Debates of Sept. 16th, 1996

Privilege

[The Speaker]

Prior to the adjournment the hon. member for York South-Weston reserved the right to speak on a point of privilege. Is this the point of privilege the hon. member was referring to?

[John Nunziata, Liberal, York South—Weston, ON]

Mr. Speaker, it was not my intention this morning to make submissions with regard to the point of privilege I raised with you prior to the adjournment of the House on June 19, 1996. As the sponsor of Bill C-234, I feel compelled to make submissions with respect to this point of privilege.

It seems the matter before the House this morning is not one that is partisan in nature but one that deserves the very careful consideration of the Chair.

I am not about to impute any motives to the Justice committee or to any other committee as to the reasons why it may or may not have decided to report my bill back to the House.

Mr. Speaker is the custodian of the rights and privileges of all members of Parliament in the House. That is why I request that you not deal with this matter summarily and render a decision today, but rather that you reserve judgment on this matter and give careful consideration not simply to the precedents because, as you know, the precedents could be interpreted in many different ways, but that you look at this issue from the point of reference of today.

Given the commitment of various committees of the House and the government for parliamentary reform, it is important to look at the private members' process. In my respectful submission, if there is to be any integrity at all to the private members' process it should not be left up to the majority of government members of any given committee, whether it be the present government or any other government, to undermine the process or the integrity of the process in any way.

All members of this House have committed themselves to parliamentary reform. When the supreme body on Parliament Hill, the House of Commons, makes a decision with respect to a bill, I would suggest to you, Mr. Speaker, that it is not up to a committee of this House, even a standing committee of this House, to thwart the wishes of the House of Commons itself.

The House of Commons passed Bill C-234 dealing with the repeal of section 745 of the Criminal Code, a provision which allows first degree killers to apply for early release. This House in its wisdom decided at second reading to support the bill in principle and to refer it to the committee. That was the decision of the House. If you allow the decision of the justice committee to stand, in effect you are allowing the justice committee to thwart the wishes of this House.

What did this House want to happen to that particular bill? It wanted the bill to be sent to committee for consideration. Presumably everyone in this House expected at some point after due consideration and recommendation from the committee that it would be brought back to this House for further consideration and for a final vote.

This is an important matter. If we as members of the House of Commons are truly committed to parliamentary reform and to the whole private members' process, I would ask, Mr. Speaker, that you rule that the committee was not within its jurisdiction to do as it did.

In conclusion I should also point out that my office has been advised that this is a practice which is developing as of late, the practice of standing committees of this House deciding not to refer back to the House of Commons matters that have been referred to them by the House of Commons. Mr. Speaker, I think you should take note of that fact as well.

[The Speaker]

I am going to take the advice of the hon. member for York South-Weston and I know my colleagues will give me time to reflect on this.

I intend to make a complete review of everything that has been said today. I also intend to review all of the precedents. I will consider the matter and I will get back to the House at a date in the near future.

If there are no further points on this point of privilege, I will report back to the House after I have done research and I will let you know my decision.

[Ray Speaker, Reform, Lethbridge]

Mr. Speaker, I rise with the intention of possibly coming to the assistance of the Chair in some manner.

I know that the government and the private members of this House are very concerned about this issue and would like to see it dealt with. It is a very important decision and I know, Mr. Speaker, you will bring back a decision with regard to the presentations that were made here today.

On the point of order in terms of the order of business, I was wondering if there would be any consideration by yourself, Mr. Speaker, through government, with regard to Bill C-45 which is on the Order Paper today. Possibly the House leaders could get together with members of the justice committee and request that

they report back on Bill C-234 and we could then deal with that bill in terms of that principle. Following that, we could deal with Bill C-45. We would then be able to make a judgment with regard to the matter of that substance.

[The Speaker]

You know of course that your Speaker is loath to give direction to the House leaders. I believe you have been functioning well and you will continue to function well. Any negotiations that go on will be done by the House leaders. I will come back to the House on the point of privilege and you will be having my decision in the very near future.

Am I to deal with any other points of privilege today?

[Daphne Jennings, Reform, Mission—Coquitlam, BC]

Mr. Speaker, I did send you a notice in writing that I would like to speak on a point of privilege on what happened on my own bill. I believe my privileges and the privileges of this House have been breached on it.

It is wrong for a group of members, in this case the justice committee members, to deny the majority, that is-

[The Speaker]

With the greatest of respect to my colleague, I believe what you are dealing with is the same point of privilege that I am going to deal with as I mentioned a little bit earlier. If indeed it is not, I wonder if I might ask the hon. member for Mission-Coquitlam if it is an entirely new point of privilege after she hears my decision then perhaps we could return to that point at that time. Is it agreed?

[Daphne Jennings, Reform, Mission—Coquitlam, BC]

Agreed.

The House proceeded to the consideration of Bill C-216, an act to amend the Broadcasting Act (broadcasting policy), as reported (with an amendment) from the committee.

Broadcasting Act

[The Deputy Speaker]

Colleagues, there are two motions in amendment in the Notice Paper at the report stage of Bill C-216, an act to amend the Broadcasting Act (broadcasting policy).

On written request by the hon. member for Ottawa-Vanier, Motion No. 3 will not be proposed.

