Some Hon. Senators: Question.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I rise today to speak to Bill C-11. Let me begin by first acknowledging the many Canadians who have great concerns about this bill, and who have taken the time to reach out to us to share those concerns. Please know that the Conservative caucus in the Senate has heard you and that we have taken every effort to give you a voice in committee and in this chamber in an attempt to make this bill less harmful. I regret, however, that there are too many senators who are still not listening. This bill is extremely complicated, and it has been reviewed and considered by the Senate for a considerable period of time. As a result, there are several aspects of this bill and the issue of broadcasting that I would like to address.

I want to begin by acknowledging what the government always says, namely that this bill is the first major update to the Broadcasting Act in 31 years. We are told that the update is required in order to bring broadcasting in line with the changes that have occurred in global broadcasting and communications in the past 31 years, but those changes are nothing short of revolutionary. It is far from clear that the government has any place in this realm.

The online world is immensely complex. We are at risk of fooling ourselves if we believe that we can regulate it in any way that does not do much more harm than good. The bill we have before us purports to address just one component of the communications revolution that has occurred in the past 31 years, that being the broadcasting component.

Let me give you a few statistics to illustrate just how complex the broadcasting world now is. Globally, there are now almost 2 billion websites online. Every day, more than 500 million tweets are sent. More than 4.5 billion pieces of content are shared on Facebook alone, and users spend more than 10 billion hours on social media.

Back in 2010, more than a decade ago, American businessmen Paul Sagan and Frank Thomson Leighton wrote in the journal Daedalus that:

. . . the Internet is transforming nearly every industry and aspect of society–from news to entertainment, politics to business, and communications to commerce. The impact of the Internet on journalism is simply a microcosm of the larger phenomenon of dramatic change brought about by the online digital revolution.

They also wrote that:

News is now personalized and interactive; the audience is taking charge. Viewers . . . shape the discourse and coverage of the news. And more and more, they are helping to capture, write, and share the news themselves over the Internet. . . .

Those words were written more than a decade ago.

Broadcasting has continued to change at warp speed since those words were written. The bill we have before us faces a challenge that is, globally, probably insurmountable. It is premised on the naive assumption that after 31 years of revolutionary change, the government is actually capable of regulating broadcasting in the way that is being proposed. That said, the bill will have consequences, many of them unintended.

Morghan Fortier, the CEO of Skyship Entertainment has noted that Bill C-11 was “. . . written by those who don’t understand the industry they’re attempting to regulate.” What we have heard from other witnesses confirms that, and what many fear is that the unintended consequences of the bill will fall on Canadian creators and consumers.

Timothy Denton, a former national commissioner of the CRTC, told our committee:

We oppose Bill C-11 because it embodies a fundamentally illiberal idea of communications, because it constitutes a vast overreach of governmental authority and because it threatens the engine of innovation and economic growth, which is the internet.

What we object to is the nearly boundless extension of governmental regulatory authority over communications. . . . with only a few exceptions, it captures virtually all online audio and video.

Unfortunately, colleagues, the limited amendments that our Senate committee made to the bill did not change that overreach.

What concerns me most, honourable senators, is the impact that this legislation will have on our small creators. When Len St-Aubin, former director general of telecommunications policy at Industry Canada, testified before our committee, he noted that the internet is “. . . arguably the most dynamic engine of innovation, competition, opportunity, economic growth and creativity . . .” that we have seen in recent years. Attempting to regulate it, particularly in the ham-fisted way that the government has gone about it — first with Bill C-10, which it was forced to withdraw, and now with Bill C-11, which was rammed through the House of Commons with insufficient review — is fraught with danger.

In this regard, Mr. St-Aubin pointed out:

. . . it’s the CRTC, not Parliament, that will determine the scope of regulation and therefore the extent of intervention in the internet market and Canadians’ freedom to access the content of their choice.

We have often heard senators opposite claim that the Senate must speak for political minorities. Well, there is no question that under Bill C-11 it is the smaller players in Canada, people like Oorbee Roy, Vanessa Brousseau, Darcy Michael, Justin Tomchuk, J.J. McCullough, Frédéric Bastien Forrest and Scott Benzie, who will be the most impacted. They do not represent big corporations or big media concerns. They made numerous amendment proposals, but I hear few senators opposite speaking for these small creators.

Most of the amendments that they advocated for were opposed by senators opposite who sit on the Senate Transport and Communications Committee. Why is that? I believe that, in many cases, it was not due to the substance of what was being proposed. It was because most of the government-appointed senators had made up their minds about this bill long before they heard a single solitary witness.

Most of the amendments proposed by witnesses who appeared before our committee were rejected by the government-appointed majority. That is extremely unfortunate because it leaves us with a very flawed bill which may do untold harm to Canada’s broadcasting sector, in particular to Canadian creators and consumers.

With respect, senators opposite are trumpeting the fact that many individual amendments were accepted. I acknowledge that some positive amendments were adopted by a slim majority on the committee. Some of these amendments were even ones that the Leader of the Government opposed. However, this is where the rubber will now hit the road.

Will the government be willing to listen to what the Senate has said in relation to the very modest changes that have been made to Bill C-11? Or will the government simply reject even these modest amendments out of hand?

If the government rejects these modest amendments, how will our government-appointed senators respond? Will senators opposite stand by their principles or will they simply fold in the face of the government’s edict?

In my comments on this bill, I would first like to highlight some of the issues where amendments have been adopted and on which senators opposite will now have to steel their spines as we wait for the government’s response. I will then briefly refer to some of the fundamental problems that remain in the bill — problems that the majority of senators on the committee did not agree to address.

Let me begin with the issue of the inclusion of user-generated content. On this, we do have a modest amendment — which the government opposed — but, in my view, it does not address satisfactorily the concerns raised by witnesses. The amendment proposed by Senator Simons and Senator Miville-Dechêne eliminates a reference to regulating content that directly or indirectly generates revenue. It would instead require the Canadian Radio-television and Telecommunications Commission, or CRTC, to “consider” whether a program has been uploaded to an online undertaking that provides a social media service by the owner, the exclusive licensee of the copyright in the sound recording or an agent of the owner.

The amendment makes this particular provision of the bill better than what it was before. But it is far from clear that the government will accept even this modest amendment. Nor is it clear in what manner the CRTC would consider the re-addressed criteria.

Senator Simons said that her amendment would ensure that Bill C-11, “. . . actually does what the government has told us it wants to do.” In that respect, she is absolutely right. The minister, when he appeared before our committee, specifically stated:

We listened to the social media creators. We listened to them, we understood their concerns and we brought it back, with the exception of 4.2, which catches only commercial content with the three criteria. That’s it.

That was what the government claimed. The amendment brings the text of the bill closer to what the government said its intentions are.

I wish that the committee had gone further and also adopted the amendment to the same clause that was proposed by Senator Manning at committee. Senator Manning’s amendment would have made it clear that the three criteria in subclause 4.2(2) would have to be considered together; in other words, that the CRTC could not pick and choose criteria. But the majority of members on the committee rejected that, which is unfortunate.

Now we will have to see whether the government will actually accept even the modest amendment that has been incorporated in this bill. If it does not, we will see if senators opposite have the courage to stand by the provision they themselves have argued is essential. If this very modest amendment does end up being rejected by the government, then it will be clear that the government fully intends to capture user-generated content with this legislation.

If that happens, will this chamber speak for the many Canadians who have so strongly objected to this matter? Or will the majority of senators simply throw up their hands and declare, “The government has spoken”? I hope that the majority in the Senate will show resolve on this matter. That would indeed be a good day for the Senate. But there are other issues about which the majority in this chamber will have to steel their spines.

One of those issues is on the matter of age verification for accessing programs that depict explicit sexual activity.

Senator Miville-Dechêne proposed this amendment, and I believe it is a good one and we supported it. The government, of course, opposed the amendment. The government claims sympathy with the amendment, but then it raises its usual plethora of objections, including potential privacy concerns.

Here I have to believe we finally need to take a stand, colleagues. That the protection of children from damaging online content must take priority. Briefs were filed with our committee by the Age Verification Providers Association, noting that the supposed risk to privacy is overstated and that age verification can be designed to protect the identity of the users by separating the age verification process from the websites which need to check only age and not identity.

On this issue, I find that the government leader often talks about how much the government sympathizes with a proposal but then finds reasons to not do anything. Therefore, I fear that the government will also oppose this amendment.

Colleagues, we will have to show resolve to overcome that opposition, and I hope that when the time comes government-appointed senators will do the right thing.

Lastly, with respect to what we need to remain firm on, I hope that the government-appointed senators will show resolve in relation to the amendment that was passed on Canadian content rules.

We heard from multiple witnesses that Canadian content rules are both inflexible and difficult for smaller players to wade through.

Oorbee Roy, who is by her own description a smaller player in the area of content creation, referenced the significant barriers in the way of small content creators like herself getting approved as Canadian content. She asked:

Do I have to hire my ten-year-old son to help me register each piece of skateboarding content for CanCon approval?

Again, the committee adopted a very modest amendment to try to prod the CRTC to take a more flexible approach when determining what Canadian content is. But we will have to rely on the CRTC on how that is implemented. Any changes will also take time to draft. But at least the amendment is hopefully a small step in making things easier for both small content creators and for those who have argued that a more inclusive approach is needed when determining what Canadian content is.

