Canadian Heritage Committee on June 10th, 2021

[Martin Champoux, Bloc, Drummond, QC]

May I ask another question, Mr. Chair?

[The Chair, Liberal, Scott Simms]

Yes, indeed.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Ripley, I don't want to make you repeat things you've already said over and over again, but I submit the following. Let's take the example of the CRTC issuing a directive or replacing a regulation, and inadvertently, this could potentially have the effect of violating the Canadian Charter of Rights and Freedoms, namely infringing on the freedom of expression of Canadians. First, is that possible? Second, would the decision be final?

What procedure would need to be followed, starting from the moment a Quebecer or Canadian feels that the decision rendered by the CRTC infringes upon their rights and freedoms or penalizes them in their freedom of expression?

[Thomas Owen Ripley]

Thank you for the question, Mr. Champoux.

I will point out two things.

First, because the CRTC is an administrative tribunal, every decision it makes is subject to judicial review. That means people can use judicial review to challenge a decision made by the CRTC. We know that CRTC decisions sometimes go to judicial review.

Second, section 31 of the Broadcasting Act already provides the right to appeal a CRTC decision on a question of law or jurisdiction. Again, section 31 provides a right of appeal that can be exercised if one believes that the CRTC has misinterpreted the act in a decision it has made.

[Martin Champoux, Bloc, Drummond, QC]

You have raised a good point: if someone feels that the CRTC has misinterpreted the act, they have recourse.

I don't want you to think that I'm making you repeat yourself, Mr. Ripley. In fact, I've been listening to you very carefully over the past few weeks. I'd like you to tell us whether you feel there is any cause for concern that the current wording of Bill C‑10 could allow the CRTC to misinterpret the act and violate the Canadian Charter of Rights and Freedoms in its regulations. Based on your interpretation of Bill C‑10 and the Broadcasting Act, do you see any cause for concern?

[Thomas Owen Ripley]

Thank you for the question.

We know that, since the Broadcasting Act came into force, it has included a section indicating that the act must be interpreted with respect for freedom of expression and freedom of creation, among other things. Therefore, the government considers that this obligation is already included in the act.

Could a CRTC decision possibly violate the Canadian Charter of Rights and Freedoms? Yes, it's possible. Again, that is why the act provides certain remedies so that there is oversight by the court system. That's why we have federal courts that can ensure that decisions made by administrative tribunals like the CRTC obey the law.

For example, if there is a suspicion that a regulation on the issue of discoverability is not consistent with the Charter, a mechanism exists to go the court and get a response on that issue.

[Martin Champoux, Bloc, Drummond, QC]

I want to take advantage of your presence to ask you for some clarifications, Mr. Ripley. There is little time left in the five hours we have to close debate on this bill.

In recent weeks, our Conservative colleagues have repeatedly said that people are earning income from their activities on the Web, such as YouTube channels. They may be influencers or simply artists who use the new platforms to make a living from their art. Indeed, some of them make a very good living, and that's quite admirable.

These individuals are obviously not broadcasting undertakings per se. Is that how you understand the situation as well, Mr. Ripley? Could you be clear on whether a YouTuber, even if they are generating revenue through artistic, creative or other online activities, will be subject to regulation?

[Thomas Owen Ripley]

Thank you for the question.

Under proposed subsection 2(2.1), which is still in the bill, an individual who uses social media to disseminate content is not considered a broadcaster. They are therefore not subject to CRTC regulation.

There is no need here to consider whether that individual can participate in CRTC processes or whether they must comply with CRTC regulations or orders, as proposed subsection 2(2.1) is quite clear: An individual, unless they are affiliated with a social media outlet, is not considered a broadcaster, regardless of how many subscribers they have or how much annual income they earn from the content they post on social media.

[Martin Champoux, Bloc, Drummond, QC]

I'm glad you said that again, because that's exactly what I have understood from the beginning. I feel like the debate that's been going on for the last six weeks may have been unnecessary and that this committee could have resolved this issue long ago, if only we had taken the time to really listen to what the people we were talking to were saying.

