Canadian Heritage Committee on May 31st, 2022

[Philip Palmer]

The principal case for all federal regulation of broadcasting space is, of course, the radio reference of 1932. In that, the court relied upon the provisions of subsection 92(10) of the Constitution Act to find that, in transmitting radio waves, they necessarily exceeded provincial boundaries and, therefore, could only be effectively regulated at the federal level. The key is that, in order to be regulated by the federal government, the “undertaking”, as the Constitution uses the word, has to be one that has the facilities to exceed provincial limitations and provincial boundaries.

[Anthony Housefather, Liberal, Mount Royal, QC]

I understand that, Mr. Palmer. I'm sorry. I only have six minutes.

Is that case the only case you're going to refer me to? Are there successor cases that you—

[Philip Palmer]

There are successor cases, Capital Cities, and Public Service Board versus Dionne, both of which held back the federal jurisdiction over cable undertakings, rested again on the fact that they employed radio waves. They received radio waves that came over interprovincial or international boundaries.

[Anthony Housefather, Liberal, Mount Royal, QC]

I understand that. I don't agree with your interpretation in this case.

I would like to ask Mr. Trudel what he thinks.

Mr. Trudel, you have heard what the witness has said. Do you agree that these types of changes to the Broadcasting Act are unconstitutional?

[Pierre Trudel]

If this were unconstitutional, it would be because it would be a matter of provincial jurisdiction. The question would then have to be asked: is it better for 10 provinces to put in place regulations on these matters or for the federal authority to do so?

There are arguments that radio waves are not the only basis for federal jurisdiction in these matters. There is, among other things, the question of national interest and the inherently interprovincial nature of the activity. In short, all these arguments may have to be argued before the Supreme Court.

Either the federal government has authority, or the provinces do. Therefore, it is to be expected that the Canadian state will intervene sooner or later, whether through the provinces or through the federal government.

[Anthony Housefather, Liberal, Mount Royal, QC]

There's also the argument that this goes against the freedom of expression granted by the Canadian Charter of Rights and Freedoms. Can you give us your views on this?

[Pierre Trudel]

In my opinion, that argument is devoid of any foundation.

First, the Broadcasting Act itself prohibits the CRTC from making decisions that violate freedom of expression. Therefore, I do not understand how anyone can argue that merely putting in place a legislative framework that ensures the proper functioning of undertakings in light of Canadian broadcasting policy imperatives violates freedom of expression.

In fact, to date, Canadian courts have consistently recognized that Canadian broadcasting legislation is compatible with freedom of expression, including in the case involving CHOI‑FM, a Quebec City radio station, where this issue was specifically challenged.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

Madam Chair, do I have any time left?

[The Chair, Liberal, Hedy Fry]

You have 40 seconds.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much.

I have a quick question for Mr. Denton.

Mr. Denton, I'm referring to a Financial Post article where you refer to the guiding principles on diversity of content online, which is essentially the policy document associated with Bill C‑10. You called it “totalitarian”, and you essentially compared it to communist Russia under Brezhnev.

Is your feeling that Bill C‑11 is also leading to a totalitarian state similar to communist Russia under Brezhnev?

[The Chair, Liberal, Hedy Fry]

You have four seconds in which to answer, Mr. Denton.

[Timothy Denton]

I reject the premises of the question.

[The Chair, Liberal, Hedy Fry]

Thank you very much.

We now have ended this section.

I'm going to go to Monsieur Champoux from the Bloc Québécois, for six minutes, please.

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Madam Chair.

I thank the witnesses for being with us this morning.

Good morning, Mr. Trudel. It's good to see you again.

Parallels are drawn quite regularly between the 1991 Broadcasting Act—you were in fact involved in the drafting of it—and the new legislation that the government is attempting to bring in to regulate streaming on web platforms. Just this morning we heard people making those kinds of parallels.

For your part, do you see any parallels between the reality that we are trying to regulate now and what we were doing in 1991?

Could or should a new law have been written completely from scratch?

What is your view on this?

[Pierre Trudel]

The option that was chosen in Bill C‑11, as I understand it, is to bring broadcasting and transmission activities that use the Internet medium under the Broadcasting Act. There may have been another option. For example, the Yale Report, entitled “Canada's communications future: Time to act”, recommended instead that an entirely new communications act be created, which could have considered these issues in a different way.

