Moved:

That, in relation to Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, the Senate:

(a)agree to the amendments made by the House of Commons to its amendments; and

(b)do not insist on its amendments to which the House of Commons disagrees;

That the Senate take note of the Government of Canada’s stated intent that Bill C-11 will not apply to user-generated digital content and its commitment to issue policy direction to the Canadian Radio-television and Telecommunications Commission accordingly; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable colleagues, I rise today to speak to the motion proposing that the Senate accept the other place’s message in response to the Senate’s amendments to Bill C-11 and bring the online streaming act to Royal Assent.

Before I begin my remarks, there is one person that I would very much like to mention. Unfortunately, Senator Dennis Dawson’s retirement date did not coincide with the passage of the bill, but I want to thank him again for the important work he did and his leadership in getting us here today. Having worked behind the scenes with Senator Dawson on Bill C-10 and Bill C-11 for what now seems like a very long time, I can attest to the fact that he has not only vigorously defended this bill in this place, but he has also defended the Senate’s views with the government both on policy and on process.

The other place’s response to Senate amendments would simply not be what it is today without his consistent outreach and advocacy. I cannot thank him enough, and I very much look forward to inviting him here for Royal Assent.

Honourable senators, the Senate has three possible practical responses to this message. It can concur, insist on its amendments or make a new proposal within the scope of the disagreement. Today I am asking this chamber to concur with the decision of our fellow parliamentarians in the other place, a decision that is clear, informed and carefully considered and which comes to us following a robust and vigorous debate in a minority Parliament — and a decision, I would add, to accept in part or in full close to 80% of the amendments the Senate made to the bill. Indeed, the other place has accepted amendments proposed by senators representing all recognized parties and parliamentary groups in this place.

In addition, given the importance of the issue of user-generated content, the motion before us also proposes that we as a Senate collectively underscore to members of Parliament that we have taken note of the Government of Canada’s commitment that Bill C-11 will not apply to user-generated digital content as well as the government’s commitment to issue policy direction to the CRTC accordingly.

For Canada’s cultural sector, it has been a long road and a long wait, but the finish line is in sight. For many in the industry, an important source of their income is inextricably linked to the passage of this bill. By concurring with the message received from the other place, we will finally usher into law a modernized Broadcasting Act that is built for today’s world, an act that is forward-looking and one that is sufficiently flexible to adapt to an unpredictable digital landscape that has real-life impacts on the lives of Canadian artists.

And in so doing, colleagues, at long last, we would make good on the government’s electoral commitment to reform the Broadcasting Act to ensure that web giants contribute to the creation and promotion of Canadian stories and music, a commitment that also formed part of the written platforms of the Bloc Québécois and the New Democratic Party during the most recent federal election.

In my remarks today, I will first turn to the context that has led us to receive this message, because that perspective is important to situate our debate and to understand why the response of the other place is worthy of our support.

Second, I will address each Senate amendment, beginning with the many that have been accepted by our elected counterparts and ending with those that our colleagues considered but ultimately decided to support an alternative policy choice.

Finally, I will contribute a few observations about the role of the Senate at this stage of the parliamentary process.

Colleagues, it is with immense pride that I speak today, because I genuinely think that the Senate did really good work on this bill and that this work was acknowledged and acted on by the other place.

As I see it, the message before us is yet another example of the meaningful contribution that the Senate can make, and indeed is making, to the legislative process. It’s a respectful response from the other place, and one which — once again — shows the government’s preparedness to propose that the other place accept recommendations of the Senate on any range of its signature legislative measures.

Bill C-11 is a better bill today because of our work, and I commend all of you for the work you did on this.

Now I have a few words on the context. To my mind, understanding how we got here is critically important to understanding the stakes. At this message stage, it is easy to lose sight of the forest for the trees, so part of my argument today is that we must not lose sight of the proverbial forest that is Bill C-11 — a good bill, a bill desperately needed and long overdue.

It is important to acknowledge that the two chambers of Parliament have agreed to approximately 99% of the content of Bill C-11 with the narrow issue before us being a disagreement on a few clauses. But it’s equally the case that at this stage of the process, and until the bill reaches Royal Assent, the totality of Bill C-11 — the forest as a whole — is hanging in the balance.

Let me remind colleagues of what the primary objectives are of Bill C-11. Above all, it clarifies the scope of the Broadcasting Act to include online broadcasting. It updates broadcasting and regulatory policies to better reflect Canada’s diversity, it ensures equitable treatment of players through regulation and, finally, it provides modernized tools for effective oversight and enforcement.

Modernizing the Broadcasting Act is a long-standing ask from the creative and cultural sectors in Canada, and it responds to the issues that are top of mind for so many Canadians such as affordability, economic competitiveness, cultural sovereignty, accessibility, consumer rights and privacy.

Artistic and cultural communities across the country as diverse as the Screen Composers Guild of Canada, the Fédération culturelle canadienne-française and Indigenous news organizations are eagerly awaiting its adoption into law.

The last time the Broadcasting Act was modernized was in 1991. To put this in perspective, Google went live in 1998, and Facebook in 2004; YouTube launched in 2005; in 2007, Netflix began streaming directly to TVs and computers; and in 2008, Spotify began streaming music internationally and expanded to Canada in 2014. Colleagues, changes to the Broadcasting Act are long overdue.

The genesis of Bill C-11 lies in the report prepared by the Broadcasting & Telecommunications Legislative Review Panel, chaired by Janet Yale, one of Canada’s most respected telecommunications experts. The panel, established by the government in June 2018, was mandated to undertake an independent and exhaustive review of Canada’s communications laws, including the Broadcasting Act, to determine how the legislative framework could not only be updated but be able to adapt to emergent communications technologies.

The single most important message the report sought to convey was that there was an urgent need to adapt our legislative framework and regulatory tools so that Canada can be in a position for success in today’s dynamic digital environment.

In January 2020, the panel presented its findings and recommendations to both the Minister of Innovation, Science and Industry and the Minister of Canadian Heritage. In November of that year, the Honourable Steven Guilbeault, who was Minister of Canadian Heritage at the time, included several recommendations from the Yale report in the tabling of Bill C-10, the predecessor to Bill C-11, during the Forty-third Parliament. Along with calling for a renewal of the institutional framework, the recommendations focused on reducing barriers to advanced telecommunications networks; supporting the creation, production and discoverability of Canadian content; improving the digital rights of Canadians and enhancing trust in the digital environment.

As part of the Liberal Party of Canada’s electoral platform during the 2021 federal election and its 2021 Speech from the Throne, the government again committed to modernizing the Broadcasting Act. An improved bill, the bill currently before us, was tabled in the Forty-fourth Parliament in February of 2022.

In the other place, the bill underwent an extensive study that led to more than 40 amendments receiving the support and endorsement of the New Democratic Party and the Bloc Québécois.

Meanwhile, senators started their work on this key piece of legislation even before it arrived in the Senate. The Standing Senate Committee on Transport and Communications began its examination of the bill as part of a pre-study last June. Over the course of 31 meetings, 9 of which were devoted to clause-by-clause consideration, it heard from 138 witnesses and received 67 written submissions. In meeting time alone, the committee clocked over 67 hours, and we can only imagine the long hours that senators devoted to meeting with stakeholders and in corresponding with Canadians over the course of the same period.

I now turn to the amendments at issue. Colleagues, our labour bore fruit. As mentioned, the Senate proposed 26 amendments to the bill, 20 of which were accepted by the other place and 2 of which were accepted with minor modifications. With your indulgence, I wish to highlight the amendments the other place agrees with and has accepted.

One area where the committee made important improvements is in the broadcasting policy objectives by making the bill more inclusive and more responsive to the needs of minority communities. In amendments 2(a)(ii), 2(a)(iv), 2(b)(ii), and 2(c)(i), Senator Clement put forward proposals to standardize references to Black and racialized communities throughout the bill. These amendments will strengthen the presence of Black and racialized communities in Canada’s broadcasting system.

Senator Clement also brought forward amendments to better recognize the place of Indigenous people, cultures and languages in our broadcasting system.

In amending subsection 2(a)(iii), the bill now recognizes both Indigenous peoples and the importance of emphasizing Indigenous languages in our efforts to revitalize them.

In modifying amendment 2(c)(ii), Senator Clement’s changes support the production and broadcasting of Indigenous language programming in line with the United Nations Declaration on the Rights of Indigenous Peoples, and the Truth and Reconciliation Commission’s Calls to Action.

The committee also ensured in amendment subsection 2(d)(i) that the lived experience of Indigenous peoples who live on- and off-reserve, in urban areas and in a variety of geographic spaces across this country are more adequately served by our broadcasting system.

These amendments will not only ensure the realities of Indigenous peoples are better reflected in our broadcasting system, but they also further our commitment to advancing reconciliation, and they are being supported by the government.