Therefore, Motions Nos. 1 and 2 will be grouped for debate and voted on as follows. Motion No. 1 will be voted on separately. An affirmative vote on Motion No. 1 obviates the necessity of the question being put on Motion No. 2. On the other hand, a negative vote on Motion No. 1 necessitates the question being put on Motion No. 2.

I shall now put Motions Nos. 1 and 2 to the House.

[Gaston Leroux, Bloc, Richmond—Wolfe, QC]

moved:

Motion No. 1

That Bill C-216 be amended by deleting Clause 1.

[Roger Gallaway, Liberal, Sarnia—Lambton, ON]

moved:

Motion No. 2

That Bill C-216, in Clause 1, be amended by replacing line 11, on page 1, with the following:

"vice".

[Gaston Leroux, Bloc, Richmond—Wolfe, QC]

Mr. Speaker, first of all, speaking on behalf of the official opposition and all fellow members of the Bloc Quebecois, now we are all gathered here at the beginning of this session, I would like to express our sympathy and solidarity with all the people in Quebec, in the Saguenay, on the North Shore and in the Eastern Townships, who went through such difficult times as a result of the natural disasters that struck this summer.

Our sympathy and solidarity are also with those who went through much the same experience in Nova Scotia and St. John's, Newfoundland, as a result of this hurricane.

I think it is important to show our solidarity with our fellow citizens, and that is what I wanted to do.

There were also some very serious incidents in Quebec this summer, including the killing of a number of women in Quebec. We are witnessing an increase in violence in our society, and the official opposition urges this government to provide for greater justice in our society so that our fellow citizens will not find themselves in these desperate and tragic situations.

The official opposition extends its sympathy to all the victims.

The following concerns Bill C-216 introduced by the hon. member for Sarnia-Lambton, which would prohibit negative option billing by cable distributors, a practice that leaves it up to the consumer to specify whether he wants to keep the service for which he is billed by the company.

Unless subscribers send a notice of refusal, the company goes ahead and bills them. This is called negative option billing. Our

colleague from Sarnia is focussing on a real foundation of our society, which is that companies must not have business practices that harm consumers. In this regard, the bill put forward by our colleague from Sarnia is aimed at protecting consumers.

Beyond that, however, there is a problem because this bill meddles in provincial areas of jurisdiction over marketing.

Second, this bill as tabled will make it more difficult to provide services to francophone communities in Quebec and elsewhere. Since the market is smaller in Quebec, business practices will have to be clearly identified, as services must be much more widespread to become profitable. Third, this bill is totally inconsistent with the structure of cable distributors.

Before getting back to these aspects, I would like to put this bill into context. We must keep in mind that this bill results from a consumers' revolt in English Canada, especially in the Vancouver region-and, as my colleague rightly points out, in the Toronto region-that occurred in January 1995 against the new bundling of programming services by the Rogers cable company.

Rogers took this opportunity to modify its service packages and offer subscribers packages completely different from those they had before, at a higher price, placing the onus on them to cancel service, otherwise they were billed extra after a while.

Making the consumers responsible for notifying the cable distributor they did not intend to subscribe to these new channels amounted to negative option billing, which has already been banned in Quebec and in a few other provinces under the Consumer Protection Act.

Take Quebec for example. How was it done there? Vidéotron for instance did not offer multi-level packages or modify its service packages. It just added the new channels to its basic service package at no extra cost. As for Cogeco and CF Cable, they came to an agreement with the consumer protection bureau. They demonstrated the need and merit of penetrating the francophone market to ensure that the services offered were cost-effective. It was all done through negotiation and within the law in Quebec.

I should point out it was not so everywhere and this has led to protest, particularly in English Canada, where there was no consumer protection legislation in force. How are the provinces affected within their own jurisdiction? To set the debate in context, let me quote section 92 of the British North America Act, in which the business relationship between a consumer and a service provider is defined as follows:

In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next herein-after enumerated; that is to say-property and civil rights.

Hence the business practice whereby a contract exists between the person who offers the service and the person who buys it. This section of the Constitution applies to all undertakings, including those under federal jurisdiction.

While the CRTC has the authority to grant licences to broadcasting undertakings, the Quebec government, as any provincial government, has the authority to make legislation respecting the business relations between these companies and the consumers.

In fact, this exclusive jurisdiction for Quebec and the other provinces was recognized by former heritage minister Dupuy, in January 1995. But, for greater certainty, we should refer to a Supreme Court decision.

Quebec's Consumer Protection Act prohibits negative option billing, which can be defined as follows: no merchant, manufacturer or advertiser can, in any way, demand any money for goods or services provided to a consumer, when the consumer has not agreed to receive such goods or services.

The Consumer Protection Act even applies to a business which comes under federal jurisdiction, since it deals with a business practice, namely a contract. In the Kellogg's Company of Canada ruling, Justice Martland wrote something very important to define jurisdictions:

Kellogg is not excluded from the application of the restrictions imposed on advertising practices because it chooses an advertising medium which comes under federal jurisdiction.

I already told the hon. member and the committee about this issue, because a federal bill such as this one reactivates the whole debate on federal-provincial jurisdictions and the issue of business practices. Kellogg's tried.

