Canadian Heritage Committee on June 10th, 2021

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

Thank you, Mr. Chair.

Mr. Ripley, let me quickly summarize my question.

Does the amendment I am presenting have a negative effect or is it simply, as I would hope, an additional measure that we are taking to ensure that every new regulation put in place by the CRTC respects freedom of expression and that the information is published on the CRTC's website and in the Canada Gazette?

I have another question for you afterwards.

[Thomas Owen Ripley]

Thank you for the question, Mr. Rayes.

My answer will depend on the purpose of the amendment.

If the purpose of the amendment is to provide an opportunity for outsiders to submit legal opinions as evidence in a regulatory process, I would say that it is already happening. People can already make a submission to the CRTC and, if they want to file a third party legal opinion, they can do so. Once it's admitted into evidence, it certainly has to be considered by the CRTC in making its decision.

If the purpose of the amendment is to require the CRTC to publish a legal opinion that represents the CRTC's position, I would say that this could actually cause harm, because it affects solicitor‑client privilege, a principle recognized by the Supreme Court as a fundamental principle of the Canadian legal system. Given the potential for harm, we believe that this would make for an obligation that would be fairly exceptional in the Canadian legal system.

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

I'm very surprised to hear that asking the agency to provide us with an opinion that it is in compliance with the Canadian Charter of Rights and Freedoms is doing harm to the agency, when it is the agency's responsibility to ensure that it is in compliance, or at least to confirm that it is in compliance. I am surprised by this, given the nature of this case and the challenges.

I'd like to go back to your earlier comment. You said that the CRTC is going to set up a fund to help interest groups or organizations that would like to participate in public hearings in order to ask questions when necessary. Did I understand you correctly?

[Thomas Owen Ripley]

Thank you for the question, Mr. Rayes.

I would like to clarify the government's position. The issue here is not whether the CRTC is complying with the charter. As I mentioned, the charter applies to the CRTC, and mechanisms are already in place for people if they feel that the CRTC is not complying with the charter. For example, they can challenge a CRTC decision in federal court.

To answer your question, I should say that Bill C‑10 does propose to add paragraph 11.1(1)(c) to the Broadcasting Act, which gives the CRTC the power to make regulations respecting:

c) supporting participation by persons, groups of 10 persons or organizations representing the public interest in proceedings before the Commission under this Act.

Once again, the bill includes measures to ensure the sustainability of funding for public interest groups by providing funding for those groups, as required.

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

I hear what you're saying. The intention to set up a fund is noble. I understand that the fund does not exist yet. The CRTC will set it up with the powers it will have under this bill.

Having said that, you talk about groups or individuals representing interests. To me, that's the problem. What about a YouTuber, a Canadian who is not representing someone else's interests, but who, as an individual, might feel aggrieved and have some questions about it? There are thousands of individuals like that in this country. It might be a teacher, a citizen or a politician who has a large following and posts programs or content online. Ordinary people would not have access to the fund if they feel aggrieved, because they do not represent an interest group, they just represent themselves.

Am I mistaken?

[Thomas Owen Ripley]

Thank you for the question, Mr. Rayes.

I have two points to make in response.

In fact, a fund already exists to support public interest participation in CRTC processes in broadcasting. It's called the broadcasting participation fund. The problem is that there is really no long‑term funding to support the activities of the broadcasting participation fund. The fund has supported a number of organizations that have intervened in cases before the CRTC. I gave Mr. Aitchison the example of the Public Interest Advocacy Centre. It is an example of an organization that is trying to ensure that the interests of Canadians are taken into account. I am currently on their website.

Their mission is “To help Canadians save money and feel respected in the provision of regulated services”, and the vision of the organization is “To ensure no Canadians are taken advantage of in the provision of essential, needed regulated services.”

We can see that the Public Interest Advocacy Centre is very active in the CRTC processes.

Once again, we recognize that there is a problem with funding, so we want to make sure that the CRTC has the power to go ahead and create a fund like the broadcasting participation fund that will support those organizations in the long term. That is why the bill is proposing to add paragraph 11.1(1)(c) to the act.

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

That's fine.

