Bill C-10 (Historical)

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

This enactment amends the Broadcasting Act to, among other things,
(a) add online undertakings — undertakings for the transmission or retransmission of programs over the Internet — as a distinct class of broadcasting undertakings;
(b) update the broadcasting policy for Canada set out in section 3 of that Act by, among other things, providing that the Canadian broadcasting system should serve the needs and interests of all Canadians — including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds — and should provide opportunities for Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(c) specify that the Canadian Radio-television and Telecommunications Commission (the “Commission”) must regulate and supervise the Canadian broadcasting system in a manner that
(i) takes into account the different characteristics of Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide Indigenous language programming operate,
(ii) is fair and equitable as between broadcasting undertakings providing similar services,
(iii) facilitates the provision of programs that are accessible without barriers to persons with disabilities, and
(iv) takes into account the variety of broadcasting undertakings to which that Act applies and avoids imposing obligations on a class of broadcasting undertakings if doing so will not contribute in a material manner to the implementation of the broadcasting policy;
(d) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(e) replace the Commission’s power to impose conditions on a licence with a power to make orders imposing conditions on the carrying on of broadcasting undertakings;
(f) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(g) authorize the Commission to provide information to the Minister responsible for that Act, the Chief Statistician of Canada and the Commissioner of Competition, and set out in that Act a process by which a person who submits certain types of information to the Commission may designate the information as confidential;
(h) amend the procedure by which the Governor in Council may, under section 28 of that Act, set aside a decision of the Commission to issue, amend or renew a licence or refer such a decision back to the Commission for reconsideration and hearing;
(i) specify that a person shall not carry on a broadcasting undertaking, other than an online undertaking, unless they do so in accordance with a licence or they are exempt from the requirement to hold a licence;
(j) harmonize the punishments for offences under Part II of that Act and clarify that a due diligence defence applies to the existing offences set out in that Act; and
(k) allow for the imposition of administrative monetary penalties for violations of certain provisions of that Act or of the Accessible Canada Act.
The enactment also makes related and consequential amendments to other Acts.

[David Lametti, Liberal, Minister of Justice]

Thank you very much, Mr. Chair. Good afternoon.

I wish to acknowledge that I'm speaking to you today from Ottawa on the traditional territory of the Algonquin people.

Thank you, Mr. Chair, for the invitation to appear before you to discuss the charter statement that was tabled for Bill C-10, as well as the explanatory document requested for the proposed amendments now before the committee.

As you can see, I'm appearing alongside Minister Guilbeault, who is the minister responsible for Bill C-10. I am accompanied by officials from my department.

I want to begin by discussing the duty I have under the law, as Minister of Justice, to prepare statements regarding the Canadian Charter of Rights and Freedoms for government bills introduced in the House of Commons.

I will discuss the purpose of charter statements and provide the context, including their history. I will explain what charter statements are meant to do and not do.

I will also gladly speak to the charter statement tabled in relation to Bill C-10, as well as the explanatory document provided to the committee concerning the potential effects of the proposed amendments on freedom of expression.

I should note at the outset that it is not my role as Minister of Justice and Attorney General to give legal advice to parliamentary committees. You have access to your own legal counsel and independent witnesses.

As you are aware, however, I do have obligations under the Department of Justice Act in terms of reviewing proposed government bills for inconsistency with the charter and preparing charter statements for government bills. This obligation was created by our government to be open and transparent with Canadians about the charter considerations of our legislation.

These two sets of obligations—examining bills and preparing charter statements—are both focused on the bill as tabled.

Section 4.2 of the Department of Justice Act requires the Minister of Justice to ensure that a charter statement is tabled in the House of Commons for every government bill. That obligation came into force in December 2019.

Examining bills for potential inconsistency with the charter, as set out in section 4.1, is one of my most important responsibilities. Rest assured that I also take very seriously the obligation to ensure charter statements are tabled in the House, as set out in section 4.2.

Now I will turn to the purpose of charter statements.

Charter statements are intended to inform parliamentary and public debate on a government bill. They foster transparency regarding the effects of a government bill on the fundamental values protected by the charter. They provide parliamentarians with additional information to further inform the important legislative debates they have on behalf of Canadians. Charter statements also provide Canadians with additional information to help them participate in these debates through their elected representatives.

The obligation to table charter statements is a testament to our government's commitment to respect and uphold the charter, as an integral part of the country's good governance.

We can never abdicate our responsibility as a government to ensure that our decisions—including those reflected in the reform of an act—respect our fundamental rights and freedoms. Section 4.2 of the Department of Justice Act strengthens the obligation this government and future governments have to respect this most basic of requirements.

I would like to take a few moments to explain the content of charter statements. In keeping with their purpose, charter statements are drafted at a high level. They set out in an accessible way the potential effects a bill may have on the rights and freedoms guaranteed by the charter. Charter statements also explain considerations that support the constitutionality of a bill.