Here, again, the Senate will have to stand firm in the face of the government’s response. If the majority chooses not to stand firm, even these modest gains in the legislation will be lost.

Colleagues, I have referenced three amendments that have modestly improved Bill C-11. However, the bill as a whole remains deeply flawed in reforming broadcasting in Canada. I will refer to three serious problems that witnesses have raised.

First, the bill introduces a very serious problem when it comes to Canada’s trade obligations. With absolute certainty, we know that based on witness testimony.

The former chair of the CRTC, Konrad von Finckenstein, told our committee that while the CRTC has the power to require undertakings to make contributions to funds like the Canada Media Fund, the entitlement to those benefits from such expenditures should not be limited to Canadian ownership or control.

Mr. von Finckenstein said:

Under the Canada-United States-Mexico Agreement, or CUSMA, such restrictions, while falling under the cultural industry exception and, thus, technically allowed, allow our partners to take retaliatory measures of equivalent commercial effect. Since most streamers are U.S.-based, you can expect that to happen.

The United States has already signalled that it views this as a problem.

In a statement to The Canadian Press this past month, the U.S. Embassy here in Ottawa stated that U.S. officials are holding consultations with American businesses about how Bill C-11 will affect their operations. They said, “We have concerns it could impact digital streaming services and discriminate against U.S. businesses.”

Similarly, the U.S. Computer & Communications Industry Association has said that:

If Canada proceeds with C-11 as currently drafted, it will be incumbent on the United States to assess the scope of likely violations of USMCA rules, the degree to which its trade interests are harmed, and consider what steps are appropriate in response.

Just yesterday, a headline in The Globe and Mail warned, “U.S. escalates trade concerns over Canada’s online news and streaming bills.”

Retaliatory trade action is not just a possibility under Bill C-11; it is a reality, colleagues. And who will pay for that when the Americans take retaliatory action? That is very clear. It will be Canadian businesses and workers. Too little attention has been paid by a majority of senators to the implications of this. There is a sort of cavalier attitude to it. Perhaps that is because senators themselves will not feel the pain of this bill. That pain will be felt by others.

Make no mistake: Those in this chamber who vote for this bill will also be voting de facto to accept the consequences of a trade war, and those consequences will fall on ordinary Canadians.

There is a mantra that is repeated that foreign broadcast undertakings must “pay their fair share.” But there is little acknowledgement of the major contributions that foreign broadcasting platforms already make to jobs and benefits in Canada.

Garrett Levin, President and Chief Executive Officer of the Digital Media Association, told our committee that, “On average, audio streaming services pay out 65 to 70% of their revenues in royalties.”

We should be recognizing that this is extremely significant.

The brief submitted by the Motion Picture Association of Canada catalogues some of the benefits:

Over the past decade, the contributions made by global producers account for 90% of the growth of film, television and streaming production in Canada; foreign investment in production in Canada accounts for $6 billion annually; in 2021, Motion Picture Association studios spent more than $2.3 billion on local production-related goods and services in Canada; they supported more than 47,000 businesses in Canada; they supported more than 200,000 workers in Canadian creative industries.

But somehow, the government expects that global online undertakings should pay even more and then not be eligible to access those same funds when their investments contribute to Canadian cultural industries.

This matter was not addressed in committee and the amendments we proposed in order to correct this flaw in this bill — such as making all broadcast undertakings equally eligible for benefits from funds like the Canada Media Fund — were rejected.

But there is a second serious flaw in this bill: There is no clear exemption for small streaming services from CRTC regulations.

Numerous witnesses appeared before our committee noting this as a significant concern. We heard from witnesses who understand how the CRTC operates and understand the practical limitations on the CRTC’s capacity. Again, one such witness was Mr. von Finckenstein, the former chair of the CRTC. He told our committee quite clearly:

. . . vesting such large powers with such vague parameters will prove extremely onerous for the CRTC. Every single stakeholder will come forward with specific requests for exemptions of conditions and argue they fall within the vast powers given to the CRTC. One cannot forget that the CRTC is a court of record that identifies issues, either on its own or via petitions; seeks input from affected parties and stakeholders; holds hearings, live or on paper; and then issues a decision. All that has to be done in accordance with due process and can be judicially appealed.

Mr. von Finckenstein argued that:

. . . narrowing the powers will allow the CRTC to make good, timely and targeted decisions. . . . the legislation should target only large streamers who can meaningfully compete with established broadcasters.

He recommended that the act only apply to online undertakings with Canadian revenue in excess of $100 million or more than 100,000 Canadian subscribers.

But the majority on the committee rejected that. Officials argued that the threshold was too high and that certain undertakings — like CBC Gem — would be excluded.

So, amendments were proposed that lowered the thresholds. An amendment as low as $25 million was rejected in committee, and a $10-million threshold was rejected by this chamber just this week, on Tuesday.

Colleagues, that means the act we have before us has no limitations. In that context, it is worth repeating what Konrad von Finckenstein, a former chair of the CRTC who actually knows and understands the regulatory system, told our committee. He said:

. . . vesting such large powers with such vague parameters will prove extremely onerous for the CRTC. Every single stakeholder will come forward with specific requests for exemptions of conditions and argue they fall within the vast powers given to the CRTC. One cannot forget that the CRTC is a court of record that identifies issues, either on its own or via petitions; seeks input from affected parties and stakeholders; holds hearings, live or on paper; and then issues a decision. All that has to be done in accordance with due process and can be judicially appealed.

Does it sound like I’m repeating myself? He continued:

. . . the legislation should target only large streamers who can meaningfully compete with established broadcasters. Small innovative internet players should be able to give their innovative drives full rein to contribute to the overall productivity of the Canadian economy.

But, again, the government majority on our committee said “no” to Mr. von Finckenstein’s proposal for a threshold exemption. They said “no” to every proposal that was made for a threshold exemption. In effect, they said, “We know best.”

Well, I would wager that they — “we” — do not know best. With no clear threshold exemption for small streaming services, this bill is a recipe for yet more uncertainty. Even with the amendment on user-generated content that was adopted at committee, and even if the government were to accept that amendment, it will take years to determine how exactly the CRTC will apply those provisions. This will clearly result in more confusion, more waiting, more uncertainty and more potential damage to smaller innovative internet players who, up until now, have made such a major contribution to the productivity of our Canadian economy.

Colleagues, we have been told again and again that the CRTC does not have the capacity to apply the legislation as broadly as is envisaged. A former chair of the CRTC told us that — as has a former vice-chair and a former national commissioner — but somehow the government thinks it knows better. This is yet another component in the legislation that is based on completely unrealistic assumptions about how online broadcasting can be regulated.

Finally, colleagues, I want to address the matter of the discoverability provisions in this legislation and algorithm manipulation.

The active discoverability provisions in this legislation is the issue that was raised most by witnesses as a serious concern, and, quite simply, it was a matter that the government majority ignored. While the legislation asserts that the CRTC cannot order algorithm manipulation for the purpose of discovering Canadian content, the former CRTC chair, Mr. Ian Scott, was quite clear when he appeared before our committee in stating that what will happen is that the CRTC will set policies, and these policies will then require algorithm manipulation by the platforms. So the bill provides for algorithm manipulation by stealth. That was made very clear in an exchange that Senator Wallin had with the former CRTC chair.

Senator Wallin said this to Mr. Scott in committee:

You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly and explicitly or indirectly, but you are regulating content.

Mr. Scott responded very simply, “You’re right.”

Later, Mr. Scott said that the CRTC has many other tools for highlighting Canadian content without engaging in algorithm manipulation. He suggested that with all of these other tools, there would be no need for the platforms to engage in algorithm manipulation. If that is so, then why is the government so intent on keeping this option in the bill? Why did the majority of the government-appointed senators reject every amendment that was put forward to prevent mandated algorithm manipulation?

I ask this because witnesses were very clear about the likely implications of it.

J.J. McCullough told the House of Commons Standing Committee on Canadian Heritage last spring that algorithm manipulation means this:

Overnight, creators are going to wake up and find the kind of content that has previously been successful in an unregulated YouTube is no longer successful in a regulated YouTube. As a result, they will either have to change the nature of content that they make in order to make it more overtly Canadian—whatever that means—or they could possibly be at a disadvantage. That could mean their viewership, and thus revenues, take a hit. That’s something that I think is quite worrying to a lot of YouTubers.

Colleagues, it is scarcely surprising that creators are concerned that their viewership and revenues may take a hit. This is, after all, their livelihoods we are talking about.

When Scott Benzie, Managing Director of Digital First Canada, spoke to our committee, he said that the bill:

. . . needs to be clear that dynamic changes to algorithms are off the table, because messing with them is messing with Canadian businesses and access to their audiences.

Matthew Hatfield, Campaigns Director of OpenMedia, provided a solution that numerous other witnesses have endorsed. Mr. Hatfield said:

. . . Bill C-11 must not give the CRTC the power to manipulate the results of algorithms on platforms. We would never tolerate the government setting rules specifying which books must be placed in the front window of our bookstores or what kinds of stories must appear on the front pages of our newspapers. But that’s exactly what the discoverability provision in section 9.1(1) currently does.

