct. It has been a challenge to move legislation through this Parliament. It is still a minority government, despite the — if I could continue.

Senator Plett [ + ]


Senator Gold [ + ]

I choose not to hear that. It is still a minority Parliament, and although there is an understanding on supply and confidence, that does not mean that the government is free to move things forward at its will. It does not have a blank cheque from any of the opposition parties, including the NDP.

But, I digress, and experienced parliamentarians know this.

But to your question, Senator Tannas, you may be right. I think it is moving into the committee because of some understandings that were ultimately reached.

But the point still is this: Bill C-11 is to a large degree subject to changes that were made to Bill C-10, which has been before Parliament for some time now. This is not a new bill. It is not a new issue. The same forces that are rallying for and against Bill C-10 are marshalling their arguments as we speak.

We know what the issues are, and it is the appropriate thing for us to dig in now to be able to determine to what degree Bill C-11 addresses some of the concerns that were raised so that we can be in a properly informed position, not only to share our views to the other place while it is still in committee or otherwise being debated but also to be ready for a focused, sensible, rigorous study and debate when it arrives here.

No, I think it would be inappropriate to wait. Now is the time.

Senator Tannas [ + ]

I have a couple of quick snappers. Would we call the same witnesses at the same time that the hearing is going on? Would we ask that the committee find different witnesses so we could get a different perspective? We can all watch television or go over to the House of Commons and watch the committee meetings if we want to get ourselves familiarized. Maybe that’s a practice we could do if we want to get things done.

The other question is since when it is the Senate of Canada’s problem that there is a minority government in the House of Commons.

Senator Tannas [ + ]

Our job is to deal with items before us when they come before us. Could you just give us a bit of rationale around why this is our problem? Thank you.

Senator Gold [ + ]

Let me take both of your questions in turn.

Our committees are the masters of their own procedure. If this motion passes, the committee will decide who it wants to hear and when. It will certainly want to hear from ministers and officials, and it may very well want to hear from witnesses that are otherwise at present in the other place. It may have a different set of witnesses, but that’s in the prerogative of the Senate committees.

What we do best, though — and what I fully hope we do in this and every case — is to provide a more rigorous study, a less partisan study. That’s what we are known for, and I certainly expect us to continue in that honourable tradition.

In response to your second question, I never said that it’s our problem that it is a minority Parliament. Minority parliaments are a very regular feature of our Canadian parliamentary system, as we all know. The reality is that in a minority situation, things are not in the exclusive control of the government. It’s not only that they need to find dancing partners not only to pass legislation but to literally get them out of second-reading debate, where they are often obstructed by opposition doing their job as they see fit, just step by step.

Those of you who sat in the other place and are familiar with the rules know that their rules are different than our rules. Things do not necessarily move as globally and effectively there as here.

Finally, in a minority Parliament, there are opposition days. There are many days in the month devoted exclusively to the agendas, motions and priorities of opposition parties.

When you put all of that together, it may be satisfying from a partisan point of view and it may be partly felt from a principled point of view that somehow it’s the government’s fault that things don’t get moved as quickly as they would in a majority Parliament — especially a majority Parliament that is not averse to using closure. However, the reality is that we can’t control what happens there. We can only do our best to do our work as we see fit.

Again, we have the tools to apply ourselves to use our committee talent and resources to dig into this important bill so that when it does arrive here, we can add that much more value and do so in a responsible way that is less encumbered by the constraints of time and committee capacity.

Hon. David Richards [ + ]

Senator Gold, would you take a question, please?

Senator Gold [ + ]

I’ll take all questions I can until I run out of steam.

Senator Richards [ + ]

Thank you.

After Bill C-69, I think I know what the other place thinks of the amendments we put on a bill. But if this pre-study does give this bill a legitimacy it doesn’t deserve and if it is anything like Bill C-10, who decides what Canadian content is? There are always gatekeepers who believe they have the idea of identity priorities. That, in itself, is dangerous to anyone who believes in artistic independence. I believe solely in artistic independence, and I think the gatekeepers will always be there. This bill supports not real independence but the gatekeepers who decide what Canadian content is. Will you answer that, sir?