In our discussion of the charter, it is also important to stress that, when Parliament legislates, it may have an effect on charter rights and freedoms. This may include limiting people's enjoyment or exercise when it is in the broader public interest to do so. This is entirely legitimate. The rights and freedoms guaranteed in the charter are not absolute, but rather subject to reasonable limits, as long as those limits can be demonstrably justified in a free and democratic society.

This means that, when identifying the potential effect of a bill that could limit a right or a freedom, it may also be necessary to consider whether the limit is reasonable and justified. A charter statement may therefore outline considerations relevant to the potential justifiability of a bill.

The fact that charter rights and freedoms can be limited, however, is not a licence to violate them. Rather, it is a reminder that any legislative limits to rights and freedoms must be carefully considered in the context of the shared values of Canada's unique, free and democratic society.

As parliamentarians, it is our responsibility to discuss and debate potential effects on charter guarantees. We exercise our judgment on behalf of Canadians as to whether proposed legislation strikes the right balance between rights and freedoms and the broader public interest. Charter statements are one more source of information to add to our deliberations.

I would also like to take a moment to explain what a charter statement is not.

A charter statement is not a legal opinion. It does not provide a comprehensive analysis of the constitutionality of a bill.

As I mentioned, a charter statement provides Parliament and the public with legal information relating to the possible effects of a bill on the rights guaranteed by the charter and to the considerations that support the consistency of the bill with the charter.

As we all know, bills often change when they are being considered by Parliament. A charter statement reflects the bill at the time it was introduced by the government in the House of Commons. Section 4.2 of the Department of Justice Act does not require that charter statements be updated as a bill progresses through Parliament.

Keeping that in mind, I will now turn to the proposed amendments to Bill C-10 in relation to social media, which are before the committee.

My fellow minister Mr. Guilbeault talked about the scope of the proposed amendments. He highlighted the key objectives underlying the amendments and discussed their intended effects on social media services and users.

In short, the proposed amendments are intended to empower the Canadian Radio-television and Telecommunications Commission to regulate a social media service in respect of programs uploaded by its unaffiliated users, strictly in relation to the following: payment of regulatory charges, such as to support the creation of Canadian programming; discoverability of Canadian creators; registration of the service; provision of information; and auditing of records.

In keeping with my obligations under the Department of Justice Act, I tabled a charter statement for Bill C-10 in the House of Commons on November 18, 2020. The charter statement for Bill C-10 identifies the rights and freedoms that may potentially be engaged by the bill, and relevant considerations that support the bill's consistency with the charter.

In considering the committee's recent discussions focusing on the impacts of the proposed amendments on social media, I understand there has been extensive debate on freedom of expression.

We have prepared and shared with you an explanatory document that examines the amendments, and discusses their potential effect on the right to freedom of expression in section 2(b) of the charter. I'm confident that these considerations support the charter consistency of the bill, and that they remain as outlined in the charter statement. It is our position that the bill, as tabled, and these proposed amendments are consistent with the charter.

As the charter statement indicates, the bill's regulatory requirements have the potential to engage freedom of expression in section 2(b) of the charter. The following considerations support the continued consistency of the proposed regulatory requirements of section 2(b).

By virtue of clause 1, which would remain in the bill, unaffiliated users of social media services would not be subject to broadcasting regulation in respect of the programs they post. What remains is an updating of the CRTC's regulatory powers, and providing it with new powers applicable to online service. The bill maintains the CRTC's role and flexibility at determining what, if any, regulatory requirements to impose on broadcasting undertakings.

Regarding the proposal to give the CRTC new limited powers to regulate an online undertaking that provides the social media service in respect of programs posted by unaffiliated users, the relevant charter considerations include the CRTC's discretionary role and flexibility.

The proposed narrowing of the CRTC's discretionary powers to regulate its social media service in respect of programs posted by unaffiliated users, to only discrete members that I have mentioned, is an additional consideration. The CRTC is subject to the charter, and must exercise any discretionary powers it has in a manner that is consistent with the charter.

The act states that it must be interpreted and applied in a manner consistent with freedom of expression. The CRTC's decisions on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.

In my view, the relevant considerations that are set out in the charter statement remain valid. These considerations are not impacted by the proposed amendments.

Once again, thank you for the opportunity to address the committee today.

I am at your disposal to answer questions.

[The Chair, Liberal, Scott Simms]

Welcome back, everybody. Once again, just 22 hours later, here we sit once more with Bill C-10.

Today, we're doing witness testimony. With us today we have both ministers and officials. I'm just going to briefly introduce them for you.

We have the Hon. Steven Guilbeault, who is the Minister of Canadian Heritage and who has been here before.

We also have the Hon. David Lametti, the Minister of Justice.