In addition to paying attention to the needs and realities of Indigenous Canadians, Black Canadians, and Canadians from other racialized groups, the committee also made improvements to French programming that will benefit French-language minority populations. The changes proposed by Senator Cormier in amendment 8(b) clarify what constitutes “original French language programs” produced in French compared to programs produced in other languages and dubbed in French. This amendment will ensure that original programs that are dubbed in French aren’t taken into account in the associated requirements. The government supports this amendment.

The government also agreed to another amendment proposed by Senator Cormier to ensure the financial viability of public interest broadcasters, such as APTN, CPAC, ICI TOU.TV, AMI‑télé and TV5, and to help these broadcasters meet their strategic objectives, which are consistent with the inclusion objectives of the Broadcasting Act.

Amendment 8(a) will give the Canadian Radio-television and Telecommunications Commission the power to allocate funds to initiatives such as the development of accessible technologies for people with disabilities, the improvement of the discoverability of Canadian content and the creation of online broadcasting and monetization tools for content creators.

Finally, Senator Dasko added the words “reflect and be responsive to the preferences and interests of various audiences” to section 3 of the act so that it is recognized that Canada’s broadcasting objectives must take into account the diversity of the Canadian public. The government supports that objective and agreed to the amendment.

Looking out for the integrity of journalism in this country was another area where the Senate brought improvements to the bill. Senator Wallin’s proposal to ensure that the policy goals set out in section 3(1)(d) of the Broadcasting Act ensure “freedom of expression and journalistic independence” — thereby further entrenching freedom of expression in the act — was another amendment that was accepted by the other place and by the government.

In addition, the government has agreed to Senator Simons’ amendment to strike the language that called for community programming aimed at “countering disinformation” and replace it with the phrase to “support local journalism.” Senator Simons’ amendment clarifies the original intention of an amendment adopted in the other place, and it reinforces that Canada’s broadcasting policy goals must include the support of local journalism. This will be a notable benefit for journalism in this country.

Protecting the privacy of individuals is another area where the Senate brought some important improvements and needed clarification to the bill. The amendment proposed by Senator Miville-Dechêne in clause 2 aims to ensure that the Canadian Radio-television and Telecommunications Commission, or CRTC, regulates in a manner that respects the privacy of individuals. This amendment complements another one put forward by the Senate’s sponsor and our former colleague Senator Dawson at amendment 4(b). Both amendments are in line with testimony provided by the Privacy Commissioner at our committee hearings, and the government has accepted both.

In closing, honourable colleagues, I’d like to talk about some of the amendments that made the bill clearer, others that are more technical in nature and others still that are more general in scope.

First, in amendments 2(a)(i), 2(b)(iv) and 4(a), Senator Dasko proposed wording confirming that Canada’s broadcasting system must encourage innovation.

The change proposed by Senator Cormier in amendment 2(c)(iii) restores the wording from a passage of the Broadcasting Act to which changes had been made. Only the mention of independent Canadian producers remains, in order to bring Canada closer to its objective of growing the independent production sector.

As far as the Status of the Artist Act is concerned, amendment 12 proposed by Senator Cormier makes a clarification to a change made at the other place by indicating that the Status of the Artist Act applies only to federally regulated organizations. This change gives more flexibility to the legislation and prevents interference in a provincial jurisdiction.

In amendment 1(b), Senator Plett put forth a proposal to broaden the interpretative clause on freedom of expression to include creators, which the government agreed to. The government also accepted an amendment tabled by Senator Batters which will harmonize the definition of “decision” with the one existing in the Telecommunications Act.

Senator Simons’ initiative to delete subsection 7(7) brings clarity and removes ambiguity from the bill, an important amendment, to be sure. Finally, in amendment 10, Senator Quinn’s amendment will require that the CRTC’s consultation reports be tabled in both houses of Parliament. This ensures that parliamentarians — and senators alike — will stay apprised of the CRTC’s consultation process. Both of these amendments have been accepted by the other place.

Colleagues, up to this point, I have detailed 18 amendments that the other place accepted, including amendments proposed by all four recognized parties and parliamentary groups in the Senate. I would now like to focus our attention on an additional two amendments the Senate proposed which were supported with modifications.

The first can be found in section 18 of the Broadcasting Act, proposed by Senator Cormier, and this is item 9 in the message. With respect to this provision, the government has proposed to keep the requirement proposed by the Senate that public hearings be held and remove subsection 2.1. The proposed amendment to add subsection 2.1 to section 18 would have required that the public hearing be held after a proposed regulation or order is published. The reason that the government respectfully disagreed with this component of the proposed amendment is because the CRTC — a quasi-judicial tribunal — consults interested parties before a regulation is developed, not afterwards. The public hearing is used to gather the evidence record upon which a regulation or an order is based. From the government’s perspective, requiring a second public hearing after decisions are taken by the CRTC during regulatory proceedings will entail unnecessary delays in the administration of the act and will ultimately impede the CRTC’s regulatory efficiency.

With respect to the second amendment accepted with modifications, one proposed by Senator Cormier, the government proposes an amendment to item 7(a) of the message, which would amend clause 11 of the bill. The government’s amendment aims to underscore the importance of supporting creators and to sustain and build Canada’s creative sectors. It allows the CRTC to make sure that Canadians are benefiting in a significant manner from the exploitation of a given program by broadcasters.

In summary, esteemed colleagues, the Senate proposed significant improvements to the bill to strengthen privacy, promote innovation, maintain the crucial role of independent producers in our broadcasting system, increase production of original French-language programs, normalize the presence of Black and racialized communities, better reflect the realities of Indigenous peoples in the Canadian broadcasting system, and increase the accountability of the CRTC by requiring the commission to table its reports in Parliament.

I turn now to the few amendments that the other place has opted not to support. In doing so, it is important to understand, colleagues, that in debating the Senate’s message, the other place was asked to debate and pronounce itself specifically on the Senate’s amendments. I underscore this point because it is important to understand that what we are dealing with are informed decisions by members of Parliament on the areas of Bill C-11 that the Senate proposed be amended.

The government respectfully disagrees with amendment 1(a)(i) proposed by Senator Batters to modify the definition of “community element.” Currently, the community element would include both not-for-profit entities but also community channels that are operated by for-profit broadcasters, as is the case for Rogers, for example, where the corporation gives broadcasting space to community organizations to produce their own programming.

The government heard from a range of key stakeholders, including community-based stakeholders such as the Canadian Association of Community Television Users and Stations — it is a great acronym, CACTUS — who have requested to keep the wording “broadcasting undertaking” in the definition of “community element,” as proposed in Bill C-11. Rejecting this amendment will ensure that the definition in the bill and the act properly refers to community elements in the broadcasting system.

The government also respectfully disagrees with the proposed amendment 2(d)(ii) put forward by Senator Miville-Dechêne to compel online undertakings to implement methods such as age verification to prevent children from accessing explicit sexual material. Colleagues, protecting children is a priority of this government, and it is looking forward to introducing legislation on online safety with the goal of keeping all Canadians safe online. In the government’s view, however, Bill C-11 is not the appropriate vehicle to advance this important issue.

The parliamentary committees that have studied Bill C-11, and its predecessor Bill C-10, heard from many witnesses on the issues addressed by the bill. The safety of minors was not the focus of those deliberations, and to be done right, we would have had to hear from the spectrum of voices of those directly engaged and impacted by this issue. We did not, nor did they in the other place. For these reasons, the government cannot support this amendment, which goes beyond the policy intent of this legislation.

It is, however, worth highlighting that Bill S-210, which seeks to achieve similar policy objectives, is currently at third-reading stage in the Senate and is advancing as part of the normal parliamentary process.

The government equally disagrees with the addition of subsection 46(1.1) to the act as proposed by Senator Downe, which seeks to prohibit the CBC/Radio-Canada from broadcasting an advertisement or announcement on behalf of an advertiser that is designed to resemble journalistic programming. Here again, the government’s respectful disagreement takes us back to the core objectives of the bill. Bill C-11 did not open up important questions around the CBC/Radio-Canada and its mandate. They’re important questions, and it remains a key priority for the Minister of Canadian Heritage to modernize CBC/Radio-Canada. However, the government believes this should be done in a holistic way and not in a piecemeal fashion.

Although branded advertisement is an important issue, the government is of the view that this amendment is not appropriate in the context of this bill. Moreover, colleagues, CBC/Radio-Canada needs to be able to fund operations through advertising and other initiatives, and, ultimately, this proposed amendment would likely increase its reliance on government funding.

Taken together, the amendments regarding age verification and CBC/Radio-Canada are, in the government’s view, a departure from the key policy intent of Bill C-11 and should be considered and debated elsewhere.

