Senator Dasko, I have two senators with hands raised. Would you entertain questions?

Thank you, Senator Dasko, for that very thoughtful and factual speech about what Bill C-10 is and what it is not. I really appreciated that deconstruction. You posed a number of questions that you think are important for the committee to answer.

In my review of the legislation, I’m struck by one strand of thinking, whether it’s articulated or not, and it is this: When the bill refers to Canadian content, it is talking primarily about legacy mediums, such as music, cinema, et cetera. What about digital content creation that is really spurring Canadians to innovate?

There is an artist in Ottawa, in fact, Laura Kelly, who has generated 18 million followers of her art over the pandemic and she’s prolifically selling across the world, not just in Canada. How will Canadian digital content producers be supported through this new legislation?

Honourable senators, I would like to start by thanking many of you for recognizing the need for and engaging in thorough review of this legislation rather than expediting it, as the government had hoped we would have done. Yes, that was the desire of the government, not just the Bloc or the NDP. That was quite evident in a comment from Minister Guilbeault’s chief of staff a couple of weeks ago, before we had received this bill, when she stated to the National Post that they — the government — expected this legislation to pass in the House and the Senate before we adjourn for the summer.

As I said at that time, it takes a certain level of arrogance to make such a statement so confidently. That didn’t come from the Bloc or the NDP. That came from the government, and that desire to see, at all costs, this legislation pass was certainly evident in the procedural path it followed through the House of Commons, particularly at committee.

It was — at least in my opinion and that of numerous observers who are well versed in Westminster parliament and parliamentary democracy — an absolute affront to parliamentary practice and procedure. It did not serve the institution well, nor did it serve this legislation well. It is not a path that we as parliamentarians should aspire to follow in this chamber or even, again, in the other. We certainly can’t control or even attempt to control what happens in the House any more than they can or should attempt to control what happens here. We can only control how we conduct our business. And where this bill is concerned, we should do so in a manner divorced from the politics and electoral considerations to which it was subjected in the House of Commons.

We must conduct our review in a robust manner with a focus on good policy and governance rather than on good politics, and that appears to be what’s happening based on the debate that has taken place thus far. So I’d like to thank all of my colleagues for that.

I will tell you that my concerns with this bill are both in process and content.

Some of the concerns about the process were mentioned by the Speaker of the House when he rightly chose to remove the amendments made to the bill in secret by the committee. However, it is very clear to me this was more due to the fact that the official opposition raised a point of order than to the government’s sense of duty to adopt these amendments in the House and before Canadians.

I’m not saying this to score political points for the Conservative Party, but to correct the version of the facts presented by the government, which stated that it had no choice but to adopt these amendments in secret. However, it did choose, when it had the opportunity, to rectify the situation by proposing these amendments to the Senate. This is a very “Liberal” interpretation of the facts.

But I do digress, colleagues. The point is that the process this legislation followed in the House remains a large part of the problem that many stakeholders and I have with Bill C-10 because of the consequences that have resulted from that process.

With all due respect to my colleague and friend Senator Dawson, the sponsor of this bill, it does not do what the government claims it does. Again, with respect, Senator Dawson’s speech last week was an oversimplification of both Bill C-10’s intent and its consequences. I would like to thank our colleagues who engaged in last week’s debate, but in particular I would like to thank Senator Simons because I think she did an excellent job of breaking down what this bill is meant to do versus what it actually does. And I certainly will be touching on many of those same issues.

I’ll start with the overarching goal of this legislation — the modernization of the Broadcasting Act. I doubt there is anyone among us who doesn’t think this is a long-overdue endeavour. The Broadcasting Act hasn’t been updated since 1991. Unfortunately, I believe this legislation misses the mark entirely.

In short, Senator Dawson and the Trudeau government characterize this legislation as levelling the playing field between big tech, foreign streaming companies and Canada’s traditional broadcasters. They also describe it as a means to protect Canadian talent and in particular minority voices like Indigenous, LGBTQ+ and, in the case of Quebec, to protect and promote the French language and francophone culture.

It sounds great, but it is, as I said, an oversimplification of not only the legislation but also the problem it supposedly seeks to remedy.

The core problem with this bill is that it takes the regulatory tools designated for a small, fixed number of licensed TV and radio stations in the 1990s and attempts to apply it to the vast universe of the internet in the 2020s. In doing so, it gives the CRTC an unprecedented delegation of power with no clear framework or definitions as to how it will be used.

Just take the main mechanism this bill creates: the new category of online undertakings which will now have to be registered and regulated as broadcasters.

Bill C-10 defines these undertakings thusly:

“. . . for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus . . .”

This definition is so vague that it could include anything from Amazon Prime to anyone with a website and a podcast.

A “program” under the Broadcasting Act is defined to include images and sounds or some combination of them in which written text is not predominant. This could mean videos, podcasts, photos and memes and could include everything from a $100 million film produced by Netflix to a 15-second video on TikTok.

