Canadian Heritage Committee on May 31st, 2022

[The Chair, Liberal, Hedy Fry]

Well, okay, just give your—

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

Ms. Thomas is seeking clarification. The CRTC officials are waiting outside. If Ms. Thomas would set aside her motion, we could get clarification from the CRTC.

[The Chair, Liberal, Hedy Fry]

Mr. Julian, that is not a point of order; I'm sorry.

Ms. Thomas, continue.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Madam Chair.

As I was saying that because of this discrepancy that exists between what Mr. Scott testified on May 24, 2022, and what the charter statement says, I am asking that this committee members consider the motion that is before them, which of course would ask for a revised charter statement with regard to Bill C-11, and that it be granted to this committee as soon as possible.

Of course, I am also asking that we hear from the Minister of Justice and the Minister of Canadian Heritage, along with any officials they feel might be necessary.

Now, let me jump into my proof of point here as to why this motion is so important—not the motion itself, but what it's calling for.

The action that the motion is insisting we take is so important because we have two different authoritative sources with two very different interpretations of this legislation and of the impact that it is going to have on Canadians, and Canadians deserve clarity. Those individuals who exist as digital first creators, for example, here in Canada, deserve to know: Are they as individuals generating content captured by this bill or are they in fact exempt? They deserve that clarity. That is what I'm asking for today.

I'll take you to the transcript from committee in May with Mr. Scott. At that committee, I said this:

Bill C-11 does, in fact, leave user-generated content open to being regulated by the CRTC. I recognize that there have been arguments against this. However, Dr. Michael Geist has said, “The indisputable reality is that the net result of those provisions is that user generated content is covered by the bill.”

Jeanette Patell from YouTube Canada has said, per The Canadian Press,“the draft law's wording gives the broadcast regulator”—in other words, you—

—that is, meaning those in the room at the time—

—scope to oversee everyday videos posted for other users to watch.”

Scott Benzie, from Digital First Canada, has said, per the National Post, “while the government says the legislation will not cover digital first creators, 'the bill clearly captures them.'”

Madam Chair, my point was this at that committee: I was raising attention or raising the alarm bells and showing that we had Dr. Michael Geist, Jeanette Patell, and Scott Benzie all saying that the user-generated content of digital first creators would in fact be captured by this bill.

Now, we have since heard from many other witnesses at this committee that this is in fact their understanding of this legislation as well. Mr. Ian Scott believes otherwise—or, sorry, he agrees, actually. Sorry, he does agree. The minister is the one who is trying to argue otherwise.

When I posed that question, then, to Mr. Scott, at that point in time, back in May at this committee, he said:

As constructed, there is a provision that would allow us to do it as required, but if I could just quickly respond to the general tenor of those comments, that's all true today. We could do any of those things today under the Broadcasting Act.

It's very interesting. He's affirming that user-generated content is in fact captured by this piece of legislation, and that the CRTC can in fact put so-called provisions in place that would apply to those who generate online content as individuals.

After Ian Scott responded, I said the following:

My question for you, then, is this. Isn't the point to modernize it? Why would we keep that so broad by keeping proposed section 4.2 in the current bill? Why wouldn't we remove that?

Mr. Scott responded by saying:

With respect, it's not our place to make recommendations about the definitions in the legislation. What I would answer is that there should be a higher degree of trust in relation to the commission's future actions. It's demonstrated, as I said, by 50 years of broadcast regulation. We have never interfered in individual content.

Madam Chair, what I find interesting about Mr. Scott's statement on that day are a couple of things. One, he is, in fact, affirming that yes, user-generated content is caught within the scope of Bill C-11 and that the CRTC can, in fact, regulate individuals who are posting information online.

In so many words he goes on to say that Canadians just need to trust us. That's the problem; they just need to trust us. We shouldn't worry about putting it in a legislative document. We shouldn't worry about making sure that the provisions are concrete and drafted in legislation. Canadians should just trust us.

My thought and the thought of many of those who I am standing for here today, is why should we just trust them? Isn't this the point of putting legislation in place and going through this process? After all, we are at this committee because we are discussing Bill C-11, and we are currently hearing from witnesses. From there we will go into discussing the piece of legislation clause by clause.

Throughout this journey, it is our responsibility as legislators to understand this bill to the greatest extent possible. It is our responsibility to make sure that it is for the common good and that it will serve Canadians well. When the language is purposely left vague, which is what Mr. Scott is pointing to there, that should be alarming for everyone. No matter what your political colour is, no matter your political stripe, that should be alarming.

Those at this table should wish to have very black and white legislation to the greatest extent possible. It should not be left up to the CRTC to determine to what extent it wants to function within the realm of this legislation, apply it or not apply it. That should be clearly directed by this legislation.

