Honourable senators, it is a real pleasure to rise to speak to Bill C-11 as it returns to the Senate. This bill is timely and necessary as it updates the Broadcasting Act, which was enacted more than 30 years ago in 1991 at the dawn of the internet and before online programming was a thing. Having worked under the 1991 act many years ago while I was a CRTC Commissioner, I am extremely aware of the need for this updating.

At this stage of the bill, our task is to focus on the 26 amendments made by the Senate and the 20 of those that the House of Commons approved earlier this month. Twenty-six, in my view, is a high number of amendments. It is 77% of the amendments that we sent them that have been approved by the House of Commons.

The process for this bill, regardless of the outcome of the Senate vote, is a textbook case of how our bicameral system works — the good, the bad and the ugly. A minister introduces a bill in the House, the relevant House committee makes several amendments, the bill passes the House and comes to the Senate. After sober second thought on our end, we make more amendments and send it back to the House. The elected MPs accept most of our amendments, and it comes back to the Senate. Now we discuss the amendments that were passed, as well as those that were not passed and then we vote on it. At this point, it either goes back to the House or goes on to the Governor General for Royal Assent, proclamation and implementation.

That said, it is also a textbook case because of the high political drama it has encountered, replete with many delay tactics and fundraising off the process over many months. The degree of misinformation and disinformation has been enormous, but it is still an interesting case where we have seen a massive online campaign over the last few months. This is either an exception to the norm of constructive policy-making or, in fact, the “new normal” that will eliminate constructive policy-making in favour of divisive, partisan and extra-parliamentary campaigns. It is a sad situation where facts are replaced by ever‑increasing scare tactics and polarization.

I support passing this bill because it is high time the old act was updated to address the online world given the rapidly evolving state of the audio-visual production sector and the ever‑increasing presence of global web giants. This amended act includes most of what is necessary in the online world that has become so prominent since way back in 1991.

These are the fault lines that I see in the debate. The discussion comes down to, on the one hand, a modicum of oversight by a body which operates under the authority of a democratically elected parliament and government versus a wild west controlled by the web giants like YouTube, Netflix and Amazon Prime. It is Canadian democracy and government in action versus the constantly changing whims of international billionaires who have demonstrated little or no care for people or society, let alone for Canadians. Unlike a public sector Canadian agency, we have no recourse over these web giants whatsoever.

Despite the many messages that have been sent to us, whether they are real or algorithm-generated, this bill does not threaten user-generated content. It does not threaten freedom of speech, freedom of religion or this new buzz thing called “freedom to offend,” which I think will be transformed into something called “freedom of hate” and soon people will want these supposed rights and freedoms embedded in the Charter.

Clause 2 in Bill C-11 explicitly states that users of social media services who upload programs for sharing with others and who are not affiliated with the service will not be subject to regulation, and clause 4 stipulates that the act will not apply to programs uploaded to a social media platform by unaffiliated users of the service. These carve outs in clauses 2 and 4 mean that social media users will be able to share their content without being regulated by the CRTC.

With respect to freedom of speech, clause 12 states that the commission must act in a manner that is consistent with the freedom of expression enjoyed by users of social media.

In my view, this has never been about the CRTC versus the people. How naive can we possibly get? Have the web giants completely taken over our ability to think? Do we all think they are as pure and innocent as the driven snow and that democracy is the devil incarnate?

Let’s be clear, when you look at support for online content, the numbers you see from social media are secret and can easily be created by fully manipulated algorithms riddled by bots and trolls.

Rather, as we live beside the United States, this bill is about Canada, who we are and who has jobs here. Canada has long been in a constant and uphill battle to build Canadian culture, to build our cultural industries, to grow our cultural audiences. It is about our country, our jobs and who we are. With the growth of the online world, this battle has simply become more urgent, pressing and difficult.

Now a word on the CRTC, spoken as a former CRTC commissioner: While some people have quoted a past chair and a past national commissioner as opposing Bill C-11, I would point out that the most recent former chair, Ian Scott, and myself, a former national commissioner, are fully supportive of it. That simply illustrates that governments appoint a variety of people to the commission. It highlights that the CRTC is a dynamic organization that is connected to society and consists of Canadians who have various views and are passionate about the issues they address. And don’t even ask me to get passionate about this.

A word about the process of decision making at the CRTC: Keep in mind that commissioners are appointed by the government to be in office for five-year terms. All their biographies and term lengths are on the website. All CRTC decisions are based on public processes in which all Canadians are invited to participate and express their views, not on secret dealings, unfathomable algorithms, foreign governments, political parties or multinational corporations.

While as senators we can meet lobbyists until literally the last minute before a vote is taken, the CRTC commissioners have to stay clear of discussing matters from the day a public process begins, and every communication has to be on the public record — no secret conversations.

I have to tell you about one incident I recall when I was at the commission, fairly early in my term there. We were having a hearing with two competing applicants for a Christian television station. It was an intense competition, and let me just say that they were not being terribly Christian to each other. They were not turning the other cheek, as the Bible would ask them to do.

I was followed into the men’s room at least twice on two breaks as people tried to bend my ear about issues to be raised in the hearing. I had to explain to them that lobbying takes place in the lobby, not in the washroom. Second, if I received information in the men’s room, I would have to disclose that upon returning to the hearing room and might have a bit of a difficult problem to explain where and how I would receive such information.

I was new to the commission. I was a bit concerned about my reputation at that point.

The bottom line is that all communications have to be on the public record for all to see; no secret conversations.

Now, here’s the thing about regulating technology as stated in the 1991 act: It needs to be flexible. The CRTC was able to regulate and, in fact, regulate to ensure that Canadians had access to the internet, largely through one generally worded section. Section 5(2)(f) simply says:

(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that . . .