Throughout the consultations that we held during the consideration of the bill, we heard from many witnesses, but no one representing individuals who use social networks came to speak. We did not invite them because it was not part of the initial version of Bill C‑10. The bill took a different turn only afterwards, when we started looking at the amendments. So the people who felt aggrieved by the bill along the way have not had an opportunity to speak out on this.

Let me ask you my question. This will be my last question, because I want to give the floor to my colleagues on the committee who would like to speak to this amendment.

Could an ordinary citizen, who is not a representative of an organization, have access to this fund to participate in public hearings?

[Thomas Owen Ripley]

If I understand the question correctly, you want to know whether a citizen is able to participate in the CRTC processes and make submissions. The answer is yes.

Of course, I recognize that going through a regulatory process requires an effort on the part of an individual. However, it is possible. A good example is the CBC licence renewal process. The service affects many Canadians. We see that Canadians do make submissions through this process because they have an opinion about the public broadcaster.

So it's possible for someone to participate, but it takes some effort for them to go through the various steps of the CRTC process.

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

Mr. Ripley, when you say that people can make submissions, do you mean that they can go and testify, or ask to testify, at the hearings, or that they can make submissions in order to have access to the fund to help them in their work so that they can testify at the hearings?

[Thomas Owen Ripley]

I'm sorry, your question was about whether the funding will be available.

My understanding is that the broadcasting participation fund, to which I referred, is limited to groups and organizations representing consumers who have a non‑commercial interest.

Could the proposed subsection 11.1(1) be used to create a fund to support individual participation? The answer is yes, absolutely. Paragraph 11.1(1)(c) provides for “supporting participation by persons”, so this power is provided. However, if we ever want to move in that direction, the mandate of the broadcasting participation fund may need to be amended.

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

So, we agree that, right now, the wording you read to us says that it could be individuals, but those working in an interest other than their own.

The CRTC would have to modify this fund to allow one person alone to apply for funding to prepare for CRTC public hearings. The individual would not have access unless they represent an interest group. It is possible that this could be done in the future, but to date, it has not been allowed.

[Thomas Owen Ripley]

The purpose of proposed paragraph 11.1(1)(c) is to ensure representation of the public interest. Of course, if it is used to support an individual, the individual's participation in a CRTC process must be related to the public interest.

If this relates to the regulation of broadcasting activities, again, in the vast majority of cases, individuals will not be considered broadcasters. Proposed subsection 2(2.1) is very clear with respect to individuals who use social media: they are not considered broadcasters and are therefore not subject to CRTC regulation, regardless of their number of followers and their revenues. Again, someone who has a large following on social media will not be subject to CRTC regulation as a broadcaster.

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

That's fine.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Scott Simms]

Mr. Shields.

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair.

I appreciate the conversation. A couple of things come to mind. Recently, the CRTC was in the news when they said that after Thursday's decision, the regulator essentially set aside rates established in 2019. The reason I bring it up is that we talk about transparency. To me, this amendment leads to more transparency. We had a decision that was made, and in the news recently, with no minutes and no recorded votes. You don't know what the discussion was. When they had the open one that they went through with the CBC, there were transparent hearings, absolutely.

This concerns me in the sense that this amendment might bring more transparency to the decisions they're making. Now there are no recorded minutes. There are no recorded votes. I compare that with my involvement in municipal government. It's always out there, in front. You have to be very transparent in what you do. It's all on the record. To me, this provides another safeguard for that. I think the amendment provides that.

Mr. Ripley, I really appreciate your advice and your opinions on this, but to me, that piece is important in the sense of transparency. The CRTC doesn't operate as an elected body. It's an appointed one. They can be behind that screen that's provided for them. This, to me, is another level of transparency for elected people. We've moved into an area that will be very challenging, with very much interest in how a decision's made. This amendment will provide just a little bit more of that transparency on the decisions and on what they're doing.

I don't think it is now, as a body or as a board. They can have all sorts of discussions with no minutes of those discussions and no records of votes or rationale for what they're doing. This recent decision a week ago was very controversial. They changed their 2019 decision to the one they'd suggested the other day. Again, that has created lots of discussion out there on both sides, but there's no background information.

