Hon. Julie Miville-Dechêne: Would Senator Manning accept a question?

Senator Manning: Yes.

Senator Manning: A principal issue related to this bill is the question of to whom this legislation would apply.

The government has repeatedly stated that there is no intent to apply this legislation to small players. Yet, there are no boundaries in the legislation to ensure that that intention is respected and this does not happen.

The Senate Transport and Communications Committee heard from numerous witnesses who clearly stated that the bill had to incorporate a revenue threshold in order to ensure that the legislation focuses on services that are truly of consequence in the digital marketplace, rather than capturing user-generated content.

Tim Denton, Chair of the Internet Society Canada Chapter, said that any online service that earns less than $150 million in Canada annually should be excluded from the act and “. . . from any regulation or obligation to contribute to Canadian content production . . . .”

As it stands now, it may surprise many of you to learn that neither charities nor religious organizations are exempt from regulation under this legislation, and proposed subclause 2(2.3) does not shelter the online activities of individuals, whether professional or amateur.

I know that some colleagues believe and will argue that social media is now exempt based on the amendment from our colleague Senator Miville-Dechene adopted at committee. However, I, and many stakeholders, are still of the mind that this amendment doesn’t go far enough because of the wide discretionary power it still affords the CRTC in deciding what is or isn’t scoped into this legislation.

As Mr. Denton said, social media platforms are far from the only places on the internet where entities and individuals may transmit audio or audiovisual content. Individual and community websites abound with such content. Neither subclause 2(2.3) nor clause 4.1 addresses the much broader regulatory reach of Bill C-11.

Konrad von Finckenstein, former chair of the CRTC, addressed another aspect of this. He noted that vesting in the commission 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.

Mr. von Finckenstein said that 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.

Consequently, narrowing the powers will allow the CRTC to make good, timely and targeted decisions. The goal, of course, is to protect and strengthen Canadian broadcasting and foster Canadian production. Hence, the legislation should target only large streamers who can meaningfully compete with established broadcasters.

Isn’t that what the government keeps telling us is the point of this legislation? To target streamers who behave like 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.

Professor Michael Geist also told our committee:

I believe there is a clear need for thresholds and limitations in the legislation itself. Without it, services may regard the regulatory uncertainty — which the House committee heard will take years to sort out — to block Canada, leading to less choice and higher consumer costs.

This aspect is key. The full ramifications of this bill will take years to sort out as the CRTC goes through its regulatory processes. That means years of uncertainty for smaller players. It is that uncertainty they cannot afford.

Here I would like to quote Matthew Hatfield, the Campaigns Director of OpenMedia, who said, “It’s nonsensical for Bill C-11 to place obligations on platforms with a few thousand Canadian subscribers . . . .”

He also said:

It would be a very cruel consequence of this bill for diasporic Canadian communities to be cut off from the invaluable cultural lifeline provided by foreign streaming services.

Colleagues, I cannot stress enough how vital it is that we recognize the uncertainty this is creating for ordinary players. As Monica Auer, Executive Director of Forum for Research and Policy in Communications, told our committee, “. . . Bill C-11 is not coherent and not readily understood.”

The bill leaves creators guessing, and we should not be putting them in that position.

I would also like to reference what smaller creators told our committee, specifically Justin Tomchuk, an independent filmmaker who told our committee on September 27 that Bill C-11, as currently drafted:

. . . makes it clear that my business will fall under the call of the CRTC’s directives, as I derive direct and indirect income through my artistic efforts.

Scott Benzie, Managing Director or Digital First Canada, told the committee on September 28:

Our ask is simple: [The bill] needs clarity into what is in and what is out, because it currently includes the entire internet. Something this critical cannot be left to the CRTC to wade through.

Morghan Fortier, Co-Owner and Chief Executive Officer of Skyship Entertainment, said:

What keeps me up at night about this bill is the potential to gate content that is deemed not Canadian, either entering into the country or within the country. With retaliation from other countries, should this type of a law pass through, we’re done. I don’t mean my company. I mean we don’t need to talk about this bill anymore because it’s over. That will affect regionalized content creators, small content creators and larger content creators.

Frédéric Bastien Forrest, animator and content creator, told our committee on October 4:

My take on this is that it is scary. We have the feeling that the politicians behind this law are well intentioned and they want to promote our culture, which is great, but the side effects of the law could break stuff.

Oorbee Roy, content creator and skateboarder, also expressed her fears about how a small undertaking like hers could be impacted by CRTC regulation. She noted the arduous process that she and other creators face in registering their material as Canadian content.