(f) does not inhibit the development of information technologies and their application or the delivery of resultant services to Canadians;

This is something that was put in there in 1991. People had no idea what the internet was going to be, and yet those few words, “does not inhibit the development of information technologies,” allowed the commission to regulate the internet to the extent that it does by the use of subsequent regulations.

Please allow me to give you one concrete example of how the act and regulations working together make things happen. The example I want to share with you is APTN, the Aboriginal Peoples Television Network, licence, which was provided in a hearing following 1998-99.

The act states in section 3(1)(d)(iii) that the broadcasting system should reflect “. . . the special place of aboriginal peoples within . . . society . . . .”

That was the hook the applicants were able to apply on, and that was the hook on which we were able to give them a licence. Then you get into the details, and this is where the regulations came in, because we had to consider three kinds of content: Canadian content, French-language content and Indigenous programming. This was a channel that was promising to have Indigenous programming.

Had those numbers been defined in the act, we would not have been able to do what we did. What we did was to come up with a formula where there would be a large amount of Indigenous programming — something like 90% — Canadian content a bit lower than normal because there was not much Indigenous programming in Canada at that time. There had not been a national television system, and, therefore, there was not much Canadian-made Indigenous programming.

We also wanted there to be some French-language programming, since there was going to be just the one station. By being able to have the flexibility to lower Canadian content at the beginning to ensure that there was Indigenous content that they were able to get worldwide, we were able to give them a licence.

The other thing we were able to do is there were regulations around the carriage. On the one hand, we gave them a mandatory fee — that everyone who gets APTN would pay a fee of 18¢ a month — as well as mandatory availability.

Now, every channel in Canada either has a fee, such as CBC News Network or Sportsnet, or they have mandatory carriage, such as CBC or CTV. No one else had both. But because these were regulations, we were able to use both to provide APTN the licence which ensured they would be viable.

Here is the thing about the act and regulations: If you included all the regulations in the Broadcasting Act itself, it would have to be much longer for one thing, and it would be almost impossible to change as technology and the needs of Canadians change.

To put this in clear terms, the laws of Canada created by the act passed by both the House of Commons and the Senate tend to stay in place maybe 15, 20 or 25 years — in this case 30 years — at a time. Regulations made after full consultations are easier to change and update.

As I wind up, I want to say this: Once Bill C-11 is passed and its intent is clear and carved in stone, the consultations will take place, and the regulations will be made. I do think that this bill creates the correct balance, a logical balance, about what is in the act and what will be in the regulations. The more you put in the act, the less you will have flexibility to reflect change in technology and the needs of Canadians.

I have a few other points I would have liked to have raised just to quote from members of Parliament and political parties that have promised to do this precise bill, but in the interests of time, I will end there. Thank you.

Will Senator Cardozo take a question?

Like yesterday, we are almost out of time.

I will question him in private over a cup of coffee later.

Honourable senators, I wish to speak briefly in support of the Senate message respecting Bill C-11, as amended by language proposed by Senator Tannas and endorsed, as I understand it now, by the Government Representative.

While I would have preferred support in the other place for all of the amendments that the Senate proposed to Bill C-11, in my view, the acceptance of most of the amendments, combined with a stronger commitment or expression of commitment to independence of user-generated content, meets the legitimate expectations of this chamber.

My remarks will be focused less on the bill itself — Senator Cardozo did a great job of addressing those questions — but more on the institutional role of the Senate and the limitations of that authority in our constitutional framework — the partnership, if you will — between this chamber and the other place and Canadians.

Let me start with a metaphor. Many of us are in romantic relationships. I want you to imagine that in such a relationship you have agreed that your partner or spouse gets to decide each summer where you take your vacations. This year, your spouse or partner indicates that the plan is that you will vacation for two weeks on Prince Edward Island. You listen but indicate to him or her that you would prefer two weeks in Regina.

The reply from your spouse or partner is, “Okay, I listened. I will adjust the plan. We will spend a week on P.E.I. and a week in Regina. Since you like the beach so much, we’ll get a cabin near the ocean.” You hear the reply and respond, “No, I really want us to go to Regina for two weeks.” Not surprisingly, he or she responds, “Which part of ’I get to decide on vacations’ do you not understand?”

More significantly, this way of reaching — or not reaching — decisions can strain and, eventually, potentially jeopardize the whole relationship.

In the context of the relationship — or institutional partnership — between the Senate and the other place, questions of this nature are significantly more important. And the terms of the agreement on “who gets to decide” is a deeply embedded form of agreement — not a conversation between the leadership of the two houses but an agreement embedded in the constitutional architecture. It is a non-negotiable set of terms of the relationship.

On the question of who decides and how many times the partner without the final decision-making authority can say, “No, I want to go to Regina,” there are a few markers.

I am not an expert on these questions, but I am indebted to others for guidance on this fairly grand question. I would like to make a few acknowledgments first. The magnificent Senate book, Reflecting on Our Past and Embracing Our Future, edited by Senator Seidman and former Senator Joyal, offers guidance on the Senate, its authority and the limits on its authority. Professor Emmett Macfarlane recently published a book called — not a particularly elegant title — Constitutional Pariah. I also refer to the Supreme Court of Canada decision in Reference re Senate Reform in 1914, and the material available on the scope of upper house authority written about and analyzing the Salisbury Doctrine, gathered for me by the Library of Parliament. Senator Quinn’s own staff has done work on this, and I am indebted to that work.

Parenthetically, I recommend these and probably other background materials, and I wish I had read them when I first arrived in this place.

The principle with respect to Salisbury — I will mention just briefly — has a very specific history in the British House of Lords, but it is essentially this: that the upper chamber should show deference to the elected house’s policy and legislative agenda, particularly if they are part of an election platform to which the governing party made commitments.