What I think we're talking about with this amendment is having a legal opinion out there and having it be public, having it in the Gazette. I think it would provide more of that level of transparency that we need going forward with this piece of legislation.

Thank you, Mr. Chair.

[The Chair, Liberal, Scott Simms]

Mr. Waugh.

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

Thank you, Mr. Chair.

I'll keep it very short. A number of us here are former members of ACTRA. They're heavy lobbyists, of course. I bring it up because—

[Martin Champoux, Bloc, Drummond, QC]

A point of order, Mr. Chair.

Mr. Waugh's camera is not on. We can't see his sweet face.

[The Chair, Liberal, Scott Simms]

Yes, it's a good point.

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

I totally apologize.

[The Chair, Liberal, Scott Simms]

You just made everyone happy. Go ahead.

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

Thank you, Mr. Chair, and thank you, Mr. Champoux, for pointing that out.

I will say that a number of us here were probably members of ACTRA at one time, whether you had a cooking show or you were on CTV or wherever. We didn't know what ACTRA did. They were a heavy lobbyist group of the government, with many of their interventions going to the CRTC. As employees paying their dues to ACTRA, we never knew what was going on, and we still don't, to this day.

That's wrong, because when you pay dues, you always find out maybe a year later. You never find out when they do make an intervention on behalf of the members. I think Mr. Shields and Mr. Rayes were right. At times, you'll find out something, but it's always after the fact. I just wanted to bring that up.

Mr. Ripley, you've done a very good job here this morning of explaining the YouTube thing, because I think there are many out there listening today who would say that the CRTC makes too many small decisions for getting a legal opinion to be practical. You talked about that. Then there are those decisions in the online sphere that should not be taken lightly at all, as we see today on free speech. We don't want them to be able to quickly make hundreds of algorithm changes every day without proactively checking for charter compliance. I make that point because we're going to go after YouTube here and others.

Mr. Ripley, can you explain this a little? I think you've done a very good job here this morning in explaining parts of this, but I think that when you look at YouTube and a single user taking on ACTRA, CDCE and other organizations, you can see where the concern is, because a single user who maybe needs clarification going up against these organizations.... I mean, there is an imbalance there, and right away we would know that.

Do you want to comment a bit on that? I know that you've explained it pretty well, but is there anything else you want to add, Mr. Ripley?

[Thomas Owen Ripley]

Thank you, Mr. Waugh.

I might make a couple of introductory points and then suggest that my colleague Mr. Olsen jump in, who is very well versed in CRTC processes.

Bill C-10 certainly envisions a transparent process when it comes to questions of regulations or orders. The intention is certainly that anybody who wants to participate in those proceedings would have an opportunity to do so.

Mr. Chair, if you'll permit me, perhaps Mr. Olsen can just quickly jump in and explain how this would work in a typical CRTC process, the kinds of things that would be naturally published on the CRTC's website and the materials that would be made available.

[The Chair, Liberal, Scott Simms]

Go ahead, Mr. Olsen.

[Drew Olsen, Senior Director, Marketplace and Legislative Policy, Department of Canadian Heritage]

Thank you, Mr. Chair.

When the CRTC initiates a public proceeding, it publishes a notice of that proceeding on its website and, in most cases, in the Canada Gazette. Then it calls for comments. It has rules of procedure around the time periods and the process by which it gets those comments. Sometimes there's even a reply period, during which the commission would give intervenors a chance to reply to other comments. Sometimes there isn't, but that's governed in the CRTC's rules of procedure.

The CRTC then takes all of those submissions and considers only that information that's on the public record—of course, subject to any information that was filed in confidence. Then it makes its decision. For anything that's filed in confidence, the rules say that there must be an abridged version without the confidential information filed. It's usually just financial information. It's usually just numbers that get blanked out. All of that information is available to all the parties, other than the actual numbers. Then the commission takes all of that and makes its decision.

The decision is always published on its website, and the decision is almost always published in the Canada Gazette as well. The CRTC takes transparency very seriously in that regard. It is an administrative tribunal, so if it has failed to follow any kind of due process, then that would be subject to judicial review.