Bill C-11

Online Streaming Act

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) specify that the Act does not apply in respect of programs uploaded to an online undertaking that provides a social media service by a user of the service, unless the programs are prescribed by regulation;
(c) update the broadcasting policy for Canada set out in section 3 of the Act by, among other things, providing that the Canadian broadcasting system should
(i) serve the needs and interests of all Canadians, including Canadians from Black or other racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages, and
(ii) provide opportunities to Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(d) enhance the vitality of official language minority communities in Canada and foster the full recognition and use of both English and French in Canadian society, including by supporting the production and broadcasting of original programs in both languages;
(e) 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 English, French and Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide English, French or Indigenous language programming operate,
(ii) takes into account, among other things, the nature and diversity of the services provided by broadcasting undertakings,
(iii) ensures that any broadcasting undertaking that cannot make maximum or predominant use of Canadian creative and other human resources in the creation, production and presentation of programming contributes to those Canadian resources in an equitable manner,
(iv) promotes innovation and is readily adaptable toscientific and technological change,
(v) facilitates the provision to Canadians of Canadian programs in both official languages, including those created and produced by official language minority communities in Canada, as well as Canadian programs in Indigenous languages,
(vi) facilitates the provision of programs that are accessible without barriers to persons with disabilities,
(vii) facilitates the provision to Canadians of programs created and produced by members of Black or other racialized communities,
(viii) protects the privacy of individuals who aremembers of the audience of programs broadcast, and
(ix) takes into account the variety of broadcasting undertakings to which the Act applies and avoids imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy;
(f) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(g) 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;
(h) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(i) 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;
(j) 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;
(k) 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;
(l) 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
(m) 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.

[Michael Coteau, Liberal, Don Valley East, ON]

There's a lot of discussion about the bill and what it means for YouTube, TikTok, Netflix and other platforms. While Bill C-11 directs you to respect the different ways in which these platforms operate, the act is fundamentally technology neutral and platform agnostic. Can you tell us what that means to you?

[Rachelle Frenette]

My understanding of the charter statement that was issued by the Department of Justice is that it set out that programs that are uploaded by an unaffiliated user of social media would not be subject to the act unless prescribed by regulation. In deciding to prescribe such regulation, the statement then goes on to list the number of factors that are set out in Bill C-11.

It would appear that the Department of Justice charter statement did in fact have these provisions within their contemplation when they made the statement that Bill C-11 is charter compliant.

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

Young Mr. Wyatt Sharpe would be a great suggestion as well.

Obviously, the CRTC is constrained and directed by a couple of different things, one of them being legislation itself, and the second being policy directives from the minister.

I want to start by confirming that you have not yet been given a policy directive on Bill C-11. Is that correct?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Are you saying that Bill C-11 is more restrictive of the CRTC than the Broadcasting Act is?

[Ian Scott]

I think it's both, with respect, and my colleagues may join me.

You made reference, and I was referring to proposed section 4.2, not by specific reference, when we talked about the CRTC's ability to prescribe by regulation user-uploaded content. It's very limited as my legal colleague has explained.

There is no subsection 2(2.1), as is proposed in Bill C-11, in the Broadcasting Act as it exists today. What I was really responding to—and I'm trying to put more clearly—was that, when the discussion takes place that says we are encroaching in new areas and that the legislation gives us new powers, the point was that we have had jurisdiction over broadcasting, that broad definition I read earlier, always. It has not been used in a detailed way. We have used an exemption provision. Now there are specific provisions in Bill C-11 that say the act does not apply to users, and then it circumscribes where user-uploaded content could be subject to any regulation.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Madam Chair.

I would like to apologize to our witnesses as well. We wanted to have you come forward to answer these questions, and for the life of me, I can't understand why a member of Parliament would block public officials from answering questions from a parliamentary committee. It just doesn't make sense. We appreciate your patience and the fact that you have waited more than two hours to answer our questions.