From the Department of Justice, we have Nathalie Drouin, the deputy minister of justice and deputy attorney general of Canada; Sarah Geh, director general, human rights law section; and Michael Himsl, legal counsel.

Once again, and no strangers to us now by any means, from the Department of Canadian Heritage we have Thomas Owen Ripley, director general, and Drew Olsen, senior director.

We have an hour and perhaps a bit. I know we have an hour with the minister, but, Minister, bear with us. Sometimes we tend to go five minutes over. I say that with trepidation, but you can try to hold us to it.

That being said, we usually do four questions in the opening round and four questions in the second round. I'm hoping to accomplish that. If we have time left, we can do more. That would give an extra one spot for the Conservatives and then the Liberals. In the meantime, I'm going to try to hold to these eight speaking spots.

Mr. Guilbeault, you're not doing an opening statement, but we understand Mr. Lametti is.

Minister Lametti, welcome to the committee. You have up to 10 minutes. The floor is yours, sir.

[Dr. Michael Geist]

The government has already announced it. It has said that it's going to implement a digital services tax starting next year. There are some concerns about moving forward in that regard without an international consensus, but the government has made it clear that it wants to move forward with it.

They've talked about the revenue it's going to generate. It seems to me there is nothing to stop the government from saying that it is going to take a portion of those proceeds and put them into the very funds we're talking about right now to support the creators and ensure that there is money right now, as distinct from the Bill C-10 approach, which is going to take, as I say, years to sort out through the courts and the CRTC.

[Janet Yale]

Exactly, and I think the removal of proposed section 4.1 makes it clear that social media platforms are within the scope of Bill C-10, which might have been unclear before that.

As I've said, it is my view that because the user-generated content, which is still covered by clause 2.1, is exempt from regulation, I believe there is no threat to freedom of speech and that users will continue to be as free, once Bill C-10 is passed, to put whatever content they want online or on social media platforms as they are today.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you.

I'm going to ask some questions—I probably don't have a ton of time—of Mr. Geist.

Mr. Geist, my colleague Mr. Champoux has just asked what we could do to make Bill C-10 something that you would be able to support. You speak about taking out that proposed section 4.1.

My concern is that we need to find a way to do this broadcasting legislation. We know it's 30 years overdue. What are the things, aside from that one, that you would like to see us do to ensure this legislation does what we've asked it to do in terms of levelling the playing field, protecting our artistic sector and our broadcasting sector, and also in terms of protecting freedom of expression?

[Andrew Cash]

There's no question that the sector is changing, and it's changing based on a global market. Canadian entrepreneurs, Canadian artists and the entire independent music sector could be poised to play a significant role in our country's post-COVID economic recovery, one that's centred around creating good middle-class green jobs, developing Canadian-owned intellectual property by artists and entrepreneurs who have the know-how and the experience to export at scale to every market on the planet, quite frankly.

The needs of the sector could very much be helped by the injection of support into the sector that Bill C-10 promises. We need to work quickly to get this through because we have a lot of work to do at the CRTC to make sure this happens.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

We've been focusing a lot on the risks Bill C-10 puts forward and concerns that people—experts—have raised about freedom of expression.

I wonder if I could ask one quick question, Mr. Cash, of you in terms of the potential of Bill C-10. If a version of Bill C-10 is passed that does provide support for our artistic community, could you talk a little bit about the growing international marketplace and how it could impact the sector if Bill C-10 was passed?

[Janet Yale]

First I would say that there is nothing in the bill as amended, with the exclusion of proposed section 4.1, that threatens free speech.

I've tried to make it clear in my comments thus far in this meeting that users put content on, say, a social media platform. For sure that content may be under the legal definition of a “program”, but as I've said before, programs aren't regulated, so if you are a blogger or someone who makes podcasts, that's content for sure, but how is it distributed? It's distributed because you do an arrangement with Spotify or you do an arrangement with YouTube, and it's carried on those platforms.

The platforms are the online undertakings that would be regulated, not the creators of the content, whether they're users or whether they're amateurs or professionals. You are free to put up anything you want, whether you monetize it or not, whether you get advertising or subscription revenues or not. It's not covered by Bill C-10. It's the online undertakings that are, and users are not operating online undertakings. They're not regulated.

In my view, there is no threat to freedom of speech, freedom of expression or the ability to put out anything you want on any platform you like without fear that your content could be moderated or regulated in any way.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you, Mr. Chair.

Mr. Trudel, I'd like to ask you a fairly direct question, and I'd like a fairly brief answer.

You've spoke several times about the CRTC as an effective regulatory body, which will ensure that it is a bulwark against the questions of many experts regarding freedom of expression.