I know that some senators will say that the Canadian content provisions were amended in committee. However, colleagues, there is no guarantee that that particular amendment will be accepted by the government. I submit that we need this very modest amendment I am proposing, and that the government will have difficulty saying “no” to it.

At committee, the government majority rejected the threshold of $150 million proposed by Mr. Denton. We were told by government officials that with a $150 million threshold some platforms, such as CBC Gem, might be excluded from regulation. But the committee then went on to reject the $100 million threshold proposed by Mr. von Finkenstein, and then it inexplicably rejected even lower thresholds of $50 million and $25 million.

So, colleagues, what I am proposing today is a threshold that would truly only exempt the very smallest of players. This threshold of $10 million is one fifteenth the amount recommended by Mr. Denton and the Internet Society, and one tenth the amount recommended by Mr. von Finkenstein.

Colleagues, I believe we have an obligation to respond to what an overwhelming number of witnesses have told us. The “just trust us” approach is bringing little comfort to the Canadians whose livelihoods depend on whether they will be subject to regulation as a result of this bill.

I hope you will support this amendment to establish greater certainty for ordinary Canadians.

Senator Manning: Thank you very much.

[English]

I don’t pretend to be an expert in all of this, senator, but I am an avid listener, and I listened to many people who came before the committee.

You’re a bit surprised that I came forward with this; I’m a bit surprised that we’re not talking about any threshold. To go back to Oorbee Roy, the single mom who was facing all kinds of financial issues, found a home on the internet through skateboarding videos and took herself out of poverty, she told us. She established a home for her two children — I believe it was two children, if memory serves me correctly — thanks to the opportunities she had through that process.

I don’t think for a moment that Oorbee Roy is going to become a national broadcaster. I don’t think for a moment that the CBC or CTV are going to have to worry about Oorbee Roy.

What I do worry about is people such as Oorbee Roy who found a way to take herself out of poverty through the internet. She is in great fear now; not only her, but several others came forward to our committee and expressed great fear over the fact that, through the regulatory process, now they are going to have an immense amount of — trying to create that Canadian content, what meets Canadian content, what the final decision of the CRTC is going to be on what is Canadian content, as well as that she will be driven away from that opportunity.

When I looked at Bill C-11 in the beginning, and read through it first — before any amendments were made — I believed then that the purpose of the bill was to create an environment where people such as Oorbee Roy could thrive any place in this world. I come from a community in southern Newfoundland of 300 people. Somebody could make a living in that community through this process.

What I’m concerned about is that the last thing you want in anybody’s face is too much government. I believe that, unless we put a threshold in place, we are putting a roadblock up to people like Oorbee Roy, and many others, who would have the opportunity to not only create something, but to make a living for themselves and their families.

We need to have a threshold; is it $10 million? The question mark is we started at $150 million. We went to 100, 50, 25 — now we are down to 10. Now do we go down to a $20 bill before we agree on something? No; I don’t know. The bottom line is, without any threshold, there is no limit. Oorbee Roy is going to be on the same level as a national broadcaster. To me, that doesn’t make sense.

Senator Manning: If the Senate gives me the opportunity, I have all the time in the world, Your Honour.

The Hon. the Speaker pro tempore: Senator Manning, you are out of time. Are you requesting an additional five minutes?

Hon. Fabian Manning: 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), on page 10, by adding the following after line 32:

[Translation]

Senator Miville-Dechêne: Thank you for your answer, Senator Manning. I am trying to reconcile your amendment with the fact that Senator Simons and I removed anything to do with revenue from the amendment that we proposed and that was adopted.

When one reads the amendment, it is very clear that this woman, Ms. Roy, who roller skates and supports her family with her content, will not be affected in any way by Bill C-11. This amendment already guarantees that small content creators will be protected.

I am trying to understand how your amendment would be useful. Basically, what you are saying is that there is a chance that our amendment will be rejected by the government and so yours should be adopted.

I would like to know why your amendment is more likely to be accepted by the government than ours.

[English]

Senator Manning: Of all the things I will try to do in my lifetime, especially on this side, I’m not going to try to answer for what the government is going to do. I am afraid to do that half of the time, but I will leave that for another day.

What I’m concerned about is that, as I said in my remarks, your amendment may not be adopted. Yes, with all good intentions, you and Senator Simons put it forward. Certainly, it was a good amendment at the time — but, the fact is, it may not be adopted.

I am not saying that the government would adopt my amendment. We don’t know if the government will accept any amendment. We have sent back legislation from this chamber to the government, and they have not accepted any amendments that we have put forward at any time. The bottom line is that if we have one amendment, or ten, they may not accept any. The more that we have — at least that gives them some thought to put some thought into it.