The Hon. the Speaker [ + ]

Just before you answer, Senator Gold, I will remind honourable senators that we are debating Motion No. 42, which is about whether there will be a pre-study. We are not debating the content of Bill C-11. We do have a fair amount of leeway when it comes to asking questions, however, so I’ll leave it to you, Senator Gold.

Senator Richards [ + ]

I’m sorry, Your Honour.

Senator Gold [ + ]

Senator Richards, we are here debating the pre-study. Your concerns are legitimate ones. I think all colleagues look forward to the contributions you can make, both at committee and during debate.

Hon. Leo Housakos [ + ]

Senator Gold, I listened carefully to your case for asking for a pre-study on Bill C-11. I must say that this cannot possibly have been your idea because I know you to be a reasonable man.

Pre-study in the Senate is not a tool to be used lightly. It is a tool that is available to us when there is an urgent public need or when it is of urgent public interest. I haven’t heard anywhere in your statement any compelling case that Bill C-11 somehow responds to some kind of urgent public interest.

My understanding and recollection is that this government received a mandate in the fall of 2021. It recalled Parliament prior to the end of 2021 — an urgent, pressing public issue that they tabled the legislation over in the House only at the end of February.

Furthermore, I also want to highlight that we are in a situation right now in the other place where — for all intents and purposes — for the last little while, the government has a majority parliamentary standing in the House where, again, if a bill were of such urgent public concern, we would have seen the House deal with that issue urgently.

When we have had pre-studies of bills in the past, they have usually been supply bills or they have been in response to an urgent public need that deals with a crisis and we needed to get monies out the door quickly. The government makes a compelling case, and usually both houses, in those instances, acquiesce, take on our responsibilities and exercise that tool of pre-study.

The government has been in power for seven years, with a majority government for four and a half. They didn’t table legislation dealing with this telecommunications issue until the fall of 2020. Now, they are tabling legislation knowing full well that there was no way we would deal with this legislation in the manner that we had highlighted at the end of the last debate on this issue.

There was a consensus among all our colleagues that this bill needed a long, in-depth study. It was a controversial bill that satisfied certain sectors in our society and dissatisfied others, requiring a fulsome, robust debate and discussion.

For all intents and purposes, we have no more than three to four sitting weeks. We are all well aware of the challenges we face in terms of resources and the capacities of our committees to be able to sit more than they are currently. Therefore, the question I have is — knowing full well that this bill has what is far from consensus from stakeholders in our society — do you believe, pre-study or not, that this government will somehow get this bill out of the House of Commons and the Senate before we adjourn for the summer?

Senator Gold [ + ]

Thank you for your question.

I won’t repeat myself; I know others are waiting to ask me questions. I will give notice that I will continue answering questions, but I will not go until four o’clock.

I will not repeat what I said. I think this is a government priority. This government is entitled to advance its priorities and objectives. Pre-study, I think, is a responsible tool we can use to do the work for which we were summoned.

With regard to your further question about the time that may remain in our sitting, we are getting ahead of ourselves. We are here to debate a pre-study and not what the ultimate path of this legislation may be.

Senator Housakos [ + ]

Senator Gold, I would like a more precise answer. In the time we have left before we rise for the summer, pre-study or not, do you believe, after you have heard in the last parliamentary session that this legislation needs a robust and thorough review — that was the consensus from a large number of our colleagues in the chamber — that there is an expectation that we can get this done in the short time left?

The last question I have, just to add to the debate, is this: Can you tell us clearly what is the urgent public need for this legislation to pass so quickly that it requires pre-study?

Senator Gold [ + ]

Thank you.

To your first question, Senator Housakos, it remains to be seen what emerges from our pre-study. It remains to be seen what emerges in the bill once we do get it. Whether the concerns expressed still hold water, I fully expect some of the political posturing around the bill to continue — that is the nature of politics — but the bill has been adjusted to take into account the concerns that were expressed.

I cannot say until we roll up our sleeves and study how long the committee will need to study it, at which point the leaders — as is our practice — will get together and see what the next steps might be. That will happen once we know when the bill is going to arrive.

