Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations: Thank you, Senator Klyne. I agree with you that more police in Indigenous communities is needed. It would respond to one element of a number of the reports that have been discussed today. But, again, policing alone is not the solution, and I do want to say that before I complete my answer.

Those communities need police services, Indigenous-led if they so choose, or enhanced RCMP presence if they so choose. It’s something we have dedicated resources to as a government in prior budgets, coupled with what you mentioned, which is to introduce legislation to ensure that First Nations policing as an essential service is treated as such.

The work is ongoing. Minister Mendicino recently issued a statement of where they are in terms of the consultation and discussions with Indigenous peoples. This is a piece of legislation that we hope to accelerate and make sure is introduced shortly, but I can’t share that with you. Indeed, it would be up to Minister Mendicino as the case may be.

On the Order:

Resuming debate on the motion of the Honourable Senator Dawson, seconded by the Honourable Senator Bovey, for the second reading of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.

Hon. Donna Dasko: Honourable senators, I am pleased to stand today to speak at second reading to Bill C-11, which is called “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts,” otherwise called the “Online Streaming Act.”

This bill has been in the works for some time. Introduced in the Forty-third Parliament as Bill C-10, it’s now back as Bill C-11, with significant changes. Our Standing Senate Committee on Transport and Communications began pre-study work in June, and we returned to this work last week.

One of government’s most important roles is to respond appropriately to technological change. For much of our history, when it came to television and radio broadcasting, entry into the system was guided by something called “spectrum scarcity,” where consumer choices were limited by the technology of the day. The regulator would set conditions, including Canadian content requirements, in return for a broadcasting licence and the ability for a broadcaster to reap advertising revenues. That was and still is the business model of traditional broadcasting.

Does anybody remember the phrase, “a licence to print money”? That phrase was made famous not by the owner of a sports franchise but by the owner of a television broadcasting licence. That person was a Canadian — Roy Thomson, Baron Thomson of Fleet — who famously and notoriously described his new licence to run a television network in Scotland as his licence to print money. That was in 1956. But those profitable enterprises have seen their revenues decline with the rise of the internet, as advertisers flee to the internet platforms, and consumers flee to the vast array of choices available on streaming services and social media.

In its recent report documenting broadcast revenues and viewership in 2021, the Canadian Radio-television and Telecommunications Commission, or CRTC, said that revenues from commercial radio have declined by 31% from 2016 to 2021, and those from conventional television have declined by 15% over the same period.

While television shows a one-year increase from 2020, the long-term trend is downward. Since Canadian content expenditures are tied to broadcast revenues from the Canadian broadcasters, so Canadian production as well has declined from this source.

The government has positioned Bill C-11 as a response to this changing technological and market landscape. And just as governments regulated the cable and satellite technologies in the past — and, remember, in those days, that represented an increase in consumer choice — so now government intends to regulate the new internet services.

The main goal of Bill C-11 is simple: to bring online streaming services, like Netflix, Amazon Prime Video and Spotify, which are now unregulated, under the Broadcasting Act and under CRTC regulation to create a so-called level playing field. These streaming services will be required to contribute to the production of Canadian content and to showcase and exhibit Canadian content. A whole new word, “discoverability,” has been invented to describe this showcasing aspect.

Bill C-11 will require contributions for official language and Indigenous programming, and there is mention of serving the needs and interests of diverse ethnocultural and racialized communities and those from other diverse backgrounds. Indeed, Canadian culture, Canadian expressions and diversity themes are very prominent in the government’s messaging around this bill.

Above all, the CRTC is charged with determining all these requirements and how they will be carried out in a way that is flexible yet predictable, fair, information-based, equitable and informed by consultation. It will be given the tools to collect information from broadcasters, to audit them and to administer penalties.

Now, some critics of the bill argue that the internet itself cannot be regulated, but the internet is already regulated all over the place. In fact, some people claim it’s always been regulated. The real question we have here is whether this is the best way or even a good way to achieve desired goals and not diminish or discourage the great offerings of the new technologies.

Over the past several months, I have observed widespread criticism of Bill C-11 focused on three major themes. The first theme involves the threat to Canadian freedoms from Bill C-11. In hundreds and hundreds of letters I have received — and I’m sure other honourable senators have also received — since the beginning this year, Bill C-11 is seen to be the end of freedom in Canada. Here is one example of a letter:

Dear senator, I am terrified that our wonderful democratic nation is at the brink of banning free speech. I implore you to vote against Bill C-11. It must be defeated if we hope to keep our country democratic.