There is one constant between the Broadcasting Act of 1991 and the bill currently before you, and that is the concern that companies that benefit from the Canadian audience in the broadcast of their programs contribute to the financing of the production of Canadian programs. This is the basic philosophy of the 1991 Broadcasting Act, and this is what the current Bill C‑11 seems to want to carry forward.

Broadcasting in Canada is not viewed primarily as a market in which there are suppliers and consumers. It is a tool for societal cohesion, through which we want to ensure that everyone has a voice, that there are services in both official languages throughout the vast territory, and that indigenous peoples have a say and an opportunity to have a voice in the system.

So, it's not just consumers using the Internet to broadcast their programs, which is perfectly permissible and legitimate. Indeed, that is why the act provides that the CRTC has the authority to target only those activities that have a demonstrable impact relating to Canadian broadcasting policy objectives. That is the strength of the act, it seems to me.

[Martin Champoux, Bloc, Drummond, QC]

What we did during the 1930s and did again afterwards was to adapt to the different means of communication, which were changing over time. Today we are faced with the same necessity, according to what you say, and we must adapt to the new means used in broadcasting activities.

[Pierre Trudel]

Yes, exactly. You are absolutely right. We had the same debate when cable came along in the 1970s and when specialty channels came along. There's always this kind of debate when a new technology comes along.

[Martin Champoux, Bloc, Drummond, QC]

You were there when our committee was studying Bill C‑10 last year. We had the opportunity to talk to each other a few times. This year, we're looking at Bill C‑11, and as you can see the incorporation of section 4.2, which has been rewritten, into the Broadcasting Act is being proposed once again.

What do you think about the return of the proposed section 4.2 to the bill, which is causing a lot of reaction? Do you think it is clumsy? Do you think it is well written? How do you rate people's concerns about this section?

[Pierre Trudel]

I do not share these concerns. The Broadcasting Act already gives the CRTC full discretion, and more importantly, requires it to deal only with activities that have a demonstrable impact on the achievement of Canadian broadcasting policy. In the past, the CRTC has used the current section 9(4) of the Broadcasting Act to avoid regulating precisely what it did not have to regulate, to the extent that it did not affect the achievement of the policy.

It seems to me that we could just as easily have been content with this approach, which, in my view, offers the best safeguards to ensure that we do not regulate services that have no demonstrable impact on the achievement of the objectives of Canadian broadcasting policy.

If we had avoided introducing what has been introduced in Bill C‑11, I think we would have a much clearer law.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Trudel, do you feel that if we make a law that is too specific, that goes into too much detail, we are cutting the legs out from under the CRTC when it comes to regulating the broadcasting system, in addition to not properly addressing people's concerns on these particular sections?

[Pierre Trudel]

That is exactly my opinion. So my answer will be very brief: you are absolutely right.

[Martin Champoux, Bloc, Drummond, QC]

Thank you very much.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Monsieur Champoux.

I now go to the NDP and Peter Julian for six minutes, please.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Madam Chair.

I also thank all the witnesses. We are very happy that they are here, because their testimony is important.

We have been having witnesses here since last week, and the overwhelming majority of them support Bill C‑11. Some of them have proposed amendments to us.

I will start with Mr. Trudel.

You said you support the bill. Do you still find that it could be improved?

[Pierre Trudel]

Yes. In my opinion, there are two ways to improve Bill C‑11.

First, I would remove the proposed provision that prohibits the CRTC from requiring the use of algorithms or software solutions. These are tools that can be useful in regulation. I don't understand why the CRTC would be prohibited from using tools of this nature if it deems it appropriate. In my view, subsection 9.1(8), which the bill proposes to add to the Broadcasting Act, should be deleted.

On the other hand, I would add something in the bill about the requirement for the CRTC to hold public hearings. It says that the CRTC will be able to make orders to impose conditions on undertakings that will be regulated, that is, those that have a significant impact on Canadian broadcasting policy. It seems to me that the CRTC's issuance of such orders should be conditional on the holding of public hearings at which everyone can be heard and make their views known. In my view, this is a tradition of Canadian broadcasting policy that should be maintained.

In Canada, we have been successful in creating a national dialogue on these often difficult and controversial issues. The CRTC has been, and should continue to be, that forum in which any actions or orders it considers could be openly debated by all citizens and interested groups. For this reason, I believe that the CRTC's obligation to hold public hearings should be expanded so that it also applies when it makes orders.

So those are the two improvements that I think could be made to the bill: removing the prohibition on requiring the use of software and expanding the obligation to hold public hearings.