Now to my points. I’ll not argue that the Salisbury principle is a convention entirely applicable to our framework, but it does offer guidance on what I will call the limited democratic authority of a non-elected house of parliament.

In a much more profound way than my continued objection to vacationing on Prince Edward Island, the continued objection to the will of the other house challenges the relationship itself, and it’s useful to keep in mind that the structure of the relationship is actually a bargain between parliamentarians collectively and the people we represent — and something that we tinker with at our peril.

The basic argument that implicitly represents the foundation of this bargain is that the will of the elected body represents, in an instrumental way, the will of the people. And if the will of the elected body gets it wrong, there is a political mechanism — elections — by which the members of the elected body and the government that leads that elected body can be held accountable. This cannot be said to be the case of this non-elected chamber.

I have one other point to make about this logic but want to inject, at this point, two observations that I think are highly relevant to this chamber.

We have a degree of independence and a freedom from accountability highly different from the other place and different from nearly every other public institution in our country. As was discussed as recently as yesterday in the discussion on the issue initially raised by Senator Downe, a combination of the principle of parliamentary privilege, the expectations upon senators to speak up boldly and strongly and the limited authority of the Speaker to regulate remarks identifies a remarkable degree of independence for senators.

On this point, some have argued that this expands our “freedoms” as senators, so to speak. In my view, the opposite is true; that is, it requires us not to expand the scope of our freedom from constraint but to personally self-regulate that authority for the sake of and out of respect for the institution itself.

Such is the case, too, with institutional decision making by the Senate, such as whether to continue to press its view with respect to aspects of the amendments to Bill C-11 which were not adopted by the other place. That is, “I still want to go to Regina on vacation.”

The second observation I would make is that a more muscular and non-elected Senate, asserting its will in the form of — let me call it — “sober third thought,” particularly driven by political perspectives, has a potential boomerang effect. In this respect, at some point, there will be a change of government. Some hope soon.

Some hope either later or not at all.

But eventually that will occur. At that point in time, the opposition leader will cross over to another seat in this chamber; the government leader presumably will cross over to an opposition or other seat. And I imagine that, as they do, they will stop in the middle and exchange binders. The opposition leader will hand over his or her binder of questions and criticisms, and the government leader will hand over his or her binder of answers or, as Senator Plett might say, “non‑answers.”

When that happens, a more muscular and oppositional and less accountable Senate will have a licence, supported by this potential precedent, to relentlessly impede initiatives of that new government.

So, for senators inclined to oppose the will of the elected body here — and, to be honest, on one or two specific points, I would be tempted myself — it’s important to think about the downside long-term consequences of pursuing that which you might most profoundly desire today, potentially to your regret.

My final point is the degree to which there is a genuine link between the “will of the people” associated with a particular initiative, or whether this is so esoteric a thought, based solely on the fact that a particular government was elected — in some respects, this is the Achilles heel of the Salisbury principle.

Can we point to a particular initiative and evidence that that initiative is connected with the will of the people? There is no incontrovertible evidence, but there is at least a meaningful link if a government, when campaigning for office, committed to an initiative and got elected and is advancing that initiative.

So, added to the general principle, the closer to an electoral commitment the core of a government initiative is, the greater the justification for deference to the will of that other place.

That was the case here. A commitment to reform the Broadcasting Act was part of the governing party’s 2021 electoral platform and Speech from the Throne.

In conclusion, we as a chamber have done our work here. We have examined this legislation extensively and well, as nearly all of us have observed with respect to this legislation, both at committee and here in the chamber. We have offered a series of sober second thoughts, many of which were adopted, some rejected. We have worked out a small constructive non‑legislative “sober third thought.”

Our work, within the limits of our constitutional authority, has been done and well done. Going further, resisting further, would be unwise, in my submission, and would push us, in my view, to exceed the limits of our institutional authority. We should celebrate this good work, congratulate those who led the work and pushed us hard to adopt Senate improvements and say yes to this amended message. We should agree to go to P.E.I. on vacation. Thank you very much.

Would Senator Cotter take a question?

Yes, I would.

Thank you, Senator Cotter. I want to highlight that in our Constitution — in black and white — when the forefathers created this chamber, it was created with the same rights, privileges and authority of the House of Commons — the Westminster system.

The second thing we have to keep in mind, colleagues, is that when this house was created, the “Father of Confederation,” John A. Macdonald, also made it clear that this place would be an independent body from the other place. It was also made clear that this body would speak for the voices that it was felt were not being adequately spoken for in the other place.

Prime minister after prime minister — I can give umpteen examples, including former Prime Minister Chrétien and even former Prime Minister Harper, who had a hard time swallowing the legitimacy of this institution — have always said that when an elected government does something that is found to be egregious by a large number of Canadians, that is when the Senate should legitimately step in to ensure that those voices are heard.

My question is the following: When I hear your speech, I’m very concerned. If the Senate has lost a great deal of legitimacy in the eyes of the public over the last couple of decades, it is because they asked the following question: Is this institution nothing more than a glorified debating society and echo chamber?

I will make two observations, if I may, Senator Housakos.

The first is that there is a very good chance that, at some point in the future, someone will make observations like you have just made, and you will respond just like I have.

My second observation is that the argument you make is premised on the idea that a continued assertion of parliamentary authority by a non-elected body is one of the ways to improve public confidence in this chamber and the institution of the Senate, and I think that’s a very debatable proposition. Thank you.

I thank Senator Cotter for his remarks. I tend to agree with most of them. However, I am sure it wasn’t his intent to not explain the full picture of the role of the Senate over the years.

There are many examples of where the Senate has rejected the House of Commons. Probably the best example is before the 1993 election when the Conservative government made a commitment on the Toronto airport. The Liberal opposition promised that if they formed the government, they would reverse that decision. Mr. Chrétien won the election and formed the government, which held a majority in the House of Commons. The House passed the changes to reverse the decision. The bill came to the Senate, and Liberal senators voted against the proposal as well because they viewed it as retroactive legislation.