It is easy to see that companies would try to challenge Quebec's Consumer Protection Act by asking the Supreme Court to determine who has jurisdiction. In the Kellogg's Company ruling, it is stated that "the advertising regulations passed under the authority of the Quebec Consumer Protection Act seek to protect children from the adverse effects of certain advertisements. The province can regulate advertising from a commercial business within its boundaries, even if such advertising comes under federal jurisdiction. So, Kellogg's should not be excluded from the application of the restrictions imposed on advertising practices because it chooses an advertising medium which comes under federal jurisdiction".

This is very clear. This is a provincial jurisdiction and the province is the one that regulates the issue of business practices.

In conclusion, Mr. Speaker, since you are about to tell me my time is up, I would like to say that the Bloc Quebecois has opposed this bill, first, because of jurisdiction, and second, because of the great difficulty that will be experienced by the new services in French to be offered everywhere, since this bill states that a company must obtain the consent of all its subscribers in order to offer a new service.

Where the francophone community is in the minority in a province, I have a lot of trouble seeing how it will obtain services in French. We have seen this in the past. This becomes a very great danger for francophones generally. Third, for penetration of a service to be cost-effective in Quebec, the percentage has to be very high, 80 to 85 per cent. But this bill prevents cable distributors from doing their work and offering services in French in Quebec.

The Bloc Quebecois is therefore putting this amendment forward to have the bill withdrawn.

[Roger Gallaway, Liberal, Sarnia—Lambton, ON]

Mr. Speaker, it is my pleasure to participate in this debate at report stage of my private member's Bill C-216.

This bill has one clear objective and that is to prohibit negative option billing by cable companies. This prohibition would also apply to other distribution undertakings as defined by the Broadcasting Act, such as direct to home satellite.

On Motion No. 1, I cannot support this amendment as proposed by the member for Richmond-Wolfe. The amendment would have the effect of defeating this bill totally. Quite simply, we cannot turn our back on consumers and leave the door open to a repeat of last year's cable fiasco.

I am fully aware of the position expressed by the Bloc critic in his belief that the consumer protection act in the province of Quebec prevents negative option billing by cable companies. However, I must say I am confused in that I heard that argument and then I also heard the argument that if it applies in Quebec it should not apply outside the province of Quebec.

The reality in Quebec is such that all new programming services are marketed through negative option billing. In fact in most cases the Quebec consumer is afforded less choice by cable companies than elsewhere in the country. In Quebec new services are simply tacked on to the basic service and the price goes up. There are no additional tiers of specialty services.

The cable television industry has a unique and powerful position in providing programming services to Canadians. Very few industries are capable of supplying a service directly into our homes 24 hours a day, 365 days per year.

More important, in this country the cable industry has a monopoly on the service it provides. The cable industry abused its unique and powerful relationship with consumers by employing an outrageous billing practice known as negative option billing to market the last round of specialty channels.

With the CRTC's blessing the cable monopolies added new specialty channels to existing services and increased the price, but apparently no one felt it necessary to ask consumers and customers if they wanted the new service. The onus was on the customers to somehow contact the cable company and cancel the service before it was charged to their bill. To add insult to injury, some of the larger cable operators packaged the new channels in such a manner that by cancelling them the customer would lose existing services.

By mid-January 1995 the cable companies finally backed down on forcing customers to cancel existing services to avoid new ones. Apologies were issued. Free viewing periods were extended. However, the onus was still on the customers to somehow cancel the new service before it appeared on their bills. The negative option survived and remains a threat to this very day.

This bill was first tabled in February 1995 in response to Canadian consumers who demanded that we put an end to this practice. The bill was reintroduced in this session of Parliament and passed second reading on April 30, 1996 and I might say by an overwhelming majority. It was then referred to the Standing Committee on Canadian Heritage.

In May, the committee heard testimony from various consumer groups, representatives of the cable industry and officials from the CRTC. In committee on May 30 of this year the parliamentary secretary to the Minister of Canadian Heritage moved an amendment to Bill C-216. The amendment was adopted by the committee and the bill was reported back to this House as amended.

The parliamentary secretary's amendment fine tuned and improved this important piece of legislation. I would like to thank the hon. member and indeed all members of the committee for their efforts in this regard.

The House should also note that the parliamentary secretary's amendment to Bill C-216 came as a result of testimony from the CRTC. CRTC officials had suggested the alternative wording as a means of improving the bill.

Some would say that a legislative end to negative option billing by cable companies is not necessary because the cable companies have learned their lesson.

We heard last week from the new chair of the CRTC as she announced 23 new specialty channels. We heard the former chair, Mr. Spicer, when he testified before the heritage committee. He said the issue was dead, but if we wanted to make certain it was dead we could do so and he would send flowers. He also stated that there was no harm in passing Bill C-216; this from the then chair of the CRTC.

The head of the Canadian Cable Television Association, Mr. Stursberg, testified at the committee that the cable industry would only use positive option billing practices. They said it will not happen again. If it will not happen again, I am prepared to call their bluff. This past week I received confirmation that contrary to what

the cable industry would have us believe it intends to use negative option billing to market the new round of specialty channels.

I received a call from Pauline Couture, a lobbyist who represents one of the 23 new specialty channels. She freely admitted that her client's business plans call for a negative option marketing strategy. When I asked how she reconciled this fact with the pledge made by the cable industry, she stated that in her view there are different kinds of positive option billing.

We can see that the industry intends to keep its pledge to consumers. It will use negative option billing but it will call it something else. That is not good enough. It said it will not happen again. Then why is the industry still trying to derail Bill C-216?