Innovation takes place most readily in environments where regulatory schemes are known, where investors and creatives can have confidence in legislators and in the process followed. By leaving Bill C-11 grey in this area and by allowing the words of Mr. Scott, which are contrary to the words of the minister, Mr. Rodriguez, to just hang there, we are then, in fact, reinforcing this lack of safety and security that investors and creatives are so looking for.

It's not just about them; it is also about every single Canadian who ever posts something on YouTube, TikTok, Twitter or any other platform of their choice. Canadians deserve to know. Will their individual content be captured by this bill or will it not be? Right now, the minister says no, but Mr. Scott says yes. At the end of the day, Mr. Scott is going to be the one put in charge of making sure that Bill C-11 is put into practice. My interpretation is that certainly those individual creators—again, I would say any Canadian—who has posted or plans to post online has great cause for concern with regard to this legislation and the way that it could impact them. As we heard from Mr. Scott, they are, in fact, captured by Bill C-11.

However, I would like an opportunity to hear from the justice minister with regard to his thoughts on Bill C-11 and whether it captures user-generated content. The way we would pursue that is by seeking out a charter statement. That charter statement would then be put together. It is an official document that would outline whether Bill C-11 is in fact compliant with the charter and whether it does in fact capture user-generated content, which is, in other words, the material that individual Canadians post online.

It would allow us, as a committee, to move forward in the direction that we need to. In other words, either we accept the bill as it is or we propose amendments that would help to strengthen it and allow for certainty among individual Canadians and especially among digital-first creators.

Again, I would present to this committee that this is a reasonable request, based on a few things.

First, it's similar to a request that was put forward after changes were made last spring to Bill C-10, the predecessor to this bill.

Second, it is always in the best interest of legislators to have the greatest degree of clarity as possible, so that they are making good decisions on behalf of Canadians.

Third, we have heard from many witnesses at this committee since Ian Scott spoke and they, too, have raised this concern that user-generated content is in fact captured.

I'm not just talking about individuals with opinions, I'm talking about individuals with legal backgrounds. I'm talking about people like Peter Menzies, who is a former CRTC commissioner. I'm talking about Dr. Michael Geist, who is an expert in this subject area and a professor and a lawyer. I'm talking about individuals from the Internet Society, who have decades of experience with this material and who have far more letters behind their names than I do.

Having that testimony on the record and having this discrepancy between what is in the charter statement and what Mr. Ian Scott, the chair of the CRTC, has said, does require clarity. The best way to get that is by asking for that.

Some people might be saying that they didn't see the charter statement. That's okay. It's no problem. I'll familiarize you with it.

We do have access to it. It is online. This was tabled in the House of Commons on April 1, 2022. I would encourage my fellow colleagues at this table to read it. The purpose of the charter statement is as follows:

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”].

The point of this statement is to look for any inconsistencies or incongruence. It is, in fact, the Minister of Justice's responsibility to make sure that has been done.

I would argue it's his responsibility to make sure that has been done, not just when the original legislation is tabled, but if any changes are made to that legislation through the process or if any authoritative voices would challenge that charter statement, particularly in this case, when you have the chair of the CRTC, who will be implementing Bill C-11. If he is unclear or misunderstanding the intent—

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

I have a point of order.

[The Chair, Liberal, Hedy Fry]

Mr. Julian.

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

The chair of the CRTC is waiting right outside this room and could answer all of those questions if Mrs. Thomas, instead of blocking and vandalizing this committee meeting, would actually just ask the questions of the chair of the CRTC.

Through you, Madam Chair, I would ask Mrs. Thomas to do the right thing. She knows it's the right thing to do. She knows having the CRTC answer questions is what we should be doing as a parliamentary committee.

I would ask, through you, Madam Chair, that she table consideration of this motion rather than vandalize the CRTC's appearance, so that we can ask those questions and get the answers from the CRTC.

[The Chair, Liberal, Hedy Fry]

Continue, Ms. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Madam Chair.

It's interesting to me that my colleague raises this question of right and wrong. He is saying to you, as chair.... I believe he was saying through you, perhaps to me, that I know what is right.

It's interesting to me, because what I know to be right is to defend Canadians. What I know to be right is to insist on truth. What I know to be right is to fight for justice, which means that we should be pursuing clarity with regard to Bill C-11 and insisting on a revised charter statement, so that we can in fact make sure that user-generated content is kept out of the scope of this bill and that it is clarified to the nth degree by the justice minister.

That is what I know to be right, in case Mr. Julian cares to understand my moral compass and what I am contending.

With regard to Bill C-11 and the charter statement that has been put in front of us, as of April 1, 2022.... I've lost my train of thought, so I'll just start from the beginning with regard to the explanatory note.