Here was a commitment of the opposition party. They ran on it in their election platform. They won the election, implemented what they said they would do and the Senate said no to the elected House of Commons immediately after the election.

There are exceptions to all the rules. In my own view, I don’t believe this is a hill to die on, but there will be cases where the Senate will want to oppose the House of Commons.

Senator Downe, do you have a question?

Do you share that view?

I got the question. I’m a bit troubled that someone from your province didn’t at least celebrate my metaphor in the question. Having said that, I’m hardly an expert — may I complete the answer?

Honourable senators, do we agree to give time to Senator Cotter to complete his answer?

I have two brief observations, Senator Downe, and I appreciate your observations. In my research, which was not absolutely comprehensive, I found two examples. You identified one, and the free trade agreement was another. I accept the idea that there could easily be exceptions, but, in my view, they have to be awfully big exceptions. I would suggest that this isn’t one. Thank you.

Honourable senators, I suppose this is the proper time for me to stand up and speak because the previous speeches led to my speech. Maybe I should say, “Here comes the judge.”

Honourable senators, under the Constitution Act, 1867, both chambers must agree on the exact same text before a bill can be sent to Rideau Hall for Royal Assent and then become law.

When both houses work truly independently from each other, it is possible that the house dealing with a bill after the other one may conclude, after its own review of the bill received, that it should be amended.

Of course, the Rules of the Senate contain provisions applicable in such a situation. They are found at Chapter Sixteen, entitled “Messages to the Senate and Relations Between the Houses.” The Rules provide for sending and receiving formal messages between the houses, and how to deal with such messages.

As you know, we made 26 amendments to Bill C-11, as received from the House of Commons, and sent a message to the other place to inform it. The government reviewed these amendments and proposed that members of Parliament accept 18 of them as received, 2 with modifications and reject the remaining 6. After debate, a large majority of MPs — who are members of three different political parties — agreed with the minority government and a message was received from the other place informing us accordingly.

In such a situation, rule 16-3(2) indicates that the Senate can agree with the message from the House of Commons or insist — I repeat, insist — on one or more of our amendments despite the initial rejection by the House. In my view, the Senate should insist on a rejected amendment only under very specific circumstances considering the nature of each house and the contemplated relationship between the houses under our Constitution.

In other words, at this stage of the parliamentary process, we must adopt a principle-based approach and not rely on our personal political, economic, sociological or other views on the bill.

On the role of the Senate in our democracy, the Supreme Court of Canada stated in Reference re Senate Reform that under our Constitution, our role is “as a complementary legislative chamber of sober second thought.”

The court reached this conclusion because, under the Constitution, members of the House of Commons must be elected, while those of this house are appointed by the Crown. Thus, only MPs are ultimately accountable to the electors for the bills that Parliament may adopt.

In a comprehensive paper on this subject published in 2019 in the National Journal of Constitutional Law, Senator Harder wrote that the Senate:

adopt a stance of democratic deference to the Government’s electoral platform when passed into law by the House of Commons, in accordance with the principles underlying the Salisbury Convention (which does not preclude amendments that would improve the legislation);

— and —

customarily respect the will of the House once it has declined, modified, or accepted some but not all Senate amendments;

I agree; I always agree with Senator Harder. To do otherwise would be to substitute an appointed oligarchy for our democracy. It follows that for an independent senator, his or her personal political opinions cannot be a sufficient reason to insist upon an amendment. Moreover, under our Constitution, the courts are the ultimate arbitrators of debates on the scope of the rights protected by our Canadian Charter of Rights and Freedoms or the distribution of powers between Parliament and the provinces. For that reason, when the extent of a Charter right protection is unclear, we have to defer to the courts to determine it. In the meantime, we should rarely, if ever, insist on an amendment for the reason that it corresponds to what we think should be the extent of the right at stake.

For the study of Bill C-45 on the legalization of cannabis, after consulting a great many precedents and reading many authors, I offered five criteria for analysis that I will repeat here if I may.

First, if the rejection of an amendment is accepted, will it result in legislation that clearly or most likely violates the Constitution or the Charter of Rights and Freedoms? If the answer is unclear, the task of answering that question should be left to the courts.

Second, is the purpose of the bill an election campaign issue for the government, or is it an extremely controversial issue for which voters did not give the government the mandate?

Third, does the evidence provided to both houses unequivocally show that the rejection of the amendment is fundamentally flawed and that the message received is thus plainly unreasonable?

Fourth, does the rejection of the amendment show that the majority of MPs are abusing one or more minorities, showing contempt for language rights, or demonstrating favouritism for one region at the expense of another?

The fifth and final question is: Does the House of Commons’ response reject an amendment designed to prevent irreparable damage to the national interest?

In my opinion, the message on Bill C-11 does not justify insisting on any of the rejected amendments, considering the answers to the five questions that I just described. In response to the first question, I note that the rejection of any of the six amendments does not result in a clear violation of the freedom of expression. I acknowledge that Michael Geist, an online law expert at the University of Ottawa, has urged the Senate to insist on the amendment relating to user-generated content. In his op-ed published on April 11 in The Globe and Mail, Mr. Geist said:

. . . Bill C-11’s regulatory powers could lead to the demotion of some user content on subscriber feeds, making those voices harder to find.

However, in the same piece, Mr. Geist confirmed that Bill C-11 will not censor anyone:

The Bill C-11 debate has been marked by overheated rhetoric on both sides: Some argue that the bill does not affect user content when it clearly does, while others insist that it will censor what Canadians can say online, when it will not.

In regard to this specific rejected amendment proposed by Senator Simons and Senator Miville-Dechêne, an important consideration for me is that any potential CRTC regulations relating to social media content must first go through a formal process — described by my colleague Senator Cardozo — including the publication of proposed regulations with opportunities for interested people to make representations.