The government further respectfully disagrees with Senator Manning’s proposal to remove paragraph 9.1(1)(d) of the act because of concerns that it could be interpreted as limiting the CRTC’s ability to impose conditions respecting the proportion of programs to be broadcast that are devoted to specific genres of programming, including children’s programming or French language dramas. Some genres, such as documentaries, have been important entry points for emerging and diverse Canadian talent. We should also remember, colleagues, that several stakeholders, including the Documentary Organization of Canada and the Canadian Media Producers Association, raised concerns about this particular amendment.

Whether in stories or song, whether traditional or online broadcasting, limiting genres could have the impact of reducing the diversity of programming in Canada, and such an outcome would go against the primary policy objective of the Broadcasting Act.

The government also respectfully disagrees with Senator Manning’s proposal to add subsection 10(1.11) to the act, which proposes that no factor is determinative in establishing the definition of Canadian program. The bill sets out factors to be considered by the CRTC in its determination of a Canadian program. The amendment risks confusing matters and disrupting CRTC’s regulatory process for arriving at an evidence-based determination of what Canadian content is. It places restrictions that, frankly, could prevent the CRTC from arriving at the definition that best advances the broadcasting policy objectives. In brief, the government rejected this amendment, as it would unduly restrict the CRTC’s flexibility in determining the definition of Canadian program. The CRTC should be able to, following open and public processes, determine the most efficient, effective and equitable definition in light of the considerations set out in the bill.

Finally, we turn our attention to the social media services as part of section 4.2(2) of the act. Both in committee and at third reading, the issue of user-generated content on social media platforms generated much discussion and much interest. In response, an amendment was adopted at committee and by the Senate to clarify the issue. Colleagues, as many of you will know, numerous stakeholders representing Canadian artists have warned that the proposed amendment would create a major loophole in the act — a loophole that would enable social media platforms to avoid contributing to Canadian culture in an equitable fashion.

There is a long list of industry spokespersons who pointed out the risks of the amendment to section 4.2(2). This list includes the Society of Composers, Authors and Music Publishers of Canada, or SOCAN, the Union des artistes, UDA, the Professional Music Publishers’ Association, APEM, the Guilde des musiciens et musiciennes du Québec, GMMQ, the Regroupement des artisans de la musique, RAM, the Collective Society for the Rights of Makers of Sound Recordings and Music Videos, SOPROQ, the Société professionnelle des auteurs et des compositeurs du Québec, SPACQ, and the Association québécoise de l’industrie du disque, du spectacle et de la vidéo, ADISQ.

I would like to start by establishing the government’s position and reasoning in the context of this proposal.

I begin with the overarching legislative objectives of Bill C-11, which is to modernize the Broadcasting Act to ensure a fair, neutral and level playing field for all those who are engaged in broadcasting, whether traditional broadcasters or those new social media platforms who are acting as broadcasters. Otherwise put, Bill C-11 is designed to ensure that the modernized Broadcasting Act be agnostic as to what platform is being used to engage in broadcasting and neutral with respect to the technology being used to do that broadcasting.

Now, when Bill C-11 was tabled in February 2022, an important element in the proposed approach to platforms was to focus on the commercial programs uploaded to those services, thereby providing for equitable treatment of commercial programming consumed on different platforms, whether they’re transmitted by television stations, through radio waves or on digital platforms, like Spotify or YouTube. It is not the intent of the bill to regulate social media platforms in relation to the programs of social media creators. In all cases, broadcasting regulations or requirements imposed by the CRTC must reflect and respect the freedom of expression and the overarching policy objectives set out in section 3 of the legislation.

Bill C-11 provides that regulation would not apply in the following areas: programs that do not generate revenues; everyday uses of social media, including posting amateur programs to those services; social media users and individual creators who remain exempt from the act; and, lastly, social media services except in relation to certain commercial programs.

Section 4.2 of the act lists three factors that the CRTC must consider in identifying commercial programs. It will consider the revenues generated by commercial programs, whether the programs are available on other traditional broadcasters and whether the programs have been assigned an international standard code number. The purpose of these three factors is to ensure fairness across broadcasting platforms and to provide direction to the CRTC on how section 4.2 is to be applied in practice.

Bill C-11 provides that when social media platforms are being used to distribute commercial programs, they be required to contribute to the support of Canadian stories and Canadian music. Certain social media platforms substantially act as substitutes for other broadcasters, including streaming services. As such, the social media platform would have regulatory responsibilities, but only with respect to commercial content it distributes on its service.

The modernized Broadcasting Act will not apply to individual users of social media services. Bill C-11 does not and will not apply to user-generated content because, simply put, using a social media service does not make you a broadcaster. Rest assured, colleagues, that this legislation will not interfere with or stifle the expression of Canadian voices. The government has made this clear on several occasions, including at our committee hearings.

As we know, during the Senate’s study of Bill C-11, the Standing Senate Committee on Transport and Communications adopted an amendment to subsection 4.2(2) of the Broadcasting Act. When it was presented, it was stated that the intent of the amendment was to narrow the scope of programs that can be regulated on social media services with a particular focus on the regulation of music on social media. Although well-intentioned, the amendment, in the government’s view, is problematic for several reasons, and these reasons explain why it is opposed to by numerous stakeholders, by the government and by both the New Democratic Party and the Bloc Québécois. The central problem is that the amendment creates loopholes for social media platforms to avoid contributing to Canadian culture in an equitable manner and, by so doing, would undermine a core policy objective of the online streaming act. Let me cite two examples of why and how this is so.

First, by focusing on the regulation of sound recordings on social media, the amendment is too narrow in scope. To be sure, social media platform services are frequently used as a substitute for other music streaming services. However, commercial content is not simply restricted to music produced by the large record labels. It also includes content such as full-length movies, TV shows, sports broadcasts, award shows and live concerts, all of which typically contain music as part of the broadcast. By narrowing the scope of the clause to capture only professional sound recordings uploaded in very specific circumstances, the proposed amendment sought to make the exclusion of user-generated content more explicit.

However, in its application it would introduce interpretive uncertainty into the act, it would undermine the platform-agnostic and technology-neutral nature of the Broadcasting Act, and that could result in web giants escaping their obligations under the act. In effect, the amendment would have the effect of excluding a range of commercial audio-visual content, such as livestreamed professional sports games, full-length movies, television shows and even professional music videos from the contributions that social media platforms will and should be required to make to support Canadian culture. The proposed amendment would not give the CRTC the ability to clearly scope in such audio-visual commercial content because it would be constrained and would only be able to do so based on the presence of soundtracks or audio elements.

Senators, please consider the following examples of when social media platforms broadcast commercial content, acting just like conventional broadcasters or online streaming platforms. For example, sports events are very valuable to broadcasters. Brands pay top dollar for advertising. For example, Facebook acquired exclusive broadcasting rights for several baseball games during the 2018, 2019 Major League Baseball seasons. Consider how millions of people watched the 2022 World Cup finals live on YouTube. There are other events, such as the upcoming finals of the popular Eurovision Song Contest, which will be broadcast on TikTok for a second year in a row. Last year, they attracted hundreds of millions of viewers. When they make money from these activities, social media companies must be obliged to reinvest in our creators and into local content creation.

The amendment could also fail to achieve its own stated purpose to capture commercial sound recordings broadcast by social media platforms. This follows from the amendment that removes the reference to monetization in the act and that allows content to be scoped in only if it is uploaded by exclusive rights holders. This effectively creates a loophole given that commercial content is often uploaded by third parties. YouTube and the rights holders often make money from content uploaded in this way thanks to their content ID system, which identifies and gives rights holders royalties and control over whether that content stays on the platform or not. The effect of this amendment would be to reduce YouTube’s obligations to contribute to Canadian content. It would benefit their specific business model and it would encourage the distribution of more content in a manner that frees them from the obligations that this bill was designed to establish.

Consider the popular song “Big Yellow Taxi” composed by the great Canadian artist Joni Mitchell. A quick survey of YouTube shows several official versions of Joni Mitchell singing her song. These would be clearly captured by the amendments in question. But among the song search results there are also “unofficial lyric videos” and slide show videos set to her music that come up as options. These videos are almost entirely uploaded by third parties with no relation to Joni Mitchell and no relation to any other rights holders. As previously mentioned, YouTube’s content ID system allows the platform to identify these videos as containing Mitchell’s music and therefore pays royalties to the respective rights holders. However, revenues from these videos, which many Canadians use every day to listen to their music, would be excluded under the proposed amendment. The original version of the bill provides more certainty to the CRTC while still excluding user-generated content from regulation.