However, in Le Devoir this morning—you even quoted a letter you sent to the same newspaper—former CRTC officials express an opinion completely opposite to your current reading of Bill C-10. These former CRTC officials are Timothy Denton, CRTC commissioner from 2009 to 2013; Konrad von Finckenstein, CRTC president from 2007 to 2012; Peter Menzies, the CRTC's vice-president of telecommunications from 2013 to 2018; Michel Morin, the CRTC's national commissioner from 2008 to 2012; and Philip Palmer, legal counsel at the Department of Justice and senior counsel at the Department of Communications from 1987 to 1994.

Could it be that experts have opinions that are different from yours and that hold water. These are people who were on the ground.

Do these people have any credibility, yes or no?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you. That's wonderful.

One concern that's come up as we talk about Bill C-10, of course, is the need for freedom of expression to be protected. Of course, this is something for which, as you will know, the NDP has pushed for a very long time. I think artists probably more than any other group of people would defend freedom of expression. It's at the heart of their reason for being.

Could you tell us more about the economic reality for artists in your industry and why they want web giants to pay their fair share while fully, of course, respecting the freedom of expression and the ability of people to publish content of their choice on the Internet?

[Andrew Cash]

Thank you so much for the question.

You know, roughly 80% of all the players in the music scene, in the music sector writ large in Canada, are solo self-employed or solo operators. They are running, in a sense, small businesses. There are some larger entities, of course, but that's the reality. Their combined efforts and their combined risk....

By the way, there is a lot of risk, not just on one's financial resources but also on one's physical and mental health, in being in this business. There is a real need for people like you to really understand what we're doing and how we do it. People don't really know how the music they're listening to in their earbuds got there. They don't how it was made and who made it. That is one of the reasons that a bill like Bill C-10 is so important.

As I said in my opening remarks, COVID really has laid bare the vulnerabilities in the system. It would be one thing if this were pre-Internet, but the fact of the matter is that these massive companies are interacting with our arts and culture sector. They essentially need the content, and not just Canadian content but the content of all creators around the world. They need it in order to make their platforms roll. Too often it is especially the artists and the small independent Canadian-owned companies that get swept under.

There's one other thing that's important to note here when you're asking about the Canadian independent music scene. We're talking about Canadian-owned companies. We're not talking about multinational entities. We're talking about people who live and work in your communities, people who are developing intellectual property and many times are successfully exporting that to markets beyond our borders and bringing that revenue back to Canada.

We look at Bill C-10 as a way of really improving that and adding to that.

[The Chair, Liberal, Scott Simms]

Actually, Ms. Harder, under normal circumstances I've done that, yes, but I've also seen precedents in which we've allowed discretion for other members to be involved. I have not given Mr. Manly any time thus far in the Bill C-10 deliberations. However, he's been very active in proposing amendments, and I thought it would be at the chair's discretion to say, “Yes, go ahead.”

He's only getting the one question—certainly no more than five minutes—and there are precedents for that, Ms. Harder.

Thank you very much.

[Martin Champoux, Bloc, Drummond, QC]

Thank you very much, Mr. Chair.

I'd like to thank the witnesses for being with us today. Their visit was highly anticipated. I'm grateful to them, and I thank them for their availability.

I'll start with Mr. Trudel.

Mr. Trudel, a few moments ago, you talked about the fact that, as things stand, we are still much less protected. Privacy, freedom of expression and, at the very least, freedom of choice of content are less protected. Bill C-10 has no intention of infringing on this.

Do you think the bill will improve things or will the status quo be maintained?

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you very much.

I only have a minute left. I will go back to Janet Yale, please.

There's been some conversation about how much consultation went into preparing for this bill. Could you just quickly talk about the number of consultations and the stakeholders you spoke with in preparing your report, which formed the backdrop to preparing Bill C-10?

[Pierre Trudel]

It is essential to understand that the algorithms used to direct the flow of content on the Internet are not neutral. These are default regulations, default rules. At the moment, there is absolutely no guarantee that these default regulations, which are based solely on the commercial choices of commercial enterprises, do not involve biases or possible violations of fundamental rights. If we want to get into the area of conjecture, we must also take that into account.

At present, Canadians have no guarantee that their choices are not being directed in the same undemocratic way that they could possibly be if the multiple scenarios that have been discussed were to become reality. If the CRTC ever decides to violate the Broadcasting Act by imposing regulations that contravene the Canadian Charter of Rights and Freedoms, our freedoms would be at risk. This is a very distant possibility.

Right now, there are some very real contingencies. The practices of the companies that dominate the online platforms in a monopolistic way can, with impunity, without anyone looking at them, infringe on our fundamental rights. That is the real issue with respect to fundamental rights. It is in this sense that Bill C-10 would strengthen the protection of our fundamental rights.

Unfortunately, there is no protection on the Internet at the moment. Our rights aren't protected. Our rights to access content relevant to us and our rights not to be spied on when we make choices aren't guaranteed. Government regulations can guarantee them.