This was a letter to me from a woman in British Columbia just a few weeks ago.

So many letters and calls have the same message, yet the vast majority of these folks do not articulate how this bill is actually supposed to end democracy. I, for one, do not think the end of Canadian democracy is at hand, at least not from Bill C-11.

A second theme that has gained widespread attention and criticism is focused more specifically on the potential intrusion into viewer or listener choices by direction that will be given to firms to alter their algorithms for the purpose of making Canadian content more visible on platforms.

I would like to make two points here. Bill C-11 states that the CRTC cannot make orders that would require the use of specific algorithms. However, we do need more clarity on this, especially in light of the contradictory comments made to our committee by the CRTC last June. In fact, the CRTC chair, when he came to our committee, very much muddied the waters on this issue of algorithms, unfortunately, for many people. He had many very valuable things to say, but he most certainly muddied the waters on this issue of algorithms.

My second point is that we also need to focus on alternative methods to achieve visibility of Canadian content — that is, methods that are alternatives to algorithms. There has been a lot of time spent on this topic of algorithms; in fact, I think maybe too much time has been spent. Nevertheless, I’m hopeful that our committee can shed some light on this complex issue.

A third theme that is still getting the lion’s share of attention and criticism is the regulation of user content. Now, the minister has repeatedly said that platforms are subject to regulation and that individuals or users themselves are excluded. Bill C-11 does state this. But the bill also includes the so-called exceptions to the exclusions, which allow the regulation of user content in certain situations. Therefore, colleagues, we are back to the same conundrum as when we started, and this vexing and important issue remains on the table.

Other questions have received less attention but are still important. Should the CRTC have so much more power? Can the CRTC successfully carry out all the new responsibilities and tasks assigned to it? Should the CRTC have more direction from Parliament than Bill C-11 now provides? What will be the bill’s impact? What will happen to Canadian content in production into the future? Will the existing broadcasters really be helped by any of this? After all, that is supposed to be one of the main goals. Will creators from diverse backgrounds benefit from this bill? Will new technologies and innovation actually thrive into the future?

There is much for our Senate committee to examine. However, I want to speak very briefly about the process that has accompanied deliberations on Bill C-11 to date.

Let’s look back over a year ago to June 2021 and Bill C-10. That process was a mess. That bill spent four months in committee at the other place, which met 30 times — 12 times with witnesses and 18 times for clause-by-clause consideration, followed by filibustering and a rare imposition of time allocation at committee. So that was a disaster.

With Bill C-11 this year, I consider that the process was actually rather similar, only this time it happened within four weeks instead of four months at the House committee. Meetings with over 50 witnesses were followed by filibustering, closure motions and over 50 amendments passed in one evening on June 15 of this year. Does this sound to you like a thoughtful process? Does this give you confidence in the bill before us?

Clearly, sober second thought is greatly needed. Now, there are many good elements to this bill. In a Nanos Research national poll conducted for The Globe and Mail in May, two thirds of the public said they support the idea that streaming services should financially contribute to creating Canadian content just as Canadian broadcasters do. So we do see that high-level support for the idea of Bill C-11.

Also, Bill C-11 enjoys the support of stakeholders across the arts and culture and broadcasting communities, including many people in the Toronto community where I live. I have to say that a couple of weeks ago, one of the stakeholders told me that he really doesn’t like to mention Toronto very much. But I have no hesitation in talking about my city. My city is a vast, creative community of tremendously successful and creative people, and there are many, many people in my community who support Bill C-11 — organizations like the Society of Composers, Authors and Music Publishers of Canada, the Canadian Independent Music Association, the Directors Guild of Canada, Friends of Canadian Broadcasting, the Canadian Ethnocultural Media Coalition and many of Canada’s major television broadcasters.

But there are many outstanding issues, which I mentioned earlier, and the process in the other place, in my view, was fraught. Colleagues, I look forward to the next several weeks of Senate study and debate, for Bill C-11 will receive the sober second thought it so clearly needs. Thank you.

[Translation]

Hon. Dennis Glen Patterson: Welcome, minister. The Inuit‑Crown Partnership Committee has done significant work in advancing and promoting a whole-of-government approach to the stated Inuit priorities. President Obed and his board have been successful in getting your government’s support for many important social and economic issues.