It was reported in the press last week that André Bureau had been lobbying MPs to speak against this bill. Interestingly, the same André Bureau was until 1989 the chair of the CRTC and could probably be described as the godfather of negative option billing. He was the person who first validated the practice. He is now the president and CEO of Astral Broadcasting, a group which is in the marketing of specialty channels.

With respect to the proposed amendment moved by the critic from the Bloc, I would tell my hon. colleague that I disagree with him on the issue of jurisdiction. I should point out that cable companies, telephone companies and direct to home satellite companies are all federally regulated undertakings. As such they can claim immunity from provincial laws, especially consumer protection laws. If my hon. friend would take the time and closely read Quebec's consumer protection law, he would see that in section 5 of the act there are services which are in fact exempt from the application. It refers to contracts regarding any telecommunications service supplied by an operating company.

Finally I would ask my hon. friend from the Bloc if, as his party maintains, Quebec has already solved the problem of negative option billing by the cable industry then why should we in this House neglect to do the same for the rest of the consumers in Canada?

Speaking with respect to Motion No. 2, which is the one I have proposed, I would like to briefly explain why I have proposed this small change to Bill C-216. My amendment would delete the words "offered by an undertaking licence" from line 11 of Bill C-216.

Quite simply these words which were added as part of the amendment passed at the committee stage are redundant and I must emphasize redundant. They are unnecessary because paragraph 3(1)(t) of the Broadcasting Act, which my bill seeks to amend, already states clearly that we are talking about distribution undertakings, in other words, cable companies that are licensed to provide programming services.

Since the Broadcasting Act already makes this crystal clear, there is no need to include these additional words in Bill C-216. As a result I would encourage all members to support Motion No. 2 which is the motion fine tuned which was proposed and put forward by the parliamentary secretary and was the amendment proposed by the CRTC itself.

[Guy Arseneault, Liberal, Parliamentary Secretary to Deputy Prime Minister and Minister of Canadian Heritage]

Mr. Speaker, I am pleased to rise today to speak on the hon. member's bill, and would like to take advantage of the same opportunity to congratulate him on the effort he has put into it.

I, and I believe most of the other members of this House, share the objective sought by the hon. member for Sarnia-Lambton in introducing this bill. We all agree that Canadians must be able to fully express their opinion on the programs they receive in their homes. We all wish to ensure that Canadian consumers receive the programs they want at a reasonable price. In this respect, I congratulate the hon. member for his initiative.

While supporting the underlying reasons for this bill, I have had the opportunity to discuss and review it with other members, and have reached the conclusion, in light of the questions raised, that this bill would have unexpected and dramatic effects.

This bill would, unintentionally, restrict Canada's capacity to guarantee Canadian content and the availability of French programming outside of Quebec. As a francophone from outside Quebec, I believe that access by the regions outside Quebec to French programs is essential. For example, had the bill being proposed at this time been in effect a few years ago, it is very likely that we would not have Newsworld and RDI today. Despite its intention, which I believe to be an honourable one, I feel that the unexpected consequences of this bill would be devastating.

In tabling this bill, the hon. member's intention was to guarantee all Canadians fair and equitable treatment. Unfortunately, it would hamper the flexibility the CRTC requires to ensure that very fairness and equity.

As such, therefore, while congratulating the hon. member for his intentions in proposing this bill, its unexpected consequences force me to vote against it.

In a nutshell, the intent of the bill is good. In reviewing comments made by members of Parliament from all parties, they agree with the intent of the bill that there should be no negative optioning, that consumers should be protected.

What we are saying here today is that this bill goes beyond that. It takes away a lot of the flexibility of the CRTC. It takes away the flexibility of the government. I can give an example, as I have

mentioned. Had this bill been in effect years ago, we might not have "Newsworld" today or RDI, the French version of "Newsworld". That is what would have happened.

It would be impossible for me to support such a bill that would take away the flexibility of the Canadian government. That would also go for Canadian content. It would also go for the rural regions. It would have a negative impact right across Canada.

It is clear that MPs are against negative optioning. The new president of the CRTC has indicated that she prefers the positive option. The cable companies have indicated that they are against it and they do not intend to use it.

The member must be congratulated for the intent. The member who is quite imaginative, who has grasped the subject quite well, should be able to come up with a new way to propose something to the House at a later date which deals directly with negative option billing.

I suggest to members that they review the legislation before they cast their deciding votes. It could have some very serious implications for their regions, for Canadian content, for the flexibility the CRTC has in distributing programs across Canada.

[Jean-Paul Marchand, Bloc, Québec-Est, QC]

Mr. Speaker, I was very pleased to hear the Heritage Canada critic say we are against Bill C-216, because it certainly is a very bad bill.

This bill is more or less like the proverbial sledgehammer. It is an attempt to camouflage a problem that may clear up by itself. Of course, it is all because of a rather notorious case in Vancouver, where the Rogers company found a way to make subscribers opt for channels they had already paid for by using the negative billing option.

In fact, this caused such an uproar that the cable companies were smart enough to realize that this was perhaps not the way to treat their customers. There was such an uproar in Vancouver, and even in Toronto and across the rest of English Canada, that the cable companies will watch their step from now on.

And not only because of that but also because the government will probably introduce a bill on competition in the cable industry. And we can expect satellite cable or satellite television to put even more pressure on the cable companies.

