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

By: The Hon. Andrew Cardozo

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Maman statue, Ottawa

Hon. Andrew Cardozo: 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.

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