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.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you so much, I appreciate that.

I want to turn to Mr. Palmer and use some of your expertise as a justice department lawyer for several decades. You wrote an article in relation to the former Bill C-10, called “C-10: An Unconstitutional Power Grab”. One of the lines used in there was:

Years of litigation and uncertainty will be the inevitable result of the legislative overreach of the federal government under the guise of broadcasting legislation.

I want to ask you whether you believe this is still applicable to the current Bill C-11 and what you foresee happening in the months, years and decades to come after the implementation of this bill? What types of challenges do you see from a legal standpoint or a constitutional standpoint going forward?

You touched on it a bit in your opening comments, but if you could expand on that, I'd appreciate it.

[Chris Bittle, Liberal, St. Catharines, ON]

Based on that, and we talked about it last time you were here, in all of your social media, in all of your advocacy, you are pretty much just anti-C-10 and anti-C-11. You don't advocate for better working conditions and you're taking money from tech giants. Why should we listen to anything that you have to say, especially in light of the fact that the vast majority of Canadians on these platforms are making zero dollars, and 60% of those who are eligible are making less than $10,000, which is far less than traditional artists? You're representing a system that—

[John Nater, Conservative, Perth—Wellington, ON]

I appreciate that. I'm sure we'll find someone who can comment on that.

I have one last question on this matter, and hopefully I still have time, Madam Chair.

In the lead-up and following Bill C-10, one of your major criticisms was that digital first creators hadn't been part of the process, hadn't been involved and hadn't been consulted. I want to know what types of efforts have been made thus far to engage with digital first creators. You also mentioned that you want the legislation to say what the minister promised—that user-generated content won't be included.

Would simply removing proposed section 4.2 achieve that, or would there be other types of amendments you'd like to see to ensure the legislation reflects what the minister says on it?

[Catherine Edwards]

For Bill C‐10, we asked that the “community element” be defined firstly by not-for-profit ownership and secondly by participation by the community in the production process. The second part was adopted, but “not-for-profit” was not. We were told that an exclusively not-for-profit definition put into question the status of the few remaining cable community channels.

We propose a compromise, which is a definition of the “community element” that includes but is not limited to not-for-profit community media organizations. Whatʹs important is that community-owned TV and radio stations be recognized in the act as a viable, democratic and sustainable model of broadcasting.

Second, the community element is often overlooked in policy‐making. We believe this is because there's a lack of specificity in the Broadcasting Act regarding its role. Therefore, in C‐10, we proposed a slight rewording to paragraph 3(1)(r) of the 1991 act, which describes the role of alternative programming services. The section closely described what the community element does, yet had never been used in CRTC policy-making, to our knowledge. We were told this amendment did not pass for three reasons.

First, we repeated the term “not-for-profit”. We have now taken that out, since it will already have been mentioned in the definition of “community element” if our first amendment is adopted. Second, we used the term “platform”, which we were told isnʹt defined elsewhere in the act. We have taken it out. We mentioned the importance of archiving community-generated content. We were told that it was outside the scope of the Broadcasting Act, so we have taken it out.

We hope you can support this revised description of the role of the “community element”, which will guide the CRTC in its work.

In closing, we rely on your understanding as parliamentarians of the importance of a local accountable media for smaller communities and minorities, whose voices sometimes do not fare well when lobbying at the CRTC. For this reason, we seek these amendments in law. Community media must be recognized as an essential part of the democratic infrastructure of Canada to ensure vibrant, inclusive, democratic and civic coverage throughout our country.

Thanks so much for your time.

Bill C-18—Time Allocation Motion

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Madam Speaker, I will rephrase my question. I was giving a passionate speech, and I did not know whether I had 60 seconds to ask my question.

We obviously want to have a solution.

The solution is what is proposed in Bill C‑18, which incorporates certain aspects of bills C‑10 and C‑11. The groundwork has been laid, and this should be acknowledged.

My questions are as follows: What is going on? What can we tell our constituents?

As it stands, we have had only two hours of discussion and debate on such an important bill. I expect to hear an answer from my colleague across the aisle, because this is not the first time this has happened, and my hunch is that it will not be the last. I would like an explanation.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Madam Speaker, with all due respect, I would tell my colleague that the bill she is referring to is the former Bill C‑10, which is now Bill C‑11.

Today we are talking about a different bill, Bill C‑18, on which we are generally working quite well with my Bloc Québécois colleagues, and in particular the member for Drummond, who is the Bloc Québécois's heritage critic and who works very hard and very diligently on everything that he does, including as a member of the Standing Committee on Canadian Heritage.