This is just to say that the problem does exist to some extent and that one company, a major one, took undue advantage of the situation. However, it is not unlikely the problem will solve itself, without the government having to go to the extreme of using a sledgehammer.

In fact, there are several reasons why we should object to this bill. First of all, it infringes on provincial jurisdiction over business relations. It is common knowledge that in Quebec, for instance, legislation has already been passed and agreements in this area already exist with companies in Quebec.

This is already a bad bill because it interferes in areas of provincial jurisdiction. Without going into details, as it could get boring, from the wording and tabling of the bill it is clear that the hon. member does not know anything about the cable television industry as the bill is totally inconsistent with the way this industry operates. This is why the industry itself is opposed to it.

But the main raison why we in the Bloc oppose this bill is that it prevents new specialty and other channels from being introduced without the prior approval of a majority of area subscribers. In other words, every time a cable distributor wants to offer a new channel to its subscribers, it must first get the approval of the majority.

Of course, as the former Minister of Canadian Heritage knows, this is almost impossible in practice and, worse yet, it puts all French-language channels in Canada at a disadvantage once again.

This bill will surely impede the development of the French-language television industry in Canada. For example, if this bill were now in force, chances are that TVA would not even be available in Hull.

In any case, it has been proven that RDI, a specialty channel I love, which keeps viewers up to date on Canadian and foreign politics, is available to only 40 per cent of French-speaking Canadians. Only 40 per cent of Canadian francophones have access to RDI. Yet, despite all the government promises that this channel would be made available to all francophones in Manitoba and elsewhere, such is not the case.

This bill would rob francophones outside Quebec of any hope of ever getting access to RDI or other French-language channels.

This bill has several problems, but the main one is that it shows a poor understanding of Canada and does not respect the current reality by advocating the principle that, even in the cable television industry, the majority of subscribers must approve the channels or services provided to the minority.

Again, this is significant. It shows the great difference between English Canada and Quebec. At least, this is another example of misunderstanding and the fact they forget that there is not only a French-speaking province-Quebec-, but also other francophone communities throughout Canada. It is as though they did not even exist.

Furthermore, Quebec has already passed a bill in this regard. The Government of Quebec has already struck an agreement. It is unfortunate therefore that this bill is even being considered. We are wasting our time, although I am happy to see that the hon. critic on Canadian heritage opposes this bill. I hope that the hon. member

for Ottawa-Vanier will do the same since, as a Franco-Ontarian himself, he has suggested that this bill be amended, although his amendment would not send the bill to the trash can, which is where it should go.

[Dick Harris, Reform, Prince George—Bulkley Valley, BC]

Mr. Speaker, I am pleased to speak to Bill C-216.

I have listened to the previous speakers, the Parliamentary Secretary to the Minister of Canadian Heritage and to the member from the separatist party. I believe they missed the whole intent of the bill. The bill is not about protecting this or that channel or Canadian or French language content. It is a simple bill about protecting the consumer.

I cannot imagine how hon. members have missed this point. Their arguments have gone completely in another direction intended by the bill from the member for Sarnia-Lambton.

We are beginning the first day of this fall session with a bill which I think is a good piece of legislation. Whether it will be deemed valid because of provincial jurisdiction is a whole other story. However, it is a good piece of legislation, as is the private member's bill of the member for York South-Weston. I hope the Liberals do not send this bill to the same fate as they did with Bill C-226.

I am sure many members of the House remember the great cable revolt of January 1995. That was a time when Canadians across the country stood up and said: "We do not like what the cable companies are doing to us. We do not like the way they are billing us. We are saying no to it. We want the opportunity to order something if we want it. If we want extra channels we will order them, thank you very much".

The cable companies thought they could gain a marketing advantage by putting the channels in and then requiring people to say no to them instead of the other way around.

Many MPs' offices were inundated with calls and their fax machines were kept pretty busy during this period. I remember reading that the member for Ontario received so many faxes at his office that the fax machine broke down.

This huge revolt by consumers was sparked by a marketing technique which was created by the cable companies. Members will recall that seven new speciality channels were introduced on cable television on January 1, 1995 and cable subscribers received the channels free for a period of time. At the end of that trial period the onus was put on the subscriber to call their cable companies and say they did not want them if they did not want to be charged for them. That is a little different than the way things began when subscribers actually ordered what they wanted. Now they have to say they do not want them in order not to be charged for the channels.

This is how it came to be called negative option marketing. Consumers are expected to exercise a negative option and decline the service, otherwise they end up paying for it.

Most Canadians were either unaware that the onus would be put on them or they simply could not be bothered phoning in to cancel the new channels. As a result many Canadians ended up paying for a service they did not want, much less understand the billing process the cable companies were trying.

Either way, the negative option marketing is a cash cow for the cable companies and that is why they prefer it. They know there is confusion in the minds of Canadian consumers.

Where else can someone be charged for a service when it is not requested in the first place? Only through this negative option marketing process.

Consumers should be given the opportunity to choose what they want. It is only fair. Negative option marketing turns that concept on its head since consumers are asked to decline a service and if they do not they are charged for it.

That is the whole point behind the private member's bill before us, not this smokescreen of whether it will hurt this particular area of channels? The protection of French language channels is just a smokescreen.