The bottom line is that we’re — “protecting” may not be the right word to use — giving those people that we have called, in our discussions, “small players in the field” — giving them an opportunity to, at least, be able to stand on their own two feet, and be able to do what they are doing without interference. I believe the whole purpose of Bill C-11 was to create an avenue to do that.

The reason I put forward the amendment is because I believe that some type of threshold is needed. If we talk about no revenues, as I said, the government may not accept that, but they might be open to accepting a threshold; I don’t know.

I can guarantee you my amendment was put forward with the best intentions to protect those that we have brought before us. In my comments, I mentioned half a dozen of those who came before us and expressed this major valid concern they all have. I’m trying to find a way to address that concern. This is my way. I hope my colleagues support my amendment.

Senator Manning: I understand the concern you have. My concern is the absence of anything there to protect those people.

Having it embedded in legislation — yes, I know it takes 30 years to change something; but the fact is that, without something there, the people are not protected on the other end, in my view and in my humble opinion.

I would be more comfortable having something in legislation that people can refer to that becomes the law of the land than the fact that we have nothing there to show any protection to them.

Hon. Leo Housakos: Thank you, Senator Manning, for another attempt to bring some sanity to a very insane piece of legislation.

Honourable colleagues, how many times have we heard — time and time again, when concerns have been raised by digital content creators, by digital-first creators, in this country — “Trust us”? Trust us. User-generated content is not included in this bill.

How many times have we heard the minister, officials, government officials and sponsors of the bill come and say, “Trust us”?

“Absolutely. Platforms are in; users are out.”

At every turn, government MPs in the House, the government in the Senate committee, they have done everything they can to not allow for any thresholds, to not allow crystal black and white statements that clarify for the hundreds of thousands — if not millions — of Canadians who, today, are using the digital web as an opportunity to promote Canadian culture, and who have created outstanding businesses; they are looking at this, and they are saying that what we have created is at the fate — right now — of the CRTC without any clarity in the bill.

Senator Deacon, you are absolutely right: We need to get rid of red tape in this country. We need to make things less complicated. The best way to do that is to entrench those protections in the bill before it gets to the regulatory stage.

You think we are cutting through regulations by sending this problem to the CRTC, and letting them consult for a year and come back to us with a list of regulations — without guidelines being clarified here and now in order to alleviate the concerns of generated content producers in this country? I’m sorry. I’m not going to leave it to a bunch of appointed individuals who, at the end of the day — as you’ll read in the Broadcasting Act — take their guidelines, ultimately, from the government. They have complete power. We have heard at our committee, over many months, the concerns of stakeholders — both from those in favour of and those against the bill — that the Canadian Radio‑television and Telecommunications Commission, or CRTC, has an atrocious record when it comes to consultation and transparency. We also heard from many stakeholders, including large broadcasters, that in order to navigate through the bureaucracy of the CRTC, you need deep pockets and a lot of lawyers on your payroll.

So, yes, Senator Dawson, I am very excited and very stressed about this bill, more than I have been in the past, because I’m concerned about the hundreds of thousands of Canadians and digital first creators in this country who came and pleaded with us for some sanity in the legislation, and they have asked to be excluded. At the end of the day, I don’t believe Canadian culture is in peril nor at risk. I think our committee has seen in their study over the last few months that Canadian culture is booming like never before. Actors are busier than ever before. Producers are busier than ever before, as are directors, singers, songwriters and extras. Every region of the country is benefiting over the last decade; we have seen it. Movie production companies and documentary producers are coming in and using Canada as a place and using Canada’s talent and art to propel their work around the world.

The digital web has given us a market that we never dreamed of 30 or 40 years ago when we were looking at this archaic Broadcasting Act and protecting the broadcasting industry. Billions of people around the world are jumping onto YouTube, Twitter, Facebook and TikTok to look at our Indigenous talent, to look at our francophone talent and they are thriving like never before. With all due respect, I don’t buy the argument that we need to protect them.

Do you know who this bill is protecting? It’s only protecting one group of individuals, and that is the group involved in the old broadcasting model, which we all know has failed. In 2023, they are bankrupt. Bell Media is bankrupt. CBC is bankrupt. They are not making money because they are outdated. Canadians are not going to those platforms for their information anymore. Only old guys like me — old boomers — are sitting there watching the news on TV at night. My 26- and 23-year-old children walk by and laugh at me because they are streaming. Yes, they are on their iPads and their phones. I’m starting to realize they are getting information quicker than I am. That’s who I relied on in order to draw my conclusions in regard to this bill.