As for the problem this legislation supposedly seeks to remedy, the government continues to frame the current landscape as one where big foreign streaming companies are gobbling up the poor little Canadian broadcasters, and Canadian talent is suffering as a result. And by golly, the government is here to save us because they’re going to make these big bad streamers pay their fair share and Canadians will reap the rewards, especially Canadian talent and producers.

Even with today’s technical briefing, the government draws a parallel between declining revenues for traditional radio and television and increased revenues for large, foreign streaming companies, and states that the level of support for Canadian content and Canadian artists is negatively impacted as a result.

And they claim, in the simplest of terms, that Bill C-10 will correct that imbalance and spread the wealth. And sorry, colleagues, but that’s just not an accurate representation of the issues or the facts.

Yes, Canadian broadcasters are seeing a decline in revenue, while online streaming companies appear to be growing. But that highlights a problem with the business model for traditional broadcasters as well as the conditions of broadcast imposed upon them by the current Broadcasting Act.

But the answer to that solution shouldn’t be to then impose those same regulatory burdens on the streamers. The answer should be to release the traditional broadcasters from those regulatory burdens. We should be using this opportunity to drag a very antiquated framework into the digital age rather than dragging the digital age backward to fit an antiquated policy.

As for the argument that online “broadcasters” aren’t contributing to Canadian music and storytelling, that they are “free riders” and that the support system for Canadian content is at risk, that’s just not the case.

Would it surprise you, colleagues, to know that according to the Canadian Media Producers Association’s annual report of 2020, more than half of the productions in Canada are now global, fuelled by $5 billion of investment by global producers annually?

Through these investments, talented young Canadians have an opportunity to stay in Canada to learn and develop their skills, to work at the top of their craft and to create exceptional stories that resonate with audiences right around the world.

The training, experience and skills developed by Canada’s creators working on global productions elevate their work on and contributes to the success of Canadian-owned productions.

Tens of thousands of talented Canadian creators across the country want more opportunities to work on global studio productions in Canada and want Canadian cultural policy to support their ambitions.

In fact, global players have undoubtedly been the driving force behind Canada’s vibrant audiovisual sector, accounting for 90% of total growth over the last decade.

Foreign investment has also played a role in the production of Canadian content, with the level of foreign investment more than doubling over the last 10 years. Today, according to the CMPA annual report, it accounts for 26% of the total financing for Canadian content production.

This makes foreign financing the largest single source for Canadian television production for English-language productions and is second only to provincial tax credits for all Canadian film and television production.

I can provide you with specific examples, but I only have 45 minutes for this speech, but if you would like more specific examples, please reach out to me.

Now, our government is very much alone in creating a system that attempts to regulate everyone and everything. When the EU decided to regulate large streaming services, they adopted clear definitions of what streaming services and video libraries are in their legislation.

Australia, which the Minister of Heritage likes to cite as an example of what he wants to do, is limiting regulation to streaming services with more than $100 million in revenue and a million subscribers.

Only here in Canada do we have a government which, by its own admission in December, wants to go after individual websites, podcasts, audiobooks, sports streaming services, PlayStation games, home workout apps and even adult websites.

This lack of clear limits on what can be regulated was a fundamental problem with this bill even before clause 4.1 was removed.

And it is perfectly fair for us to ask whether this is really a bill about levelling the playing field for Canadian broadcasters and investing in Canadian culture, or if it’s another power grab intended to control Canadians’ lives and restrict their rights to free speech.

According to the bill’s sponsor, though, in what in many ways resembled something Oprah Winfrey would say, everything will be fine, because everybody will be getting money. Senator Dawson may as well be saying, “A car for you! A car for you! Money for everyone! Life’s a dream!” Apparently, Canadian creators and producers will be rolling in money as a result of Bill C-10. Everyone will be ecstatic.

However, as Senator Simons rightfully stated, “Don’t be misled into thinking this is some kind of instantaneous cash bonanza for Canadian producers.” Indeed, at the risk of being accused of oversimplifying, this legislation won’t be funnelling more money toward artists. It will funnel more money toward intermediaries, or gatekeepers, as they are often referred to.

As I mentioned earlier, instead of modernizing the act to bring it in line with the digital age, we appear to be trying to bring the digital age backward, to align it with an antiquated framework that benefits the gatekeepers who have found themselves on the outside looking in with the advancement of the digital age, and they don’t like it. They don’t like the competition or want to up their game.

It isn’t that Canadian talent is struggling; quite the contrary. Canadian talent is flourishing, including those minorities and racialized groups the government has focused on and not just here at home but around the globe.

Again, to quote Senator Simons:

. . . production of Canadian film and television has never been more robust, with pre-COVID 2018-19 production levels at all time highs. Netflix, for example, though it has no regulatory obligation to produce Canadian content, funds a surprising and substantive amount of original Canadian production. It also exposes Canadian-made films and television shows such as “Schitt’s Creek,” “Kim’s Convenience” or “Funny Boy” to broad international audiences.