It appears the proponents of these channels some how got to the Bloc members and the parliamentary secretary to the minister of heritage. Only a few months ago the government was indicating this was a good bill. Over the summer maybe some cable company tycoons and some of the ministers went fishing one weekend, came back and lo and behold some of the ministers have a whole new concept about this bill. It is amazing what happens over a summer.

Recently a new collection of channels has been licensed by the CRTC. Consumers are left wondering if they will have to face another negative option marketing blitz like we saw in January 1995. This is all about consumer protection, and hopefully the House will do the right thing to protect consumers and pass Bill C-216 prior to the introduction of these new channels. Hopefully it will do the right thing. Unfortunately that rarely happens in the House.

Further, in the future new competitors will be entering the market to take on the cable companies. Will they be allowed negative option marketing as well? Where is the poor Canadian consumer left in all of this? We saw the uproar last year when they said quite frankly that they did not like this kind of billing. Let us do something about it as parliamentarians and protect the consum-

ers. That is what the bill is all about. Let us forget about the cable tycoons who got to some of these Liberals over here and the French language cable interests that got to the Bloc members over the summer. Let us do the right thing and talk about protecting consumers in this country.

If we pass Bill C-216 we can be assured these new players in the cable industry will not be able to use negative option billing on their consumers. We can be assured that Canadians get only what they order and what they are willing to pay for.

Some of the legislatures in the provinces have had the good sense to implement legislation within the provinces that ban negative option billing, and that is a good thing. If at the end of the day we find that is where the jurisdiction lies, at least we have sent a message from the House of Commons that we support the Canadian consumer.

I believe a ban on this form of marketing is what Canadians want to see and they have spoken loud and clear on this issue. All members of the House are aware of the forcefulness of their constituents' convictions on this matter.

The cable companies certainly should get a great deal of blame for using this somewhat doubtful and slick marketing scheme, but the CRTC is also at fault. Section 3 of the Broadcasting Act instructs the CRTC to be responsive to the evolving demands of the public. Has it been responsive? I am afraid not. Has it been listening to Canadians? The answer is no.

Canadians want an end to negative option billing. The CRTC says no, it is a necessary evil when new programming services are introduced. However, when the chair of the CRTC testified before the heritage committee in May, he saw "no harm in passing Bill C-216".

It appears that members of the CRTC are talking out of both sides of their mouths. One says there is no harm and the other says no, let it pass. Canadians have come to realize the CRTC is not responding to their concerns and is not protecting them from this form of marketing.

Canadians have been demanding direct to home satellite services which exist in every other industrialized nation, but the CRTC says no, it is a threat to Canadian culture. The CRTC prefers to deny consumers what they really want, the option, the choice or the privilege of what they want to see.

The cable companies get a huge cash grab and the CRTC gets money pumped into Canadian programming if this negative option billing is allowed to go on.

This is wrong and it has to stop. Quebec, Nova Scotia and B.C. have moved to ban negative option billing for goods and some services on cable TV because the people have sent a clear message to their premiers that they do not want it.

This House has an obligation to support this bill. I have no problem supporting the bill personally because it is a protection bill. It is a bill that is to protect the Canadian consumer.

[Ronald J. Duhamel, Liberal, St. Boniface, MB]

Mr. Speaker, this item would ban negative option billing by cable companies. I want to explore with my colleagues the positive and supposed negative features of this bill.

The bottom line, which I think all of us will agree, is that we do not want negative option billing if it is to inconvenience or treat Canadians unfavourably. We want to protect the Canadian consumer.

However, we should not do this at any cost. Therefore our job as parliamentarians is to look at the pluses and, if there are any negatives, to correct those so that we can go forward in our protection of the Canadian consumer.

I want to give a bit of background. On January 1, 1995 cable companies across the country began offering 7.5 million subscribers seven new Canadian owned specialty channels.

The controversy arises from the fact that cable subscribers are automatically billed for the service unless they cancel it. This practice is called negative option billing.

The public reacted strongly when new services were introduced in January 1995. There were almost 9,000 complaints filed with the CRTC in three weeks. By comparison, the CRTC had received only 1,300 letters about cable service in all of 1993.

At my office, we could feel how angry people were.

We were inundated with calls and letters from constituents opposed to the policy. It was seen as an unacceptable exploitation of the Canadian consumer.

Judging from their reaction in January 1995, Canadians clearly do not want negative option subscribing imposed on them.

This bill reflects the desire of Canadians not to have this kind of episode repeated. Currently negative option billing is allowed on discretionary cable services not regulated by the CRTC. However, I am told the CRTC could do that if it wished.

If passed, this bill would require the CRTC to regulate and monitor the practice of negative option subscribing.

It would require agreement by consumers to take on a new service before having it added to the channels they receive.

Consumers would be getting the services they want to receive.

Members may be interested to know that both the Consumer Association of Canada and the Public Interest Advocacy Centre have urged MPs to support the prohibition of this practice. This bill would respect that governments have long recognized that consumers should not pay for unsolicited goods.

It is also interesting to note that while 92 per cent of Canadian cable subscribers receive extended basic service, more than the absolute minimum, in 1993, 66 per cent believed they were seeing the lowest price for basic service.

People might ask two questions:

Why deal with this now? Should we get involved at all?

Should the federal government be dealing with this issue?

Why deal with this issue now? Some people have pointed out that the CRTC recently considered applications for 40 some channels.