I want to start off with you, Mr. Scott. You said in your testimony on May 18, “We have never interfered in individual content.” You also referenced that, under the Broadcasting Act, speaking of user-generated content, “We could do any of those things today under the Broadcasting Act”, and also said that, “As constructed, there is a provision that would allow us to” put in place regulations—I think that's filling in your comment—to do as required in C-11.

My question is this. Since you have never interfered in individual content even though you believe you have the ability to do those things under the Broadcasting Act, what might have changed in Bill C-11, or do you see it as a similar situation, in which the CRTC would not choose to use any of the powers given to it?

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

I appreciate Mr. Julian and his enthusiasm, but I will keep going.

Critics of Bill C-11 have said that it will give the CRTC “sweeping powers” to regulate the global Internet from every large platform to every single user and what they post. Could you describe all the elements of the bill that scope and constrain the CRTC's powers?

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

In Bill C-11, the concept of programming control is key for proposed subsection 2(2.2). Social media services do not “exercise programming control” over content uploaded by everyday users and creators. Proposed subsection 9.1(6) goes on to exclude powers that do not make sense in this context, such as the proportion of French-language programs. Proposed paragraph 10(1)(c) says the CRTC cannot make standards about these programs. This means content uploaded by everyday users and creators could not be regulated for things like obscenity, portrayal of violence or any other issue relating to the content itself. Is that fair to say?

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

I mentioned that because the old broadcasting has changed. When I look at the head of the CRTC—and it's very difficult right now with the Internet and everything going on with Bill C-11 and then Bill C-18, which I talked to you about the last time, on May 24—I don't know what that person looks like. Do you or anyone in your department make any recommendations to the minister?

This new chair of the CRTC will be visionary. It's not that you aren't, but this one—if you don't mind my saying—will have to have a little more on the plate to deal with the Internet situation and YouTube and all that we've been talking about here for the last six months. It will be a difficult position to fill.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Did anyone from the public office reach out to you or anybody on the table there within the last two weeks about this bill, Bill C-11?

[Ian Scott, Chairperson and Chief Executive Officer, Canadian Radio-television and Telecommunications Commission]

Thank you, Madam Chair.

Thank you, members of the committee.

I'll forgo the introductions. You've identified my colleagues. We are pleased to appear before the committee, specifically this time to speak about the need for Bill C-11.

The modernization of Canada's Broadcasting Act is long overdue. Created in the early 1990s, the act was a product of its time. It fostered the creation of a series of tools that were appropriate for the public-policy goals of the day, namely to protect and encourage the development of Canada's broadcasting system. In the walled garden this system created, Canadian films, music and television programs were given the opportunity to flourish.

I don't have to tell you how that reality has changed with the Internet. Those goals supported by the Broadcasting Act and the tools it created became less relevant as Internet technology embedded itself deeper into the homes, and onto the phones of Canadians.

As regulators of the broadcasting system, we paid close attention to these changes. We judged these changes were complementary—rather than detrimental—to Canada's broadcasting system, while we continued to keep a closer eye on the trends and innovations those technologies created.

Each passing year brought new changes to the system, giving Canadians a welcome ability to consume new content in new ways. Digital platforms have created and continue to create opportunities for Canadian artists and content producers but also challenges, particularly for traditional media.

In 2018, at the request of government, we conducted an in-depth study of the environment and issued our report called “Harnessing Change”. In it, we lay bare a simple truth: Canadians will rely increasingly on the Internet to discover and consume music, entertainment, news and other information in the coming years.

Our report therefore recommended that future policy approaches should focus on the production and promotion of high-quality content made by Canadians that can be discovered by audiences in Canada and abroad, should ensure that all players benefiting from the Canadian broadcasting system participate in an appropriate and equitable manner and should be sufficiently nimble to enable the regulator to adapt rapidly to changes in technology and consumer demand. We made similar recommendations to the broadcasting and telecommunications legislative review panel.