Colleagues, the clause as drafted in Bill C-11 was designed in such a way to allow for a degree of flexibility in the system. For example, the government formulation provides factors under section 4.2(2) for the CRTC to consider when it prescribes programs to be regulated on online platforms as per paragraph 4.1(2)(b) of the bill. As mentioned earlier, the bill requires the CRTC to consider the revenues generated by commercial programs, whether the programs are available on other traditional broadcasters, such as CTV or Spotify, and whether the program had been assigned an international standard code number.

The proposed amendments to section 4.2 — by removing the monetization criteria and adding the criteria that only commercial music uploaded by the rights holder on social media services would count towards a platform’s obligations — would introduce a new set of factors. In so doing, the amendment poses a real risk that the central objectives of the act would be compromised by the loophole it introduces. Furthermore, the amendment also restricts the flexibility that the act intended to confer upon the CRTC to ensure that it applies its discretion in a manner consistent with the overall purposes and objectives of the act.

Colleagues, I acknowledge that for some critics of the CRTC, this is the point. They do not believe that the CRTC should have as much or, for some, any discretion on how it applies the act. Indeed, some do not believe that the CRTC or any government institution should have any role regulating social media platforms at all. That’s not the view of this government, nor is it the view of the majority of the members of the House of Commons.

Honourable senators, the effective modernization of our Broadcasting Act cannot be achieved simply by the passage of Bill C-11 alone, important and critical though it is. The legislation needs to be supplemented with policy directives and regulations to make it work and to allow it to adapt to a rapidly changing technological framework. This is necessary to ensure that the CRTC has both the tools and the policy guidance to give effect to the purposes of the act. Colleagues, the clause as drafted in Bill C-11 was designed in such a way to allow for this critical flexibility in the system.

The government has acknowledged from the outset that additional detail on the scope of commercial programs that could lead to regulation of online platforms would be provided to the CRTC by policy direction. Allow me to take a moment to outline what that means and what the process around this is.

Following Royal Assent, the Governor-in-Council will issue a policy direction to the CRTC on how the new legislative framework should be applied, and that is a standard legislative practice. At that point, the policy direction will be publicly available in its draft form. As required and as expected, there will be a consultation period of 30 days at a minimum. During this period, stakeholders and other interested persons may provide comments, raise concerns and make recommendations regarding the policy direction. Following that, the policy direction will be finalized and issued to the CRTC, at which point — let me remind you, colleagues — the CRTC will lead its own independent consultations and outreach. This provides yet another opportunity for engagement and an avenue for all interested parties including artists, producers, radio broadcasters, online streaming platforms, distributors, stakeholders and industry groups to provide input.

To summarize, the issue of a policy direction would follow an open public consultation on the proposed wording and content of that direction, but this important process would be undermined were section 4.2 of the bill to be amended as has been proposed. The choice to add the additional detail and clarification through a policy direction not only ensures the appropriate public consultations on the exact wording, but also ensures that the broadcasting system remains adaptable to technological changes over time. Ultimately, this is the very matter that Bill C-11 seeks to address.

Colleagues, the government’s approach regarding the factors in proposed section 4.2(2) will ensure that an equitable approach is maintained with respect to commercial content on those social media services when they behave like traditional broadcast undertakings. The original legislative language of this provision reflects a balanced approach that respects the work of online content creators, while ensuring that large corporations do not have a shortcut to avoid regulation or avoid contributing to the Canadian creative ecosystem.

That is why, colleagues, the House was not able to support this particular amendment.

Having said all of that, let me be clear for the record once again on behalf of the government: It is a commitment of the Government of Canada to appropriately scope out digital-first creators and user-generated content from Bill C-11 through the policy directive process. Indeed, Minister Pablo Rodriguez has insisted on this point on several occasions:

We will not regulate users or online creators through the bill or our policy, nor digital-first creators, nor influencers, nor users.

I know that we have all heard the minister clearly on that point on many occasions. I, for one, take him at his word, and I fully expect the government to follow through.

In that spirit, I am proposing that the Senate make clear that although it is now prepared to defer to the will of the other place, we have taken note of the government’s clear commitment to issue policy direction to the CRTC in order to ensure that Bill C-11 does not apply to user-generated digital content. The message we would send to the other place — with this motion — is that we, in the Senate, will be watching the government’s next steps very carefully with the expectation that they will be consistent with the promises they have made and that I have repeated to you in this chamber.

Colleagues, we can be proud of the work that the Senate has done on this bill. We’ve improved this bill. We should be pleased — and we can be pleased — that the House has taken the time to carefully consider our work, and has accepted so many of our amendments. We have done excellent legislative work, and it is a credit to the important role that the Senate plays in the Canadian public policy and legislative processes.

The vast majority of amendments proposed have been agreed to by the government and accepted by our colleagues in the other place. There are only six amendments with which the government respectfully disagrees. The fact that there are so few points of disagreement is a testament to the collaboration and hard work that we have done. We have worked collectively in the interests of all Canadians.

I want to take a moment to acknowledge that reaching this stage today is a great success for the Senate and for the Canadian legislative process. Again, I want to thank you all for your role in bringing us to this place.

Bill C-11 is a better bill today because of the work that the Senate has done. In my humble opinion, with all of the amendments that have been accepted, the Senate has now contributed significantly and tangibly to Bill C-11 — and that is consistent with our role as a complementary legislative body of sober second thought.

Furthermore, to my mind, the other place’s response to the Senate amendments to Bill C-11 is part and parcel of a broader story of successful reform toward a more independent and less partisan Senate. As we saw with the major changes accepted for legislation concerning medical assistance in dying, the legalization of cannabis, reforms to the Citizenship Act and legislation regarding impact assessments for development projects, to list just a few examples, the Senate has been making a positive mark on public policy in a way that is, if not unprecedented, certainly significant in the modern era — which has been seen and appreciated by the public.

In my view, the considered nature of the House’s response to Senate amendments is reason enough to declare “mission accomplished,” and to finally move this bill to Royal Assent.

I understand that some colleagues may remain unhappy with this outcome. I pass no judgment on those feelings; they’re entirely legitimate, and I understand them. I do feel that the government has done a good job at being an active listener, both publicly and behind the scenes, particularly on proposed section 4.2, where we now have firm and reliable commitments around regulatory policy direction.

But I can understand why some of us — who have a genuine conviction that the Senate changes were better — may still be struggling and unhappy. To those of you who don’t want to see this bill killed, but who are still dissatisfied with the response from the members of Parliament, I want to suggest to you that there are foundational principles that underpin the role of the Senate in our constitutional order that should tip the balance on the side of accepting the democratic verdict of the other place.

In making this pitch to you, colleagues, I choose not to rely upon one set rule or convention but, rather, on a principle that I have applied in my own decision making in this place long before I took on the role of Government Representative in the Senate. I don’t know why I get choked up when I speak about the role of the Senate — I guess that’s why I signed on for this gig; it’s true.

This is a principle that I have applied from day one since I’ve been here, and it’s a principle of senatorial self-restraint. It’s a principle that I believe lies at the core of our responsibilities as senators, and it’s at the core of the Senate’s intended design by the founders of Confederation. As Sir John A. Macdonald famously said in a frequently referenced dictum, the Senate:

. . . must be an independent House, having free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.

In other words, the Senate was meant to be neither a rival to the elected representatives of Canada, nor a rubber stamp for the government. It is intended not to compete, but rather to complete the work of the lower house.

The Supreme Court of Canada reaffirmed the nuances of the Senate’s intended function in 2014 when it decided that implementing consultative elections for the Senate would require a constitutional amendment. For context, colleagues, in a unanimous opinion, the court explained that under the constitutional architecture adopted at Confederation, the Senate was carefully designed with the expectation that it would exercise voluntary self-restraint in its relationship with the House of Commons:

. . . the choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. Appointed Senators would not have a popular mandate — they would not have the expectations and legitimacy that stem from popular election. This would ensure that they would confine themselves to their role as a body mainly conducting legislative review, rather than as a coequal of the House of Commons. . . .

The appointed status of Senators, with its attendant assumption that appointment would prevent Senators from overstepping their role as a complementary legislative body, shapes the architecture of the Constitution Act, 1867. It explains why the framers did not deem it necessary to textually specify how the powers of the Senate relate to those of the House of Commons or how to resolve a deadlock between the two chambers.

This, the court explained, was why consultative elections for senators would upset the architecture of the Constitution and, therefore, require a constitutional amendment with provincial buy-in. The court stated:

The proposed consultative elections would fundamentally modify the constitutional architecture we have just described and, by extension, would constitute an amendment to the Constitution. They would weaken the Senate’s role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design.

It’s this principle of senatorial self-restraint — which, in my opinion, is a constitutional expectation designed into our architecture — that I firmly believe should guide our decision making here today. Unlike a rule, the principle of senatorial self‑restraint does not necessarily, or automatically, determine the decision one way or the other. Indeed, it must be weighed and balanced with all other relevant considerations.