The CRTC continues to support negative option billing despite the public's clearly expressed opposition to this practice. Canadians absolutely must be provided with an alternative they find acceptable.

Negative option billing is unfair since it places the onus on consumers to somehow cancel the new service before it shows up on their bill. Unless they know to ask not to get the expanded services all customers, including new ones, will get speciality channels and forced into higher cable bills.

That being so, we should also be asking ourselves this question:

Should the federal government be dealing with this issue? We should also consider whether this is in the federal government's sphere. Normally issues of commerce and consumer protection are a provincial affair. Some provinces have already banned negative option billing.

But broadcasting comes under federal jurisdiction. If negative option billing is used by a cable company in a province where this practice is banned under provincial legislation, chances are it will get away with it.

There is therefore a need for federal leadership in this domain. The provinces may not be able to act to prevent the abuse of negative option billing in cable. Given this possible escape route we need to look at it extremely carefully.

I have drawn conclusions that I wish to share with my hon. colleagues. First, here is an opportunity for us parliamentarians to put an end to the abusive practice of negative option billing for new services. A number of the points that were raised seem to indicate that the bill may not have been adequately responsive, which means it is now up to us to make it so by introducing a new bill or simply by amending this one. Canadians are clearly opposed to this practice.

The CRTC, by continuing to endorse negative option billing, has shown itself, it would seem to me, to be out of touch with a number of Canadians. This practice is so unpopular that it can actually harm new undertakings. It is evidently clear that we need to do something.

Clearly, the time has come to put an end to negative option billing for new cable services. However, is this bill the proper way to do so? I am told that, unfortunately, this legislation could prevent the addition of new services such as the RDI and Newsworld networks, as well as French language services. Obviously, such was not the hon. member's intention. Should this be the case, something would have to be done to correct the situation.

Would this bill restrict Canada's ability to guarantee a Canadian content and the availability of French language programs outside Quebec? If so, this was certainly not the hon. member's intention and, again, something would have to be done to correct the situation. Through this bill, the hon. member would like to make sure that all Canadians are treated fairly. But is this the case? If not, let us make a change.

Competition will be more fierce when Canadians start receiving directly in their homes services provided through satellites. Will

they be offered new programming options by telephone and broadcasting without cable? My dear colleagues, when we legislate to protect the rights of Canadians, we must be careful not to throw out the baby with the bathwater.

Does this bill violate the principle whereby we must protect Canadian content as the cornerstone of basic Canadian programming? I am asking the question. So, even if I strongly support the principle underlying the hon. member's bill, I want to stress the importance of integrating the points raised by my colleagues, and of trying to ensure that we do not, in any way, impede progress in these areas and that we do not hurt anyone concerned.

So, if this bill does indeed protect consumers as wished by some, then it is up to us to go ahead with it. On the other hand, if it protects consumers while also blocking progress and initiatives in a manner that is unacceptable to us as parliamentarians, then we have two options: we can either set it aside and come up with another bill that will correct these problems, or we can simply propose amendments to make it acceptable to the House of Commons.

In conclusion, we all want to protect Canadian consumers, but it is up to us to find the way to do it.

[Pierre De Savoye, Bloc, Portneuf, QC]

Mr. Speaker, the bill before us is of vital importance to consumers. It is a bill designed to ensure that the consumer will not be billed for something he does not wish to buy.

A few months back, we saw a cable company bill its consumers for the cost of television channels they had not requested. The consumers were told by this company that they should have warned it that they did not wished to be billed for something they had not ordered. Thank goodness the food chains do not operate like this, because an order of groceries would start to get rather expensive.

The attitude of this cable company was unacceptable. Pressure from outraged consumers forced the company to reverse its position. This was an excellent thing. We do not ever want to see such a situation again, either in the provision of cable service or of any other service.

At the same time, we must ensure that if legislation is necessary in this area, that it be passed by the right legislature. The question that quite naturally arises is this: Is the House of Commons, the Parliament of Canada, the federal government the institution which has the responsibility with respect to consumer affairs for resolving this type of problem?

The proposer, the hon. member for Sarnia-Lambton, maintains that because telecommunications comes under federal responsibility, it therefore follows that consumption of a product whose production and distribution are federally regulated should be treated likewise and also come under federal responsibility.

If that were the case, the federal government could put up buildings in any municipality in this country with no regard for zoning bylaws. If so, federal government employees would no longer have to pay provincial income tax, or municipal property taxes.

The lines need to be drawn where they are, where they have to be. In this instance, no one is disputing the fact that broadcasting and telecommunications are matters of federal jurisdiction. Unfortunately, this question was decided some years ago, when Quebec had the rights it had hitherto assumed in the area of communications taken away from it. This, unfortunately, is now just water under the bridge.

Is Quebec now also going to be deprived, along with all of the other provinces, of its right to pass consumer legislation? A few months ago in this House, I had the opportunity to question the Minister of Industry specifically on broadcasting and consumer protection. The minister told me in this House that this was a provincial matter. If the minister says so, I have difficulty understanding that a member of his government is not taking his minister's word for it.

However, I clearly understood the hon. member for Sarnia-Lambton to have said:

"If Quebec has already solved this question for its consumers, why should this House be prevented to do the same for the rest of Canada?"