What will be the consequences if we fail to address this issue?

Justin Tomchuk, an independent filmmaker, told our committee:

If Bill C-11 disrupts the discoverability of Canadian creators globally, I can see a scenario where some companies with few physical ties will leave the country entirely so they can continue to work unimpeded by these aggressive mandates.

Colleagues, Mr. Tomchuk is saying that all the vibrant creation we have witnessed in Canada over the past 30 years may be at risk. Why on earth would we do that?

Despite all the witness testimony we have heard, the government and the majority of government-appointed senators on the committee have simply refused to address this problem. This makes this bill fatally flawed.

Colleagues, this brings me back to where I began: the potential consequences of this bill. In the face of the witness testimony we have heard, I question whether any senator in this chamber can say — with any certainty — what the consequences of this bill will be.

I have the greatest respect for Thomas Owen Ripley, Associate Assistant Deputy Minister, who sat patiently through our clause-by-clause consideration of this bill. I would suggest he understands the provisions in this bill far better than anybody — certainly better than most — but I do not believe that Mr. Ripley could say with any certainty that he knows what the implications of this bill might be.

That brings me back to what Morghan Fortier, Co-Owner and CEO of Skyship Entertainment, said about Bill C-11; namely, that it was “. . . written by those who don’t understand the industry they’re attempting to regulate.”

That is what worries me the most.

What the world has experienced in the past 30 years is a communications revolution. It is a revolution that has transformed broadcasting. It is a global revolution. Canadians have benefited immensely from this revolution, and they have done so in a largely unregulated environment. Now, the government is attempting to insert itself into this environment, and we have been told by multiple witnesses that the bill may do untold harm to Canadian creators and consumers. We have been told that it may provoke a trade war with our largest trading partner.

Colleagues, I will reiterate the position of my party on the bill: If the purpose of the bill was to integrate streaming services into the regular Canadian system for broadcasting and simply require online platforms to contribute even more to Canadian cultural industries, then the bill should have focused on that and that alone. What we have now is a bill that generates incredible uncertainty, and sets up the CRTC to overregulate with untold consequences and in a manner that is likely to result in failure.

While the bill has been very modestly improved in certain areas by our committee, those improvements are not sufficient. For that reason, colleagues, I would like to propose an amendment on a point I raised earlier: the uncertainty regarding whether user-generated content is excluded from the parameters of the bill or not.

Colleagues, we cannot allow this issue to be left unresolved in a cloud of ambiguity. If passed, I believe my amendment will provide greater certainty for everyone involved: the creators, the platforms and the regulators.

Forgive me if I repeat some of what I said earlier, but I want to ensure that you understand the importance of the amendment. You have heard repeatedly in this chamber that the government claims user-generated content is not covered by this bill. However, witnesses at committee were unconvinced. Neither am I.

The committee ended up adopting an amendment proposed by Senators Simons and Miville-Dechêne aiming to focus clause 4.2 of the bill in what they termed “professional music” without — as Senator Miville-Dechêne put it — “unduly curtailing the CRTC’s discretion.”

This amendment removed the clause related to “directly or indirectly generates revenues.” The senators argued that social media is now excluded. However, as has been pointed out, it is the CRTC that will be in charge of overseeing the provisions of the legislation. The CRTC will retain considerable discretion.

Few digital creators who appeared before the Standing Senate Committee on Transport and Communications expressed great confidence in incorporating broad discretion to the CRTC.

In proposing their amendments, Senators Simons and Miville‑Dechêne specifically noted that their amendment would not unduly curtail the CRTC’s discretion; however, it is the discretion of the CRTC that is precisely the concern of many. Many witnesses expressed concern over the scope of the CRTC discretion in this bill; particularly, every digital creator who appeared before our committee noted their very strong concerns.

It is for this reason that Monica Auer, Executive Director of the Forum for Research and Policy in Communications, told the committee in September that clauses 4.1 and 4.2 should be dropped from the bill entirely. I am sure most online creators would very much welcome this.

Colleagues, let’s remember: If the government doesn’t accept our amendment, they can send it back.

We have an obligation, colleagues, to do the right thing. We do not have an obligation to support the government when they are telling us one thing and doing another. They will make the decision as to whether they accept our amendment. We will have the opportunity to deal with it again. Colleagues, I believe the amendment is reasonable. I would hope that all senators would support it.

Some Hon. Senators: Yes.

Hon. Donald Neil Plett (Leader of the Opposition): Therefore, honourable senators, in amendment, I move:

That Bill C-11, as amended, be not now read a third time, but that it be further amended, in clause 4 (as amended by the decision of the Senate on December 14, 2022),

(a) on page 9, by deleting lines 30 to 37;

(b) on page 10, by deleting lines 9 to 32.

Thank you, colleagues.

Hon. René Cormier: Honourable senators, I rise today in support of the passage at third reading of Bill C-11, whose short title is the online streaming act. I want to acknowledge that the land on which I am speaking to you today is part of the traditional unceded territory of the Anishinaabe Algonquin nation.

The objective of Bill C-11 is clear, and I believe it is important to reiterate it at this stage. Its objective is to include online broadcasters in the scope of the Broadcasting Act so that they contribute to our Canadian broadcasting system and ensure the discoverability of Canadian content.

Although this objective can be summarized in simple terms, the complex issues it underpins go far beyond these few lines. Bill C-11 is one of the first key steps Canada is taking to adapt its cultural policies for the digital age, and it gives us a glimpse of the considerable challenges involved.

[English]

I would like to thank my fellow senators on the Standing Senate Committee on Transport and Communications for having shared their perspectives and questions throughout our study. It was a real sober-second-thought process that allowed us to address and explore many of the issues pertaining to this important bill and to propose some very relevant amendments, not to mention the many witnesses who appeared before the committee or submitted briefs. Their passion and commitment to Bill C-11 is a testament to our democracy’s vitality.

[Translation]

Although it is not perfect, Bill C-11 provides major gains for our cultural ecosystem and Canadian society, the main one being the equity it creates between “traditional” Canadian broadcasting undertakings and online Canadian and foreign broadcasting undertakings.

Another major gain is that the bill modernizes the way the Canadian broadcasting system identifies and takes into account Canada’s diversity and representativeness. Speaking of equity and diversity, my speech will also address some technical aspects of the bill that support these two things, and I will highlight some of the amendments adopted by the committee that will strengthen them.

[English]

From the outset, the bill amends the broadcasting policy so that the Canadian broadcasting system will now include foreign broadcasting undertakings, including online undertakings, that provide programming to Canadians, and that these undertakings will be required to contribute to the implementation of the objectives of the broadcasting policy for Canada.

Equating Canadian and foreign undertakings and their contributions to the Canadian broadcasting system was questioned by more than one witness in our study. Similar reactions were observed with respect to the exception that could include social media in the broadcasting system.

In response to this last concern, Senators Simons and Miville‑Dechêne proposed an important amendment. That said, it is important to remember, colleagues, that the Broadcasting Act provides a framework for the CRTC to regulate and monitor the industry and that a framework that is too precise could prevent it from evolving with new technologies, for example.

It is also important to keep in mind that the CRTC can exercise its power over platforms, not individuals.

In addition, the CRTC’s expertise and the consultations it will conduct prior to the implementation of Bill C-11 will allow it to modulate the obligations of each type of business. Indeed, in exercising its regulatory and supervisory powers — and I quote clause 5(2)(a.1) — the CRTC must take:

. . . into account the nature and diversity of the services provided by broadcasting undertakings, as well as their size, their impact on the Canadian creation and production industry, particularly with respect to employment in Canada and Canadian programming, their contribution to the implementation of the broadcasting policy set out in subsection 3(1) and any other characteristic that may be relevant in the circumstances . . . .

This is to say that a small, emerging, independent online platform would likely not be subject to regulation, while a large platform with a large share of the Canadian market would.

[Translation]

While we welcome the significant advances in this bill in terms of equity, we must recognize that this equity is far from perfect. The proposed paragraphs 3(1)(f) and 3(1)(f.1), which address the use of Canadian talent in the creation of Canadian programming, impose less demanding requirements on foreign companies. Indeed, this is the only place where the bill treats these two types of companies differently.

In its brief and testimony before the committee, the Coalition for the Diversity of Cultural Expressions, which represents 50 cultural organizations across the country, warned us of the dangers of the two-tiered system created by the proposed paragraphs 3(1)(f) and 3(1)(f.1). These clauses send a message to the CRTC that it is acceptable to set lower expectations for foreign companies to use Canadian talent, effectively undermining the primary objective of the bill.

This concern stayed on my mind throughout the committee study, which is why I introduced an amendment that offers a solution by standardizing the criteria around using Canadian human resources while allowing the CRTC flexibility in applying it.

Unfortunately, this amendment was not retained by the committee, and I will not be reintroducing it at third reading. That said, I still want to share this important element of the bill with you, because the industry has serious concerns about its potential repercussions.

On another note, thanks to the appearances of the Union des artistes, the Alliance of Canadian Cinema, Television and Radio Artists and many others during the study, the committee identified a serious inequity in clause 31.1 of the bill, which made the Status of the Artist Act inapplicable to online companies. This clause would have had a disastrous impact on the working conditions of artists hired by online broadcasting platforms and would have had a detrimental effect on existing agreements.