Colleagues, allow me to put to you four factors that I believe are compelling — all of which, in my humble opinion, call for a high level of restraint in the context before us. The first factor is this is a message on a bill that comes with a significant democratic imprimatur. It is an explicit 2021 election platform commitment made not only by the governing party, but also by the New Democrats and the Bloc Québécois.

The second factor is that the message from the other place in response to Senate amendments is respectful, carefully considered and, indeed, has actioned most of the Senate’s recommendations. As the Senate’s role is one of complementary review, that role is largely fulfilled with the other place’s initial response.

The third factor is, at the message stage, once the other place’s wishes have been made clear, it has been customary for the Senate to exercise deference and accept the will of the members of Parliament. As a matter of fact, since 1960, only seven bills involved a decision by the Senate to insist on some, or all, of its amendments once the House had rejected them.

The fourth factor is that level of deference ought to be even higher in a minority context, where the government cannot act unilaterally, and the message here is reflective of the wishes of multiple political parties representing a significant share of the popular vote. Legislation to achieve the commitment to modernize the Broadcasting Act has now received a positive vote in the other place three times in two separate minority parliaments, with the support of three parties: once at third reading of Bill C-10, once at third reading of Bill C-11 and once again at the message stage just a few short weeks ago.

Colleagues, I hope we can all agree that the other place’s message back to the Senate is carefully considered and respectful. Where the other place has expressed a difference of opinion, I have endeavoured — to the best of my ability — to provide the government’s perspective. While it is my hope that I can persuade all of you that the other place has made the right call, I am under no illusion. I know that some of you will continue to disagree on certain points, and, in the context of a healthy dialogue between the two chambers, that’s to be expected.

To you, I ask that you agree to disagree, but recognize that — at this stage of the process — the responsible choice, as senators, is to support this message. For all of these reasons, I ask you to support this motion and accept this message. To my mind, we have successfully fulfilled our constitutional mandate as a complementary chamber of sober second thought. We have thoroughly reviewed Bill C-11. We have considerably improved Bill C-11. We have asked the other place to think twice and reconsider certain aspects of Bill C-11, and the other place has pronounced itself clearly and specifically on these matters.

There comes a point where our responsibility is to defer to the democratic will. On Bill C-11, we have reached that point. The time has come to bring Bill C-11 to Royal Assent. Thank you very much.

Would Senator Gold agree to take a question?

Of course.

Like you, Senator Gold, I take my work in the Senate very seriously. I believe in the principle of restraint that you talked about and that you explained in your speech.

As you know, Bill C-11 is very important to me when it comes to defending francophone and Indigenous minorities in Canada. We will see what comes of all this, but the idea is to try to defend minority languages. In that sense, I’m of the opinion that Bill C-11 is more important than my two amendments that were rejected. However, as a former journalist, I care a lot about facts and, quite frankly, I didn’t understand what you were getting at when you criticized the amendment to subsection 4.2(2). I will just mention one point that made my hair stand on end.

You said that sports games that are rebroadcast on platforms like YouTube will not be able to be taxed or used to help fund our culture. However, that isn’t at all the case because when we rewrote the amendment, we specifically kept paragraph (c), which indicates that we can include the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that is required to be carried on under a licence — as is the case with sports — or is required to be registered with the CRTC but does not provide a social media service.

I simply don’t understand how you can say that a loophole is being created and that we won’t be able to include sports at all in Bill C-11. It’s quite clear that this is part of the amendment.

Thank you for the question.

I thank you for your work, and I also thank all my colleagues for their work to improve the bill.

According to the government’s analysis of the possible and foreseeable consequences of the amendment, and how it might be interpreted within the CRTC or within organizations that are, quite honestly, staunchly against regulations, changing these factors and eliminating some of them pose a real risk. Some uncertainty remains around the interpretation and clarity of the wording of the amendment in question, which focuses on how music is played. This could lead to problems interpreting the legislation. As I mentioned earlier, it could result in a loophole.

As is often the case, legislative texts can be interpreted in a number of ways. I accept that there is no way to prove that one interpretation is better than another, even after a court has ruled on it.

That is the position of the government, two opposition parties and the stakeholders I’ve mentioned. The risk is too great, and the bill, unamended, is a better way to achieve the objectives of the legislation.

I think legislation certainly needs to be as clear as possible, but it also needs to send a clear message. What came out in our hearings and, as you know, was very telling, is the fear that content creators have, those who create user-generated content. They are afraid that they are going to be covered under Bill C-11.

Unfortunately, the amendment as it’s currently drafted leaves a huge amount of uncertainty, particularly in terms of who will be covered. Is it anyone who makes money? Everyone knows that user-generated content allows small creators to earn an income.

How do you plan on reassuring those creators, considering they have been very clear about their fears? We’re talking about people who want to make a living. Just like the musicians who are opposed to this amendment, content creators exist and they feel that this amendment is unclear. Personally, I have to tell you that in reading it, I don’t find it particularly clear either.

I understand because I attended the meetings as well. First, the bill is clear. It doesn’t apply to digital creators. This bill targets the platforms, not those who create the content.

Second, the minister repeated this several times very recently during a televised public program.

Third, the text makes it clear that this doesn’t apply. The fact that people create something and put it online doesn’t make them broadcasters. Far from it. The definitions are very clear.

Finally, as I mentioned in my speech and in the motion itself, the government has committed to spelling out in the policy direction that this won’t apply. I understand the fears, but they are not based on the text of the bill or the government’s position.

It is a clear and public commitment. If we approve the motion, the will of the Senate will be to ensure that the government is held to the commitments it made.

My question is for the government leader and it has to do with user-generated content and digital-first content providers. It’s nice to hear the minister say that digital users and content providers will not be part of this Bill C-11. It’s nice to hear the sponsor of the bill say it in this chamber. It’s great and reassuring to hear it in your speech. But the reality of the matter is the amendments that we sent over in good faith which made it clear that user-generated content would not be caught up in the web that’s being spun by this piece of legislation were rejected by the government.

My question is a very simple one: Why wouldn’t the government accept those amendments making it clear in the law — not a commitment on the part of government — that user-generated content will be excluded and carved out? Why did the government reject those amendments given the fact that we should take it at face value and accept that those amendments would put in the law the stated intent of what you just shared with us in your speech?

Well, we are restricted in this debate to the message and not the rest of the bill, but with regard to the amendments that were rejected, I’ve given my best explanation as to what the government’s thinking was on why they were rejected. Senator Housakos, respectfully, it’s not simply “nice” that the minister says this or “nice” that the Government Representative says it. It is a commitment of this government to do so. Either we believe in our institutions and the integrity of our institutions or we don’t. The government has been clear that, in its opinion, the bill as it stands does not apply to user-generated content. It is going to make it even clearer in its policy directive and it has made a public commitment to do so. That is sufficient for my purposes.

I believe the government when it says this. I believe in our ability to hold the government to account when it says this. I believe that this bill, as it was drafted and improved by the Senate, notwithstanding the rejection of this amendment, is a bill that applies to the platforms to support Canadian content and does not apply to user-generated content, notwithstanding the concerns that have been expressed.

Senator Gold, I’ve been now in this place for 15 years, and excuse me if I am a little skeptical of taking any government at face value. I as a legislator would like to see things in the law in black and white.

You pointed out as well that we should just have faith that this is going to be done and that we are here to make sure that we overlook and carry out our responsibilities, as you said in your speech, as legislators to make sure the government does what they say. Don’t you also agree that we are passing a law here that has not been supported by a regulatory framework? We’re leaving it to the CRTC, as you said in your speech. They will be carrying out public consultations in order to set the regulatory framework. What happens in case this regulatory framework isn’t consistent with the commitments you highlighted in your speech? What are our options as parliamentarians at that point with this bill to do a follow-up in a thorough way?

You having been here for 15 years and I for 6 and a half years, we know that following Royal Assent there is a regulatory process. Following Royal Assent, there will be a process around the policy direction. I outlined that process to you and I will remind you it involves public consultation, public input, both at the front end and at the back end when the CRTC receives the public consultation. I will also remind colleagues — and as chair of the committee that studied the bill at length, Senator Housakos, you will also know — that the bill provides for reports to Parliament and parliamentary oversight and was improved in that regard by Senator Quinn’s amendment.

We have many tools in our arsenal, but the arsenal that we carry with us is a sense of what our role and responsibility are here in the Senate. Ninety-nine per cent of this bill was approved by this place and the other place. Of the 26 amendments, 20 were approved by three parties in the other place. This bill has been studied in this place and the other place extensively. The time has come now to recognize this is an important and good bill. The government has made firm, solid public commitments, and the text of the law is also clear with regard to what it applies to and what it does not apply to. If that is not enough for those in this chamber who in good faith want to see this bill succeed and pass, then I have run out of things to say.

