Canadian Heritage Committee on June 10th, 2021

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair, I appreciate that.

The amendment has been explained and the rationale for it, and I very much appreciate that, but the department is with us today. I was wondering what they believe in terms of how this could work with the CRTC. They're familiar with the CRTC and the regulations they develop and their undertakings regarding the things they do now.

Could the officials explain to me how they believe we could do this in the future, as the CRTC would look at this piece within the work they would do looking at this legislation?

[The Chair, Liberal, Scott Simms]

I see Mr. Ripley has lowered the boom of his microphone, which means he's prepared to rocket fire.

Mr. Ripley, the floor is yours.

[Thomas Owen Ripley, Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage]

Thank you, Mr. Chair.

Thank you, Mr. Shields, for the question.

There would be a few things I would underline with respect to the amendment that has been tabled.

The first thing is to highlight a point that came out in the committee's discussion with respect to the charter and freedom of expression, and to remind the committee that, of course, the CRTC is bound by the charter. Its decisions are already subject and will be subject in the future to review for charter consistency through things like judicial review of its decisions, etc.

Second, perhaps this may not be well known to the committee, but the CRTC is actually already served by independent legal counsel. In other words, its lawyers are not Department of Justice lawyers. In that respect, the CRTC already avails itself of independent legal advice.

The third thing I would note is that the amendment that is on the table would be quite exceptional in the sense that we're not aware of any other regulatory body that is in the practice of publishing its legal opinions. My understanding of the amendment is that the requirement would actually be quite significant in the sense that it would apply to each regulation or order or condition imposed on online undertakings. We expect that those would be quite numerous.

At the end of the day, Mr. Shields, the impact on this would be that any time the CRTC made a regulation or an order it would have to go and get a charter analysis done with respect to that, and then publish that and make it available. Again, from what we have seen, that would be fairly exceptional in the current regulatory landscape.

[Martin Shields, Conservative, Bow River, AB]

Thank you.

Mr. Chair, could I follow up?

[The Chair, Liberal, Scott Simms]

Absolutely.

[Martin Shields, Conservative, Bow River, AB]

In looking at this when you first mentioned this, I see that would then lead to somebody on the outside, if this wasn't in place, to do that, take it to court and challenge what they haven't seen as a ruling. They would have to challenge it in the legal sense.

As this is new legislation, new ground in the sense of what we're dealing with, would they not want to make sure they are establishing the groundwork? This amendment should cover them in the sense that if they were to do this, because we're moving into new territory, it should provide cover for what we think is going to be challenged by the outside anyway.

Wouldn't this be a safeguard step as we're moving into it?

[Thomas Owen Ripley]

Thank you for the question.

The expectation is certainly that the CRTC would consider the charter in making its decisions. Again, the CRTC already has a team of independent legal counsel that would provide that opinion.

To your point, publishing those legal opinions would obviously then subject them to external scrutiny. The question of whether that's a safeguard or not is a judgment call that I would leave up to the committee. Again, it would be fairly exceptional. This is not done.... When a legal opinion like that gets published, it waives solicitor-client privilege. That can complicate matters if ever there are court proceedings in this respect.

Again, not to go over ground that we've already been on, but that's why, for example, the charter statement that's published on a bill is not a formal legal opinion in a sense, but rather an analysis of how the charter is potentially engaged.

This would be fairly exceptional to require a regulatory agency like that to publish a legal opinion with respect to every decision it makes with respect to a certain kind of entity.

[Martin Shields, Conservative, Bow River, AB]

I very much appreciate your explanation and your belief of how this could work. That's what I asked for was your opinion. I appreciate that.

In the sense of the amendment, as we've moved into this area—this legislation could possibly pass—you try to look for all the safeguards you can find. You know that it will probably end up in court and challenged, so you try to find ways to protect as much as possible as you go into new territory, making sure that those things are protected and that there is as much legal advice and judgment ahead of time as possible. I understand what you're saying about confidentiality, client confidentiality.

You know, it's an amendment that maybe protects things from getting tied up in court and this getting tied up in court for years. I thought, maybe, as an amendment, it might help that process along. Nobody wants to have a law put in place and then all that happens is that lawyers make money for years fighting things in courts, and nothing happens. No money moves other than to law offices. That's the last thing you want to do when you pass legislation.