Mr. Ripley, I have a question for you.

Personally, I worked for about 30 years in the media, in radio and television. Like other colleagues who have had a career in the media, I've followed the CRTC's activities and have seen its decisions. I may not have followed it all closely, but I took an interest in it. I've also been aware of the regulations and the changes that have been made to them over the years, even though they didn't always go the way we would have liked, particularly with respect to radio.

When it comes to regulations, the CRTC operates through hearings. When the CRTC puts regulations in place, it's as a result of hearings. The various stakeholders who wish to participate in these hearings send in their briefs or requests to appear. Subsequently, some are invited to appear to make their views known during the process. In the end, it works relatively the same way as a parliamentary committee.

Do you agree that if people who use online platforms to make a living from their art and creations feel challenged by this bill and by the introduction of these new regulations, they are free to participate in the CRTC's public hearings, in this case? Am I wrong in making that interpretation?

[Thomas Owen Ripley]

Thank you for the question.

As my colleague Drew Olsen explained earlier, the CRTC will be launching public hearings where people will have a chance to submit their views as well as documentation related to the regulatory process.

With respect to discoverability requirements that may apply to social media companies, anyone will have the opportunity to express their views on the subject. It's expected that digital creators and the associations representing those creators will have a keen interest in these regulatory issues and will participate in the process.

[Martin Champoux, Bloc, Drummond, QC]

Let me summarize how we interpret Bill C‑10 and the measures we want to put in place. I agree with my colleagues that we should not presume how the CRTC will interpret the act on which it will have to base its regulations. However, the current version of the bill doesn't raise concerns for users of online platforms, contrary to what some experts have suggested. According to several other experts, it doesn't represent an infringement of freedom of expression or of other principles in the Canadian Charter of Rights and Freedoms in general.

Furthermore, if by any chance people we did not have the opportunity to hear from are concerned and want to give their opinion, they could participate in the CRTC public hearing process.

Ultimately, if a decision made by the CRTC violates the principles of the Canadian Charter of Rights and Freedoms, including freedom of expression, there is recourse to the courts.

So there are several layers of protection, in my view.

Actually, this is not a question for you, Mr. Ripley. Rather, it is the conclusion I draw from the many responses you just gave me, for which I thank you very much.

I will try to stick to the amendment that we're talking about, Mr. Chair. I want to avoid doing what some of my colleagues seem to be doing, as you like to say, venturing off the playing field. We're talking about freedom of expression and adherence to the Canadian Charter of Rights and Freedoms and the tools we put in place to do that.

I believe we have listened carefully to everyone and we haven't muzzled anyone. I don't think we have censored anyone in the last six weeks. We've clearly heard the concerns of our Conservative colleagues. In fact, I think it's very unfortunate that we've come to a process like the one in place. Ultimately, we urgently need regulations to level the playing field in the Canadian broadcasting system.

We have artists in Quebec and in Canada who are anxiously awaiting this bill. It's urgent that it be passed. All these individuals are also eager to take advantage of the digital world, just as much as those who are already there or who have been discovered through digital media.

I very much hope that we will conclude this debate in a cordial and productive manner, and that we will all move forward with the best will in the world. As I said earlier, more than 200,000 artists, creators, craftspeople, technicians and authors, to name but a few, are represented by the handful of associations we've been in contact with over the past few months. They are imploring us to pass this bill before the end of the session.

I'm going to stop there, Mr. Chair. I know those individuals are listening. I just want to tell them that we stand firmly with them and we sincerely hope that we can deliver Bill C‑10, for which they have been waiting far too long.

Thank you, Mr. Chair.

[The Chair, Liberal, Scott Simms]

Thank you very much.

Before I go to Mr. Rayes, for the sake of transparency, we've already referenced the fact that we are under a five-hour debate instruction from the House. This is just to give you an idea of where we are as we get closer to the landing mark. Can everybody see the time? There you have it.