There is an added level of oversight through the Governor-in-Council’s ability to issue policy direction to the CRTC, which must be of general application. These requirements safeguard against potentially overly broad proposals with respect to freedom of expression. Furthermore, any future regulations will remain subject to the Canadian Charter of Rights and Freedoms, and could be challenged before a federal court. The federal courts will always be available and provide an additional layer of rights protection. I conclude that there is no clear violation of a Charter right as a result of the rejection of the six amendments.

I’ll turn to the second question: Is this bill a very controversial area for which the government has no mandate? Clearly, the answer is no. Bill C-11 was part of the electoral platform of at least three political parties during the last two elections — and, in a minority Parliament, a majority of MPs representing these three parties voted for it.

My third question is about the evidence provided to both houses: Does it unequivocally show that the rejection of any amendment is plainly unreasonable? The answer is to the contrary. The evidence shows that major groups of stakeholders support the decision of the government to reject the most important of the amendments that were rejected.

After receiving the Senate’s message, the government has responded to the proposed amendment by saying that it will affect the government’s ability to publicly consult on and issue a policy direction to the CRTC to appropriately scope the regulation of social media with respect to commercial programs, and could prevent the broadcasting system from adapting to technological change over time.

Furthermore, I note that the other place’s preferred position, as proposed by the government, is supported by the Coalition for the Diversity of Cultural Expression, or CDCE. This organization, which is located in Montreal, represents 360,000 anglophone and francophone creators and 2,900 cultural enterprises across Canada.

On March 31, after the other place adopted the message proposed by the government, Bill Skolnik, the co-chair of the CDCE, said, and I quote:

In a climate of acrimony and misinformation, we salute the work and courage of the elected officials who, for the past two years, have tirelessly supported the cultural sector and ensured the sustainability of our cultural sovereignty.

Hélène Messier, the other co-chair, said, and I quote:

Over the past few months, Senators have conducted a rigorous analysis of the bill and made some improvements. We salute their work, but invite them today to take note of the decisions of the elected officials and to move the bill in its current state towards Royal Assent as quickly as possible.

Finally, APEM, the Professional Music Publishers’ Association of Quebec, said the following in a news release, and I quote:

The MPs agreed to some of the improvements proposed by the Senate while rejecting others that were written in a problematic manner . . .

That means that the evidence indicates support for the government’s position.

That brings me to the fourth question. Does the rejection of some amendments show contempt for minorities, language rights or a region? Obviously not. The purpose of this bill is to foster minority expression and give minorities a place in the virtual media realm.

Finally, did the House reject a Senate amendment designed to prevent irreparable damage to the national interest? I have not heard anything to support a conclusion of that nature in connection with any of the six amendments. There is no evidence of irreparable damage to the national interest that could result from the adoption of the message.

In conclusion, our constitutional role today is to accept the message, and send Bill C-11 to Rideau Hall for Royal Assent.

Thank you very much. Meegwetch.

I have a quick question. Thank you very much, Senator Dalphond. I found your explanations, and that of Senator Cotter, very interesting — but both of you have talked about passing it even if one doesn’t really like the bill and it’s sticking in your throat. What do you do if you’re satisfied with the message that came back from the House? Is it still okay to vote for it and not go through this whole very interesting dialogue?

I guess it is a bit like in court. The first test is the smell test. If I like the smell, I have a tendency to favour the answer, but this is not the test we have to apply here.

The test here is what our constitutional role is further to that message. Some will like the message, some will not like it, but this is not the answer.

The answer is whether, further to an analysis, we find we have the constitutional authority to say no and insist upon one or more amendments. The answer, as I’ve tried to demonstrate in my speech, is that there is no reason here to justify insisting upon any of the six amendments that were rejected. Thank you.

Honourable senators, I rise to speak to the government’s response to the amendments proposed by the Senate in relation to Bill C-11.

Colleagues, after four months of Senate committee hearings, after hearing from 140 witnesses, as Senator Housakos said earlier and after hearing from and listening to numerous ordinary Canadians — many of whom by their own admission had never appeared before a parliamentary committee before — we have the response of the government to the amendments that the Senate proposed to this legislation.

That response is clear, and it is this: When it comes to listening to any of the substantive concerns that witnesses raised when they appeared before our Senate Transport and Communications Committee, the government simply isn’t interested.

To be sure, there have been a lot of nice-sounding words from the government that it is listening, and that it has seriously considered the Senate amendments. As Minister Rodriguez claimed when he spoke on this issue, “. . . we’re accepting a vast majority of the Senate amendments . . . .” If we look at the pure numbers, this may be technically correct.

But if we look more closely at the substance of what the government has accepted, it has actually rejected every one of the more substantive amendments proposed by the Senate.

The reality of the government’s response is that if particular amendments did not substantively impact the bill, they were regarded as tolerable. But if a particular amendment impacted the bill in any substantive way, they simply rejected it.

That is the essence of the government’s response, and I know that many Canadians are very disappointed.

When the minister appeared before our Transport and Communications Committee back on November 22, he made the following claim:

I was born with an open mind . . . so . . . . On the general principle, we are open to —

— amendments —

— but this bill comes after lots of consultation on the previous bill, Bill C-10, that was discussed here too. Now Bill C-11 has been discussed and consulted across the country. You have had about 120 witnesses, which is amazing. You did amazing work here. We think it’s the right balance, but, of course, we’re ready to look at . . . amendments.

I think the key word in that response is that the minister and the government were prepared to “look” at the amendments. But some senators likely did not appreciate how very brief that “look” would actually be.

The government’s rejection of the more substantive Senate amendments reveals that we have a government that is simply unwilling to engage in any sort of meaningful dialogue with Canadians who have fundamental concerns about this bill.