If you want to kill the bill, there are lots of ways to do it. We have seen it in the past. We know how to do that. We can delay it. We can hope for another election. We can get it buried, and it will die on the Order Paper. But for those of us who believe that this is a good bill, a bill that has been improved by our amendments, and who believe that the elected members of the House of Commons have done their responsible duty and taken us seriously and have approved 20 out of 26 amendments, the time now is to give it Royal Assent.

For the record, Senator Gold, the constitutional design does allow for the Senate to challenge the House of Commons and not just once. You cited the cases yourself. I would also add that declaring “mission accomplished” is also a bit of a risky move when we heard from dozens and dozens of witnesses speaking on behalf of literally thousands of content creators about their concerns. We also heard from former CRTC chairs, from federal judges that this bill would have and could have unintended consequences on a free and open internet.

If I could focus again on what my colleagues have said, if you believe — yes, we have heard the minister say it repeatedly and we’ve heard you say it repeatedly — this bill does not apply to user-generated digital content, why would you not put it in the law itself for clarity? This just continues to raise questions and doubts and it’s just what we do with legislation here. There are, as you know, many questions in the public about the intent of this bill. You have gone so far as to say that you want this to apply to content and generators, other forms of media that have not even been imagined yet into the future. You’re asking us to give you a blank cheque on that. Could you just start and answer the question of why you have not put this in the bill in black and white, in clear language, which is what thousands of people asked you to do?

Thank you for your question, Senator Wallin. At the risk of repeating myself, the bill is clear that it does not apply, first of all. Second, the fact that the government and two of the opposition parties in the other place disagree with the necessity for this particular amendment does not mean that the government, the members of the other house or the stakeholders do not have legitimate concerns. I tried to express that about this particular amendment.

This is not giving me or anyone else a blank cheque. This is a very complicated, structured piece of legislation that requires — as legislation of this kind does require, and I appeal to those in this room who have experience as we all do or should have with the regulatory process — layers below the legislation. There are regulations and policy directives required in order to take account of emerging trends and technological developments.

This is a good bill. It does not apply to user-generated content. It applies to the platforms when they engage in the broadcasting of commercial programs. The law is clear, the government has been clear and I hope that I have been clear.

The reason we are all asking you questions that seem similar is because it is not clear in the bill. Senator Miville-Dechêne and Senator Simons presented language — a compromise — inside our own committee. They presented language that would have given the government the right and the opportunity to be clear about what you promised and what they promised publicly, on television shows and in front of the committee.

If you really believe it, then put it in the bill. That’s why we keep asking the same question. A promise in a response to questions and in appearances on television is not law, and we would like to see it written in the bill.

Senator Wallin, I appreciate your question very much. I answered it as best I could in the speech. I’m not going to reread it. The amendment, according to the government and according to the majority of the members of the House of Commons, did not achieve its objectives and poses a risk of undermining the central objectives of the act.

This was much debated in the committee and debated in the Senate. The Senate passed the amendment. The House respectfully disagrees. I’ve tried to provide the reasons why the House disagrees.

I’ve also tried to provide reasons which I know you will take seriously. Whether you agree with me or not, that’s your prerogative. Notwithstanding this disagreement, notwithstanding your disappointment or the fact that you do not necessarily find my answers compelling, we will agree to disagree and to pass this important bill for the benefit of the Canadian cultural community and Canadians in general.

My question is to Senator Gold.

I’m looking at proposed subsection (2.1) of Bill C-11:

Exclusion — carrying on broadcasting undertaking

(2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users . . . does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.

So it seems to me that user-generated folks are excluded. The next proposed subsection, (2.2), is titled “Exclusion — social media service and programming control,” and it is followed by subsection (2.3), which is another exclusion.

It seems to me there are several exclusions which are quite explicit. I’m not seeing the need for yet another exclusion to be guaranteed when it seems to me to be quite clear there. I find your explanations satisfactory in terms of those issues being quite clearly stated in those proposed sections of the act.

My question is more direct in terms of the process. As I see it, we’re dealing with three types of instruments. The first is legislation, which is passed by Parliament. We’re seeing how long it takes to pass legislation. Apart from the 31 years, it has now taken 2 or 3 years to do it. Then you have the next level as a directive from the cabinet and Governor-in-Council to the CRTC. On the third level, you have regulations that the CRTC can make, following extensive consultation.

I was a commissioner there, and, by the way, while people cite former commissioners who are against this, here is a commissioner who is in favour of this bill. There are others; we’re not that rare. I have been party to part of the process of how regulations are made. I have to tell you they are mind-numbingly extensive and detailed.

While we are spending a bit of time here dealing with this, the commission’s role, like most other commissions, is to deal with these sorts of things full time. They put questions out, they get answers back; they put out a draft, they get answers back and then they make regulations. The process is extensive.

The wisdom of having this process is that it takes 31-plus-3 years to make changes to the law, whereas a cabinet directive can be done at the drop of a hat. Changes to regulation take several weeks and maybe months, but not years. To me, that’s the wisdom of having this process where you describe the framework in the act, and you leave directives and regulations to deal with the details. Those details have to —

Do you have a question?

Yes. My question is this։ Given that we don’t know everything about the technology that will roll out year by year, is this not the better way to do it? Should we not leave it to the CRTC to deal with those details and update those regulations every few years?

Thank you for the question. I’m going to be brief because I know others may want to ask questions. As long as my legs hold up, I will be happy to take questions.

That is precisely right, Senator Cardozo. First of all, this is not a framework agreement; let’s be clear. The Broadcasting Act is very detailed. Bill C-11 is a very technical, detailed act. So we are talking about an act that sets out very clear criteria. As you pointed out very helpfully and in greater detail than I did, the act is clear that it doesn’t apply to digital creators but only to the platforms. The legislation is clear. It sets out clear criteria and principles to guide the CRTC.

Yes, you are 100% right, as I’ve tried to explain. The level of policy directive development, the process around that and, of course, the process of regulation allows stakeholders — and that includes YouTubers and all the folks who will continue to have questions, indeed, or concerns or both — to have input and to be heard. This is the proper way to modernize a long-overdue and long-out-of-date Broadcasting Act. So, yes, I think this is the right way.

I did want to remind colleagues that this is not just a framework where we tell the CRTC to do what they want. It’s very clear about what it’s supposed to do. Anyone who has been involved in the regulatory process knows you need a certain amount of flexibility within the regime in order to do the work. There are 30,000 pieces of YouTube content uploaded if not every minute, every day. It’s mind-boggling. Triage will have to be done at the regulatory process. Guidance is being provided in law and further guidance in policy directives and, whether mind-numbing or otherwise, further detailed guidance in the regulations.

I have a question for Senator Gold.

First, thank you for the detailed explanation of those amendments that were accepted and those that were not accepted. My commentary and question are along the lines of much that has already been discussed, so I will stay away from that.

It is a given that we would have preferred clarity in the bill. I think Canadians need that clarity, but I also accept what you said: that regulatory science is a flexible science.

You’ve mentioned that there were so many experts and witnesses, et cetera, who were in favour of the bill. There were also those who were not, and we’ve all received countless numbers of emails. We’ve heard from witnesses who weren’t in favour of proposed section 4.2. With all respect, I thought that our colleagues Senator Miville-Dechêne and Senator Simons did an excellent job in bringing a compromise to us. Unfortunately, the other place rejected that particular amendment.

You also reminded us in your remarks about our role as senators, and there have been papers written by Senator Harder, and also recently by Senator Miville-Dechêne and Senator Omidvar, reminding us of what our roles are.

Where I’m going with this is that we’ve had our kick at the cat. We’ve done our job. We’ve sent it to over to the other side, where they are the elected people. At the end of the day, if they include or do not include an amendment, they have to stand before the people and be voted in or out.

My question is, for all those people who have come to our offices expressing concern exactly on proposed section 4.2, which is the crux of the matter here, what more can the government do to give them reassurance? What plan does the government have to communicate what you’ve communicated to us?

Thank you for your question, and, given your experience in public service and regulation, thank you also for underlining the regulatory science that requires a certain amount of flexibility.

The government’s reassurances will come in the policy directive upon which it has made a clear commitment in this place and elsewhere. That will give those folks — and all the folks we’ve heard from — an opportunity to also provide input, as they will when the CRTC carries out its consultations around those matters, to say nothing of the regulatory process.

The record of our debates, our Senate study, my speech and other speeches will also be part of the record. It will be part of the record that the courts and government will look at. We have the ability to both receive reports in this house thanks to the bill and to your amendment, Senator Quinn, and the ability, because we’re the masters of our own house, to hold the government to account. Committees can do follow-up studies. We have many tools in our arsenal to make sure that those voices receive a respectful hearing, which they have.