With regard to your last question, again, I did my best to state the case in the speech; I won’t repeat it. However, I will remind you that there is a large community that defines our identity — those creative individuals and groupings in our society who provide content that defines us as who we are. It is not just as it has been in the past, being an elite from Montreal or Toronto. We are a diverse country. The Broadcasting Act, which Bill C-11 seeks to modernize, is not adequate to provide adequate space or place for those who represent more marginalized communities in our country.

It is the money that Canadian content providers are not receiving and will not receive until this bill is passed, and the space that needs to be created in our regulatory framework to reflect the diversity of our country so that Canadian content and art can truly be a reflection of who we are, as this place has become. The Broadcasting Act, alas, lags far, far behind.

The Hon. the Speaker [ + ]

Honourable senators, there are still a number of senators who wish to ask questions. The procedure here is that when the Speaker stands, senators will please take their seats. I would ask you to keep your questions short and to the point, which is debate on Motion No. 42.

Hon. Jim Quinn [ + ]

Senator Gold, regardless of the outcome of the vote on a pre-study for Bill C-11 — and, I would add, Bill C-13 — would you agree to make arrangements for members of the Transport and Communications Commitee and, I would add, as well, members of the Official Languages Committee to receive, when we return from next week’s recess, a copy of the technical briefing binders and any other briefing material supplied by government when reviewing legislation? I would find it vastly more valuable than that of a technical brief and a PowerPoint deck. If the main point of a pre-study is to be informed, why wouldn’t the government provide committee members with this information, regardless of the outcome of these pre-study votes?

Senator Gold [ + ]

Thank you for your question. I don’t want to presume your vote on this motion, Senator Quinn.

I’ll make inquiries as to what material can be provided. It is certainly open to the committee, once it is seized with the mandate of a pre-study, to request both from officials and from the government, and my office will use its good offices to facilitate that. I can’t give you a definitive answer about the specifics of what is appropriate to share at this juncture of the process.

Senator Quinn [ + ]

Senator Gold, you mentioned in your replies to various questions that committees are masters of their own procedures. Would you support an amendment to these motions to leave it up to each committee to determine how to prioritize these pre-studies in order to better balance their workloads and ensure that committees are masters of their own proceedings, especially given that these are pre-study proposals that will undoubtedly continue to be studied when and if they land here from the other place?

Senator Gold [ + ]

Such an amendment would be quite unnecessary, Senator Quinn, with respect. The operating principle in this Parliament is that government bills and government legislation receive priority over others. We have a process in place, through Selection and Administration, to provide for the allocation of committee spots and the priority to be given appropriately, and it is for the committee, once it is seized of a mandate, to decide how to organize its work. Such an amendment is something that simply would be unnecessary in this regard. The Senate and the committees have all the tools they need.

Hon. Frances Lankin [ + ]

Senator Gold, thank you for your speech. I found it interesting. I look forward to hearing the other speeches, because I have my own analysis of what is behind the opposition to this. I won’t share it so as not to provoke people, and although I’m a bit bewildered, I will listen carefully.

I personally support this and believe that we should undertake the pre-study. It is a very controversial bill with a lot of supporters and a lot of detractors, so there is much to learn and refresh our minds on.

My question to you is: When the pre-study is finished, if the bill hasn’t arrived, and it arrives late, the preoccupation of the Senate as of late has been to talk to you about insufficient time to deal with bills. For me, a pre-study helps that situation, but it doesn’t alleviate the potential problem. I’m looking for some assurances from you that if the committee feels amendments and other things in the House of Commons mean that we have to dig back into some of these items, and we require the time to do it, will we be faced with rushing in order to get it done before the summer recess?

Senator Gold [ + ]

Thank you for the question. As I tried to make it clear in my speech, and as the motion makes clear, there is no reporting deadline. That was to address whatever concerns or — dare I say — suspicions there might be that this is just a Trojan horse so we can ram it through at the end when it arrives at the last minute. That is not the intention of the government. Quite the contrary.

As I said in my speech, once the bill arrives here, whether the pre-study is still ongoing — and let’s hope it gets here while the pre-study is still ongoing, because that means we will get it earlier rather than later, which would be our hope — but once the bill gets here, regardless of whether the pre-study is ongoing or completed, it will then have to go through — and properly so — second-reading debate, and then it will be sent for committee study, and the committee will decide how long it needs to study the bill that we have received, and then it will go to third-reading debate.