I think it's a protection, and that's why it's there.

Thank you for your opinion. I appreciate it.

[The Chair, Liberal, Scott Simms]

Mr. Aitchison.

[Scott Aitchison, Conservative, Parry Sound—Muskoka, ON]

Thank you, Mr. Chair.

This whole discussion has actually made me wonder about a couple of different things.

Mr. Ripley, I have a couple of questions. Do you know roughly what the legal budget is for the CRTC? I mean, is it frequently in court, or is it engaging lawyers regularly for the decisions that it makes? Is it a problem?

[Thomas Owen Ripley]

I don't have the legal budget at the tip of my fingers. What I can say to you is that CRTC decisions are subject to judicial review on a regular basis in the sense that there are applicants who choose to have decisions reviewed by a court. Some of those are fairly high-level, high-profile proceedings, and others are less so. Again, just to reiterate, that's why there are mechanisms in place. There's judicial review, and there is actually another provision in the Broadcasting Act as well. If a party to a proceeding feels like the CRTC has made an error in law or something along those lines, there is also a mechanism by which it can have that decision reviewed by the federal court system as well.

One thing that I would note or remind the committee—and perhaps it speaks a little bit to Mr. Shields' earlier question as well—is that proceedings are subject to a public process in the sense that anybody who wants to make a submission and put something on the record has the opportunity to do that. Again, when the CRTC is making a new regulation or an order, there would be an opportunity for organizations or individuals to make submissions, and if they have concerns about the impact on charter rights, for example, they could make sure that those are part of the public record. Then, of course, the CRTC will have to consider those in its decision-making.

[Scott Aitchison, Conservative, Parry Sound—Muskoka, ON]

I would understand, then, that in the past CRTC judicial reviews or public hearings would be related to big companies like, for example, Bell, Telus or those kinds of corporations. One can only imagine how many lawyers would be involved in a judicial review for something that Bell Canada was interested in.

I guess I'm wondering about a judicial review process in light of what they will now have access to regulate and make decisions on. We're not talking about big corporations but about individual Canadians and smaller entities that aren't big corporations. I'm just kind of wondering about that process and what that might look like.

Let's say I became some kind of an über-star, which we all know probably would never happen, but let's say I did and actually made a decent living from posting videos of me gardening or something. I'm not a big corporation, obviously. What would the judicial review process look like for individual Canadians who find some success on these social media sites and then become subject to regulation?

[Thomas Owen Ripley]

Thank you for that question.

There are a couple of things. One would be just to stress off the top—and again, this perhaps picks up on some of the committee's debate from yesterday—that the effect of proposed section 2.1 would mean that any individual who is unaffiliated with a social media company, no matter how big their following is or how much money they make, is not to be considered a broadcaster for the purpose of the act.

Again, even if you have millions and millions of followers, that provision means it's not a question of your being considered a broadcaster. Again, for the most part, individuals will not be participating in CRTC proceedings because the act will not apply to their activities on social media services, for example.

What we see in this space, Mr. Aitchison, is that you have individuals or organizations coming to the table to represent the public interest that may not be sophisticated corporations able to hire legal teams to represent them. A good example in this space is an organization called the Public Interest Advocacy Centre, which raises many of these issues on behalf of organizations or individuals.

One of the things the government is proposing in Bill C-10 is to actually ensure there is better support for public interest representation in CRTC proceedings. Right now, the CRTC really has no formal mechanism to ensure the activities of these organizations can be funded.

If you look at Bill C-10, the CRTC can seek contributions to support the participation of public interest organizations in CRTC proceedings. The government is doing that very intentionally, recognizing that, obviously, organizations and voices are needed at the table. The goal in that is to secure more long-term, sustainable support for those organizations so that they remain viable and can continue to bring those issues to the table and to CRTC proceedings.

[Scott Aitchison, Conservative, Parry Sound—Muskoka, ON]

Thank you.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Aitchison.

Before we go any further, I know I should have mentioned this yesterday but I will say it right now. For those who are outside and watching us through the Internet, I should explain exactly who the speaker you just heard, Mr. Ripley, is. Thomas Ripley is director general of the broadcasting, copyright and creative marketplace branch of the Department of Canadian Heritage.