Fortunately, the committee adopted an amendment to correct the profound inequality that such a clause would have created for Canadian artists. Once again, I would like to thank senators for supporting me when I introduced that amendment.

Another major gain is that Bill C-11 modernizes the way the Canadian broadcasting system identifies and takes into account Canada’s diversity and representativeness. Here are some examples.

As other colleagues have mentioned, the bill recognizes for the first time that Indigenous programming, reflecting Indigenous cultures and languages, will have to be provided by broadcasting undertakings operated by Indigenous people. This principle is inspired by Article 16 of the United Nations Declaration on the Rights of Indigenous Peoples. I sincerely thank Senator Clement for her amendments, which have improved the text of the bill by ensuring better recognition of Indigenous peoples and languages.

A second example is the recognition of communities that represent diversity through their sexual orientations, gender identities and expressions. The broadcasting system will have to respond to their needs and interests and reflect their living conditions and aspirations through its programming and employment opportunities.

Here is another example: the presence of clauses requiring the Canadian broadcasting system to take into account the needs and interests of Black communities and other racialized communities by supporting their productions.

Finally, Bill C-11 adds important provisions concerning official language minority communities. I applaud the fact that the CRTC will now be required to consult official language minority communities when making decisions that could adversely affect them, based certain criteria set out in the legislation.

This provision is crucial to official language minority communities, as the Fédération culturelle canadienne-française, the Alliance des producteurs francophones du Canada, the Quebec English-language Production Council and the Alliance nationale de l’industrie musicale pointed out to the committee.

Thanks to the testimony of these witnesses and many others, including Monica Auer, Executive Director of Canada’s Forum for Research and Policy in Communications, concerns about the CRTC’s relationship with civil society and the need for it to be transparent in exercising its powers resonated more with the committee.

The committee took this need for transparency into account by adopting my proposed amendment, which extends public hearings to the making of CRTC orders and regulations, unless it is considered not to be in the public interest to do so.

While positive, this amendment falls short of resolving this issue. In future, better processes will have to be found to ensure transparency and accountability in CRTC decision making.

[English]

The issues associated with intellectual property and the concept of Canadian content were widely discussed during our committee study. The concept of Canadian content definition, in its current form, was sharply criticized as a risk to foreign investment.

With her expertise in Canadian programming, the President and CEO of the Canada Media Fund, Valerie Creighton, had this to say to the committee:

. . . if we continue to consider foreign service production as totally Canadian, all of the IP is owned by foreign companies and the revenue owned in the majority by that production goes outside of the country. Our producers and content creators here become a service industry to foreign companies. It’s a balance that has to be found. It’s not one or the other.

In the spirit of Ms. Creighton’s assertion, it is vital to reiterate that both the notion of foreign investment, along with a rigorous definition of Canadian content, are not mutually exclusive, colleagues.

It is imperative that our Canadian creators retain ownership of their intellectual property. This concept will be central in revising the definition of Canadian content, which will take place in the form of a regulation and will require careful and considered review by the CRTC.

In this regard, we should also pay close attention to the direction that the Governor-in-Council will issue to the CRTC upon passage of Bill C-11.

[Translation]

In conclusion, honourable colleagues, I would say that beyond the specific issues that were raised and the amendments that were proposed, the study of Bill C-11 raises fundamental questions about our concept of Canadian culture and the Canadian government’s role in supporting and promoting that culture.

Some view arts and culture merely as consumer products, so they essentially treat the relationship between the citizen and culture as a relationship between a consumer and a product. The law of the free market is the only one that seems to matter.

Others, including myself, feel that artists and their creations should be treated as tangible manifestations of a dynamic dialogue between the citizen and the artwork, whether it is on the stage, in a museum, library or movie theatre, or on an online platform. It was through that lens that I studied the bill.

If we really want to respect audiences, colleagues, then we need to encourage them to discover new works. It is wrong to believe that by giving the public only what they want, we will achieve our cultural policy objectives. There is a balance to be struck here.

The audience is not passive toward a work, whether it is experienced live, broadcast or streamed virtually. Quite the contrary. It is the beginning of a process of interaction on the part of people actively participating in our democracy. The public has the right to access new works, and the Canadian government has a duty and responsibility to promote accessibility.

I applaud the success of online content creators who have managed to reach an audience, and I congratulate them for their creativity and economic success. However, that is not the case for all creators. Bill C-11 seeks to further support Canadian creators and the dissemination of their works in the digital realm. This is an important step in improving our cultural policies.

It is not because of talent alone that Canada currently has so many talented artists whose work is gaining recognition both nationally and internationally and helping to increase Canada’s impact on the world. Canadian artists are succeeding and making an impact both here and abroad thanks to their talent, of course, but also thanks to the support of the Canadian government and regulations governing the way their work is broadcast and accessed. We are not talking about censorship or ideology. We are talking about support.

Today, thanks to Bill C-11, we are recognizing and applauding the contribution of foreign online undertakings to our broadcasting system.

That said, these companies that operate on our territory and profit from the talent of our Canadian creators must play by our rules. Our cultural sovereignty is at stake.

In other words, if you come to our rink and hire our best players, like Gino Odjick, you play by our rules, period.

Honourable colleagues, if I may, I’d like to conclude my speech by quoting a former colleague who left us recently, the superb Acadian artist Viola Léger. She said the following in her last speech in this chamber, and I quote:

Canadian culture is the product of the mixing of different cultures and traditions, one as rich as the other. Our distinctive features are enriched by the contribution of Aboriginal cultures and other cultural customs that have gradually been added. Our way of life is Western, North American, but at the same time Aboriginal, Ukrainian, Pakistani, Senegalese, Acadian, Irish, and so forth. . . .

We are a Nordic country with extreme cold and many seasons. Our intellectual life draws on the tremendous synergy of the men and women who have come from all continents; men and women who, through their contributions, play a role in building the great community we call Canada. We are not homogeneous. We are diversity itself, and we stand united in our attachment to our values, which are an important dimension of our culture.

That is what drives me, honourable colleagues.

I am aware that passing this bill is just the start of a conversation that our chamber should continue to have on culture, and I am glad about that. I urge everyone to pass Bill C-11 today so that Canadian creators can continue to shine on our screens, and foreign online platforms that have access to our country are aware of how tremendously lucky they are to be able to count on talented, hard-working Canadian artists.

Thank you.

[English]

Hon. Leo Housakos: Honourable senators, it is an understatement to say that this legislation has been contentious. I would like to start on a positive note by pointing out two things upon which I think it is fair to say that we all agree: that the Broadcasting Act is in desperate need of modernization, and that Canada has a rich culture and incredible talent pool of artists who should be shared with the world.

I disagree with the government and some of my colleagues as to how we go about doing that without compromising the individual choice that is at the core of what is offered by the internet.

The online world is known as low to no barrier for creators and storytellers and consumers. That is what makes it so great.

It is all about options with the internet providing limitless opportunities for creators and consumers to reach each other based upon their own individual choices.

Best of all, one person’s choice does not affect the ability of another person’s choice to see content based upon their own preferences and choices. One creator’s success does not come at the cost of another creator’s success. That is the difference between the internet versus traditional broadcasting and is, perhaps, the thing that us Boomers are having the most difficulty wrapping our heads and hearts around.

That is the overarching problem with this legislation. The government and the bureaucrats who wrote the bill and, quite frankly, many of us in this chamber, continue to wrongly treat the internet as a form of broadcasting. It is far from that. It is imperative in the context of our work here that we understand the differences.

As Vivek Krishnamurthy from the University of Ottawa stated during our pre-study at committee:

There is only so much . . . spectrum available for linear broadcasting or bandwidth on a traditional cable connection, so certain kinds of restrictions on content are more justifiable in a broadcasting context than an internet . . . context.

He went on to point out that with no spectrum scarcity in the online world, an individual can watch as many cat videos as they want on a platform without affecting the ability of other people to see different content online as well.

Unlike traditional broadcasting, where there are only so many minutes in the broadcasting day and where there are only so many slots available, the slots on the internet are infinite and, as I said, one person’s success doesn’t come at the price of another person’s success, as is the case in traditional broadcasting.

Instead of modernizing the Broadcasting Act in a meaningful way to address the realities of the digital world, what this legislation is actually doing is ignoring the realities of the digital age and seeking corrective action to problems that no longer exist.

What Bill C-11 does is put limits and barriers back in place and perpetuates a system of picking winners and losers by dictating, based on factors other than individual user preference and choices, what Canadians should post and what Canadians will see. I’m not out to lunch to say that; it’s the entire point of this bill. This legislation will affect what pops up in the feeds of Canadian users — all of us. It’s the entire foundation of the bill. The government has clearly stated that as its objective and goal.

Everyone in this chamber who has spoken in favour of it has acknowledged that’s the point of this legislation. It’s to ensure that online undertakings promote and showcase content based on criteria laid out by the government through its regulator.

Instead of consumers deciding what shows up in their feeds, it will be decided by government, by bureaucrats at the CRTC and by other gatekeepers who don’t want to lose their grip on their power to pick winners and losers under what we’ve acknowledged is an antiquated structure and is failing.

