Canadian Heritage Committee on June 14th, 2022

[Martin Champoux, Bloc, Drummond, QC]

As it stands, Madam Chair, people can appeal to the Governor in Council to discuss licencing decisions. Through Bill C-11, we are balancing the broadcasting market to include online businesses in the regulations in the most appropriate way possible. The CRTC could therefore issue orders to online undertakings that have a major impact on the broadcasting system, just as licences have an impact on traditional broadcasting undertakings.

By adding this definition of the word “decision”, we're opening the door to orders that will be issued by the CRTC, in the same way as licences—and that will have, we can imagine, the same effect, the same scope and the same consequences—that can also, be appealed to the Governor in Council. We're not trying to bog the system down with this definition, we're not trying to open the door to all kinds of challenges on the smallest comma of a decision that will be made by the CRTC.

I think we need to give ourselves that opportunity to appeal. This is consistent with what we're trying to do with Bill C-11. I think the presumption that we're going to bog down the system with all kinds of appeals to the Governor in Council with the definition we're proposing to add is a bit of a stretch. If that were the case, I believe there are ways to remedy the situation afterwards. I really believe in the appropriateness of this definition allowing for appeals to be made against orders as well, and not just against licence renewals and licencing decisions.

[The Chair, Liberal, Hedy Fry]

Thank you.

If no one else wishes to speak, I will call the vote.

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Madam Chair.

I appreciated Mr. Champoux's intervention.

I want to ask Mr. Ripley and the officials whether there is a desire, which there seems to be, among some members of the committee to insert a common sense or clear definition of what a decision is, since it is referenced in the act but is undefined. Obviously, throughout the years of an undefined term, there have been interpretations in administrative law and otherwise that have led us to the status today, which is, again, undefined for the average person, because there's no definition.

What would the status of the law be today, if you were going to compose a definition for today's status? What would it actually be?

My subsidiary question is this: If the thing you're most concerned about is the consultation issue, would amending it to say, “'Decision' means any measure of any kind taken by the commission, except with regard to consultations”, or something like that, reduce the scope in a way you see as less of an issue?

I'm just trying to understand.

[The Chair, Liberal, Hedy Fry]

Go ahead, Mr. Ripley.

[Thomas Owen Ripley]

What I might suggest, in that instance, would be something like an inclusive definition, so the decision would include—again, I'm thinking on the spot here, so you'd want to give it some thought—things like a licensing decision, such as, for example, an order made under section 9, an order made under section 9.1, a regulation made under section 10 or a regulation made under section 11.1. You would leave some breadth for courts to be able to assess, in a specific instance, whether the CRTC actually made a decision that engaged administrative law.

I certainly appreciate and understand what Mr. Champoux's objective is in this, and I know Bill C-11, as it is currently drafted, seeks to achieve a balance between the appropriate role of oversight by cabinet and the courts in CRTC decision-making. Perhaps, for the benefit of the committee, part of that puzzle.... I would draw your attention to clause 34.01 of the bill, which is the provision that requires the commission to consult with all interested persons on all orders made under sections 9.1 and 11.1, in order to make sure they continue to be responsive.

Part of the challenge, from where we sit, and based on Mr. Champoux's explanation, is that right now, we have a system in which a licence is typically renewed every five to seven years. Yes, that licence renewal can be petitioned to cabinet. The framework proposed by Bill C-11 would be more of a regulatory-type framework. We envision a framework whereby the CRTC will regularly update its regulations and orders.

If I understand Mr. Champoux correctly, his objective is that every one of those instances could be petitioned to cabinet. Again, that goes to my earlier comment about ensuring there's an appropriate balance between which decisions truly should be reviewed by cabinet versus which ones are best left up to the CRTC, acknowledging that there are other avenues through which its decisions can be appealed on questions of law. Its decisions can also be judicially reviewed if stakeholders truly feel there's something incorrect with a decision the CRTC has made.

[The Chair, Liberal, Hedy Fry]

Mr. Housefather, does that satisfy you?

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Madam Chair. Yes, it was very clear.

I don't think I have the ability to develop such a definition on the fly. That's what I was looking to see if I could do, and I don't think I can.

I understand the concerns and I appreciate them.

Thank you, Madam Chair.

[The Chair, Liberal, Hedy Fry]

I shall call the question on BQ-2, Mr. Champoux's amendment.

(Amendment agreed to: yeas 6; nays 5)

[The Chair, Liberal, Hedy Fry]

Just for the committee's sake, as this amendment has been carried, PV-0.2 and NDP-1.1 become moot, since they are identical.

We shall move on to LIB-1.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Chair, I agree that my amendment can't move forward in light of the previous motion's passing. I just want the record to reflect that it was not identical.

I agree that it can't be moved. Thank you.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Ms. May.

Now we're going to move to Liberal motion—

[John Nater, Conservative, Perth—Wellington, ON]

On a point of order, Madam Chair, we have an amendment before we move to LIB-1.

[The Chair, Liberal, Hedy Fry]

Is it a new off-the-floor amendment?

[John Nater, Conservative, Perth—Wellington, ON]

It's kind of off the floor. We submitted it, but it wasn't included in the package, so we have—

[The Chair, Liberal, Hedy Fry]

All right.

Maybe the legislative clerk can let me know what it is, because I have not received it, and also let the rest of the committee, who may not have received it, know.

Go ahead, Mr. Méla.

[Philippe Méla]

We received it after the package was sent this morning, so we made copies for the benefit of everybody around the table. We're going to circulate that immediately.

[The Chair, Liberal, Hedy Fry]

Can someone please send it to me?

[Philippe Méla]

Yes, we will.

[The Chair, Liberal, Hedy Fry]

Thank you. I will suspend while that's being done.

[The Chair, Liberal, Hedy Fry]

Go ahead, Mr. Nater.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Madam Chair.

This is an amendment related to the definition section of the bill, and it relates to the term “discoverability”, which, as we know, has been a subject of great discussion here at the committee and in the public. We felt it was important to include at least a basic definition of “discoverability” for the purposes of the act.

What we propose is this: “discoverability means the possibility for Canadians to search for and find Canadian content”.

I think this is an appropriate definition in that it constrains the definition sufficiently so that we don't run into challenges where some content is bumped up while other Canadian content is bumped down. It provides the option for Canadians to easily find Canadian content through the search function. I think this is a reasonable effort to come to a consensus on what the definition of “discoverability” is before moving forward with the rest of the act.

I will leave my comments at that, other than to say that I think it's important we understand what discoverability is before we get into the meat of the legislation.

[The Chair, Liberal, Hedy Fry]

Thank you very much.

I understand that Mr. Bittle's hand is up.

[Chris Bittle, Liberal, St. Catharines, ON]

I'd like to ask officials again what the impact of this amendment would be on the legislation.

[The Chair, Liberal, Hedy Fry]

That's for Mr. Ripley, I think.

I don't know if you're going to answer it, or if someone else is.

[Thomas Owen Ripley]

Thank you, Chair.

Mr. Nater is correct in that there is currently no definition of discoverability. The government's position on that is that it includes a number of different measures, including marketing and promotion, things like showcasing on landing pages, and increased visibility of Canadian stories and music.

The definition that is being proposed seems to suggest a focus particularly on one kind. I would look to Mr. Nater to clarify his intention, but it seems to emphasize the element of being able to search for and find Canadian content in online undertakings.

I would note as well that the term “Canadian content” is not one that is actually.... Although we colloquially always talk about “Canadian content”, it's not a term that's actually used in the bill. Typically, we use the terminology “Canadian program”, so I would also point that out.

That would be my initial answer, Mr. Bittle.