Monsieur Rayes, you have the floor, sir.

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

Mr. Chair, thank you for allowing me to speak to my amendment once again.

Let me go back to what my colleague Mr. Champoux from the Bloc Québécois said: all's well with the world as long as there are no problems. I know that Mr. Ripley says that freedom of expression is protected; he's giving us the department's take on it. However, as Mr. Champoux has correctly pointed out, there are many voices in this country, including credible experts, who are expressing an opinion that is completely opposite to the department's vision.

At the heart of this issue is the CRTC, an agency whose approach is, in some respects, challenged by a number of people, including former senior CRTC officials. They are strongly questioning this bill.

I want to make something clear: I am not trying to digress from the subject, but I want to talk about an article that was published this week in La Presse, which is one of the most credible media outlets in the country. The reporter Philippe Mercure wrote this piece about a decision the CRTC made on Internet rates. Some may say that this is not relevant to the topic, but I simply want to illustrate how the CRTC works. Prime Minister Justin Trudeau had clearly said in 2015 that he wanted to lower people's Internet bills. Despite clear government directives, the CRTC went back on its 2018 calculation and made a decision that helped the big players, to the detriment of the public.

According to the reporter who is an expert on this issue, the CRTC made “a 180‑degree about‑face, which the federal agency explains... by 'errors' made in 2019” in its own calculations. As a result of this decision, people's future Internet bills will more than double, because of an error that the CRTC apparently made in 2019. The reporter adds: “They ask us to just believe them. Except that the CRTC refuses to present a new calculation to justify its pro‑industry shift.”

Toward the end of the article, he writes: “So the regulator is simply choosing to cancel the rate cuts and keep the current ones in place. In a stunningly casual manner, it states that, in any event, the new calculations would 'probably' arrive at rates that 'might approach' those currently in use.” The CRTC decides of its own accord to say that it will not even do the rigorous, scientific exercise that is required.

When I see such things happening with respect to people's Internet costs, I am led to wonder. What does this have to do with Bill C‑10, you might ask? Well, I'm talking about the organization that will be given all these powers tomorrow morning, when we don't even know how the CRTC will read the bill, as Mr. Champoux pointed out. The CRTC has nine months to tell us how it will read the bill and how it will apply it, because there are no guidelines. All of us on the committee, not just the Conservatives, added guidelines to the bill for francophone content, Canadian content, and so on, because none of those things were there initially.

It is all very well to say that, based on how the bill reads, freedom of expression is protected. However, it seems to me that amendment CPC‑9.5 that I am proposing provides an additional safeguard to ensure that the CRTC respects freedom of expression, which is fundamental and which many experts have called for. I am not just talking about regular Canadians, but also about recognized experts from various universities and the legal field across the country.

My amendment simply requires that the CRTC publish the legal opinion on its website confirming that the Canadian Charter of Rights and Freedoms is respected, and that this opinion be published in the Canada Gazette.

My colleague Mr. Waugh was saying that he had never read the Canada Gazette, and that's why we want the legal opinion to be published on the CRTC website as well. I understand not wanting to add unnecessary paperwork, but this is not too complicated. It would just take a fairly simple little 101 course. We can all relay the information afterwards on our web pages and social media.

Given the CRTC's track record, this requirement is just one more protective measure we are taking as a country, as Canadians. This will be good for artists, both those in associations and those who are independent and work from home.

Honestly, I do not believe that amendment CPC‑9.5 is asking for anything excessive at all. With respect, even if it required a little more paperwork, as Mr. Ripley said in response to a question from Mr. Champoux, would that be too high a price to pay to protect our freedom of expression? I'm sorry, but freedom of expression is priceless.

I move this amendment with all due respect to my colleagues, to the officials who are here and to all those who have worked on this issue. Regardless of the expertise of each of us, we are all human beings. We have tried as best we can to improve the bill. It was not perfect at the outset, which explains the multitude of amendments that have been introduced. In fact, many of them are going to be squeezed through without our having had a chance to discuss them.