In so doing, we will be taking the industries in which Canadian creators are currently thriving, and we will be dragging them back. The question is: why? If you truly believe, colleagues, like Senator Dawson claims to believe, that Canadian stories, Canadian culture, Canadian music and Canadian creators are in need of government intervention in order to thrive in the digital age, I would say you’re not paying attention.

I understand the reflex of what is supposedly the central rationale for this legislation, which is to protect our cultural sovereignty and ensure that foreign streaming companies who operate like broadcasters and make money in the Canadian marketplace “pay their fair share.”

It sounds admirable. The problem is I don’t believe it. I don’t believe it’s necessary, and I don’t believe that is the true impetus.

Echoing Senator Dawson — or perhaps it’s the other way around — the minister responsible for this file, Minister Pablo Rodriguez, would have us believe that our film and television industry is bleeding money and losing out on some imaginary windfall of $1 billion. I say “imaginary,” colleagues, because neither the minister nor his department have ever been able to provide any documentation of where that number comes from. It’s mythical, colleagues, to say the least.

That didn’t stop the bill’s sponsor once again in his remarks earlier this week giving his best Oprah Winfrey impersonation, handing out everything but cars to everybody.

It is a fact that conventional broadcasters in Canada are seeing a decline in revenue and, in turn, entities like the Canada Media Fund don’t receive the same amount of money they once did. Dollars are scarce, colleagues.

However, this notion that foreign streamers aren’t paying their fair share is as completely inaccurate as the myth of a magical billion-dollar windfall once this legislation passes. Investment in Canadian productions, Canadian culture and Canadian storytelling isn’t drying up. Colleagues, on the contrary; the investment is there. It’s just no longer taking the more tortuous and long and winding road. The gatekeepers are being cut out of the process.

I could argue that by cutting out the middle men — the gatekeepers who decide winners and losers — there’s actually more money for the artists and creators themselves. That’s not a bad thing. That should be our objective.

According to Wendy Noss of the Motion Picture Association — Canada, the organization spent more than — listen to the number — $5 billion across Canada just in 2021, accounting for more than half of all production in this country and 90% of the growth in the sector over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented creative workers and supported more than 47,000 businesses in 2021 alone. This so far exceeds the footprint, colleagues, of government-supported corporations like the CBC that it should give us all pause and reflection.

Our committee was told that right now in the film industry right across Canada, there aren’t enough people to fill the jobs. Like almost every other sector, the film industry is struggling through a labour shortage.

However, despite this impressive economic footprint and success that these companies have in Canada, our government is asking them to pay more into our paternalistic system that supports domestic companies. Meanwhile, Canadian broadcasters draw benefits and protections that the foreign streamers will not, even while paying into the same central pie. Does that sound like a fair playing field, colleagues? Does that sound like a good legislative approach to broadcasting and communications?

The U.S. government certainly doesn’t think so, as outlined earlier by Senator Plett. As a matter of fact, far from backing off their concerns that this legislation is in violation of the Canada-United States-Mexico Agreement, or CUSMA, their concerns appear to be growing, and it’s being reported that it could even be a topic of discussion when President Biden makes his first official visit to Canada. That is nothing to scoff at, colleagues; this is very serious business.

If indeed the U.S. employs retaliatory measures against Canada, what industries will suffer as a result? That’s the question. We will be picking winners and losers not only in our own cultural sector but affecting other Canadian economic sectors as well.

So what is it about the outdated definition of what is or isn’t Canadian content that is so problematic?

Unlike conventional broadcasters in Canada, who have the advantage of using localized sports and news programming to count against their minimum CanCon requirements, online streamers are global undertakings and they can’t do that. Meanwhile, these streamers don’t get credit for the investments they do make in Canadian storytelling and supporting Canadian artists because the IP ownership is a determinative factor in CanCon.

If this is really about foreign streamers paying their fair share and reinvesting in Canada the money they make off the Canadian marketplace, why is it that the millions of dollars a foreign production or streaming company is willing to invest in telling a Canadian story and in employing Canadian artists, writers, actors, producers, editors, camera people and audio techs is not good enough unless they also hand over ownership of the product?

At the end of the day, isn’t it great that foreign investors from California, Paris or London want to come to Canada and invest in Canadian culture? Isn’t that an impetus? Isn’t that a success story that we need to build on?

This is notwithstanding the money they are often pouring into our economy in Canadian towns and cities. How many of our cities and regions of the country have seen direct profits because of the movie industry that’s just booming — documentaries, films, productions of all sorts right across this country — not to mention the tourism benefits because of the exposure that certain regions of our country are getting right across the globe?

This isn’t about protecting or promoting Canadian culture and Canadian artists. This is about protecting the big broadcasters in Canada. Colleagues, let’s be honest; this is what it is. And if we haven’t caught on, it’s time to catch on. It’s about protecting the status quo. It’s about those guys in the corner offices at Bell Media and at Rogers and Quebecor.

We did adopt an amendment at committee that addresses the outdated definition of what counts as Canadian content. The amendment states that no one factor, including IP ownership, should be determinative as it pertains to CanCon. I strongly urge the government to do the right thing for Canadian culture and storytelling and adopt this amendment.

Colleagues, we’ve heard during committee how we have a case like “The Handmaid’s Tale,” written by a famous Canadian author, being filmed on Canadian soil, starring Canadian actors and employing Canadian producers and what have you, and it’s not considered CanCon. Come on; Margaret Atwood is not considered CanCon? Let’s get with it.

However, that still leaves a lot of questions about the niche streamers that offer exclusively foreign content, like BritBox, for example.

It remains unclear how this legislation will impact them and, thus, what’s on offer to Canadians through streaming apps. Does this mean streamers like BritBox won’t be allowed to operate in Canada?

The answer is yet to be determined, colleagues — not by us but by the regulator, the CRTC. I don’t know about you, colleagues, but that makes me extremely uncomfortable. It’s one thing to have an independent regulator; it’s quite another thing to cede our authority and responsibilities as parliamentarians in making legislation. This is not about frameworks, like Senator Simons said yesterday in response to a question that I asked her. We’re not talking about frameworks. This is not a motion. This is legislation. This is a bill. This is far more significant than any framework.

I’d like to shift to another part of this legislation that greatly troubles me — it’s the other part of the government’s stated rationale for this legislation. They say they want to ensure access to and remove barriers for under-represented artists and creators in Canada, and who would argue against that?

Unfortunately, again, I’m not convinced that the bill — in this form — does any of that, nor are the very creators themselves convinced. That was abundantly clear throughout our committee study. We heard it from BIPOC and Indigenous creators, as well as francophone creators who also appeared at our committee. They told us that they’re enjoying great success online because it is barrier-free in ways that traditional radio and television never were. That’s almost word for word what Darcy Michael told our committee. Darcy Michael, a self-described gay, pot-smoking comedian from British Columbia, wowed our committee with his lighthearted yet earnest and passionate testimony about how much better he’s doing in the online world where he owns everything he creates versus CTV having the rights to his previous television content.

The witnesses who objected to this claim — that creators aren’t better off in the digital age — were associations and lobbyists; it was not the creators themselves but their gatekeepers, the middlemen, the ones who are at the trough, not producing art or culture — but the gatekeepers.

This brings me to the debate earlier this week following Senator Richards’ remarks. I do think there is a certain level of romanticism about how much of the role these institutional supporters have played in the success of some of Canada’s great singers, playwrights and actors. Senators rose to talk about this Canadian, or that one, who supposedly would have never risen to their level of success without government intervention and government handouts. My question is as follows: How many amazing, talented Canadians didn’t make it because a gatekeeper somewhere along the way decided — for whatever reason — that they weren’t worthy or good enough for their support? We’ve never heard of those success stories, so why would we want to hold on to that system of picking winners and losers when we no longer have to?

[Translation]

Senator Miville-Dechêne, I respect the fact that things are a little different in our province of Quebec. I understand the concerns that you raised, just as I admire and respect your fierce defence of Quebec artists. I think that you raised a very important issue when you spoke about the generational conflict and Quebecers’ nostalgia for the quota of 65% of francophone music on Quebec radio. I sincerely believe that that is part of the problem with this bill. It tries to re-create something that worked in the past but that no longer applies in the digital age.

You spoke about young Quebecers who no longer listen to local artists. Perhaps they don’t listen to the ones we know, but that doesn’t mean that they aren’t listening to Quebec artists simply because they aren’t the ones in our preferred data set. It also doesn’t take into account all of the people around the world, outside Quebec and Canada, who now listen to Quebec and French-Canadian artists.

Once again, I assure you and I repeat that I understand and respect what you’re saying about Quebec singers and musicians. I understand why the amendment you proposed to section 4 in committee makes sense in that context.

[English]

In fairness, I do think your amendment is an improvement, but I also think we could have gone a lot further. And I am disappointed that Senator Plett’s amendment earlier today — just a moment ago — was defeated on this floor. However, I did support your amendment at committee and still do today. The concern I have is that it still leaves an awful lot of discretion to the CRTC.

Part of the problem with that is while the government continually uses the catchphrase, “Platforms are in; users are out,” that’s not how the internet works, colleagues. Users of a platform are directly affected by any regulation imposed on the platform itself, especially when it comes to something like discoverability. Platforms are empty shells. They’re just highways. The beef and the meat are always filled by the digital‑first content producers — the Canadians right across the country that provide content on those platforms.