I thank the Bloc Québécois for highlighting the freedom of the press and for emphasizing that the media must be independent and that print media must be strong and autonomous. That is precisely the purpose of Bill C‑18, which would enable the media to not only survive but also succeed. The bill would also ensure that the media is strong not only in major cities, but also in the regions. We are talking about media in all forms, big, small, print, radio or television.

Together, all these forms of media help strengthen our democracy. Journalists representing these media outlets ask us tough questions here, questions that we sometimes do not want to answer, but it is our job to do so. That is why we need to ensure that these media outlets survive and grow even stronger in the future.

[Matthew Hatfield]

Yes, I think perhaps the minister needs to discuss this with the CRTC and get his facts straight. As people know, it's been a long and frustrating conversation we've all had around Bill C-10 and C-11. I wish we could have clarified the fact that user content was in earlier. I think we all could have had a higher-quality discussion if we'd all been on the same page on that, as we now are.

In terms of telling us that we should just be trusting the history of the CRTC I think no, several times over. No, in the sense that our recent organizational experience with the CRTC has not been that we can trust them to always have the public's interest at heart. People who follow our access campaigns will know that we have a lot of concerns about who the CRTC is listening to when it comes to getting affordable Internet to Canadians and whether it's really their top priority to do that.

Certainly just as a matter of legislation, how do we go about justifying legislation as just “trust the regulator” and just trust that it will work out? That's a very poor standpoint for us to be setting out here. We think that it is incumbent on you as MPs to do better than that and to give more specific restrictions and clarifications to the CRTC as they move forward with anything here.

[Matthew Hatfield]

I think that connects to, in a sense, what we're hearing from the other witnesses here. We're hearing a lot about revenue and the struggle of being in the industry. I don't think we're considering enough what it's like to be a Canadian Internet user and what people want from their services. Do people want to have a quota imposed on their content where, when I search for cats, 30% Canadian cats must appear in my feed? I don't think people want that.

I think people have an interest in making sure that there is some support available for the production of Canadian culture, but they don't want it crammed on them. They don't want it forced into all their search results. They don't want it forced into all their feeds. The reality is that the majority of the uses people make of the Internet today are not parochial. They're not focused on exclusively Canadian concerns. They are about connecting to a whole global community around many different things.

I don't know if we're speaking past each other or circling the same thing, but I think that Canadians ultimately want something that expands their choice, not that limits their choice. The kind of really heavy-handed provisions in Bill C-10 and, to a degree, in C-11 as well are still here and are about limiting peoples' choices. They're about manipulating the options that people get.

As I said in my opening remarks, we would never consider a situation where the Canadian government would go to Canadian bookstores and say, “We've thought about what Canadians need, and these are the types of titles we want you to put in your front window.” However, through the discoverability requirements we have in this legislation, that seems to be what we're doing through this legislation. It's inappropriate. It's an overreach. If we're supporting Canadian content, it needs to be in ways that are respectful of and responsive to what people in Canada want.

[Marie-Julie Desrochers]

I wouldn't want to assume that there's a lack of understanding on their part.

Regardless, a mix of factors come into play. For years, I have been preparing CRTC submissions to advocate for Quebec's music industry, particularly when it comes to French-language music. What that experience has taught me is that the CRTC makes its decisions very carefully and that they are always based on evidence and facts. That is the approach it takes in regulating the industry.

I have never seen the CRTC set out rules that were completely out of step with the reality or consumer habits. The system is built on consumer behaviour.

Today, only 8% of our music is streamed, which is a paltry, marginal proportion. It's devastating to us. We know full well that the CRTC won't decide overnight that the proportion has to go up to 65%. The CRTC examines the situation before making decisions.

The platforms have the power to make an artist's career, just like radio or television. They have the ability to take an artist, help kick-start their career and put their music on the map by giving the public an opportunity to discover it. We have always seen that in Quebec. It's the same for platforms. They know what tools they have, and they know what works. When they appear before the CRTC, they can explain what the best tools and methods are. We can all work together to learn the best ways to regulate practices.

What matters at this stage is ensuring that the bill remains flexible. It has to be technology-neutral because we will be living with it for years, even decades, to come. We can't predict what the future will bring.

TikTok emerged after Bill C‑10 died on the Order Paper and before Bill C‑11 was being considered. The place of TikTok has completely changed in a few months.