One way or another, the bill will be challenged in court. It is actually not true that things will go smoothly tomorrow morning, despite what people would have us believe. The Conservatives will not be the ones responsible for blocking the bill, the courts will provide us with justice. In this case, law professors or those in this specific area will challenge aspects of Bill C‑10. I think that they too are entitled to have their expertise recognized whenever and wherever they comment.

I don't want to go any further, because I really want to see the vote on amendment CPC‑9.5. I would also like to have the opportunity to introduce amendment CPC‑9.6 afterwards, if we are not yet at the end of the five‑hour period we have.

Thank you, Mr. Chair.

[The Chair, Liberal, Scott Simms]

Thank you.

Mr. Shields.

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair.

I appreciate Mr. Champoux's intervention and his opinions.

One of the things that he got from Mr. Ripley was the position that, yes, there are legal opinions. The second level they get, which they contract out, is legal opinions via the CRTC paying these people for those legal opinions.

As we've heard, this will be challenged in court for those people who, as you say and as I believe, are in disastrous need of support for moving on. This particular legislation, however, is going to keep that from happening because legal opinions are legal opinions, and there will be legal opinions on all sides.

I've been in elected positions where we would try with legal opinions to make legislation. At the municipal level, you do that, and you think that you've created the best, legally right legislation. Then you find out quickly that you haven't, but at a municipal level, you can change that legislation very quickly. You can amend it at the next meeting, or you can change the legislation at the municipal level.

I've been on provincial appointed boards—a health board—and we had lots of provincial lawyers, lots of them, but guess what? When somebody wants to challenge it, there are lawyers that they can buy for any legal opinion they want. When you put legislation in like we're going to, without as many safeguards as you can get, it's going to get challenged.

This amendment is attempting to add another layer of that legal opinion protection. That's what this is about, because the lawyers that they have, in house and contracted, are paid for by the government and the CRTC under their mandate, so their voice is for them. The outside legal voices will have differences of opinions. When you make a law federally—it's been 30 years since this one was touched—you don't change it next week, you don't change it next month and you can't fix it for many years, sometimes decades. You can do that at the municipal level. It's harder at the provincial level, and drastically difficult at the federal level.

These are legal opinions, both in house and contracted. With this legislation, they will be challenged because of problems with this legislation. It's going to tie this thing up in court. That's why you try, as with this amendment, to bring as much protection to decisions that are made as possible because those decisions, as we know, are made behind closed doors. There is no transparency, and there are no notes.

That's a field that's wide open for lawyers to get into—it really is. Yes, I wandered through law school one time and then came to my senses and said, no, I don't want to be doing this.

This type of thing makes it just a wide-open door for other legal opinions—it really does. When I say that word, “opinions”, that's what they are. They are in-house and contracted opinions for those who are paying their bills. For those on the outside, they will contract looking for opinions to support them, and that's why this will be tied up in court and delayed longer.

With this amendment, this is on a positive side trying to make it in a better place before it hits those opposition lawyers that will be there. This gives them more due cause to say, “This is grounds to challenge it.” If we see more transparency, if we see more legal opinions there will be fewer lawyers who want to challenge this because it's narrowed the field for more legal opinions to challenge it.

That's what this amendment is about. It's trying to protect this so that the legislation can move on and be enacted and protect those people in it. It protects the CRTC and their decisions. It adds another layer of validity to what they're doing. The more you leave it open, the more you leave it open for challenges, and if you don't understand how the legal field works, this is one that they're going to be able to see is more open to challenge without that extra layer.

Mr. Champoux, you want to get this done. People are waiting for it. I don't understand why you wouldn't want to put something in that more guarantees it is likely they'll get it, even a little slower, than its being challenged, with it more wide open for legal challenges to happen. They're all opinions until a judge makes a final ruling or a panel of judges makes a ruling. This is how the legal practice works. They all have opinions and they are people who are paid for those opinions. That's who they work for, the people who pay them, just like the ones in house work for the CRTC and the contracted ones.