Colleagues, why would we get in the way of that? Why would we? The problem isn’t a lack of investment in Canadian talent and Canadian stories. The problem, if you see it that way, is that it’s happening without the need for intermediaries like the Canada Media Fund.

The middlemen aren’t getting their cut of the pie, and what’s worse for them is that they’re not controlling which artists and which producers are receiving funding. They want to pick the winners and losers. That’s the beauty of the digital age. The success of artists and producers isn’t determined by the gatekeepers.

This freedom of the digital age also allows artists and producers to post their work directly to the internet. It allows them to find each other and to make their own decisions about with whom they wish to work, again, without interference from professional associations or the need to go, with cap in hand, looking for funding from various agencies and boards.

Again, why would we get in the way of that?

I reiterate that Minister Guilbeault would like Canadians to believe that the sole purpose of this bill is to make the big digital broadcasters, the web giants, produce more Canadian content and pay their fair share of the taxes and contributions that traditional broadcasters must pay, all in the name of protecting Canadian jobs in the cultural sector.

The most obvious discrepancy between the rhetoric and reality lies perhaps in the promises of additional investments in Canadian content that the minister made to the artistic community — investments he claims to be able to compel web giants to make. In the last debate in the House of Commons, his parliamentary secretary stated that he had no idea what the web giants’ revenues in Canada were, and that passing Bill C-10 was the only way to find out.

Yet, the minister also claims to be able to cost the expected investments in Canadian culture by these same web giants as a result of Bill C-10 at exactly $830 million and cited this number to stakeholders with total confidence.

The opposition members of the Heritage Committee repeatedly asked for and passed a resolution asking the minister to provide a detailed calculation explaining how he arrived at this number. Eight months later, he has yet to do so. This bears repeating. This isn’t about creating investment in Canadian artists and Canadian stories. It’s about redirecting those investments through third parties, so the middlemen, the gatekeepers, get their cut. There’s nothing fair or level about it. It’s certainly not fair for the creators and producers and not for consumers.

The content reinvestment requirements that the minister has mused over imposing on large streaming services under Bill C-10 at over 30% of gross Canadian revenue would be the highest in the world, and they could have exactly the opposite effect than what was intended.

Requirements that are too onerous will only lead to companies like Netflix and Disney+ to exit the Canadian market and licence out their U.S. programming to an existing Canadian platform — like HBO does to BCE’s Crave — reducing consumer choice and affordability.

If that happens, Canada’s cultural sector may not only miss out on the $830 million the minister promised, but also end up with less than what it is currently getting, because major digital broadcasters will no longer have any incentive to produce Canadian programs for Canadian consumers. That means consumers will pay more and have less choice, and Canadian jobs will be lost.

Right now, Netflix is investing more in Canadian productions than many conventional broadcasters. They are ensuring jobs for Canadian actors, producers, writers and crews — and they are featuring uniquely Canadian stories. However, a lot of what they’re producing, in many cases, does not currently count toward their Canadian Content, or CanCon, requirements simply because their rights don’t remain with a Canadian producer. That’s how archaic a principle we’re talking about here.

A program telling a Canadian story and written by a Canadian can be filmed in Canada with Canadian actors and still not be considered CanCon because Netflix, not a Canadian company, holds the rights. Case in point: Netflix’s multi-million-dollar French-language Quebec film Jusqu’au déclin is considered a foreign film, not a Canadian one.

So much for protecting and promoting Quebec talent and francophone culture.

However, a production set in the U.S., telling an American story could count as CanCon if the rights holder is a Canadian producer or production house. We see it all the time with those true crime stories. Everything about the show is American. Then credits roll, and you see it received Canadian funding because it was a Canadian production.

That’s only the impact the bill will have on conventional media productions. What about alternative media and the small independent content creators who use social media platforms to earn a living? They will be the biggest losers in this process.

If Bill C-10 passes as is, Canada will become the first and only country in the world that regulates social media algorithms to determine the discoverability of content, in other words, which videos are seen more or less. This has three major implications.

First, by prioritizing some content, the Canadian Radio-television and Telecommunications Commission, or CRTC, will naturally de-prioritize other content in ways that go beyond limiting speech. It will be picking, as I said earlier, winners and losers.

Second, the determination of what content gets prioritized for being “more Canadian” will have to be based on regulatory standards, which will probably look just like the complicated CanCon certification system that the CRTC uses now — the ones I described moments ago.

The beneficiaries of that system will be the established, well-funded media production companies with the lobbyists, their deep pockets and lawyers to work it to their advantage, more gatekeepers, not the independent YouTube performer looking to go viral and become the next Justin Bieber or Lilly Singh.

Third, if we become the only jurisdiction to regulate social media in this way, we can expect other jurisdictions to respond to us in kind. At present, the social media platforms offer what amounts to a free market for artists, with Canadian content creators often finding their biggest audiences outside Canada.