Who knows where we'll be in 10 years. That is why the bill needs to be as technology-neutral as possible.

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Madam Chair.

It is now my turn to thank the witnesses, who were kind enough to make time for us in their schedules. We certainly appreciate it.

Ms. Desrochers and Ms. Paré, thank you for being here today.

One of the issues that keeps coming up in our discussions on Bill C‑11 is the place of creators on digital platforms. That was also true when we were studying Bill C‑10 last year. Obviously, this is something you keep a very close eye on.

The bill contains amendments that would affect platforms such as YouTube and TikTok, in particular, new section 4.2. It has gotten a lot of attention and is being hotly debated.

What do you think of that new section and the proposed amendments?

Are you concerned?

I'd like to hear your comments on that.

[Kirwan Cox]

I would just add that Bill C-11, like Bill C-10, provides tremendous support for the production of official-language minority programming. It also requires that the CRTC pay close attention and consult with us on the question of what kind of programming we should be doing. It's a tremendous step forward and gives us a great step up in terms of where we otherwise would be in trying to reverse the decline we have been facing.

That's about it.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you so much, Madam Chair.

I will give Kenneth a chance to elaborate on that right now.

I very much want to thank the witnesses. It's a real pleasure to have them here.

Kenneth, I'm going to come back to you because last time, for Bill C-10, we worked very hard to get a considerable number of amendments into the bill to support both the official-language communities of Canada and the francophone majority in Quebec. We worked collaboratively with all of the different organizations involved to make sure we had the right wording and the right definitions.

I'm not sure whether my fellow member Mr. Champoux recalls, but we all worked together to find definitions in English and in French that had the same meaning in both languages. Now I realize that we have a problem: the English says one thing, but the French doesn't say the exact same thing. Certainly, the committee has a duty to try to find the right definition in both languages.

Kenneth, could you just advise everybody what the other organizations are besides the QEPC that support that change to revert back to the language we used in Bill C-10: “official language minority communities” and “communautés de langue officielle en situation minoritaire”?

[Kenneth Hirsch, Co-Chair, Quebec English-language Production Council]

Thank you, Kirwan.

I'm Kenneth Hirsch, co-chair of the Quebec English-language Production Council.

That said, we do have concerns with the terminology used in Bill C-11. We want to be sure that the language in the act is clear and unambiguous. The nomenclature that appeared in Bill C-10, “official language minority communities” in English, and “communautés de langue officielle en situation minoritaire” in French, has been replaced in Bill C-11 by the expression “English and French linguistic minority communities” in English, and “minorités francophones et anglophones du Canada” in French.

Thus, the French version of the new wording proposed in Bill C-11 removes the word “community”, which is an important concept for organizations working for these communities and distinguishes them from the majority. To avoid these problems, we would propose that Bill C-11 should return to the term originally used in Bill C-10, which we prefer: “official language minority communities”, and in French, “communautés de langue officielle en situation minoritaire”.

In addition, Bill C-11 should expressly define these minorities as English-speaking communities within Quebec, and French-speaking communities outside Quebec.

We thank you for your time and look forward to your questions.

[Kirwan Cox, Executive Director, Quebec English-language Production Council]

Thank you.

Ladies and gentlemen of the standing committee, thank you for giving us this opportunity to meet you and express our support for Bill C-11, which is desperately needed and long overdue. We hope Parliament passes this legislation as soon as possible.

I am Kirwan Cox, and my colleague is Kenneth Hirsch, from the Quebec English-language Production Council. We represent the English-language film, TV, and media production industries in Quebec. Our objective is to increase the production of films and television by the official language minority in Quebec, which, unfortunately, is now at its lowest level in history. QEPC strives both to increase the vitality of English programming in Quebec and to support Canadian content in both official languages across the country.

Today, we will focus on the official-language minority elements of the act. We are very pleased to see that the official-language minority measures adopted by this committee in Bill C-10, and passed by the House of Commons, have again been proposed by the minister in Bill C-11.

Not since the original Official Languages Act was passed over 50 years ago has any legislation been more important to the vitality, if not the survival, of both official-language minorities than Bill C-11 as now written.

We hope you will support these measures that are so important to us, to our French colleagues, and to the larger Canadian cultural sector.

[Matthew Hatfield, Campaigns Director, OpenMedia]

Thank you.

Good afternoon. I'm Matt Hatfield and I'm the campaigns director at OpenMedia, a grassroots community of over 200,000 people in Canada who work together for an open, accessible and surveillance-free Internet.