It states, “Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills.” In other words, this statement exists to inform the conversation that takes place here. If the charter statement is in fact misinterpreted or not clear, then it is actually not informing us correctly, but rather misinforming us in terms of how we move forward on Bill C-11.

This explanatory note goes on to state, “One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing...”.

I'm sorry, Madam Chair, but there are a number of members here in the room who are speaking, and it's a bit distracting.

I'll just let you speak to that.

[The Chair, Liberal, Hedy Fry]

I am not hearing members speaking, but could members keep their voices low, please, so that it does not distract Ms. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Given that for the Minister of Justice it is one of his most important responsibilities to examine legislation and then to provide us with this charter statement, and given that the testimony provided by Mr. Scott is incongruent with what the minister is claiming, then I would say that it is very important that we gain a better understanding as to what is going on here.

Again, I would remind the committee, through you, Chair, that it is not just us, not just this committee, being informed, though that is very important, because ultimately we do have the responsibility to wade through this legislation and understand it at a very detailed level. Also, again, it is for the sake of Canadians and making sure that they have access to accurate information.

It is also to make sure that they are having Bill C-11 applied to them in the way that the minister intends. If he intends to capture user-generated content, then this bill needs to very clearly say that. I see where it does, but others would say that's more of a grey area, so let's just clarify that. If in fact Bill C-11 isn't meant to capture user-generated content, just say that as well, but regardless, this bill requires a great degree of clarity. The charter statement can help bring that clarity:

A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

In other words, if Bill C-11 does in fact capture user-generated content, then it can be argued that it is in breach of section 2(b) of the charter, which is on the right that Canadians have to freely express themselves. In what we now call the “new public square”, which would be online, Canadians should be protected to be able to share their opinions, their thoughts and their beliefs without being regulated by the CRTC.

You can see the dilemma, Chair. If user-generated content—the content that individuals post online—is captured by this bill, then it would be in breach of section 2(b) of the charter. If that's the case, then, this note does say that Parliament must show that it is “demonstrably justifiable”. That is what this says. However, again, if user-generated content is not captured by this bill, if we want to make it very clear that it's not—I should say if the minister wants to make it very clear—then there are some adjustments to this piece of legislation that are needed in order to make that absolute and in order to then protect people's individual rights and freedoms as written under the charter and, in particular, in section 2(b).

Here in this explanatory note, the justice minister goes on to write that:

A Charter Statement is intended to provide legal information to the public and Parliament on a bill's potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

In other words, this charter statement can be adapted, which is exactly what we are asking for—we being my Conservative colleagues and I—and of course, we're hoping that we can gain the support of those around this committee table. We hope that they too want as much clarity as possible when it comes to Bill C-11, and to what extent it captures online material and regulates it.

Now, I recognize that my Liberal colleagues across the way may not be amenable to this because, right now, the minister is putting forward this narrative that user-generated content is—according to him—left out of this bill, but that is not what Mr. Scott says. Again, he is the one who is responsible for making sure that Bill C-11 is enacted, and if he is interpreting this bill—

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

I have a point of order.

[The Chair, Liberal, Hedy Fry]

Mr. Julian.

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

Mr. Scott is waiting outside of this room. Why don't we ask Mr. Scott?

Why doesn't Ms. Thomas adjourn the debate on her motion so that we can actually hear from Mr. Scott? She's making a lot of statements about Mr. Scott. He's waiting outside of the room, and so are the CRTC witnesses.

I would ask through you, Madame Chair, that Ms. Thomas adjourn the debate on her motion so that we can actually hear from the CRTC and from Mr. Scott.

[The Chair, Liberal, Hedy Fry]

Are you moving that we adjourn the debate, Mr.....

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

Certainly.

[The Chair, Liberal, Hedy Fry]

I don't know. I'm not quite clear on what you're saying.

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

Yes, I move that we adjourn the debate.

[Rachael Thomas, Conservative, Lethbridge, AB]

Madam Speaker, I have a point of order.

[The Chair, Liberal, Hedy Fry]

Ms. Thomas, the motion to adjourn debate is not debatable, and it's not amendable.

[Rachael Thomas, Conservative, Lethbridge, AB]

It's also not moveable on a point of order. Please check with the clerk.

[The Chair, Liberal, Hedy Fry]

It is true that it's not moveable on a point of order, but I think it's in line because we....

I just need to inform everyone in this room that we must actually leave this room at 6:30 because, according to the rules, the interpreters must have a 30-minute recess before the start of the next scheduled meeting which will be at seven o'clock.

Continue, Ms. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Chair.

[The Chair, Liberal, Hedy Fry]

Mr. Julian, you cannot move a motion on a point of order. You know that, don't you?

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

I received that kind invitation from you, Madam Chair, so I didn't want to miss the opportunity.