If Canada forces social media platforms to make certified CanCon appear first in global searches and video suggestions, other countries may reciprocate by restricting the discoverability of our artists to their viewers.

Given the EU’s protectionist tendencies, the result of giving francophone Quebec artists preferential access to a market of 7 million in Canada could mean those artists end up with reduced access to a market of 60 million francophone Europeans.

The Canada-United States-Mexico Agreement, or CUSMA, negotiated by the government is one that includes the exception for Canadian culture that existed under the North American Free Trade Agreement, or NAFTA, except, colleagues, that it doesn’t. Article 32.6(4) permits the U.S. to levy retaliatory measures of equivalent commercial effect whenever Canada relies on the exemption, and against any sector of our economy, from the cultural sector to dairy or softwood lumber. Bill C-10’s intervention in social media algorithms, potentially affecting hundreds of millions of dollars in economic activity, could easily trigger that kind of response.

Further collateral damage of the bill could be like something Senator Loffreda alluded to — its effects on smaller streaming services and foreign content producers serving Canada’s ethnic communities. Big foreign streaming services like Netflix may ultimately decide to continue operating in Canada under Bill C-10 and pass on the increased cost to consumers, but services that are based in India, Israel or Eastern Europe and broadcast to Canadian diaspora in languages other than English and French won’t have big enough markets to justify staying and complying with the CRTC, and Canadian culture and diversity will be poorer as a result.

I’ll say it again: It is the gatekeepers who benefit from this legislation, not the creators or producers. The same gatekeepers have been benefiting for many years from what is now an outdated Broadcasting Act, and they want to make sure that they continue to benefit.

This is no more evident than in the sweeping powers Bill C-10 gives to the CRTC to regulate the internet, including individual user content, with no clear guidelines for how that power will be used. Even last week, the bill’s sponsor in the Senate assured us that those guidelines would be coming and that we just need to trust the process, that the minister would be developing those guidelines following consultation with stakeholders. Forgive me, honourable senators, but I don’t trust that, and if history is any indicator, stakeholders shouldn’t trust him either.

According to the government, this legislation was based on consultations with industry stakeholders who produced the Yale report and it has broad support from those stakeholders. We heard this from a Senator Dawson last week. Indeed, he offered up a list of stakeholders who support this bill. Honourable senators, I too can produce a list of stakeholders who feel very differently and are concerned about what’s written in this legislation, even more so after all of the amendments that were made as the bill found its way through the House. What these stakeholders tell me is that the legislation before us is very different from what was being proposed during consultation. They tell me it’s very different from what they expected, and were told to expect, when compared to what was tabled. They say that instead of getting better as it passed through the various stages and consultations in the House, it actually got worse.

Just a moment, Senator Housakos. Honourable senators, it seems like there is a bit of a problem with translation. Can we suspend for five minutes? I will tell you how difficult that problem will be. If anyone is opposed to suspending for five minutes, please say “no.”

Honourable senators, it appears that the issue is resolved. Resuming debate on Bill C-10 for the balance of his time, Senator Housakos.

Honourable senators, consider this: 127 highly complex and technical amendments to the bill were tabled in committee after witnesses had been heard, including 28 from government members. Collectively, they were longer than the original bill itself. This doesn’t happen often in Parliament, and when it does, it is a sign of a government that hasn’t done its homework and of the need for further study. Stakeholders who have accepted inevitable regulation and taxation and who didn’t see the need to testify at the committee in the House have since seen fundamental changes to the scope of this legislation. They rightfully feel it is imperative that senators hear their concerns about the consequences, unintended or otherwise, of those changes and consider amendments to address them.

That’s especially true for the removal of proposed section 4.1 in a clause that protected user-generated content. The removal of that portion in particular appears to be the catalyst for the uprising of opponents to this bill who hadn’t otherwise been heard from previously.

YouTube, Google, Facebook, TikTok, Spotify and other major social media services most affected by the change to 4.1 were never given the opportunity to testify regarding how it would affect them, nor did the committee hear from the groups representing digital-first creators; the independent artists who earn a living primarily through the content they post on social media. They are artists too, and deserve to have their voices heard just as much as those represented by major lobbyists. Again, however, they were denied that opportunity because by the time the clause that most affected them was removed from the bill, it was already too late for them.

I would also note that while the committee heard from many stakeholders supportive of the bill, it heard from very few independent expert witnesses, such as academics, legal experts and former CRTC staff and commissioners. Those experts could have explained the bill’s impact and provided needed insight into how other jurisdictions like Australia and the European Union have dealt with the same issue of applying broadcast legislation to the internet.

I’m not here to tell the other chamber how to conduct its business, nor am I asking that of any of you. I’m merely pointing out that I sincerely don’t believe, in good conscience, an argument could be made that this bill received the proper parliamentary review it requires. It certainly doesn’t appear to reflect the consultations held with stakeholders, so why should we trust that the guidelines from the ministry to the CRTC will do so? But that’s something we can and should correct easily by making sure we invite all those groups to appear before us and consider amendments based on their input.

