Canadian Heritage Committee on May 6th, 2021

[The Chair, Liberal, Scott Simms]

Ms. Dabrusin, I'm going to ask you to hold on for one second. I'll hear Ms. Harder on a point of order.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I believe there's a motion at hand, and then there's an amendment being made to it. I believe that those are the things that are supposed to be discussed right now. The member is talking about a future amendment and not the current amendment that she wishes to make to my motion, which is currently being discussed.

[The Chair, Liberal, Scott Simms]

Thank you, Ms. Harder, for the intervention.

You're not moving a motion right now, Ms. Dabrusin. Are you?

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

I am not. This is part of the debate as to why I believe my amendment is there and why we need to move forward.

[The Chair, Liberal, Scott Simms]

That's fine. The only thing I'd caution everyone on is to try to keep this on track. It's hard to follow as it is, in this world that we live in, because it's virtual and all of those things. We have several amendments on the move.

I appreciate the fact that you're not moving a motion right now, and you're talking about further debate. Let's try to keep it as narrow as we can towards what we're debating.

Ms. Dabrusin, once again you have the floor.

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

Thank you.

I won't take much longer. I just thought it was very important that I put this out there. These amendments have been circulated by the clerk to all parties so that they could reflect on them as we debate the amendments and the motion put forward by Ms. Harder. It really highlights, I believe, the importance of moving through to clause-by-clause. It's important that we have a fuller picture of what this bill will look like once it's complete, if we are going to be putting it forward for a charter review. There should be all of the amendments and a full bill, rather than a partial bill, put forward. That was my addition to the debate.

I would suggest that we might, then, put it to a vote to have my amendment withdrawn.

[The Chair, Liberal, Scott Simms]

Just so that we're clear, we already sought unanimous consent. That did not happen, so we're currently still at your original amendment, which we left off with on Friday.

Ms. Harder.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Mr. Chair.

Mr. Chair, maybe I'll just back up here for a moment. I think we seem to have forgotten what motion we're discussing. The motion we're discussing is one that is necessary because proposed section 4.1 in clause 3 of Bill C-10, the bill being discussed, was removed. Because this proposed section was removed from the bill, it therefore presents the question of whether this bill is still compliant with the Charter of Rights and Freedoms. That is the question at hand.

That question can be answered in one way, and that is by allowing this bill in its current state to go before the justice minister, the justice department, for a charter review. At that point, then, a charter statement would be granted to the committee, and that charter statement would tell us whether or not it is charter-compliant.

If the Minister of Justice says that, yes, it is compliant with proposed section 4.1 missing, then we would proceed accordingly. However, if the justice minister says that, no, this bill, with the missing proposed section 4.1, is not compliant with the charter, then it's incumbent upon us, as members of this committee, to pause and make the necessary changes to the bill to ensure that the Charter of Rights and Freedoms is in fact respected, and that Canadians' freedoms are honoured.

The motion that I have put forward, then, asks for that charter statement to be redone and to be provided to this committee. That's the motion that we are discussing.

In order to get that charter statement, it would mean that the committee would need to be paused where it is right now. While it is paused and we seek that charter statement, my motion suggests that we ask the Minister of Canadian Heritage and the Minister of Justice to appear before the committee.

The amendment that the honourable member has made to my motion would suggest that the Minister of Canadian Heritage and the Minister of Justice do not come to this committee. Rather, they'd simply provide a written statement. Her amendment further suggests that instead of pausing right now in order to seek that renewed charter statement, we would continue to debate a flawed piece of legislation, and then we would seek that charter statement at the end.

I would suggest that is a misuse of our time, given that many experts have already spoken out and, I would suggest, argued that this bill is deeply flawed.

One thing that the party in government presents to us over and over again when we ask questions in the House of Commons concerning this piece of legislation is that individual users are protected. Meanwhile, Conservatives contend that's not entirely the case now that proposed section 4.1 has been removed from the bill.

When members of the governing party argue this, they point to proposed section 2.1. Proposed section 2.1 does say that users who upload programs onto social media sites like Facebook, YouTube or TikTok are not considered broadcasters and so are not personally subject to conditions like the Canadian content requirement or the Canada Media Fund contributions that would be imposed by the CRTC on streaming services like Netflix or Amazon, as examples.

That's fair. However, proposed section 4.1 dealt with the program, the content that individuals—you, me, your uncle, your aunt, your mom—upload to social media sites. Proposed section 4.1 originally protected those individuals and their content from being regulated by the CRTC. When we removed proposed section 4.1, when that proposed section was removed from the bill, the protection for the content that individuals place on social media platforms was, therefore, taken away.