The other part of the problem is that I’m not convinced the regulator is hearing it — no matter how many times the government says it. You may recall this very telling exchange between Senator Wallin and then-chair of the CRTC Ian Scott when he appeared before our committee this past June. Remember, this is the CRTC that will be given full leeway to interpret and create the regulations.

Senator Wallin said this to Mr. Scott — and this is very important, colleagues:

I know that you, the minister and other officials insist that you’re not regulating user-generated content, but I think there’s a bit of parsing the words. You will regulate the platforms, and then the platforms will impose your rulings and directives, as you said. You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly and explicitly or indirectly, but you are regulating content.

The response from Mr. Scott was “You’re right.”

This has become an absolutely pivotal issue, as supporters of the bill attempt to defend a provision in the legislation that clearly has much broader implications than they want us to believe it does.

Mr. Scott wasn’t alone in his interpretation, by the way; another former chair, Mr. Konrad von Finckenstein, said it too. Even when Mr. Scott and other CRTC officials appeared before committee a second time at the end of our study, they were not able to assure us that they can enforce discoverability requirements on online platforms without those platforms having to manipulate their algorithms. Lest there be any doubt that the government and the CRTC understand exactly what they are saying here and what it will mean in practice, allow me to further quote Mr. Scott during his testimony before our Senate committee:

I will give you simple examples. Instead of saying — and the act precludes this — “We will make changes to your algorithms,” as many European countries are contemplating doing, we will say, “This is the outcome we want. We want Canadians to find Canadian music. How best to do it? How will you do it? I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome.”

That’s the former CRTC chair.

Let me repeat that last part: “I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome.”

Mr. Scott is saying that this legislation allows him to say to the platforms, “We, the government, won’t manipulate your algorithm; we’ll just make you do it for us.”

Colleagues, this is serious. He is acknowledging that although there is text in the bill that says the regulator can’t force a platform to employ algorithmic manipulation, they see a way around it for the regulator. In court, we would call that a clear and recorded admission of intent.

While it’s all well and good for the government — and for us as parliamentarians — to talk about what is or isn’t intended with this bill, unless we make it crystal clear, ironclad in the legislation itself, and do our job in giving directives to the regulator, we won’t have a leg to stand on if the regulator interprets it otherwise.

The time and opportunity for Parliament to make its wishes clear are now. Now is the time to do our job. Whenever Parliament delegates — whether to regulation or another body — it loses some degree of control. If we wish to retain that control, we must make our intentions crystal clear. We must eliminate discretion by specifying the rule, or we must subject the rule or rules to parliamentary control, for example, through affirmative resolution or tabling before coming into force.

Obviously, anything we do at the statute level remains much more frozen in time, so responding to new or urgent situations is often difficult, especially if they arise when Parliament, for a variety of reasons, is dissolved. But this is the Broadcasting Act, and deciding whether particular content should be scoped in or what content should be prioritized is not something that would occur in an emergency situation.

I understand the argument that the regulator needs flexibility in some areas — but in this area, colleagues, I don’t think so. Flexibility is the entire problem with this legislation. What it needs, especially as it pertains to user-generated content and algorithmic manipulation, is clarity, certainty and no ambiguity. While I’m not convinced we seized the opportunity to fully address it with clause 4, I do believe we have another opportunity to address it in clauses 3 and 10. I believe we can do so by removing the requirement on platforms. I believe we must make it clear that individual user choice is paramount to government intervention in what we consume and post online, and that’s why I will be proposing an amendment as it pertains to discoverability.

For anyone who isn’t sure what we’re talking about when we say “discoverability,” colleagues, it’s the promotion of some content over the other. It’s a tool that allows users to discover content that is available to them through what’s often identified as a feed. Think of YouTube. We all know what that is. We’re on it often. When you watch one video on YouTube, you’ll see others in the queue where it says, “Suggested videos.” That’s discoverability. It’s done through algorithms. Typically those algorithms are tailored to put additional content in front of you for your consideration based on where you’ve already been, what you’ve watched and what your preferences are.

What the government wants to do with Bill C-11 is make sure the content that gets higher placement in your feed — in your suggested videos, for example — is based on whether they think it counts as Canadian culture, Canadian storytelling or whatever they deem to be appropriate or a priority.

It’s one thing for the government and parliamentarians to say that we should make sure that Canadian culture and storytelling are available or even to say that we want to make sure that Canadians are exposed to it. It’s quite another thing to legislate and force it down people’s throats. We are dangerously close to doing just that in this bill in order to achieve a government’s idea of what is or isn’t acceptable content under the guise of cultural sovereignty and Canadian storytelling. As Senator Richards said in his remarks earlier this week, it’s censorship passing itself off as inclusivity.

Even if you sincerely believe the government has the best of intentions and that the regulator will adhere to those intentions to the letter, what happens if they don’t? That’s the question mark. Forget parliamentarians not having any recourse. What recourse will Canadians have to say, “Hey, that’s not what the act was supposed to do. That’s not what we were told”? What should they do? Appeal to the CRTC? I’m sure it all sounds fine to those who implicitly trust large government bureaucracies. But as my colleague Senator Batters mentioned yesterday in quoting Monica Auer, Executive Director of the Forum for Research and Policy in Communications:

In terms of accountability and transparency, the problem with the CRTC right now is that it is not making its decisions public. Every year, it’s publishing dozens of decisions that you can’t see because there’s no hyperlink and they don’t publish. When we say that the CRTC is transparent, it is simply not. It is holding public hearings without witnesses. I’m sorry — you’ve been very kind to invite me — but the CRTC chooses not to invite anybody to some hearings, including transfers of ownership.

I’m particularly taken by this quote from Ms. Auer because while there’s a lot of apprehension among my colleagues about the absence of transparency as it pertains to algorithms employed by online platforms, there appears to be very little similar anxiety about the lack of transparency on the part of the regulator we’re entrusting to handle all of this. It is, shall we say, a bit rich.

While I do agree that Canadian consumers have a right to greater transparency, I don’t share in the hand-wringing over what’s behind the algorithms. The online platforms use algorithms to prioritize content for users, typically based on that user’s past consumption. Like any business, these platforms pay attention to the behaviour of their customers. They pay attention to what they like or don’t like, and they adjust what they offer to the customer accordingly. It’s like having a personal shopper who narrows your options for you based on what they already know you like instead of you having to go through all the racks. It’s called customer service, colleagues.

Senator Miville-Dechêne actually used a similar analogy about how things end up at the bottom of the barrel or the back of the closet. But I think our job is to make sure that there’s nothing in the regulation or law that impedes you from browsing through all of those racks and digging to the bottom of the barrel. Something has to be at the back of the closet or at the bottom of the barrel. I just don’t think it’s the job of the government to tell a store owner or customer what that should be, nor at what stores they should shop, for that matter. That’s social media in a nutshell — endless options, endless opportunities and companies that will tailor their product based on your preference. But you are in the driver’s seat. You decide. Nowhere in there is there a role for the government — nor should there be.

Senator Miville-Dechêne, you mentioned that you don’t know if perhaps any algorithm is influenced by a partnership between an advertiser and a platform. What if it is? So what? It happens all the time in retail, and it happens in traditional broadcasting and cultural events. As a matter of fact, is it any different than when the government is sponsoring content or providing subsidies? Is it different? It’s not. With this legislation written the way it is, an arm of the government would be compelling platforms to change the way they do business to retain customers.

We’re also interfering with the business of Canadian digital creators and we are interfering with their livelihoods. As Morghan Fortier, CEO of Skyship Entertainment — perhaps Canada’s most successful exporter of Canadian content on YouTube — told our committee, when you tamper with that, you are essentially doing the same thing as tampering with the ability of radio stations to access ratings information and to adjust their playlists or on-air talent accordingly.

Most legislators wouldn’t dream of advocating that level of interference in private sector marketing, yet that is exactly what we are considering in this bill. Why would we do that and why do we continue to impugn the motives of these companies? Why do we assume nefarious motivations on the part of these platforms when it comes to the conduct of their business that we wouldn’t assume of other businesses like radio stations or bookstores or, for that matter, that we’re not supposed to assume on the part of the government?

You said it yourself, senator. Unlike me, you don’t place blind trust in the free market. And unlike you, I don’t place blind trust in government. I’m sorry. That’s where we differ. Ultimately, I’m in favour of placing greater trust in users of these platforms to know what they want to watch or listen to or promote. I have faith in Canadians to make the choices that they want — I believe in choice — and to judge for themselves what platforms are meeting those needs. It’s an argument in favour of consumer choice and having confidence in Canadians to promote what they think is worthy of promoting.

I heard the arguments in committee by colleagues and departmental officials that there are other ways to achieve the desired outcomes without algorithm manipulation, despite testimony from creators, users, the platforms and the regulator itself saying otherwise — and despite the fact that nobody has clearly stated what all of these other means might be.