The government and the two opposition parties took a different view of the well-intentioned and creative amendment, but it did not find favour with the majority of members of the House.

But, yes, I think we have done our job. We’ve done our job well. The government has made a clear commitment to make sure it’s scoped out, and I have confidence that it will keep its word.

Senator Gold, really the focus of my comment is that all of the inputs received, et cetera, from people across the country — people who have appeared before the committee, people who have not appeared before the committee but have communicated with senators, across the spectrum — deserve to hear more directly than the normal process. You’re right: There are all kinds of things that are published and put on websites and whatnot, but the people who have been communicating with us may not be the people who deal with these issues in that format, if you can understand what I’m saying. They’re not used to the legislative process.

Should the government not have a proactive strategy to communicate with those people who have made their views on proposed section 4.2 explicitly known?

Thank you for your question; it’s an interesting one. The Prime Minister, and in this particular case the appropriate minister, has been very public. He’s on social media and on broadcasting networks. If people don’t watch CBC or CTV, or they get their news elsewhere, it’s available on those platforms as well.

The government has been clear for a long time about the importance of this bill. Three parties put this issue in their electoral platform, and they represent a majority of the House of Commons. I’m not sure what else the government should be doing with this.

Certainly, by way of a communications strategy, when the bill receives Royal Assent, as I hope it will sooner rather than later, and the next steps of the process unfold, that will be another occasion for the government and the CRTC to communicate to interested stakeholders about how they can continue to be engaged in the process.

Senator Gold, in your speech today on Bill C-11, you told us about user-generated content that the government made a commitment. Well, we’ve heard this “just trust us” many times before from the Trudeau government, and the number of broken promises by this government is substantial.

These include: two years of deficits at just $10 billion per year before returning to balance, that the 2015 election would be the last one under the first-past-the-post system — it goes on and on — and most recently Minister of Finance Chrystia Freeland promised that the federal ratio of debt to GDP would not increase, and she called that “a line we will not cross.” Yet the Parliamentary Budget Officer has now stated that is yet another Trudeau government broken promise.

Senator Gold, when you state that your government will not put this user-generated content assurance into the actual law but instead you tell us — on this most contentious Bill C-11 — to “just trust us,” after all of the broken promises over the last eight years from this Trudeau government, why should Canadians believe that promise?

Senator Batters, I guess what divides some of us is whether we believe that when a minister makes a commitment, when the Government Representative in this place makes a commitment, it is to be taken seriously and at face value.

My team and I — and I think many senators in this place — have been engaged in a serious effort to make sure that there is time here in the Senate for this bill to be studied properly and for the Senate to be able to do its work. The Government Representative Office has been respectful of the Senate every step of the way.

Timelines that were agreed to were changed when the leadership in your party changed. Timelines were not simply extended to give pleasure to Mr. Poilievre, but to give opportunities for the Senate and senators to weigh in, and we did good work.

The fact that this one clause, in a very complicated bill, is the subject of disagreement between the Senate and the majority of members of the House of Commons is, if I can reprise my comments in my speech, to focus on a tree and not the forest.

I’m going to refrain for the moment, colleagues, from reminding us that not everyone in this chamber necessarily approaches the improvement of this bill with the same end goal in sight, but the majority of senators in this place, I am convinced, are proud of the work that we have done and want to see this bill given Royal Assent, notwithstanding disagreement on this and the five other amendments that were not accepted by this government.

Not to belabour the point, but user-generated content is definitely scoped into this bill. That was the opinion of the chairman of the CRTC when he testified before our committee. That was the opinion of the legal expert of Heritage Canada who, on numerous occasions, was asked directly about the language that Senator Cardozo referred to. It is clear that the government is refusing to tighten that language and accept reasonable amendments that state, in black and white in law, that user-generated content will be excluded. Nonetheless, I also want to correct a couple of things.

In his exchange with you, Senator Gold, Senator Cardozo highlighted really what the problem is between those who are fine with the bill and those who are against the bill. I know that the CRTC has the authority to make regulations because the law that we’re about to pass and the government wants to pass is giving that authority. In the old Broadcasting Act and the current Broadcasting Act, our colleague Senator Cardozo is right: The government and Canadian Heritage can not only influence the regulatory framework; they can give directives and overrule the CRTC. That’s precisely why when you have laws like the Broadcasting Act that leave this Parliament and become law, there have to be safeguards to make sure whoever is in government has parameters that they have to work within that we parliamentarians give them. And if we’re negligent in our responsibility in making laws that are clear, that’s when, of course, problems can occur.

Now, in terms of the regulatory framework, it is so customary on bills that are technical — like Bill C-11 — for governments to attach regulatory frameworks in advance. With Bill C-10, the precursor bill of Bill C-11, if you remember, at the final stages of that bill, under a lot of pressure from work in this chamber, the government came out with a framework at that particular point in time. It wasn’t a very good one, but they came up with a framework. It doesn’t require tossing it to the CRTC for two years.

But I don’t want to digress. I want to get to my follow-up question because there are a lot more problems with this bill than just user-generated content.

When we’re reforming the Broadcasting Act, one of the main pillars that needs to be reformed, which was not even looked at in this bill, is CanCon. My question to you, government leader, is the following: How could a story written by Margaret Atwood, The Handmaid’s Tale, with Canadian actors, filmed in Canada, with a Canadian director and so on and so forth — how could something like that, in the eyes of this current bill as we want to pass it, not qualify as Canadian content?

Well, Jewish people have a tradition of answering a question with a question. You will properly consider this is out of order, but let me ask you a question. As a member of the Senate for 15 years and as a former Speaker, surely you are aware that the question at this stage of the process has to refer to amendments that were either accepted or rejected and not to the bill as a whole.

We tried to move amendments at committee dealing with Canadian content, and they were rejected. They were rejected and, by the same token, it’s part of the parliamentary process. Now, again, if you don’t want to answer the question, it speaks volumes, government leader, how the government is negligent in doing an in-depth dive on dealing with Canadian broadcasting.

The government has not been negligent. The government has been responsible in trying to get this bill over the finish line for the last three years. The government does not have a Spartan warrior who is praised for delaying it for a year and will delay it for another year if your leader’s hope is realized.

The fact is this government is not being negligent. The proper legislative process is for a bill to be passed, policy directives and regulation. And again I say, Senator Housakos, with the greatest of respect, we’re at the message stage of the bill. The Rules of the Senate require that we stay focused not on part of the process generally but on the actual message that’s before us.

I’m not rising on any procedural point, but simply to remind senators that at this stage of our process, we have a particular responsibility to this process. It is not to reopen the whole bill and all the things that you don’t like about the bill and all the reasons why you and your party would like to kill the bill.

With all due respect, government leader, this is a very important legislative process. We have an obligation to debate all aspects of the bill, even elements of the bill, government leader, that you don’t like to talk about.

I think you have an obligation in this chamber to answer all questions that directly and indirectly apply to this particular bill and the Broadcasting Act. These were all elements that were dealt with, not just amendments that were refused or rejected.

Furthermore, we have a capable Speaker in the chair, and I think it’s incumbent on that Speaker to do her job, and you can focus on doing yours.

I have one other question, government leader, since I haven’t had any answers to the questions thus far. The bill makes it clear. There are a number of sections that talk about amplifying minority groups in this country and diversity groups. That’s clear in the bill. It’s within the scope of the bill. That includes Indigenous Canadians.

Can you explain to me how we’re passing a bill, a broadcasting act, that’s so preoccupied with — and this government has their heart set on — supporting diversity, supporting Indigenous voices, yet when it comes to this year’s budget, you cut millions of dollars from the Indigenous Screen Office that would be going to Indigenous communities in order to amplify Indigenous voices?

Here is another example where you pass a law for posterity’s sake, yet in practical terms, in this current budget that you passed recently, you actually cut funding to the Indigenous Screen Office.

Again with respect, Senator Housakos, there is a long-standing practice and rule about message stage, so I am not avoiding answering questions that I “don’t want to answer,” but they are not questions that are raised in the message and that are the proper subject of debate.

Similarly, Bill C-11, even before we amended it, had recognized the presence of Indigenous artists, creators and broadcasting entities and companies. It was strengthened by Senator Clement’s amendments, and the bill has been improved as a result.

Your question about funding for a particular organization clearly belies and ignores the fact that this government has done more to advance reconciliation, though there is an enormous amount of work still to be done. Again, it is only out of respect for the importance of the issue you raised and not the pertinence of the question that I offer that observation.

Government leader, you’re giving the impression to this chamber that there is somehow a tradition in this place at message point of legislation that we’re just a rubber stamp, and that’s not the case.