That brings me to the impact that this legislation has on freedom of expression.

What worries me is that the government came to the debate on Bill C-10 from one position on freedom of expression and by the end of the process it had done a 180.

This is what the minister said during second reading of the bill in November 2020:

Bear in mind that we are imposing a number of guardrails. . . . user-generated content, news content and video games would not be subject to the new regulations. Furthermore, entities would need to reach a significant economic threshold before any regulation could be imposed. This keeps the nature of the Internet as it is. It simply asks companies that generate large revenues in Canada to contribute in a fair manner.

The minister was specifically referring to the former proposed section 4.1 in the bill that the government itself introduced. That proposed subsection 4.1(1) states:

This Act does not apply in respect of

(a) programs that are uploaded to an online undertaking that provides a social media service by a user of the service — who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — for transmission over the Internet and reception by other users of the service; and

(b) online undertakings whose broadcasting consists only of such programs.

In other words, colleagues, user-generated content was explicitly protected, thus stakeholders who were directly impacted did not feel the need to testify when the bill was considered in the other place. However, that explicit protection is no longer there. The removal of 4.1 is a fundamental change in the scope of the impact on the content they produce. As a result, they all deserve to be heard.

It is now proposed to give the CRTC the authority to make orders with respect to the discoverability of Canadian creators of programs. The CRTC would also have the power to force social media platforms to make financial expenditures on Canadian content and force platforms to provide information to the regulator.

Who was consulted on this change before it was made, colleagues? Not the users or the producers of user-generated content. Which recommendations in the Yale report suggested that user-generated content should be unprotected in the broadcast bill? There are none.

The bill’s sponsor did note during debate last week that the government had received external pressure to remove 4.1. If that pressure didn’t come from users or from the Yale report, whence did it come? I certainly think that’s worth exploring, colleagues.

This is where it is absolutely imperative that the Senate committee hear from impacted and informed Canadians, as well as from the producers of user-generated content, about their views on those provisions.

The government claims that the provisions it has integrated into the bill are constitutional and that they do not impact the Charter rights of Canadians. They have produced a Charter opinion from the Department of Justice that says so. Specifically, the Charter Statement prepared by the Department of Justice in November of last year says:

Users of social media services who upload programs for sharing with other users, and are not affiliated with the service provider, would not be subject to broadcasting regulation.

That seems fairly clear, except, of course, that the government has subsequently removed that explicit protection. The Justice Department’s Charter analysis goes on to say:

The Bill maintains the Commission’s role and flexibility in determining what if any regulatory requirements to impose on broadcasting undertakings, taking into account the Act’s policy and regulatory objectives, the variety of broadcasting undertakings and the differences between them, and what is fair and equitable.

Colleagues, in light of the government’s decision to remove proposed section 4.1, I would say that potentially gives the commission considerable power to impose regulatory requirements on user-generated content. If so, that is a serious problem. The government claims that this potential for intrusion on freedom of expression is constitutionally sound and that the act provides that it must be interpreted and applied in a manner consistent with freedom of expression.

Whenever we raise questions about the protection of freedom of speech and social media, the government will always claim that users are protected by proposed subsection 2(2.1) of the bill and that proposed section 4.1 wasn’t necessary. This argument never made much sense. If 4.1 wasn’t necessary, they never would have included it in the first place, and Heritage officials wouldn’t have said that both exemptions were needed in the memo they sent to the minister last December.

But let’s take a look at these two sections and what they actually say. Proposed subsection 2(2.1) says that users who upload programs onto social media sites like Facebook, YouTube and TikTok are not by the fact of that use considered broadcasters, and so are not personally subject to conditions like Canadian content requirements or Canadian Media Fund contributions that will be imposed on streaming services like Netflix and Amazon. This exception is still in the bill, and it is a very narrow exception that basically says that just uploading a video is not enough in itself for you to be regulated, but you still might be, based on other criteria.

Proposed section 4.1 dealt with the programs users upload onto social media sites and said that the CRTC and the Broadcasting Act couldn’t regulate such programs. The Liberal government MPs voted down this part of their own bill.

The key distinction here is that 2(2.1) protects speakers, while 4.1 protected speech. The fact that the CRTC doesn’t consider you to be a broadcaster when you upload a video to YouTube means nothing if they can make YouTube change its algorithms so that almost no one will ever see it. It means nothing if they can instead make people see a video with the kind of content they prefer.

That is the threat to free speech to which our colleague Senator Wallin and others, me included, are referring. It is not that they will contact Millie and tell her to take down her cat video, colleagues, but they can certainly make sure that cat video never sees the light of day by forcing the platform not to prioritize it.