Colleagues, we again need to remind ourselves that the more substantive amendments that were proposed in relation to Bill C-11 were proposed after hearing from a nearly unprecedented number of witnesses on this legislation.

These were not amendments that senators simply dreamed up on their own.

Many very well-informed witnesses appeared before our committee. These were witnesses whose very livelihoods will be impacted by this legislation — witnesses who were very concerned about the freedom of speech implications of this bill.

The Senate took on the role of trying to speak for these many Canadians.

From my perspective, the Senate’s amendments actually did not go nearly far enough in addressing the many concerns that were raised about Bill C-11.

From my perspective, amendments or not, Bill C-11 remains a deeply flawed and bad bill.

But nevertheless, even government-appointed senators opposite could not ignore all of the issues that were raised by witnesses once they were repeatedly explained to the committee.

That is why 26 amendments were proposed and adopted by the Senate in relation to this bill.

I will acknowledge, colleagues, that in making these amendments the Senate was trying to fulfill its constitutional role. I believe that, in relation to many of the amendments that were made, the Senate was speaking for the political minority in Canada.

It is a political minority that was not really listened to on the House side where the hearing process was artificially cut short by the government.

In essence, the Senate has been exercising its role of providing sober second thought.

I think it is useful to go through some of the more substantive amendments that the government has rejected out of hand, because I believe, as a result of the government’s rejection of these amendments, it is vital that the Senate now stand firm and insist on these amendments.

First, there is the example of the child protection age verification amendment that was proposed by Senator Miville-Dechêne and supported by the majority of senators at committee and in this chamber.

The committee received a number of written briefs on this specific matter, including from the Canadian Centre for Child Protection, whose brief stated:

Bill C-11 . . . needs to be consistent with Canada’s international obligations to children. For example, principles enshrined in the United Nations Convention on the Rights of the Child . . . and General Comment No. 25, General Comment on children’s rights in relation to the digital environment, which provides state parties with guidance on the implementation of the UNCRC in the digital space, should be considered and reflected in Bill C-11.

C3P has long been advocating for government to regulate online platforms that children are exposed to. The lack of regulation over online platforms has meant that children have been a casualty of the “move fast and break things” ideology that has characterized the incredibly lucrative technology sector. Children continue to be an afterthought in the creation of online programs and services despite widespread reports of harm to children on such platforms. We cannot permit the status quo to continue. Legislation that is drafted to regulate online platforms needs to include meaningful protections for children.

Just as we protect children against the harms of tobacco, alcohol, marijuana and R-rated movies, there need to be adequate protections for children regarding sexually explicit content online. Society must not abrogate its responsibilities to children because of the digital nature of sexually explicit content online. We cannot let online platforms dictate the sexual education of Canada’s children.

Senator Miville-Dechêne, who has long been an advocate on this matter in our chamber, took up this issue and introduced an amendment to the bill that stated:

“(r.1) online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity;”.

The amendment is simple and to the point. It was adopted by our committee and then also passed by the Senate as a whole.

Officially, of course, the government expressed its sympathy for this amendment. Indeed, the government made no fundamental objections in principle to the amendment, but it rejected it notwithstanding.

This week, Senator Gold again stated:

. . . 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.

One is left wondering why that is the case. I suspect it is simply because the amendment proposed by Senator Miville-Dechêne goes beyond what the government plans to do. It is likely as simple as that.

In my view, if we permit this rejection to go unchallenged, we will fail in our duty to Canadians, and we will simultaneously fail in taking this important opportunity to better protect Canadian children.

In my view, we must, therefore, insist upon this amendment.

Another amendment in the Senate package that the government rejected was one that was proposed to update the CRTC’s outdated Canadian content rules. This amendment responded to what the Senate heard from many witnesses: that a restrictive interpretation of Canadian content rules, under existing legislation, is doing serious harm to many Canadian creators and is undermining our ability to tell Canadian stories to the world. Many witnesses pointed out that even though a program might be filmed in Canada, employ Canadian actors and be written by a Canadian, if the production company is not Canadian, then it does not qualify as “Canadian content.” Other witnesses pointed out that Canadian content rules are often so cumbersome that it becomes impossible for smaller creators to navigate the process.

Based upon that testimony, the amendment proposed to incorporate a principle of greater flexibility in determining what is, and what is not, Canadian content. This was an extremely reasonable and modest amendment, but again, the government rejected it.

The government claimed that it did so because:

. . . the principle that Canadian programs are first and foremost content made by Canadians is, and has been, at the centre of the definition of Canadian programs for decades, and this amendment would remove the ability for the CRTC to ensure that that remains the case . . .

Clearly, no one in the government either read or seriously considered the actual testimony that was heard at our Senate committee on this matter. No one appearing before our Senate committee argued with the notion that Canadian programs should be “first and foremost content made by Canadians.” What witnesses took issue with was how the CRTC was prioritizing and adjudicating what is considered a Canadian program.

Witnesses said that our approach is decades old and needs to better respond to today’s realities when it comes to how programs are produced and broadcast. Witnesses like Oorbee Roy, who, by her own admission, is a smaller player in the area of content creation but who nevertheless is bound by the CRTC’s interpretation of “Canadian content,” asked our committee on September 28 why the bill was not addressing the issue of the inequity in Canadian content creation.

She was quite explicit in criticizing the minister’s response during a House committee meeting, a response which was simply to push the entire issue off to a distant future decision. At our committee, she asked:

Why is this bill pushing off Canadian digital content creators into the future, but then including user-generated content platforms now? Aren’t we the very people this bill is supposed to be helping?

She pointed to the major hurdles in the way of small content creators like herself in getting approved as Canadian content. She asked:

Do I have to hire my ten-year-old son to help me register each piece of skateboarding content for CanCon approval? . . .