The traditional broadcasters can do somersaults and try to convince the government to throw more money into the Canada Media Fund and into Telefilm Canada. Change your model because, clearly, I don’t see any streamers rushing to become broadcasters, but we see every broadcasting platform going digital over the last 10 years. The CBC has spent millions trying to go digital — CTV and all of them — because that’s the way of the future.

We need to encourage Canadians and young Canadians to take advantage of that opportunity and to continue to grow, not to hinder them by basically saying to the CRTC, “Create an even playing field.” I use this analogy. We have right now the digital world — a Lamborghini — and we have the traditional broadcasting world — a horse and cart. We want to create an equal race. Well, unless you’re going to give the horse and cart a 5-mile lead in a 5.1-mile race, I’m still betting on the Lamborghini.

We have to start being realistic when we say it’s time to start reviewing our Broadcasting Act. We must understand the realities that we face today.

Senator Deacon mentioned that we must protect our industry and make sure that foreign investors don’t come in and somehow hinder the marketplace. It’s because of Netflix, Disney Plus and those foreign investors that we’ve had billions of dollars coming into Canada and that our industry artists are busier than ever before. They are working. There is a shortage. They are making money. They are paying taxes to the Canada Revenue Agency. By the way, all of these streamers, bloggers and independent content producers are paying a ton of taxes to the Canada Media Fund. Under Bill C-11, who will benefit from that? Even to this day, who benefits? The traditional broadcasters dive into that money, continuing to produce shows at taxpayers’ expense — shows that no one is watching. Do I need to pull out the ratings to let you know that, for example, no one is watching CBC anymore? Yet, the whole point of this bill is that someone is making money and someone isn’t, and for the guys who are not, there is a reason for it. Someone decided they need to be propped up. Well, prop them up all you want, but if the problem is your business model, you will die a slow, painful death.

In our committee, thanks to Senator Klyne, we heard from Indigenous witnesses. He fought hard right to the end to make sure they were heard, and they said it best. Under these new platforms, Indigenous culture from our country is being spread to places like France and South America — to all corners of the world, like never before. They pleaded to make sure that the CRTC and any element of Bill C-11 — or whatever it morphs into, because we don’t know what those regulations will be like — not stop them. They said, word for word, “Please, stay out of our way because we are being very successful.”

Why would we put in peril every Canadian who is on these platforms right now, enjoying the liberty to express themselves? By the way, we are dominating. We’re punching above our weight. Every single witness who came before our committee made it evidently clear that Canada is punching above its weight when you look at our footprint in terms of arts and culture around the world.

We are a small market. We need the world. We are not a trading country only in lumber, in agricultural goods and in energy. We are a trading country in culture as well. As Senator Richards appropriately said, there are so many people who can buy books in Canada, but there are billions of people around the world who can buy the works of Canadian authors that they like.

Now, one of the biggest problems with this bill is the scope. We must broaden our scope. We have to think large as Canadians. I think I heard Senator Miville-Dechêne say, in speaking about her amendment, that it would address thresholds and it would, for example, compel the CRTC — according to her amendment — to consider digital first creators. Correct? And I think one of the words in her amendment is “consider.”

With all due respect, colleagues, if I try to amend the bill and I’m telling the CRTC that we recognize weaknesses that we want them to address in their deliberations and their regulations and the amendment says, “I want the CRTC to consider A, B, C,” well, “consider” is not very prescriptive. We all know how the CRTC works. They’re going to consider it all right. They will hold hearings and they will report as usual. It’s not very binding.

We have fought very hard to put forward amendments with some teeth to protect content producers who are small players, who are living off their small stream of revenue — independent, Canadian content producers. A $10-million threshold is the bare minimum to provide some protection in a concrete way and to entrench it in the bill so that the CRTC has no manoeuvrability to avoid accepting that reality.

My only conclusion on why there’s such pushback from the government is that, at the end of the day and with all due respect, I just don’t believe when government says that, “Platforms are in, and independent digital content producers are out.” I don’t believe them; I’m sorry. If you won’t accept a threshold of $100 million, $50 million, $10 million, why would I believe you are going to accept any threshold on goodwill? How many of you will buy a product and have a contract in which everything is highlighted except the delivery date? How many of you would accept that?

“Can you just put the delivery date?”

“Oh, no, trust us. You will get it by February 1.”

“Well, yes, but can we just put it in the contract?”

“No, no, no. Just trust us.”

Please, colleagues, at a bare minimum, can we please accept this reasonable amendment that will give a little bit of hope to those young Canadians across this country who are looking for some clarity and some security so they can continue to promote their cultures and their businesses in a fair, free market way? Thank you, colleagues.