I should have done that yesterday. You have my apologies, Mr. Ripley. You have been a bit of a mystery man to a lot of the people watching over the past day and a half, but now you're not.

Mr. Rayes, you have the floor.

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

Thank you, Mr. Chair.

After that fine introduction of Mr. Ripley, I would like to thank him and all the other department officials who have been with us at each meeting. Even when we don't necessarily agree with their position, they provide sound information and guidance that helps us do the best possible job we can, given our respective knowledge and expertise. I want to thank them. I join you, Mr. Chair, in recognizing the contribution of Mr. Ripley and all the other department officials.

I have a question for Mr. Ripley. One of his previous comments might suggest that my amendment is unnecessary, but as the saying goes, you cannot be too careful.

Bill C‑10 gives rise to questions about freedom of expression. Some think that we are going too far or, at least, that freedom of expression is not really at risk, whereas others believe that the bill is flawed when it comes to freedom of expression. People have said that the CRTC will not use all of the powers it has been granted under the bill, but a number of experts worry that it might.

Why not impose certain obligations on the CRTC from the outset? Once the bill is a done deal, the politicians in power will say the same thing. They will say that the CRTC is an arm's-length organization that makes its own decisions. That's what happens whenever questions on the subject arise. That was the case recently when big and small telecoms imposed user fees for their services. The argument will be that the government no longer has the power to do anything once the CRTC has made a decision, because the CRTC supposedly operates at arm's length.

We experienced the same thing here, on the committee. The committee is supposed to be independent, but the government was able to interfere with the committee's work when it wanted to.

That makes me wonder whether my amendment has anything wrong with it, anything that might be detrimental. I may be asking for more protection than necessary, but in this case, it seems warranted. Once the bill comes into force, the CRTC will have nine months to do its homework and come up with a definition. After that, we will no longer be able to influence the guidelines it adopts or the manner in which it applies them.

My first question for you is this. Is there anything counterproductive in my amendment? Does it run counter to good old common sense? It may be overly protective, but if so, good. It puts additional safeguards in place to ensure freedom of expression is protected in every CRTC decision regulating the new space that is the digital world. Lobby groups and university teachers interested in freedom of expression can assuage our concerns by examining every CRTC decision or amendment, since it will be published on the commission's website and in the Canada Gazette.

[Scott Aitchison, Conservative, Parry Sound—Muskoka, ON]

I have a point of order, Mr. Chair.

I am loath to interrupt my colleague, but the bells are ringing in the chamber.

[The Chair, Liberal, Scott Simms]

Yes, they are.

[Scott Aitchison, Conservative, Parry Sound—Muskoka, ON]

I just thought maybe we should be aware of that.

[The Chair, Liberal, Scott Simms]

I was going to interrupt Mr. Rayes, but I didn't want to do that until he got to pose his question to Mr. Ripley.

Yes, Mr. Aitchison is right. We have 26 minutes and 50 seconds to vote.

As you know, the bells are ringing. The routine is very simple. I need unanimous consent to continue for perhaps another 10 to 15 minutes, if you so desire. Do I have unanimous consent to continue?

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

No. I will continue afterwards, Mr. Chair, as we had agreed.

[The Chair, Liberal, Scott Simms]

Very well then.

We're going to suspend until after the vote.

Don't forget, if you're delayed coming back from voting, could you please let us know that you're coming? That way we can do this as quickly as we can. I don't want to proceed in the committee without everyone on board.

Okay, let's suspend.

[The Chair, Liberal, Scott Simms]

We'll continue with clause-by-clause consideration of BIll C-10. When we left off we left off with CPC-9.5. I have Mr. Rayes who was about to ask a question.

You have the floor, sir, go ahead.

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

That's right, Mr. Chair. But first, if I may, I would like to ask you about the motion that we just passed in the House.

My understanding is that with the extension of sitting hours, the committees will have some resources cut off. Does that jeopardize the meeting that we have to have late this afternoon?

[The Chair, Liberal, Scott Simms]

Not that I am aware. You go ahead and do your questioning about this, but we don't have any information on that right now. When I do, you will be the first amongst many to know.

Carry on, sir, you have the floor.