I would remind everyone that subsection 2(b) of the Charter protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” It doesn’t say that you can express yourself as much as you like but that politically appointed commissioners can go in and deliberately limit your ability to be heard in what has become the most important medium of communication of our time.

I would also caution you that Bill C-10 could be seen as part of a three-part assault by this government on the freedoms of Canadians online. Bill C-10 will let the CRTC decide what content they will see, more or less. Meanwhile, Bill C-36, introduced on the last sitting day of the House, brings back section 13 of the Human Rights Act, which threatens the rights to free speech and due process.

And in the fall, the Minister of Heritage plans to create a national speech regulator with the authority to remove any content it finds offensive within 24 hours. When asked about it he said, and I quote the minister, “If you thought C-10 was controversial, just wait.”

We should also probably not take the Justice Department’s Charter analysis on C-10 as the definitive word on this matter. The opinion of the Department of Justice on the constitutionality of a bill has not always coincided with the judgments of the Supreme Court of Canada. Our committee should hear from legal experts, persons with perspectives on all sides of this issue, to determine whether this bill and its provisions are actually fully compliant with the Charter of Rights and Freedoms.

Without prejudging that matter, I will note that a number of very informed individuals have been quite vocal on this matter already. Many colleagues are likely already very familiar with what Professor Michael Geist of the University of Ottawa has said:

This speaks to the CRTC imposing conditions on what gets prioritized or promoted in user feeds. I believe that clearly involves speech regulation.

Geist added:

This remains an unworkable, dangerous bill driven by lobbyists demands rather than the interests of Canadians.

He said that no other country in the world has adopted this kind of regulation.

We need to put back in section 4.1 or exclude all scope of regulation of this kind of content, that would include discoverability which does go without question to . . . choices and then ultimately to net neutrality.

I would urge our committee to hear from Professor Geist directly and let him make his arguments to us.

Professor Geist is not alone. The former advisor to former prime minister Jean Chrétien Warren Kinsella said:

No other country in the world is proposing to regulate the internet in this way — save and except China or Iran. Nor is the bill what lawyers call “proportional” — no other country is using a sledgehammer to kill a flea, as C-10 does.

Some senators may instinctively disagree with Professor Geist or with Mr. Kinsella, but I think what has struck me is that they are far from being alone in their assessment of this bill.

Timothy Denton was a commissioner at the Canadian Radio-television and Telecommunications Commission, or CRTC, from 2008 to 2013. He is now Chair of the Internet Society Canada Chapter. Mr. Denton wrote in an article in the Financial Post back in March that this bill is not about broadcasting, but rather about speech control over the internet:

But their fundamental proposition is stunning: that freedom of speech through video or audio should be in the hands of the CRTC — including Canadians’ freedom to use the internet to reach audiences and markets as they see fit.

Mr. Denton goes on to write:

In practical terms, because of how the CRTC Act is constituted, one chairman and two commissioners constitute a hearing panel. Thus three political appointees could extend CRTC jurisdiction over speech . . . .

Bruce Pardy, Professor of Law at Queen’s University, has expressed his own legal concerns about Bill C-10. He has argued:

Bill C-10 will not directly regulate individual Canadians who use those services but will regulate the content that they post — and thus empower the CRTC to require tech companies to do the dirty work. The companies will regulate their users and manipulate the “discoverability” of content in accordance with CRTC policies. Bill C-10 will not supervise online speech directly, but indirectly threatens to strangle it.

Professor Pardy argues that this approach has serious constitutional implications, presenting the prospect of an ever-larger administrative state incrementally, but indirectly, eroding fundamental freedoms.

Colleagues, we need to study these criticisms very carefully. We need to hear directly from witnesses from all walks of life. I think these issues raise fundamental questions about the nature of the society we want to live in.

The Senate is uniquely placed to undertake this work, but I believe that the committee must also be given the time needed to properly study the serious issues at hand.

We will need to look carefully at the arguments made by the minister and the government and what the Department of Justice has said about the Charter implications of the bill, as well as the testimony of other legal scholars and communications experts.

In my view, a thorough review by a Senate committee is all the more imperative given the speed at which this bill moved through the legislative process in the other place.

As mentioned earlier, the Speaker of the House, himself a member of the governing party, was compelled to react to rectify the lack of proper parliamentary procedure that occurred in committee with the passing of amendments happening in secret.

As a former speaker, I was impressed by his integrity. One can only imagine the political pressure he was under to just look the other way.

Notwithstanding the Speaker’s courage in this matter and the fact that these latter amendments did not find their way back into the bill during the chamber debate, I submit that the way this bill has been handled in the House should trouble every Member of Parliament and this chamber. It suggests to me that if there was ever a bill on which the Senate must exercise its sober second thought, it is this bill.

Colleagues, in summary, this bill is not about increasing investment in Canadian talent and Canadian storytelling; it is about control of that investment. It’s about who gets to hold the purse strings. The truth is the digital age has afforded more freedom, more flexibility than ever for artists and producers to show their work to broader audiences all around the world and outside the confines of Canada.