In other words, why could this House not look after the rest of Canada, since Quebec can look after itself. I appreciate the clairvoyance of my colleague from Sarnia-Lambton, but he may have jumped the gun by a few months or years. Quebec is still part of Canada.

Yet, if he were prepared to amend his proposal so that it applied only to the rest of Canada, specifically excluding Quebec, thus acknowledging and confirming this jurisdiction which it has under the Constitution, perhaps I could find some sympathy for such an amendment.

I would like to draw your attention to another comment that was made in this House. Earlier, the hon. member for St. Boniface said that a company that practiced negative option billing in a province where this was banned under the laws of that province would probably, since it was operating in an area under provincial jurisdiction, be able to get around this ban.

When I hear members of this House claim that a federally-regulated company operating in an area under federal jurisdiction would be able to flout the laws of a province and probably get away with it, I say there is something wrong with the system.

If the hon. member said that the Constitution and the law should be enforced in such a way that provincial jurisdictions are respected, that would be a responsible thing for a member of this House to say. But to claim that, since the laws of a province could be flouted, the federal government should interfere in an area under provincial jurisdiction, is irresponsible in the extreme.

Unfortunately, I have to say it is merely one example of the lack of responsibility and sometimes irresponsibility shown by the federal government in its dealings with the provinces. I will not go into the problems of health insurance which are a source of frustration for a number of western provinces. I will not go into the fact that some members opposite support certain things that were done during the last referendum, in violation of provincial laws. I will not go into the fact that, through its spending power, the federal government consistently trespasses on provincial jurisdictions. If I did, I would be here all day.

To conclude my comments, the intentions of the hon. member for Sarnia-Lambton are praiseworthy. The consumer must be protected. -I am one myself-, but we should go to the legislatures that have the authority to do so, and I am referring to provincial legislatures. I can assure you that in Quebec, since I am a Quebecer, I will make sure that the consumer gets all the protection to which he is entitled. Since Quebec has already taken action in this respect, I would urge the other provinces to follow Quebec's example, instead of urging this government to compensate for the inertia of the other provinces.

[The Deputy Speaker]

There is one and a half minutes left. Is there another speaker or can we say that debate is over?

The hon. member for York South-Weston has approximately one minute.

[John Nunziata, Liberal, York South—Weston, ON]

Mr. Speaker, I will take every opportunity to speak and I appreciate being given this opportunity.

I would like to commend the member for Sarnia-Lambton for bringing this bill forward. It is important that the House pass the bill. In my respectful submission, the bill does not go far enough; nonetheless, it is deserving of support.

The bill is an amendment to the Broadcasting Act which clearly only applies in this particular case to cable companies. It seems to me what is needed is a bill that would ban this type of marketing or billing across the board at the federal level. Whatever is within federal jurisdiction, this type of billing or marketing should be prohibited.

It is clear that Canadians were very upset about what happened with the cable companies. The whole debate begs the question: should consumers have to pay for something they do not want or need?

The cable companies were arrogant and presumptuous in thinking they could foist upon consumers something consumers did not want. They would bill the consumers for it and if the consumers did not want it, they would take away something the consumers already had with respect to cable television.

I hope in the very near future that this whole debate will be rendered academic. It seems to me that with the pace of modern technology at some point in the very near future Canadians will be able to actually pay for the channels they want. If the technology exists today for pay TV, why should consumers have to buy a basket of channels as opposed to simply paying for the channels they want?

I will resume my comments when the bill is brought forward again.

[The Deputy Speaker]

The time provided for the consideration of Private Members' Business has now expired. The order is dropped to the bottom of the order of precedence on the Order Paper.

The House proceeded to the consideration of Bill C-45, an act to amend the Criminal Code (judicial review of parole ineligibility) and another act, as reported (without amendment) from the committee.

Criminal Code

[The Deputy Speaker]

Dear colleagues, there are six motions in amendment listed in the Notice Paper at report stage of Bill C-45.

Motions Nos. 1, 2, 3, 4, 5 and 6 will be grouped for debate and will be voted on as follows: A vote on Motion No. 1 applies to Motions Nos. 3 and 5. An affirmative vote on Motion No. 1 obviates the necessity of the question being put on Motions Nos. 2, 4, and 6. On the other hand, a negative vote on Motion No. 1 necessitates the question being put on Motion No. 2. A vote on Motion No. 2 applies to Motions Nos. 4 and 6.

I will now put Motions Nos. 1, 2, 3, 4, 5 and 6 to the House.

[François Langlois, Bloc, Bellechasse, QC]

moved:

Motion No. 1

That Bill C-45, in Clause 1, be amended by replacing lines 28 to 43, on page 4, and lines 1 to 5, on page 5, with the following:

"(3) The jury hearing an application under subsection (1) may determine that the applicant's number of years of imprisonment without eligibility for parole ought to be reduced. The determination to reduce the number of years must be by a vote of not less than three quarters of the members of the jury.

"(4) The applicant's number of years of imprisonment without eligibility for parole is not reduced if a ) the jury hearing an application under subsection (1) determines that the number of years ought not to be reduced; b ) the jury hearing an application under subsection (1) concludes that it cannot determine by a vote of not less than three quarters of the members of the jury that the number of years ought to be reduced; or c ) the presiding judge, after the jury has deliberated for a reasonable period, concludes that the jury is unable to determine by a vote of not less than three quarters of the members of the jury that the number of years ought to be reduced.''