All of this brings us to Bill C-11, which the CRTC views as a much-needed piece of legislation. More effective tools, such as those proposed in C-11, are needed to ensure that Canadian stories and music can be enjoyed by audiences in Canada and across the globe. In our view, the bill proposes three very important things.

First, C‑11 builds on the existing Broadcasting Act to clarify the CRTC's jurisdiction regarding online broadcasters. It would give the CRTC new regulatory powers to deal with online broadcasting services, including non‑Canadian ones.

Second, it would give us a more flexible approach to regulation. The current Broadcasting Act does not specify how traditional players in the Canadian broadcasting system must contribute to the act's policy objectives. Bill C‑11 would allow us to make that determination as it regards online broadcasters and put in place the regulatory frameworks to support those goals.

Finally, it would modernize the CRTC's enforcement powers. Although the Telecommunications Act allows us to impose administrative monetary penalties to address non‑compliance, no such provisions exist in the Broadcasting Act.

Madam Chair, the need for modernization of the Broadcasting Act has only become more urgent.

I will stop there and invite questions from the members.

Thank you very much.

[The Chair, Liberal, Hedy Fry]

Hello, everyone.

I call this meeting to order.

Welcome to meeting number 28 of the House of Commons Standing Committee on Canadian Heritage.

I would like to acknowledge that this meeting is taking place on the unceded traditional territory of the Algonquin Anishinabe people.

Pursuant to the order of reference of Thursday, May 12, 2022, this committee is meeting on the study of Bill C-11, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts.

Today’s meeting is taking place in a hybrid format, and, actually, members attending in the room must wear masks, according to the House of Commons Board of Internal Economy orders of March 10, 2022.

Those on Zoom, please note that at the bottom of your screen there is a globe icon for interpretation. You may choose what interpretation you're going to need. For those on the floor, you know that you can actually plug in and receive interpretation from the room itself. No photographs are meant to be taken during this meeting.

I would like to make comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to speak, and then mute yourself after you finish speaking. For those on Zoom, you have the choice at the bottom of your screen, again, for interpretation. In order to speak, you can mute or unmute yourself as needed.

Today, for our first hour of the meeting, we have one organization, and it is the Canadian Radio-television and Telecommunications Commission. Present for this group will be Ian Scott, chairperson and chief executive director; Scott Hutton, chief of consumer, research and communications; Sheehan Carter, director general, strategic policy; and Rachelle Frenette, general counsel, deputy executive director.

As the CRTC is very well aware, because they've been here before, the actual commission will have five minutes to present and then there will be questions and answers from the floor, during which you may be able to elaborate or answer any questions that are asked of you in a segment beginning with six minutes.

Right now, Mr. Scott, you may begin for five minutes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Madam Chair.

To bring further clarity to the request that I am putting before this committee with regard to the revised charter statement that is being asked for, it is because there is a discrepancy between what the Minister of Canadian Heritage is saying and what the CRTC chair, Mr. Ian Scott, is saying concerning whether or not Bill C‑11 captures user-generated content.

To illustrate this further, I did ask the Minister of Canadian Heritage a very important question in the House of Commons yesterday, and I gave him the opportunity to clarify one way or the other. The first question that I asked the heritage minister in the House of Commons during question period yesterday was, and I quote:

Mr. Speaker, we find ourselves in a bit of a dilemma here, because the heritage minister keeps telling Canadians that user-generated content, such as YouTube videos, is out, but Mr. Scott, the chair of the CRTC, has said that actually user-generated content is in. Both of these men cannot be correct, so I would ask the minister to please tell the truth.