I'm speaking to you from the unceded territories of the Stó:lo, Tsleil-Waututh, Squamish and Musqueam nations.

OpenMedia is not made up of academics or lawyers. We're a citizens' group. I'm here today to ask that you ensure that the online streaming act respects the choices and freedom of expression of ordinary citizens.

The Internet works nothing like traditional broadcasting. I say that knowing full well that we're gathered to discuss a Broadcasting Act reform bill that would give the CRTC, a broadcasting-era regulator, the power to treat Internet content as if it were broadcasting. However, holdover ideas from the radio and television era are the reason for the deep confusion you've run into as a committee in trying to keep Bill C-11 and its predecessor, Bill C-10, from seriously overstepping the government's intent.

Traditional broadcasting was a top-down system in which the wishes and preferences of Canadians could not be directly expressed. Our only choice was to watch what a broadcaster chose to air on a few dozen channels, or not to watch at all. No one gave us a chance to share our own thoughts and voice, outside a few proud local community stations with limited reach.

The Internet is utterly different from that. Every day, we each make hundreds of choices among millions of channels and pieces of content online. Many of us take on the next step and share our words, jokes and passions back into that system through the same distribution platforms. We're not passive recipients of the Internet. We're active participants in crafting the feeds we want. We follow the individual creators we like and we use platforms like Patreon or YouTube to earn revenue from our fellow Internet users.

Treating the broadcasting system and the modern Internet as fundamentally similar would seem like a joke if the consequences were not potentially so serious.

We've heard for over a year that Bill C-10 and Bill C-11 would never regulate user content. Minister Guilbeault's team pretended that excluding users personally as legal entities meant their content was safe from CRTC regulation. That was untrue. Minister Rodriguez's team is telling us that they've fixed it and that user content is now excluded, but last week CRTC chair Ian Scott confirmed that this is not true and our content is still subject to CRTC regulatory control under Bill C-11.

You need to fix this. We understand that the CRTC believes it has always had the power to regulate our user audiovisual content online. That's a theoretical position and it doesn't matter very much to ordinary Canadians. Concretely, you are now considering a bill through which the CRTC will explicitly take up and use very broad regulatory powers that it has never exercised before over the Internet. The minimum safeguard you must adopt would be ensuring that user-generated content is fully, plainly and definitively excluded from CRTC regulation.

Proposed subsection 4.1(2), which reincludes most of our online user content in the CRTC's control, is the heart of the problem. The three criteria laid out do not meaningfully protect any of our content. More or less, everything earns revenue online, everything has unique identifiers attached to it, and all major online platforms are going to be broadcasting undertakings registered with the CRTC.

All we're really getting from the government right now is a flimsy promise that the CRTC won't misuse this astonishing extended power and a policy direction that they won't even let Canadians see yet. That's not good enough. Policy directions can be changed at will, which means that at any time, a future government could issue new CRTC guidance requiring they regulate our posts directly.

Our online rights must be legally entrenched, not informally promised. Canadians need proposed subsection 4.1(2) to be removed altogether, or much more definite limitations to be placed on it. You must clearly exclude all of our podcasts, TikToks, YouTube channels and social media posts from this bill. Leaving this dangerous loophole clause this wide open is not responsible. It's leaving a door ajar for future mass censorship of Canadians' personal online expression.

While respecting the content we produce, our government must also respect our right to freely choose the content we consume. We would never tolerate the government setting rules specifying which books must be placed at the front of our bookstores, but that's exactly what the discoverability provision in proposed subsection 9.1(1) of Bill C-11 is currently doing. Manipulating our search results and feeds to feature content that the government prefers instead of other content is gross paternalism that doesn't belong in a democratic society. Any promotion requirement on platforms for government-selected CanCon should respect our choices and limit itself to optional or opt-in results, not mandatory quotas.

People in Canada are looking to see whether public officials like yourselves are going to defend our fundamental rights. Since last year, OpenMedia community members have sent over 53,000 individual emails to our MPs and the Department of Canadian Heritage on Bill C-10 and Bill C-11.

While our community is interested in seeing Canadian stories told in the 21st century, it cannot come at the price of a blank cheque to the CRTC to take regulatory authority over our audiovisual posts, or having the government decide what we should be watching and listening to. We urge you to fix Bill C-11's overreaching on both these fronts before the bill leaves your hands.

Thank you. I look forward to your questions.