Other larger players explained how inflexible Canadian content rules are undermining investment and making it more difficult for Canadian stories to be told.

Wendy Noss, President of the Motion Picture Association — Canada, told our committee:

. . . it’s . . . as if people think the definition of “Canadian content” was established on some tablets in the desert long ago and cannot ever be changed. . . .

We are dealing with a definition of Canadian programs for broadcasting policy, and for that, when you are bringing global companies and streamers that make content for the world, there needs to be an expansive 2022 approach, rather than being mired in a 1970s approach.

If we look at the different kinds of stories, you can have stories set in Canada, like Washington Black, written by Esi Edugyan. It is a fantastic novel Giller Prize-winning novel about a Black slave travelling to Nova Scotia. The investment in that Canadian novel, Canadian writer and Canadian story is being made by Disney, and it is being shot in Nova Scotia. It is not qualified as Canadian content.

You have heard a lot about Turning Red, which resonates with any child of immigrants growing up in Canada, particularly in Toronto. That, too, is a Canadian story.

There are a host of Canadian creative positions that are not currently recognized in the definition. So you can have a Mexican director . . . who makes all of his fantastic content in Toronto, with Oscar-winning and -nominated creative teams — production designers, art directors, costume designers and a Canadian producer — but for which Fox owns the copyright. That also would not qualify.

That is what witnesses told our committee, colleagues.

No witness took issue with the principle that Canadian content should be that which is made by Canadians. Neither did the amendment adopted by the Senate take issue with that. What the Senate amendment did was to incorporate direction to the CRTC to exercise greater flexibility in determining what Canadian content is.

The government’s response was to reject that amendment out of hand.

Quite frankly colleagues, Canadians deserve better.

Another substantive amendment was proposed by our colleague Senator Downe. Senator Downe proposed an amendment to restrict advertising that is designed to resemble journalistic programming. It was a simple amendment but one that touched upon a very important issue.

We have heard a lot from the government about disinformation. Indeed, the government has argued that both this bill and Bill C-18 are important vehicles for ensuring accuracy in news, as well as in programming that is presented as news. Senator Downe proposed this amendment to prevent the CBC from entering into:

. . . any contract, arrangement or agreement that results in the broadcasting or development of an advertisement or announcement on behalf of an advertiser that is designed to resemble journalistic programming.

In essence, Senator Downe’s amendment is designed to promote and protect truth in advertising, as well as truth in the presentation of what is purported to be news — a very reasonable amendment that actually supports the government’s stated objective.

So what was the government’s response to that? You would think they would be happy with that. They rejected the amendment because it was, in the government’s view, beyond the policy intent of the bill. They argued that further study was required on the matter. Colleagues, “further study” is simply a euphemism for the fact that the government doesn’t want to do it, and they don’t want to be bothered to engage on the issue any further.

This is not how disputes over legislative issues between the two houses of our Parliament should be handled. The Senate is our chamber of sober second thought. When the Senate objects to government legislation, it usually does so because it has heard from Canadians, whether through witness testimony or through other forms of communication.

The Senate’s amendments are usually modest, but they very often deal with very substantive matters. The government is constitutionally obligated to take the Senate’s advice seriously, particularly when it is based on substantial witness testimony. I would argue that — in so many of their responses to the Senate’s proposed amendments — the government has simply not taken the amendments, or what the witnesses told the senators in committee, seriously.

We had an amendment from Senator Miville-Dechêne and Senator Simons on user-generated content. I would argue that this is particularly the case in relation to the core amendment from the Senate which the government rejected. That concerns, of course, the amendment that was proposed by the two senators.

When Senator Miville-Dechêne spoke to this amendment at committee, she stated:

I would remind you that both the government and the CRTC have repeatedly said that social media users and content creators would not be covered by Bill C-11. This has been repeatedly stated.

Despite this, we heard from witnesses and experts that section 4.2 is too far-reaching and that they do not trust the CRTC with such discretionary power. There was a desire expressed during our hearings that we restrict the type of content that the CRTC could regulate on platforms. We also heard that the main target of clause 4.2 is professional, non‑amateur content, in particular self-produced and record label music content and related music videos.

In all of this, Senator Miville-Dechêne was, of course, correct. The government has repeatedly claimed that user-generated content is not to be regulated by the bill.

The Minister of Canadian Heritage, when he appeared before our committee, specifically stated the following:

We listened to the social media creators. We listened to them, we understood their concerns and we brought it back, with the exception of 4.2, which catches only commercial content with the three criteria. That’s it.

That was what the government claimed.

So a modest amendment was made at committee simply to confirm that assertion. As Senator Simons stated at the Senate’s third reading of Bill C-11:

. . . I think the biggest and most critical amendment we made was to a vexing part of the bill, subclause 4.2(2), which I like to call the ”exception to the exception” clause. In the wake of some of the controversy around Bill C-10, the Minister of Canadian Heritage promised that Bill C-11 would not pertain to nor capture users of social media but only big streamers who were analogous to traditional broadcasters. Indeed, that is what clause 4.1(1) of the bill says — that the act does not apply to a program that is uploaded to a social media service by a user of that service.

Furthermore, when Senator Miville-Dechêne spoke to this amendment at committee, she stated:

Our proposed amendment would focus clause 4.2 on the intended target of professional music without unduly curtailing the CRTC’s discretion. Finally, these amendments would have the effect of focusing clause 4.2 on professional music that is downloaded by copyright owners, or that has been played in whole or in substantial part on traditional broadcasting undertakings.

In essence, this means that YouTubers, amateur videos or any other content which is not associated with professional music are not covered by Bill C-11.

At committee, Senator Simons was more specific as to her intent when she said, “We’re hoping that this will allow us to reach a workable compromise.”