The Minister of Canadian Heritage then responded by saying this:

Mr. Speaker, I do not think it is very parliamentary, but I will still, out of respect for our democracy, answer the question. I am quite surprised that the Conservatives quote the CRTC, because they keep attacking the CRTC like they keep attacking the CBC. Actually, there is no institution they do not attack. Now it is also the Bank of Canada, for some of them. The thing is that this is simply to ask streamers to contribute to our culture. That is it—

The members of this committee will observe that the minister did not answer my question. Instead, it was talked around, which baffles me because it really is a very simple question, and I believe it can be clarified very easily. The minister simply needs to communicate whether his intent is in fact to capture—

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Given that for the Minister of Justice it is one of his most important responsibilities to examine legislation and then to provide us with this charter statement, and given that the testimony provided by Mr. Scott is incongruent with what the minister is claiming, then I would say that it is very important that we gain a better understanding as to what is going on here.

Again, I would remind the committee, through you, Chair, that it is not just us, not just this committee, being informed, though that is very important, because ultimately we do have the responsibility to wade through this legislation and understand it at a very detailed level. Also, again, it is for the sake of Canadians and making sure that they have access to accurate information.

It is also to make sure that they are having Bill C-11 applied to them in the way that the minister intends. If he intends to capture user-generated content, then this bill needs to very clearly say that. I see where it does, but others would say that's more of a grey area, so let's just clarify that. If in fact Bill C-11 isn't meant to capture user-generated content, just say that as well, but regardless, this bill requires a great degree of clarity. The charter statement can help bring that clarity:

A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

In other words, if Bill C-11 does in fact capture user-generated content, then it can be argued that it is in breach of section 2(b) of the charter, which is on the right that Canadians have to freely express themselves. In what we now call the “new public square”, which would be online, Canadians should be protected to be able to share their opinions, their thoughts and their beliefs without being regulated by the CRTC.

You can see the dilemma, Chair. If user-generated content—the content that individuals post online—is captured by this bill, then it would be in breach of section 2(b) of the charter. If that's the case, then, this note does say that Parliament must show that it is “demonstrably justifiable”. That is what this says. However, again, if user-generated content is not captured by this bill, if we want to make it very clear that it's not—I should say if the minister wants to make it very clear—then there are some adjustments to this piece of legislation that are needed in order to make that absolute and in order to then protect people's individual rights and freedoms as written under the charter and, in particular, in section 2(b).

Here in this explanatory note, the justice minister goes on to write that:

A Charter Statement is intended to provide legal information to the public and Parliament on a bill's potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

In other words, this charter statement can be adapted, which is exactly what we are asking for—we being my Conservative colleagues and I—and of course, we're hoping that we can gain the support of those around this committee table. We hope that they too want as much clarity as possible when it comes to Bill C-11, and to what extent it captures online material and regulates it.

Now, I recognize that my Liberal colleagues across the way may not be amenable to this because, right now, the minister is putting forward this narrative that user-generated content is—according to him—left out of this bill, but that is not what Mr. Scott says. Again, he is the one who is responsible for making sure that Bill C-11 is enacted, and if he is interpreting this bill—

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Madam Chair.

It's interesting to me that my colleague raises this question of right and wrong. He is saying to you, as chair.... I believe he was saying through you, perhaps to me, that I know what is right.

It's interesting to me, because what I know to be right is to defend Canadians. What I know to be right is to insist on truth. What I know to be right is to fight for justice, which means that we should be pursuing clarity with regard to Bill C-11 and insisting on a revised charter statement, so that we can in fact make sure that user-generated content is kept out of the scope of this bill and that it is clarified to the nth degree by the justice minister.

That is what I know to be right, in case Mr. Julian cares to understand my moral compass and what I am contending.

With regard to Bill C-11 and the charter statement that has been put in front of us, as of April 1, 2022.... I've lost my train of thought, so I'll just start from the beginning with regard to the explanatory note.

It states, “Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills.” In other words, this statement exists to inform the conversation that takes place here. If the charter statement is in fact misinterpreted or not clear, then it is actually not informing us correctly, but rather misinforming us in terms of how we move forward on Bill C-11.

This explanatory note goes on to state, “One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing...”.

I'm sorry, Madam Chair, but there are a number of members here in the room who are speaking, and it's a bit distracting.

I'll just let you speak to that.