Bill C-11: Motion for Concurrence in Commons Amendments and Non-Insistence Upon Senate Amendments

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: 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 unforeseeable and 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.

Hon. Andrew Cardozo: 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?

Senator Dalphond: 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.

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