Although the CRTC can't treat individuals as broadcasters because of proposed section 2.1, with proposed section 4.1 gone, it can regulate the content—your mom's video, my mom's video, your uncle's video—that is uploaded to social media and perhaps even to apps. The content uploaded by individuals is treated the same as if it were from CTV News or Global, which is wrong. It's just wrong.

Let's just take a moment here. Again there seems to be some confusion in the room. We seem to be discussing proposed section 2.1 as if it does what proposed section 4.1 once did. It's just not true. Proposed section 2.1 is not the level of protection that Canadians deserve. It's not enough. We need section 4.1. We need that section that was taken out. This is what I'm contending for, and this is what many experts have said.

My motion would ask for an official opinion in the form of a charter statement.

Let's go back a moment. Just how could the CRTC regulate social media with proposed section 4.1 removed? That seems to be the issue at hand here.

Using the powers in the Broadcasting Act, which is the point of proposed section 4.1, these powers, particularly in proposed subsections 9(1), 9.1(1) and 10(1), could provide the basis for the CRTC, among other things, to adopt regulations that would require social media sites such as YouTube to take down content that it considers offensive and adopt “discoverability” regulations—Ms. Dabrusin used that term—that would make them change their algorithm to determine which videos are seen more or which are seen less. The fines for violating these regulations could be as high as—

[Anthony Housefather, Liberal, Mount Royal, QC]

On a point of order—

[The Chair, Liberal, Scott Simms]

One moment, please, Ms. Harder. I'm sorry.

[Anthony Housefather, Liberal, Mount Royal, QC]

I would like to ask the question of relevance. This is related perhaps to the intention of the original motion, but it is unrelated to Ms. Dabrusin's amendment that is now on the floor. There is no link whatsoever between this and what Ms. Dabrusin proposed as an amendment.

[The Chair, Liberal, Scott Simms]

Folks, I'm just going to say this right now. Hopefully this clears up a lot.

I like to give people a fair amount of latitude as to where you can go on this. As much as I encourage you at times to think outside the box, you can't wander outside the warehouse and start drifting off into other places that we don't really need to be, given that we are very focused here on a motion with its consequential amendment.

That being said, Ms. Harder, I give you the floor again.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Mr. Chair.

The point is that with proposed new section 4.1 removed, the bill allows the CRTC to regulate the content that an individual might post on their YouTube channel or their Facebook page or in a TikTok video that they might put up.

I have stated that I am contending for a new charter statement. Ms. Dabrusin has put forward the amendment that we not do that until the end of the bill. I believe that it is absolutely essential now because of the damage that can be done to individuals and to their ability to speak freely within what we now call the “new public square” that is social media.

Because that impact is so severe, we have to stop now and consider whether or not this is actually in alignment with the Canadian Charter of Rights and Freedoms—particularly with section 2(b), which of course protects thought, belief, opinion and expression.

That is what I'm contending for, but there are many experts who would also contend for this. They would say, “Whoa, this bill in its current state goes too far.” It is incumbent, then, upon the members of this committee to push the pause button and seek a legal opinion. That legal opinion comes in the form of a charter statement.

I'm talking about Professor Michael Geist, Emily Laidlaw, the former CRTC commissioner Peter Menzies and many individuals—

[Anthony Housefather, Liberal, Mount Royal, QC]

On a point of order, Mr. Chair, on relevance, Ms. Dabrusin's amendment does not speak to removing the charter statement that is being requested, but now we're debating whether a charter statement is required or not.

[The Chair, Liberal, Scott Simms]

Folks, I'd like to ask everyone again. I don't want to make judgment calls each and every time this happens. When I say to someone that you can think outside the box a bit, I'm going to still provide some of that leniency. I'm asking everyone here to focus on what is at hand.

Thank you.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I didn't realize that the supposed motions that could possibly be brought forward in order to amend this bill were relevant. Meanwhile, the things I'm talking about are in the bill as it currently stands, and somehow Mr. Housefather doesn't find them relevant.

I'll continue.

I believe that voices of experts are worth hearing and that they are worth tuning into. Therefore, as we consider my motion, and as we consider the amendment to the motion, which would try to put a pause on what I'm asking for, I would like to show why it is urgent that we do, in fact, seek this renewed charter statement.