As I said, Senator Lankin, I appreciate the question, and that pathway can only be determined and discussed amongst leaders. Ultimately, the Senate pronounces on that and decides, just through the normal operation of our rules of debate and the like, how long the process of second-reading debate, committee study and third-reading debate will be.

I hope that answers your question.

Hon. Dennis Glen Patterson [ + ]

Senator Gold, you got my attention by putting to us today that the alternative to pre-studying Bill C-11 and another equally controversial bill you have given notice of is to wait and do nothing. Senator Gold, you know we have very limited committee time due to the current hybrid situation. We have, at a quick count, about two dozen Senate public bills that need consideration by our committees.

Instead of waiting and doing nothing, why don’t we devote our precious and scarce committee time to giving those thoughtful Senate public bills the consideration they deserve in our committees? Would that not be a very useful alternative to waiting and doing nothing?

Senator Gold [ + ]

Thank you for your question. I was referring to doing nothing with regard to this bill, senator. I have utmost respect for the Senate, for the public bills and the studies that senators do that are not government business, and that’s just a fact.

However, it is also a fact that our primary constitutional obligation is to review government legislation, and that is what the Senate was set up to do in 1867. This is a point that has been made not only by me but by many others in this chamber, and, indeed, it is reflected in the priority that we have decided to give to government legislation when there is competition for committee time, and government matters and public bills are both competing for the same spot.

It is clearly the case that government matters take priority, and that is in no way to denigrate the important work that is done by senators and committees on public bills and studies.

Senator Patterson [ + ]

Thank you for that. Senator Gold, this is perhaps a little bit of a wrinkle on Senator Quinn’s question, but you just justified having a pre-study of Bill C-11 so that members of the Standing Senate Committee on Transport and Communications will have a better opportunity to understand its content. Could this goal of improving the understanding of a bill not be better accomplished by a briefing, which could be available to all senators and not just members of the Transport and Communications Committee?

Senator Gold [ + ]

Thank you for the question, senator. I have heard many times how important it is that bills get proper study in committee and not be rushed through. It is passing strange, if I could borrow a phrase from my colleagues from the East, to think that somehow a briefing is a proper substitute for hearing witnesses, interrogating witnesses and engaging in the kind of good work that senators and Senate committees do. With respect, no, I don’t think that is anywhere close to a substitute, and thank you for the question.

My question is for the government leader. I think you are misunderstanding the Senate’s historic powers. The power of the Senate goes beyond simply passing government bills. The Senate must also hold the government to account, conduct studies and produce reports. Right now, because of the pandemic, the committees are sitting half as often as they did in the past. Committee time slots have been slashed by 50%. Bills are now being introduced in the Senate before they are passed by the House of Commons, and this undermines the work of committees, which are supposed to investigate and hold the government accountable. Do you really believe that the only role of the Senate is to pass government bills?

Senator Gold [ + ]

That is not what I said, so my answer is no. I said that the primary and fundamental role of the Senate is to examine government bills and, in that regard and in that aspect, to contribute to Canada’s legislative process. As I have explained, I do not and will never deny the importance of the work that is done in committees. However, the fact that government business must be given priority is recognized by all senators in this chamber.

Leader, the job of the Senate and of senators is not to provide sober second thought to measures introduced by public servants, but to properly study bills passed in the House of Commons and to ensure that regional interests, including minority interests, are respected and taken into account in the context of a thorough study. The Supreme Court’s ruling on the Senate in this regard is very clear. Why continue trying to have the Senate do the work of the House of Commons?

Senator Gold [ + ]

That’s not the case. We are not doing their work; we are contributing to parliamentary work, as we have done many times and as I demonstrated using the statistics I quoted. With all due respect, senator, if your argument held water, we would never do pre-studies, but it does not. I must insist on the importance of this pre-study, which will enable the Senate to do its work in a responsible fashion.

Senator Plett [ + ]

Senator Gold, you spent a bit of time today assuring us that we in the Senate are masters of our own destiny. I think you at least alluded to it being entirely the idea of the government in the Senate to have this pre-study.

