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.