I believe it's a good piece. Yes, it's going to slow the process down a bit, but it narrows the field for legal challenges by doing it, so we can get through this. It's a challenging piece of legislation. It could have been done much more quickly the other way, with fewer problems, if the amendment hadn't been made, but it's going to go forward. However, this is an amendment that could have helped.

Thanks, Mr. Chair.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Shields.

I'm going to go to Ms. McPherson.

Before I do, Ms. McPherson, the good news is that you have the floor. The bad news might be, as you can see, that time is dwindling. However, the floor is yours.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I will be as fast as I can. Thank you.

I just want to respond and say that I think this is a good amendment. I'm happy to support this extra oversight. I think that's great and I'm very thankful to Mr. Rayes for bringing this amendment forward.

However, I want to also just bring up the idea and to flag that when Mr. Shields spoke about legal opinions, and the legal opinions being those of the ministry or the government or of those who are contracted by the CRTC, it's important that we recognize that there was a letter sent to the Prime Minister by 14 of Canada's pre-eminent broadcasting, telecommunications and entertainment lawyers, with decades of experience, who spoke very clearly about the concerns that have been raised by some of the Conservatives.

They made it very clear that the commission is not being given any powers to infringe on Canadians' charter rights, that this is clearly outlined in the Department of Justice's update to the charter statement and that these lawyers agree with the conclusion. They say:

Bill C‑10 would restrict the powers the Commission would have over social media services to: mandating financial contributions to support Canadian programming or the recovery of regulatory costs; discoverability, so Canadian creators can be more easily discovered and promoted online; registration, so the Commission knows which services are operating in Canada; and audit powers, to ensure compliance with all of these powers....

They also said it is simply false and completely ignores that:

Users who upload content to these social media services would not be subject to the Act, as specified in proposed Section 2.1. Moreover, the Commission would not have the power to constrain the content on social media services, set program standards for these services or the proportion of programs on these services that must be Canadian.

Also some very smart legal opinion around this country has come forward and said some of the concerns that are being raised by certain members of this committee are completely unfounded. I think it's important that we get that on the record.

I realize I'm at the very last and at the tail end here, but I do want to make sure that that gets put into the record.

[The Chair, Liberal, Scott Simms]

Thank you, Ms. McPherson.

Everyone, that concludes our five-hour debate.

Before we take our health break, I'll be bold enough to say that I can represent everybody, all colleagues on this committee, and thank Thomas Owen Ripley, director general of the broadcasting, copyright and creative marketplace branch; Drew Olsen, senior director of marketplace and legislative policy; Kathy Tsui, who's the manager of industry and social policy in the broadcasting, copyright and creative marketplace branch; and Patrick Smith, senior analyst, marketplace and legislative policy.

Mr. Ripley, if I have left anybody out, please pass on my thanks. Indeed, you've been very gracious. We thank you.

Folks, following that, we now get to clause-by-clause as instructed by the House. We're going to go on a health break. I'd like to hold out for five minutes, please. When you're back on screen, turn your video on so that I can get a critical mass of MPs to begin once more.

Let's suspend for five minutes.

[The Chair, Liberal, Scott Simms]

Welcome back, everybody.

As you know, we are now within the confines of Bill C-10, clause by clause.

What I am going to do right now is explain the process in relation to the order that we received from the House of Commons. It goes like this:

That, in relation to Bill C–10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, not more than five further hours shall be allotted to the consideration of the committee stage of the bill....

That is what we have just completed. It continues:

That, at the expiry of the time provided in this order...any proceedings before the Standing Committee on Canadian Heritage on the said bill shall be interrupted—

We've just done that:

—if required for the purpose of this order, and, in turn, every question necessary for the disposal of the said stage of the bill shall be put forthwith and successively, without further debate or amendment.