And in so doing, the gatekeepers have been cut out of the process. For that matter, over the last few years, they’ve been caught off guard. They no longer receive their piece of the financial pie, and they no longer control which Canadian artist or producer should succeed or fail. This legislation seeks to restore that control to the gatekeepers, and it is the creators and consumers who have lost out.

That’s why there is enough in this bill, in my humble opinion, for me to unequivocally vote against it. But, colleagues, it is imperative that we also start looking at how we can strengthen Canadian culture, Canadian content, how we can take the modern digital age and use it to our benefit to expose to the world the talent that Canadian artists and producers have. And we’re not afraid of anyone. We can compete with the world. We’ve seen it with the Justin Biebers of the world, the Céline Dions of the world and the Bryan Adams of the world. Being Canadian is being strong and being able to compete with the world.

Colleagues, I ask all sides of this aisle to ensure that this bill is given full review by a committee and at bare minimum, perhaps, moving forward, the necessary amendments to fix this bill in order to respond to the needs of the cultural community, the artists in this country, and to make Canada the strong nation that we are and to expose Canada to the rest of the world.

Colleagues, I thank you for listening to my concerns, and I look forward to the work of our very capable committee and the ongoing debate on this issue.

Senator Housakos, you have one minute and 45 seconds left. There is a senator who wishes to ask a question. Will you take a question?

Absolutely.

Senator Housakos, who is a very experienced parliamentarian, said, “If I speak for 44 minutes, maybe I won’t have time for questions.” But I only have a few comments. Obviously, as you know, the list of witnesses was based on the fact that the majority of the committee in the other place are MPs of the opposition.

The CRTC is not an enemy of Canadians. The CRTC, for the last 50-odd years, has been defending, promoting and protecting the interests of Canadian artists and Canadian producers. They are not an enemy. They have never stifled free speech. Au contraire, they have been the lifeguards, the safeguards of all of what Canadians can do. Do you agree, Senator Housakos?

Senator Dawson, we’re both experienced parliamentarians; you have a lot more than I do. But I can tell you this: I’m looking more than forward to, when we get this to committee, debating it thoroughly and trying to rectify this bill. I think every senator in this chamber agrees that it’s full of holes. My problem is not with the CRTC. The CRTC was given a mandate by the Parliament of Canada. In this particular instance, like I said in my speech on a couple of occasions, we have a Broadcasting Act that was designed 30 years ago for a particular context.

You and I are immigrants, because of our age, to this digital era, but young Canadians, the people younger than us, recognize that the way they communicate today is far different from what it was 30 years ago. We need a broader review of what the CRTC should be doing and how they should be doing it. We should find a way to make sure that we encourage the digital platforms we have today to keep expanding and exposing Canadian talent, investing in Canadian talent —

I’m sorry, Senator Housakos, your time has expired. My apologies for interrupting.

Honourable senators, it is truly unbelievable that we are actually debating the need to protect free speech in Canada. What was supposed to be an update of the Broadcasting Act and new rules for big tech has become something else entirely. And as the minister himself suggested, if you think Bill C-10 is controversial, wait until you see the next one, meaning Bill C-36. And we can now quite clearly see the government’s true intent with the introduction of this companion bill.

It might be a good time to remind ourselves that members of the current Liberal cabinet quite openly embrace the idea of empowering the federal government to control social media. Infrastructure Minister Catherine McKenna said that if social media companies “. . . can’t regulate yourselves, governments will.”

Let me also note that bills come into force and effect through regulations, and in a draft order from Minister Guilbeault in April he stated that the rules must be consistent with the “government’s vision . . . and represents the government’s broad intentions.” He also said that these regulations should target “the damaging effects of harmful content” that ridicules politicians or diminishes public institutions. Seriously? Criticizing politicians should not be allowed, should be censored?

These bills are an affront to what many of us believe to be democratic and Canadian values. Bill C-36 is dangerous, Bill C-10 is badly flawed and both undermine free speech and impose censorship.

Let me focus on Bill C-10 and the many concerns raised by experts, academics, producers and internet users about what’s in the bill, what was taken out and what’s still missing.

First, remember the process by which Bill C-10 made it to the Senate. The tactics used in the other place to get this bill here before rising for the summer are both an insult to our parliamentary democracy and it’s embarrassing for many.

Big tech lobbyists wanted section 4.1 out of the bill. That is a core clause, clearly protecting individual users on social media from being considered online broadcasters, and therefore subject to regulation and possible censorship. But the government summarily removed the protection clause from their own bill, against the advice of even their own drafters. When repeatedly asked to explain, the Heritage minister said simply it was “not necessary.” Well, it is. If you are not explicitly exempted, then you are implicitly included.