Mr. Scott, who was chair of the CRTC at the time, referenced the consultative process that would follow upon the passage of this legislation. He noted that this process would play a central role in determining how platforms could and should best achieve particular outcomes. However, for many of these platforms, there just isn’t enough screen real estate to accomplish the kinds of outcomes we are talking about without algorithmic manipulation. These platforms don’t allow the option of having tabs or drop‑down menus that allow the content to be divided into genres and thus passively promoting or showcasing Canadian content. Many don’t even have the screen real estate to have a sidebar running — like Google — with numerous videos from which to choose. They just populate your feed.

That’s the point that Jennifer Valentyne, Scott Benzie, Justin Tomchuk, Darcy Michael, Morghan Fortier, J. J. McCullough, Frédéric Bastien Forrest and so many more have all made during their testimony before our committee. Colleagues, you saw how acrimonious and divided Canadians are generationally on this bill. The government has overwhelmingly taken a side in supporting traditional cable and traditional broadcasting companies when they themselves have shown their model not to be effective anymore.

That’s not all, colleagues. The consumer experience will be further impacted by the prohibitive cost of regulating user‑generated content by ensuring discoverability in the manner described in this bill. Not only will the higher costs to the platforms be passed on to consumers but, in some cases, they could lead to some platforms pulling out altogether from the Canadian market.

That is a fact, in particular for smaller platforms that serve diaspora communities in Canada from abroad or niche streamers like the aforementioned BritBox. They may very well decide they can no longer afford the cost of doing business in Canada. The consumer experience will also be negatively impacted because they will lose trust in the system. They will be seeing more and more content that is not based on their likes and interests. While it may sound like an enticing prospect to force people out of their comfort zone, I assure you that it will have a negative impact in the long run.

Those negative impacts will be felt mostly by the very people this bill purportedly is designed to protect and promote — Canadian artists and creators. There is a risk that many consumers will tune such content out altogether. They will go elsewhere to find what they’re looking for unimpeded.

As YouTuber Justin Tomchuk told our committee about forced Canadian content:

CanCon content will perform poorly on the platforms because the audience will be mismatched with their interests. You can force a video to play, but you can’t force them to watch it. Canadians will click away and learn to actively avoid CanCon.

That is very important, because that is precisely what we’re seeing now with conventional broadcasting. Viewership in conventional broadcasting is down dramatically because consumers now have choices as a result of streaming. They no longer have to consume what’s being forced onto them. That’s not the fault of streaming platforms, nor is it an indictment of the quality of Canadian content elsewhere. How many of you, over the holidays, are watching Netflix instead of going on your local CTV broadcast or Quebecor TVA broadcast? It’s a choice. It’s your right.

Mr. Tomchuk also explained another risk for Canadian digital creators if algorithms are manipulated to satisfy CanCon discoverability. If content is promoted or discoverable based on something other than what the consumer wants to see or may like based on their previous habits, they will click on it, realize it’s not something they want to see and then quickly move on without watching to its completion. It’s called click, guys. You’re not interested? You just click. If you’re not interested, you click off. If you’re interested, you click on. This will drive down the audience retention rate on that item, and in turn the lower retention rate will drive down the global ranking, thereby driving down its discoverability.

Canadian artists and creators who are enjoying immense success globally will see their success greatly diminished in exchange for the possibility of success at home. As a recent editorial in the Financial Post put it:

Even if Bill C-11 helps them find a little more success here at home, and there’s no guarantee of that, it could be to the detriment of any success they might hope for beyond Canada’s borders.

This will be exacerbated by the threat of other countries responding to the passage of this legislation in kind and enacting their own protectionist laws that will see Canadian content blocked here at home. All of the success and opportunities that our artists and creators are enjoying as a result of the world opening up to them through the barrier-free advent of the internet will be gone. The freedom of the internet is incredibly empowering. As one witness testified, all creators face the same challenges in gaining a following, but the internet is a level playing field in terms of access.

I understand some senators felt the need to leave clause 4 in the bill to protect songwriters and singers and musicians against music labels streaming their music without properly compensating them. What I took away from our committee, though, is that those protections were already available to them through copyright in this country and through their contractual obligations, and is otherwise not something Bill C-11 should be addressing. That’s why I still believe that the right thing to do is to remove user-generated content from this bill altogether.

However, barring that, I do believe that we still have the opportunity to improve this legislation by removing discoverability and algorithm-manipulation provisions. That’s what my amendment will be focusing on.

In closing, before I get to my amendment, I just wanted to say that the Canadian entertainment and creative industries are thriving. It’s the antiquated system of delivery and, certainly, funding that’s on life support and so, too, should be the old regulatory system. It’s a system that worked well once upon a time, to varying degrees, because it was designed for conventional broadcasting that mainly stopped at our national borders. But it has served its purpose. Its time and usefulness have come and gone. It is certainly not needed when it comes to digital creators and user-generated content.

The creators themselves are telling us that. They’re begging us not to force the old regulatory regime on them. They are showing us that, unlike under conventional broadcasting, they don’t need us. What they need is for us to stay out of their way and for government to stay out of their way. They’re imploring us to look at their success and acknowledge that this success is the result of producing quality, interesting, innovative content that people want to see and hear.

If we leave discoverability in this bill, we are saying that we don’t think that Canadian creators are capable of doing it on their own. We are saying that we don’t think that what they produce is all that interesting on its own and that it won’t succeed without our intervention, especially marginalized and under-represented creators like Indigenous and BIPOC and francophone artists and creators. Frankly, it’s not only disheartening to these creators; it’s extremely paternalistic. If the goal is, as the government states, to remove barriers and ensure promotion and discoverability for under-represented creators, the answer is simple: Don’t put barriers where there is currently none. And don’t leave it to the government or the gatekeepers to decide whose content and what content Canadians should be consuming.

As stated in the Financial Post editorial recently:

If government bureaucrats get to choose what content to push on Canadians, there’s a very real risk the government will be tempted to use its filtering powers to silence its critics.

That might sound like a great idea to people in this chamber, especially in the context of what they consider to be hateful rhetoric on the internet or political views that are not appreciated, but will they be just as fond of it when it’s not a Liberal government in power in a few months?

With that, colleagues, I want to draw your attention to the existing text of subclause 3(7) on page 8, at line 31. It states:

(q) online undertakings that provide the programming services of other broadcasting undertakings should

(i) ensure the discoverability of Canadian programming services and original Canadian programs . . .

My amendment will replace the word “ensure” with “allow.” Doing so would encourage online platforms to make Canadian content available but without forcing a streamer like BritBox out of the Canadian market.

Furthermore, it doesn’t entirely remove the reference of discoverability but replaces the word “ensure” with “allow” in order to give flexibility to the platforms so that they can avoid algorithm manipulation.

The second part of my amendment affects clause 10, on page 14, in lines 26 to 30, outlining the CRTC’s obligation to regulate as follows, in proposed subsection 9.1(1):

(e) the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French-language programs . . .

My amendment will remove all of the text after “for selection by the public.”

I am moving this amendment to Bill C-11 in one more attempt, in a last-ditch effort, to protect the right of Canadians to determine what they post and what they see online. It will remove for online platforms the threat of having the government or the CRTC dictate what their algorithms should be or what content should be prioritized while making other content less discoverable.

Essentially, allow Canadians their choice. Allow the system to function as Canadians want it to function, in terms of what they see, what they hear and what they post.

Hon. Leo Housakos: Therefore, honourable senators, in amendment, I move:

That Bill C-11, as amended, be not now read a third time, but that it be further amended,

(a) in clause 3 (as amended by the decision of the Senate on December 14, 2022), on page 8, by replacing line 31 with the following:

(b) in clause 10 (as amended by the decision of the Senate on December 14, 2022), on page 14, by replacing lines 27 to 30 with the following:

“services for selection by the public;”.

Honourable senators, I thank you for your consideration.

Hon. Donna Dasko: Thank you, senator, for your very thorough speech. I wanted to remind you that Bill C-11 already includes an exclusion with respect to the use of algorithms. Whatever it is that the chair, now the former chair — whatever it is he may have said — and he did, as you quoted correctly, make these statements to our committee — you will know that clause 9.1(8) actually states:

The Commission shall not make an order under paragraph (1)‍(e) —

— that is the one you are suggesting be changed —

 — that would require the use of a specific computer algorithm or source code.

So, in fact, the bill, as it is, says that no algorithm manipulation will be allowed under orders of the CRTC.

I think your concern about algorithms is a little bit misplaced because, in fact, the CRTC cannot make a ruling on algorithms.

Senator Dasko: Senator, as you know, there are many other ways that can be used to promote and showcase Canadian content. That is a topic that came up a great many times at our committee. The platforms can use various kinds of promotion, they can use advertising, they can use categories of presentation, they can use pop-ups — they have all kinds of other methods to showcase Canadian content.

When you take those opportunities, those possibilities, along with what I just read — which is very clear that algorithms cannot be ordered to be manipulated — and when you put these possibilities together, you actually have a very good picture of how discoverability can be carried out by the platforms. It seems to me to be very reasonable and would seem to address your concerns. Thank you.

Senator Housakos: Yes, I truly believe that culture is a commodity like any other. It is important to get the best products out there, the best artists and the best people in the field, people who can attract more interest. That will transform the whole thing into a money-maker. Our goals are aligned. I want to protect francophone Quebec culture. I am proud to be a Quebecer, and I am very proud of the importance of promoting Quebec culture, but our approach is very different.