Senator Gold, have you received any instructions from the House leader in the other place that we do a pre-study, or have you been given any timelines by the House leader in the other place as to when they want us to be finished with this and what their expectations are of us?

Senator Gold [ + ]

Senator Plett, I will not divulge conversations that I have had with cabinet colleagues, in the same way that I would not divulge conversations we have as leaders — both of which must remain in confidence.

I am here to propose, as Government Representative — and as a senator — the motion before you. I will consult, as I always have, as my predecessor did, with leaders at such time as we know when the bill will arrive. That’s when we will sit down as leaders, chart a path forward and negotiate as we always do. Leaders will bring it to their members. We will ultimately arrive at some path forward one way or another, but it’s premature to enter into that discussion now. We don’t know when we are going to receive the bill.

Senator Plett [ + ]

I’m not asking you to break any confidentiality, but you made a point of suggesting that it was not the other place. I think my question is perfectly legitimate.

I am proud to be a member of the Conservative Party of Canada. I am proud to be part of a national caucus. Today, I was at a national caucus meeting. I am proud to be part of the leadership of the Conservative Party of Canada. I make no apologies for collaboration. They don’t tell us what to do and we don’t tell them what to do, but we talk.

You made a lot of comments that alluded to this being your decision and not theirs. So, if that is the case, my question is very legitimate and I will ask it again: Were you in any way encouraged by the House leader to do this?

Senator Gold [ + ]

Again, Senator Plett, and with respect, I’m happy that you are proud and I’m happy that you talk to your colleagues. I talk to colleagues in the government that I represent.

I stand by what I said in my speech about the proposal before you. Certainly, the decision to come forward with a pre-study was a decision that we made in the Government Representative Office in the Senate. I hope that it will enjoy the support of a majority of senators. I think it’s the right thing for us to do.

Mr. Leader, I would like to quote paragraph 57 of the 2014 Reference re Senate Reform, in which the Supreme Court quotes itself in the Upper House Reference. Paragraph 57 reads as follows:

[i]n creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons

When we do pre-studies, we are studying measures drafted by public servants, not measures adopted by the House of Commons, but that is not our role. You are absolutely right when you say that, if we follow my logic, which is based on the fundamental reasons the Senate was created, we would not do pre-studies. I completely agree.

Senator Gold [ + ]

Unfortunately, I do not agree with you or with that suggestion. Senator, you know how much I respect the Supreme Court, our judges and the importance of that ruling. It’s all well and good to quote from the reference, but I encourage you to read the debates dealing with Confederation and everything that has been written about the Senate. I also encourage you to reflect on the many roles that the Senate plays.

I would also refer you to the text of the Constitution of 1867. Why does the Constitution give the Senate the same legislative power, except for appropriation bills retained by the House of Commons, if the Senate’s only role is to wait for a bill to be introduced? We have had the constitutional power to legislate on our own initiative since 1867. Bill C-10 was thoroughly studied and debated in this chamber, because although we had not finished our deliberations, it arrived in the Senate with amendments, so it would not be all that radical to say that we are doing our part and accomplishing the work that is expected of us.

Waiting is not the only role of the Senate, leader. When we are not busy with bills, the traditional role of the Senate is to conduct inquiries, to monitor, to audit, and to undertake substantive studies on all sorts of topics. The inquiries seek to hold the government to account because the only counterbalance chamber, the only check and balance that exists in Canada with respect to the content of a bill, is the Senate. We are the only ones who have this power; even judges do not have power over the content of a bill. They have power when a bill is inconsistent with the Canadian Constitution, but not within the jurisdiction of the federal government. That’s where you misunderstand the role of the Senate. You think that because we are not seized with government bills we have nothing to do. We have a lot of do. We have inquiries to do, leader.

Senator Gold [ + ]

I find that I’m having to repeat myself all too often. In my speech, I cited several examples of studies carried out in previous Parliaments, including when your government was in power. We conducted several pre-studies that went well beyond budget issues. I maintain that I have a very good understanding of the Senate’s role. What we have before us is a motion to grant us the time and the opportunity to use the tools at our disposal, according to our rules, and to do our job. With that, I rest on my statement.

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