Of course, this was an alarm bell for experts and the public; that the bill could give the CRTC the power to regulate free speech online. Even as these concerns were raised at committee and as public opinion soured, the government then invoked closure to shut down committee work on the bill, something that hasn’t been done for 20 years. MPs — even Liberals — overruled their own committee chair in what looked like a mini coup, and introduced sweeping — and secret — amendments. The Speaker of the House, quite rightly, declared all these secret amendments to be null and void.

You would think, colleagues, that this would be a message to the government to rethink their approach and redraft the bill. No law should “accidentally” risk silencing free speech. And if a bill needs dozens of amendments just to appease an interest group or garner electoral support, then it’s time to go back to the drawing board. We saw this same thing happen with Bill C-69.

Instead, the Liberals reintroduced all of their secret amendments and forced a marathon session just to get their way. This bill will not finally be dealt with until the fall, given the timetable, so there was no need for this shocking authoritarian display. But here we are. So let’s look at what Bill C-10 will do.

It says that the Canadian broadcasting system should meet the needs of the Canadian public with a focus on ethnic, language and many other minority groups. It directs web giants to fund, invest in and produce Canadian content and media. And it grants the CRTC more powers of oversight and regulation. I refer you back to the minister’s words. All of this must be in line with the government’s vision of the world.

The requirement for online services to promote “Canadian” content through new “discoverability” rules is a problem, because section 4.1, that explicitly protected user-generated content — your tweets or Facebook posts or uploads to YouTube — is gone. The government argues that sections 2.1 and 2.2, which exempt some social media users from being considered online broadcasters are enough. Again, I disagree. You could drive a truck through these loopholes.

So let’s be clear: If this bill becomes law, it will change what your internet content looks like, and no doubt how you choose to interact with it.

Senator Dawson tried the old prop up and then knock down the straw man trick, assuring us that government does not want to censor or regulate cat videos or photos of your lunch. But that’s not the issue. This is about who gets to decide what a “Canadian” online broadcast undertaking is, and it’s about what “Canadian” online content means and about what type of content will and won’t be pushed onto your screens and, by definition, what content will be pushed so far down that it disappears. That is not just regulation; it’s censorship.

Of course, there was no explicit language that says, “free speech will be banned.” They don’t have to say it. By requiring online platforms to promote “the government’s vision” and CanCon, through discoverability requirements, as directed in section 2(6)(r), they are determining which programs are Canadian and what Canadian content is not.

We are giving tech platforms and the CRTC the authority to decide what is and isn’t “Canadian.” Some will pass the test and some will not. And so, who might pass the test? Well, according to the minister, perhaps those posting content critical of the government of the day would be deemed “un-Canadian.”

What about content that reveals tough or controversial truths about the country’s history? What happens to Canadians who regularly upload critical political content? Again, in the minister’s own words, the government intends to introduce several pieces of legislation that are designed:

. . . to support democracy and social cohesion in Canada by building citizen resilience against online disinformation and building partnerships to support a healthy information ecosystem.

Translation: If you disagree with what qualifies as disinformation, then be very careful about what you post.

You can see why so many are saying this is an infringement on free speech. If Canada tries to impose these broadcasting requirements, we would be the only democratic country to do so. It will meet great resistance and it will serve to undermine our ability to claim the adjective, “democratic.”

So, again, should we be granting the power to decide what is and isn’t Canadian to the CRTC or some new commission of appointees that the minister has referenced, or to big tech companies themselves? Our online activity is already easy prey to secretive, discriminatory and sometimes politically biased algorithms of tech companies like Google, Facebook, Twitter and Amazon — and they are not afraid to use their power to silence critics. We have seen this play out stateside. We have heard the threats here. Indeed, Bill C-10 and now Bill C-36 have been cheered on by proponents specifically for their powers to silence online voices with which they disagree.

I am reminded of the words of Noam Chomsky:

If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.

So why doesn’t this bill make sure that these algorithms are more transparent? As Senator Simons pointed out last week, “. . . you cannot accurately regulate digital forms with analogue tools.” I agree.

The Broadcasting Act needs to be — to use the buzzword — “reimagined” to reflect the reality of the internet. Domestically produced content shouldn’t need to be unduly promoted or mandated on streaming platforms. If it’s good, people will seek it out and watch it. And they do. That’s what the stats tell us. Wasn’t that the whole point of the internet in the first place — to be an open platform for all content, to give us choices? Any changes to the Broadcasting Act should protect these freedoms for consumers, in line, of course, with the Criminal Code.

Colleagues, are we so insecure about our cultural identity that we need to forfeit our right to free expression and diversity of opinions in exchange for government-defined acceptable Canadian content?

Senator Wallin, my apologies. I have to interrupt you. It being six o’clock and pursuant to rule 3-3(1) of the orders adopted on October 27 and December 17, 2020, I’m obliged to leave the chair until seven o’clock, unless there is leave to continue.

If you wish the sitting to be suspended, please say “suspend.”

The sitting will be suspended until seven o’clock, and you will have the balance of your time when we return, Senator Wallin.