She went on further to say:

I share the concerns of Senator Manning, Senator Wallin and Senator Plett about clause 4 which, despite the protestations of everybody, clearly includes individual creators. We believe this amendment scopes out all of those people and only includes the very biggest music producers.

This is an amendment that has been arrived at in consultation with YouTube, with TikTok, but also with all sorts of independent Quebecois music producers who provided a great deal of input so we could craft an amendment that we capture the right peoples.

So what has been the government’s response? The government asserts that they disagree with the amendment, and their reason is because it:

. . . 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 . . . .

In other words, in the government’s view, the CRTC’s discretion simply outweighs and is more important than any concerns that ordinary creators might have.

As Senator Simons pointed out earlier this week, the government’s rationale is not credible — in particular, she noted that the first part of the government’s response is a bit strange. Senator Simons said the following:

Nothing in our amendment would have prevented the government from holding public consultations at any time on any subject. The last clause is also a bit odd. Nothing in our amendment would have prevented the broadcasting system from adapting to technological change.

It’s the middle of the sentence that matters. It’s the meat of the sandwich — the part about scoping the regulation of commercial programs on social media. And this is precisely the problem. The minister and the government keep telling us — and everyone else — that they do not intend to include user-generated content and that Canadians who post their comedy sketches or animated shorts or children’s songs to Twitter, YouTube, TikTok and Instagram would not be scoped into the ambit of the CRTC. Yet, the government’s own written response to our amendment demonstrates that they wish to retain the power to direct the CRTC to do precisely that — to regulate the distribution of content on social media.

Those are the words of Senator Simons.

Now, let’s be clear about what this means. The government is saying that the officials it appoints to serve on the CRTC must have full leeway to do something that the government claims it has no intent to do, and the CRTC must have the leeway, notwithstanding the objections that have been raised by Canadians.

As Senator Simons acknowledges, the government’s response makes it absolutely clear that it reserves the right to regulate social media content without any hindrance in legislation.

Mr. Len St-Aubin is a former director general of telecommunications policy at Industry Canada. On September 14, 2022, he told the Standing Senate Committee on Transport and Communications:

. . . it’s the CRTC, not Parliament, that will determine the scope of regulation and therefore the extent of intervention in the internet market and Canadians’ freedom to access the content of their choice.

There is simply no other conclusion that can be drawn from the government’s position. This is absolutely their intent.

Colleagues, when we considered Bill C-11 at third reading a few weeks ago, it was noted on this side of the house that senators would have to “steel their spines” given the likely government response to our amendments.

As much as we might have hoped that the government would respond substantively to what were substantive amendments, regrettably, that has not proved to be the case. We now have a government response which is to reject nearly every substantive amendment that the Senate has made, despite the fact that these amendments were actually proposed by the many Canadians who appeared before our committee. This means that, in essence, the government has said “no” to Canadians.

What are the implications of this? I believe the implications are dire in that they might impact on the most fundamental rights of Canadians. This government rejection impacts freedom of speech itself. Now, I know some senators will see that as an exaggeration, but I do not believe that to be the case. We have a very recent example.

Earlier this month we learned that government officials at the Immigration and Refugee Board of Canada, or IRB, approached social media platforms to ask that they take down any posting of a column written by Lorne Gunter of the Edmonton Sun and also to prohibit users from linking to it.

The column itself was based on a draft document that was being circulated inside the IRB, making the article, by all accounts, factually correct. What IRB officials apparently did not like was Mr. Gunter’s interpretation of the implications of the same document.

Whether Mr. Gunter’s interpretation or analysis of the document was something that the IRB officials disagreed with or not, whether his interpretation was even accurate or not, what is at issue here is a clear willingness and belief among those same officials that it was entirely appropriate to advocate for the removal of content which the IRB regarded as objectionable. We should all be concerned.

We should be horrified, colleagues, about this attempted assault on freedom of speech and freedom of the press.

What many Canadians fear is that this is where we may be heading with Bill C-11, and there are many ominous signs that suggest those fears are not unfounded.

We have often heard senators in this chamber claim that the Senate must speak for political minorities. I agree that this is absolutely a key role for the upper house of Parliament. Colleagues, we have heard ample evidence and testimony that the implications of Bill C-11 are multi-faceted and serious.

In response to the testimony we heard, the Senate has made a few modest but important amendments to this bill. The government has rejected almost all of these modest amendments. In the face of that, I do not believe that the Senate can simply roll over. I am very concerned at what I hear from senators in this chamber that they intend to do exactly that, roll over.

Senator Simons said this week, “. . . I don’t think ‘ponging’ this amendment up the street will make a blind bit of difference.”

I would like to assure Senator Simons and all senators that what will absolutely not make “a blind bit of difference” is if we just give up. If that is the position of our Senate, I ask this: What, then, is the purpose of this chamber?

What is the purpose of this Senate?

If after four months of hearing from witnesses on this issue, the Senate immediately throws in the towel as soon as the government says “no,” then we have, very simply, failed in our legislative duty, and we have failed as Canadians.

Don’t call ourselves “independent” if we are just going to roll over at the first available opportunity. That is not independence, colleagues. That is not independence.

I believe that is why we must insist on our entire amendment package.

The people whom I am most concerned about are the smaller players who will be impacted by this bill, people like Oorbee Roy, Vanessa Brousseau, Darcy Michael, Justin Tomchuk, J.J. McCullough, Frédéric Bastien Forrest, Scott Benzie and others, all of whom appeared before our committee. These people do not represent big corporations or big media concerns. I submit, colleagues, that at minimum we have an obligation to insist that this tone-deaf government listen to these individuals. Beyond that, we all know — or at least suspect — that this bill is deeply flawed and has serious freedom of speech and freedom of the press ramifications.

Given those ramifications, colleagues, we cannot now back down at the first sign that the government is not willing to take our amendments seriously.