The original charter statement directly cites the social media exemption in its argument that the bill respects paragraph 2(b) of the charter. Because that proposed subsection has been removed from the bill, then it can be argued and should be argued that the bill no longer holds up to the Charter of Rights and Freedoms. Experts are warning of this. They are warning that, with the amendments to the bill, it could give too much power to the CRTC to regulate or control what we put on our social media pages. Again, it's an infringement on our charter rights under paragraph 2(b), an infringement on our freedom, and therefore, I would say, it is thwarting our ability to engage in what is now the public square, and that's wrong.

Former CRTC commissioner Peter Menzies said about Bill C-10 that it “doesn't just infringe on free expression, it constitutes a full-blown assault upon it and, through it, the foundations of democracy.” That's a pretty big statement. That's big. That seems reason for moving to a charter statement immediately, rather than waiting for several weeks.

Furthermore, Laura Tribe, executive director of OpenMedia, had this to say. She said, “Voting for Bill C-10 in its current form will give the government the power to regulate speech on the Internet. C-10 was supposed to be about supporting artists and creators. But this Bill has totally lost the plot.”

That's interesting, because in the House of Commons, in question period, the Prime Minister has stated numerous times, and the Minister of Heritage continuously states that is what this bill is about: It's about supporting artists and those who create content. Actually, artists are able to exist and thrive when their charter rights and freedoms are most protected. If we move forward with this bill in its current state, and it does in fact breach the Charter of Rights and Freedoms, then it's not helping artists and those who are creative. It's actually applying greater restrictions to them. It's hindering them from being the creative beings that they are meant to have the ability to be. It's actually inhibiting their ability to put the content out there that they would wish to put out there. No, this doesn't support struggling artists, as the government would want Canadians to think.

Ms. Tribe goes on to say, “For a country that made a department dedicated to 'innovation'—it's amazing to watch how regressive, overreaching, and oppressive their policies have become.... This government is a straight up disaster for Canada's internet.”

James Turk, the director of the Centre for Free Expression at Ryerson University, said, “The Trudeau Government is planning to give the CRTC the right to regulate user-generated content on sites like YouTube by amending Bill C-10—a dangerous government overreach that must be stopped.”

Timothy Denton, a national commissioner of the CRTC from 2009 to 2013 wrote:

The freedom to communicate across the internet is to be determined by political appointees, on the basis of no other criterion than what is conducive to broadcasting policy—and, presumably, the good of our domestic industry. As always, the interests of the beneficiaries of regulation—

[Anthony Housefather, Liberal, Mount Royal, QC]

I have a point of order.

Mr. Chairman, I would again come back to the fact that this is entirely unrelated to Ms. Dabrusin's amendment. We are now speaking to Ms. Dabrusin's amendment. I appreciate the latitude, but this is now going far afield.

[The Chair, Liberal, Scott Simms]

When she started, she started talking about the Charter of Rights and Freedoms, which Mr. Dabrusin's amendment at the very first paragraph eliminates in its entirety. I'm sorry, but I'm going to let her finish with what she just said.

I don't know where Ms. Harder's going with the testimony of the person that she just brought up, but I'd like to ask her to try to keep it within the confines of what Ms. Dabrusin's amendment contains.

Thank you very much, Ms. Harder.

[Rachael Thomas, Conservative, Lethbridge, AB]

Since I was interrupted, let me rebegin with that quote:

The freedom to communicate across the internet is to be determined by political appointees, on the basis of no other criterion than what is conducive to broadcasting policy—and, presumably, the good of our domestic industry. As always, the interests of the beneficiaries of regulation are heard first, best, and last. Consumers and individual freedoms count for little when the regulated sector beats its drums....

For the narrow clique of broadcasters, CanCon producers, and their lobbyists, it is always all about broadcasting. For Canadians, however, it is about the right to use the internet to communicate. We do not have to have our freedom of speech squelched by a government determined to protect an obsolete industrial structure.

Forget about “broadcasting”: C-10 is clearly intended to allow speech control at the government's discretion. Ignore the turn signals, look at where the wheels are pointed. They are pointed at your right to communicate freely by means of the internet.

Dwayne Winseck, who is a professor at the school of journalism at Carleton University and director of the Canadian media concentration research project, states, “I support the idea that online video-on-demand (OVOD) services can be regulated, as Bill #C10 contemplates, but...the bill was already a mishmash of dishonest representations of OVOD services as b'casting (they are not)”.

He continues, “Proposed amendments adopted unanimously [at the committee]...would drop that distinction & sweep user generated content under the new broadcasting act...a terrible idea, not least because it subjects individuals' expressions to the [greatest] low” and “W/o these guide rails, the disc of #C10 is being driven by lobby groups & think tanks tied to incumbent telecom & media industries interests & the Liberal Govt+a tiny group of academics poorly versed in the terrain they seemed to have gained unwarranted authority to speak on.”