It’s in the Constitution that this chamber has a right and a responsibility at message stage to refuse a bill as well, which you did not highlight, and to send it back along with many other options that this chamber has. Yes, there has been a tradition to bow to the wishes of the elected chamber, but there is also something the forefathers had established when they created this chamber — that when a government does something so egregious that a large number of Canadians find it offensive, we have the right to exercise our constitutional authority. I just want to put that on the record as well, government leader.

Thank you for your question. With respect to our constitutional role, no one is denying what the Constitution Act, 1867 says. But in my speech — and I’m sure you were listening — the Supreme Court made it clear that because of the understanding from 1867 onward of our complementary role, it was not necessary to specify the circumstances under which senators would exercise restraint as a matter of principle, a self‑imposed principle of restraint, because it came with the understanding, which all of us share and should share, of what our role here in this chamber is vis-à-vis the role of other institutions in our government, including the elected officials.

It is a question of what the appropriate and responsible thing for the Senate to do is. This is not a case where, in my humble opinion, the message is about the disagreement with 6 of the 26 amendments — and again, colleagues, the motion focuses on and our practice in the Senate focuses at the message stage on talking only about the message. There are Speaker’s rulings on these points.

Again, I am not invoking procedural arguments to stifle this discussion. I’m just trying to appeal to your experience as a legislator and to those of us with perhaps less experience to remind us what this debate is about and what it’s not about.

On that point, in fairness, Senator Gold, you did raise the issue of the constitutional role of the Senate, but that’s for another time.

To stay on topic, I will read the language of your rejection that you’ve shared with us here. The government has rejected the key amendment that we are talking about here on user-generated content:

. . . because this would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time . . . .

These are your words — the government’s words.

This rationale, of course, makes it quite clear that the government wants the power to continue to direct the CRTC on user content today, and maintain that power into the future. That’s what it states.

Obviously, these questions remain: Why are you so adamant to regulate user content online? What is your fear?

I ask this because in the discussions over Bill C-10, Minister Guilbeault, who was the minister in charge at the time, suggested that he was concerned about the criticisms of the government that he was seeing online. We have heard very clearly from Minister Lametti that he thinks it is okay to restrict rights and freedoms online if the government chooses to legislate in that direction.

Any bill that requires government policy direction to provide guidance on regulating user expression is leaving too much uncertainty on the most fundamental questions of freedoms.

Why does the government insist on having the ability to directly instruct the CRTC on user-generated content — the actual content — when this is supposed to be an arm’s-length institution?

Again, Senator Wallin, it is not the intention of the government — or of this bill — to regulate user-generated content. It is in response to the concerns expressed, as the government has tried, and continues to try, to clarify — obviously, with not complete success in this chamber, anyway — that the bill does not, and will not, apply to user-generated content. Both the text of the bill and the government’s commitments make that clear.

It is also clear — again, colleagues, you don’t need me to tell you this — that the Canadian Charter of Rights and Freedoms applies to every bill. The CRTC is required to take the Charter into account. Freedom of expression is guaranteed in the bill itself, although that is not necessary given the overarching presence of the Charter, and amendments promoting journalistic freedom further emphasize that.

It is not the case, Senator Wallin, with all respect, that the government intends — or wants — to regulate user-generated content. It is trying to provide guidance to the CRTC on how to adapt this bill to the rapidly changing technological environment and, at the same time, provide reassurances to those in our communities who have expressed concerns. As I said, those concerns will be addressed in the policy directive upon Royal Assent.

I have a comment in response to that. I want to put on the record what Attorney General David Lametti said when he spoke about Bill C-10, and when asked specifically about federal regulation of legal internet content. He said that rights and freedoms can be limited. In particular, he said:

. . . when Parliament legislates, it may have an effect on charter rights and freedoms. This may include limiting people’s enjoyment or exercise . . . . This is entirely legitimate. The rights and freedoms guaranteed in the charter are not absolute . . . .

Thank you, Senator Wallin. We know this. The Charter itself, in section 1, provides that rights and freedoms that are set out, and otherwise given an expansive interpretation at first blush, are subject to “such reasonable limits . . . as can be demonstrably justified in a free and democratic society.” For the Attorney General to remind senators and legislators, all of whom have an obligation to understand and apply the Charter in our own work, is simply — if I can paraphrase the late, great Alan Borovoy, the former general counsel of the Canadian Civil Liberties Association, and a mentor and friend to me — “a penetrating glimpse into the obvious.”

Yes, rights are not absolute. They’re balanced against other rights, and they’re subject to reasonable limits. Our statute books are full of examples of this kind.

I want to make one point that I think is lost sometimes. The CRTC has the ability to make its own regulations within the framework of the act — I use the word “framework” generally, Senator Gold — and it doesn’t have to wait for a directive from cabinet. The point being, over the next few years, the CRTC has the ability to change regulations. If you think of the word “TikTok,” five years ago, “tick-tock” only referred to the sound of your grandfather’s clock — today, it has a different meaning, and, five years from now, it will have a different meaning again. A lot of technology will change.

My question is this: For viewers who are watching us today, our debate so far, over the last hour, has been on a couple of issues that were turned back by the House of Commons. Senator, could you remind us of a couple of highlights where the House did, in fact, agree with the good work we have done, particularly regarding what we advised them on? You outlined them briefly in your opening comments, but I think the viewing public — outside this room — might want to be reminded that the House did agree with a whole lot of things. Although I’m a new senator, 20 out of 26 strikes me as quite high; you can correct me if I’m wrong.

Thank you for your question. As I stated in my speech, significant improvements were made to the bill by the Senate which were accepted by the government: These include strengthening the protection of privacy, as well as strengthening the presence and role, of Black Canadians, racialized Canadians and Indigenous voices; making it clear that innovation is an important objective of the regulatory framework and of our Canadian Broadcasting Act; ensuring that audiences figure into the calculations and ensuring the diversity of audiences; and so on and so forth. These were improvements to a bill that was already a good bill.

The bill came to us with massive support in the cultural sectors — supported by large numbers of stakeholders, and supported by three political parties who ran on its modernization as part of their electoral platforms.

This is a good bill; we agreed to and the House agrees to 99% of the bill. We’re talking about a handful of clauses where there is disagreement. I think that’s important for senators to understand at this message stage — when we have received a message from a minority Parliament, supported by a majority of members of the House of Commons who have carefully and responsibly studied our amendments. They’ve read the transcripts and listened to the debates. They have come to different policy choices than the ones the Senate preferred. That is not a reason to ignore the benefits that this bill will bring to Canadians, and the importance of passing it and having it receive Royal Assent as soon as possible.

This is more out of curiosity, I suppose, although it may have some utility, leader, but I wanted to ask, first of all, about the statement regarding taking note of the government’s stated intent: I think it is very creative, and makes many of us more comfortable in terms of saying goodbye to Senator Simons’s and Senator Miville-Dechêne’s excellent amendment — which I spoke in favour of, and which allowed me a reason to send it to the House of Commons.

Could you elaborate on the provenance of that passage? Did you develop it? If we wanted to amend it, would it be a government position that would have to involve the House of Commons? Is this a passage that we’re putting in here in the Senate, or was a compromise arranged with the other house that, if we edited it, it might cause a problem?

This was language that our office here in the Senate developed. You will know now for the last three years that when I am asked questions in Question Period, I answer on behalf of the government. It’s not my role to answer in my personal capacity. You can fairly assume that the language that we developed here represents a position that is acceptable to the government. Otherwise, I wouldn’t have put it in a motion.

As the Senate, we have the power to amend motions, to vote for them or reject them. I have no comment on your question. There have been no — and even if there were, it wouldn’t be appropriate for me to share this.

I am saying that I believe that this motion, the heart of which is to propose that we accept the message from the House — the addition that we included was to give the Senate the ability to be on record in this motion for the motion to be read in the House of Commons so that the members of the House understand what the position of the Senate is and that we take note.

We think that this will strengthen the assurances and, back to Senator Quinn’s point, we hope that it will provide some additional assurances to those who are still skeptical of governments. That is a feature of our modern politics.

It will also figure into interpretations. As one of our former colleagues reminded us regularly, courts and others take legislative history, and especially Senate pronouncements, into account when they are interpreting legislation. I think this adds one more element into the point that I have been trying to make that the government is seriously not involved and has no intention of scoping in user-generated content.

We’re arguing over how equivocal the government wants to be here. I wondered if the word “intent” in that paragraph is an equivocation.

Again, would it be possible and acceptable, if this house decided — and maybe you don’t want to answer an “if” question — that that stated intent become something like a public assurance or a public commitment?

Your thoughts?

I would have to reflect upon that, Senator Tannas.

As I said, I accept the Senate’s ability to move amendments to motions. I will choose not to pronounce upon whether that would be something that I would support or oppose in the event that that comes to pass.