You’re obsessed with protectionism when you try to restrict the promotion of French culture to a limited market that has only a few million francophones in Quebec and Canada. I want to use the platform we have before us and I’m fighting for all Quebecers who call me every day, who send emails and who give me the courage to continue my fight in this place, on their behalf, because for the past few years, thanks to this platform, they’ve had the opportunity to export their French culture to hundreds of millions of francophones around the world.

You now seem convinced that protectionism, a closed approach that limits opportunities for these people and forces them to work in a smaller market, is the best option for them rather than making the entire francophone world available to them. I am fighting for these people. I don’t understand why you’re not as enthusiastic as I am about the idea of maintaining and protecting the wealth that has developed over the past 15 to 20 years thanks to various international platforms.

[English]

Senator Housakos: Thank you, senator, for your question. Actually, I see two questions in there.

The algorithmic process that is used by platforms right now is organic. It is not controlled by any one person; it is controlled by you and me. If we have a phone or an iPad and are on these platforms, we determine what is prioritized.

These platforms are in the business of volume. They give the consumer what the consumer wants. That is what I’m fighting for. All I’m simply saying is it is not incumbent upon you or I to determine what should or should not be censored.

I have faith in the Canadian public. I do not believe that most Canadians are misogynistic, racist or Islamophobic. I believe that, at the end of the day, they will make the right choices.

When we see things on the web that are deplorable, all of us, as Canadians, call it out. When we see something that we want to really push forward, we will get up and push it forward without any hindrance or determination by any minister or politician. I don’t care if it is a Conservative, a Liberal or a Communist for that matter.

On your second question, the truth of the matter is that in the last decade — and I touched upon it in my speech, as did Senator Plett — we are talking, in 2021, $5 billion of investment in the arts and culture sector. I know you have many years of experience at the CRTC in arts and culture. You name me what year the Canadian government was able to inject into Canada $5 billion in arts and culture.

We keep putting $1.4 billion into the CBC and no one watches it, and God knows we’re not consulted about it. The ratings keep going down. Everyone is going to streaming and to all of these platforms that we are trying to demonize, but these platforms have put more investment into Canadian arts and culture than ever before.

As I said it in my speech — and we saw it in the testimony — there is a plethora, not a shortage, right now of Canadian artists working today making films and documentaries, and producing songs, shows and art like never before. Let’s unleash that Canadian culture. We’re punching above our weight around the world. Let’s continue to give more of Canada to the world instead of giving it less by closing our borders.

Hon. Paula Simons: I will be very quick, as I stand between you and your dinner.

Senator Housakos raises a perfectly valid point, and I agree with him that there is far too much leeway in this bill to allow for algorithmic manipulation and the curation of what Canadians see. My complaint about this amendment, however, is that I think it does nothing to address that concern.

If we look at the first clause that Senator Housakos intends to amend, he is changing the word “ensure” to “allow” so that the clause will say to “allow the discoverability of Canadian programming . . . ”, French and English “. . . in an equitable proportion, . . .”. I don’t see how that addresses the issue of algorithms whatsoever.

The second question has to do with the clause on page 14, which speaks to the presentation of programming. Senator Housakos’ amendment would simply cut off the sentence halfway, allowing for a sentence phrase that says, “the presentation of programs and programming services for selection by the public . . .”, leaving us with a sentence fragment that makes no sense and does not speak in any way to the concern I have about algorithmic rigging.

While I absolutely share Senator Housakos’ concerns — they are well founded and not out of proportion — I do not feel that this amendment does anything to address those very real concerns. I, with regret, will not be supporting it.

The Hon. the Speaker: Are senators ready for the question?

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of February 1, 2023, moved:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, February 7, 2023, at 2 p.m.

Senator Tannas: As Mr. Menzies was speaking, I was reminded of this old saying that I heard: “There is no problem that the government can’t make more complicated.” It also comes as a bit of a Canadian thing. There are many times when we can’t seem to go straight at things without complicating it a little bit in our rush to be nice, to be thorough, to be complete, to be fair or to make sure we don’t miss something.

The point of this bill — based on what we were told, and what I was told in the briefing from the government — was to make sure that the streaming services begin paying significant amounts of money into the funds to support artists across the country, as cable companies and other more traditional media fade away.

The majority of the concerns that I’ve heard, both at committee and in this chamber, are around potential issues that are outside that stated reason for the bill. The questions are as follows: Will small, specialized streaming services withdraw from Canada? Will user-generated content, producers and creators face interference? Will algorithms be co-opted by government to force us to somehow consume artistic product that is not of our choosing?

We received assurances — at committee from government witnesses, and in this chamber from senators — that our worries are not valid. We have actually inserted — thanks to the efforts of committee members — some amendments to help assure ourselves around that.

Yet still to come are the publishing of regulations and the CRTC actions in the future. We need to watch and ensure that our nightmares don’t become a reality. Much of the success — or failure — of the bill depends on the transformation of the current CRTC, and the shift to a more nimble regulator, as nothing kills innovation like delay.

I believe that the Senate will have a continuing and vital role to play with this bill over the next few years. I urge the Transport and Communications Committee to consider emulating the long-standing practice of the Banking Committee which regularly and systematically interacts with the Governor of the Bank of Canada.

We’ve heard, and it’s well-known, that this practice was welcomed by previous governors as being an excellent exercise in the exchange of ideas, as well as a personal responsibility-and-accountability exercise for the governor in a unique environment. We’ve heard similar comments from the Superintendent of Financial Institutions in the past at the Banking Committee — I’ve been involved with that; it’s a great exercise, and it’s one that should be emulated with the Transport and Communications Committee through frequent meetings with the chair of the CRTC, through the regulatory process and the execution process. It would be extremely valuable.

After the work that we did, the 100-plus witnesses we heard and the thousands of messages that we got from concerned Canadians across the country, that is the least we can do — to ensure that this bill is implemented in the way that we all have been given to understand that it will be implemented. Thank you.

[Translation]

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act.

(Bill read first time.)

Senator Housakos: It does not address my concerns, and it did not address the concerns of all of the digital-first content producers who came before our committee. You were a diligent part of that process.

With all due respect, pop-ups and advertising strips do not drive content. That was also validated by the platforms themselves when they came before our committee. There was never an ambiguity that there is only one way to drive outcomes, and that is algorithmic manipulation. That is clear in the report. There was no witness that called that into question — not the platforms themselves and not the CRTC chairs themselves.

Furthermore, the problem we have, as we’ve seen in history, the CRTC has full discretion in the old Broadcasting Act and they do today. The CRTC chair admitted that he has full authority in order to implement the Broadcasting Act. We had an example last year when the CRTC censored a particular program and a journalist at Radio-Canada because a word was used that was deemed inappropriate by the CRTC. They had the power with the old Broadcasting Act to censor that journalist. I will not get into the details and I will not use the word because it is inappropriate, but it is an example of how the CRTC has the power to censor. We should be very careful. And why are we fearful?

Hon. Senators: Agreed.

(Motion agreed to.)

[English]

On the Order:

Resuming debate on the inquiry of the Honourable Senator McPhedran, calling the attention of the Senate to parliamentary privilege, the Ethics and Conflict of Interest Code for Senators and options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance, including guidelines on public disclosure.

Hon. Scott Tannas: Honourable senators,

Four strong winds that blow lonely

Seven seas that run high

All those things that don’t change come what may

But our good times are all gone

And I’m bound for movin’ on

I’ll look for you if I’m ever back this way.

These words are the chorus of a classic Canadian song, “Four Strong Winds,” written by Ian Tyson and first recorded by Ian and his wife, Sylvia Fricker, simply known to Canadians as Ian & Sylvia.

On December 29, Ian Tyson passed away and Canada lost a folk and country music icon.

He was a transplanted Alberta country singer-songwriter, who began by teaching himself to play the guitar while in hospital following a rodeo accident.

His music career began in the late 1950s when he joined the folk music scene in Toronto. He met his music and life partner Sylvia, and they formed a duo and recorded 13 albums.

The couple broke up, both professionally and personally, in 1975, and Ian moved back to Alberta to continue his music as a solo artist. He set about also to live his dream of owning a cattle ranch in the southern Alberta foothills and being a cowboy. He worked to gain the respect of both his fellow ranchers and environmentalists as an advocate of land stewardship and conservation.

Meanwhile, his music took a greater country feeling to it and he continued to write and record until 2015.

Ian Tyson was a Member of the Order of Canada and a member of the Alberta Order of Excellence. He was inducted into the Canadian Music Hall of Fame and the Canadian Country Music Hall of Fame.

For his fans, “Four Strong Winds” will always be their favourite.

On a personal note, over the last 40 years, Ian became a familiar figure in my hometown of High River, which is about 20 miles from his ranch. He was humble. He was generous with both his time and his money. There’s a funny story that circulated for years in High River of a retail clerk — a young lady — who saw the name Ian Tyson on the credit card and said to him, “You look a lot like the famous Ian Tyson.” He said, “I get that a lot, but I don’t think I look like him anymore.”

To his family and all his fans, he will be deeply missed, but his music, which honours his Western roots, will live on always.

[Translation]

Hon. Senators: Hear, hear!