Emily Laidlaw, Canada research chair in cybersecurity law and associate professor of law at the University of Calgary, has this to say: “While broadcasting regs used to be about programming related all our favourite TV shows, news, sports, it would now cover that home video of your kid winning a track meet that you uploaded to YouTube. Here’s the free speech problem: Bill C-10 forces social media companies to censor speech. While you might think—hey it’s a cesspool and we should clean that up—remember this is broadcasting reg, not all the other regulatory qs about online harms...platform power or data protection. Why does it force social media companies to be censors? Because of the reg it requires. The only option to comply with Bill C-10 is for social media to heavily reg content”.

She goes on to say, “I am genuinely shocked by this. What does subjecting individual YouTube videos to CRTC regulation achieve in terms of regulatory objectives? These kinds of blunt approaches wreak havoc on internet governance, especially through a human rights-centred lens.”

Again, I would draw this committee's attention to her very important words there: “human rights-centred lens”. Here in Canada, our rights are largely guided by the Canadian Charter of Rights and Freedoms. That charter, under paragraph 2(b)—and I have a copy.

Mr. Housefather, please don't call a point of order. It's just the Charter of Rights and Freedoms.

It says this:

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Let me draw your attention to paragraph 2(b) again, which, of course, is the subject at hand: “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

This is our charter. This is Canadians' charter. This is the document that was put in place by the former Trudeau in order to protect our rights and our freedoms as Canadians.

The responsibility of this committee is not to kowtow to industry stakeholders. The responsibility of this committee is to adhere to the Canadian Charter of Rights and Freedoms and to contend for Canadians. They are the ones who elected us. They are the ones who have entrusted us with the responsibility to advocate for them.

For this committee to continue forward without taking this responsibility seriously is to bring shame on us. To suggest that we should just continue ramming this legislation through, that we should just continue considering one clause after another without giving sober second thought to whether or not this legislation does indeed continue to abide by the charter is wrong.

Mr. Michael Geist is a lawyer—

[Marie-France Lalonde, Liberal, Orléans, ON]

On a point of order, Mr. Chair, I would like to know the relevance of Ms. Harder's comments.

Also, could you please read back to us what we're actually debating Ms. Dabrusin about? Could you actually read that motion to show the relevance of Ms. Harder's speech versus what I understand Ms. Dabrusin's amendment to be?

[The Chair, Liberal, Scott Simms]

I'm going to do a couple of things at this point. Thank you, Ms. Lalonde.

Let me start with the second part. Ms. Dabrusin is amending the original motion as amended. I know that sounds confusing. Let me try that again.

Ms. Harder had a motion. It was amended by Ms. McPherson. The amendment that was already accepted was specifically about the 10 days, that there would be a maximum of 10 days for doing that, which is what Ms. McPherson brought in. It was accepted. It was amended, and here we are at this point.

Madam Dabrusin brought in several amendments, chief of which was that the first part was to be negated, the part that talks about the Charter of Rights and Freedoms and down to part (c). In other words, the part that says “suspend clause-by-clause consideration of Bill C-10”, which Ms. Dabrusin would like to amend as well. Plus, she wants to bring back, to have explained in writing, what both the Minister of Justice and the Minister of Canadian Heritage would like to reply to this, as soon as possible after clause-by-clause is completed.

I hope that clears things up substantially.

Ms. Harder—

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

Mr. Chair....

[The Chair, Liberal, Scott Simms]

One moment, Ms. Dabrusin. I'll soon be finished.

One thing I wanted to point out to Ms. Harder earlier was that I felt she was drifting towards her original motion, which may lead to repetition from the first time that she debated, so I would ask her to stay within the confines, as was pointed out earlier, of Ms. Dabrusin's amendment amending her motion.

You have the floor now, Ms. Dabrusin.

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

Thank you, Mr. Chair. I would just point out, though, that I have sought to withdraw this amendment, so this entire debate about why she is so opposed to this amendment makes no sense. If Ms. Harder is so opposed to it, I would suggest that perhaps we could just actually have it withdrawn, but I believe that she opposed that withdrawal.

[The Chair, Liberal, Scott Simms]

Thank you, Ms. Dabrusin. I think we're veering into debate a little bit.

For the sake of clarity, yes, we earlier saw that.

Anyway, let's go back to Ms. Harder. She has the floor.