What we're going to do is go through this clause by clause. There are three things to remember. Because of the orders from the House of Commons, voted on by a majority of the members, for these clauses there can be no debates, no amendments from the floor or subamendments pertaining to any amendment that is possible. This is a voting exercise that I am sure you have done before, and I don't need to explain how that goes.

Here is an important part. I have two rulings to make regarding the package of amendments that we have. For those folks who are listening at home, we as members propose amendments in advance to be studied and distributed amongst committee members, but they are not officially moved. We have gone through several. We still have several on the schedule here, but I have to get to two rulings before discussing any further.

Before I do the rulings, remember, whenever this chair makes any ruling, there is no debate on that ruling, but there is a process of appeal in a challenge. It has to be done following the ruling that is made. Again, I have two rulings, so let me deal with number one first.

Pursuant to the routine motion adopted by the committee, I have an obligation to put to a vote amendments from any member who is not a member of a caucus represented on the committee left to deal with in the package of amendments. These amendments will be deemed moved.

What I am saying to you is this: Orders that were adopted a few years ago—and I mentioned this during the committee—deem that motions by any unrecognized party on the committee are deemed to have been moved. In this particular case, it comes from one source, which would be the Green Party. These are all the amendments that say PV, Parti vert, so they are PV-26 and PV-27.

According to the routine motions that we have adopted, those motions made by Mr. Manly, PV, have been deemed moved. That means we will be voting on Parti vert, Green Party amendments that were proposed, because they have been deemed moved. This is a rule in place.

Now, again, Mr. Manly does not have the right to vote, but he does have the right to propose amendments, and once those are in our packages, those are deemed moved. Therefore, we will be voting on those.

That is the first ruling.

By the way, there's something else I should mention. I'm going to go very slowly with this, because I want everyone to understand what we're doing and I want to make sure that everyone is aware of how the process goes. I'll probably go at the pace of the heartbeat of a hibernating bear, and I apologize if you find that frustrating, but I truly want everyone to understand.

Mr. Rayes, I see your hand up.

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

Mr. Chair, I don't know if this is a valid point of order or if it's just a request for clarification, but it seems to me that the time allocation motion adopted by the House of Commons clearly states that no new amendments can be introduced once the committee has reached the five hours of debate, as we just did.

So I would like a clarification from you, Mr. Chair. I was under the impression that after that time, only those amendments that had already been introduced would be voted on, not the others that were added later.

[The Chair, Liberal, Scott Simms]

The clarification is this: It's about what motions have been moved. The package you have contains all of them, from LIB to CPC to NDP to PV. In order for it to be considered, it has to be moved.

We adopted a motion at the beginning of this session that stated that motions put forward by any party that is not recognized on committee are deemed moved, so all of the PV amendments that you see in your package are deemed moved on day one of the clause-by-clause consideration.

If it's not moved, then it's not on the table to be dealt with. If you recall, I couldn't do anything about a lot of the other amendments because they weren't deemed moved, but because of the rules adopted at the beginning of the session, any party that is not recognized has the ability to put these in, to submit them to the chair, to the committee, and they are automatically deemed move.

That is a ruling that I made based on the standing orders.

Mr. Aitchison.

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

I'd like some clarification as well then, Mr. Chair.

Based on that, the only remaining amendments that are moved are those Green—

[The Chair, Liberal, Scott Simms]

Mr. Aitchison, you may find an answer to what you're asking when I do my second ruling.

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

Thanks. I'm sorry. I got ahead of you.

[The Chair, Liberal, Scott Simms]

I don't mean to prejudge what you're about to ask. It's just that I think I might be able to answer your question.

Right now I'm still dealing with the first ruling, so now that is done.

That brings me to my second ruling.

All the rest of the amendments here have not been moved. Therefore, under the guidance—and in this case it's fairly strict guidance—of the standing orders, we will not be able to vote on the amendments by the parties.

Does everybody now understand why? It's because they're not moved. I am under strict orders to look at clause-by-clause on Bill C-10. These amendments have not been moved, and we cannot vote on something that has not been moved.

Mr. Housefather.