One very important example is the framework to eliminate tuberculosis from Inuit Nunangat by 2030, which came with a $27.5-million commitment in 2018 from your government to be spent over five years. However, as I’m sure you know, The Globe and Mail carried out an investigation in June and found that $13 million allocated for tuberculosis countermeasures in Nunavut has been largely unspent, despite an active TB outbreak in Pangnirtung that has been ongoing for months.

Can you use your good offices — the funds came from your ministry’s table — to see that these desperately required funds are deployed where they are critically needed, in Pangnirtung?

Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations: Thank you, senator. It’s unacceptable in a country like Canada that in some cases, particularly in Inuit Nunangat, the rates are 300 times what you would find anywhere else in the country. When it comes to First Nations on-reserve, it is 50 to 60 times. The outbreak we recently saw in Pangnirtung was heartbreaking in a number of ways.

I share your frustration in seeing that some of the funds have not been properly allocated. Tuberculosis, like any respiratory disease, is one that — despite the nature of it — cannot be solved simply by medicine. We need to be addressing the socio‑economic underpinnings, notably housing that is in dire need. It is one that we hope, and we will work hard, to tackle by 2030.

But it’s something that has to be done in partnership not only with the territory, but the land claims holders and their advocacy groups — ITK and others. It’s work that has to be implemented on many levels, from consistent investments in infrastructure over the next years to make sure that people are actually living in houses where they are not overcrowded and where they are not vectors themselves of transmission, but also with a proper public health response.

There is some deference owed to the chief public health officers in the territories as a matter of the relationship and of efficiency. It isn’t something we can wash our hands of as a government, particularly in providing funds and making sure that the territory and land claims holders are properly supported.

[Translation]

Hon. Julie Miville-Dechêne: I rise at second reading of Bill C-11, the Online Streaming Act, which the Standing Senate Committee on Transport and Communications is currently studying. Some 30 witnesses have already been heard.

In the time that I have been a senator, I have never seen a bill elicit such passionate reactions and divergent views.

On the one hand, many representatives of the cultural sector are urging us to pass the bill as written or to strengthen it. On the other, as my colleague Donna Dasko stated, our inboxes are full of form letters from citizens who fear for their freedom of expression and their freedom to listen to and watch whatever they want on the internet.

As for me, I do not believe that Canadians’ rights and freedoms are threatened by this bill. However, I do recognize that in a polarized social and political context, where some people do not hesitate to demonize their opponents and twist their words to whip up their supporters, some words have become radioactive. The word “algorithm” is one of them.

There are also concerns about some grey areas in the bill and the regulations that are to follow.

The more I hear the objections of stakeholders regarding Bill C-11, the more I realize that there are several interrelated debates. It is not just about being for or against the bill, as is the case with simpler legislation.

Bill C-11 is basically an adjustment exercise. It adjusts Canada’s broadcasting policy to bring it in line with the new technological environment.

In the past, music and audiovisual programs were broadcast via radio and traditional television networks that held licences and were subject to many rules, including the well-known quotas. The government was thus able to ensure that our country’s artists and cultural diversity were supported and showcased.

As we know, today, a significant portion of Canadians access music and programs via online platforms, often foreign platforms, that are not subject to any regulations. For the first time last year in Quebec, subscriptions to online platforms exceeded traditional cable subscriptions, with 71% of adult Quebecers having paid subscriptions to online streaming sites. That is a lot. We are seeing the same trend with music, where people are increasingly turning toward streaming platforms on which only 8% of the music listened to by Quebecers is French music.

The result is that our artists are losing visibility and the government no longer has the means of showcasing Canadian culture and content, including that of French and Indigenous people and other minority groups. In the wild west of digital platforms, the biggest players make the rules and, as we know, the biggest players are American companies.

There are two possible ways to deal with this new reality. The first is to do nothing and pretend that, in the internet era, the government has no role to play. The government could stop regulating altogether. The regulatory framework would have to be phased out gradually as the public moves to digital platforms. In the end, within a few years, all programs and music consumed by Canadians would be determined solely by market forces. The problem with this approach is that it means giving up on defending the values of Canada’s cultural identity, to the benefit of the web giants.

Officials from YouTube and TikTok appeared before the committee to reaffirm that the business model that has made them successful is working just fine. Their message was simple. What they call their secret recipe works, as evidenced by the success of Canadian YouTubers and singers.

Beyond these generalities, however, there is little information. What percentage of audiences do these Canadian artists get? How is this distributed between artists, content types and across the country? YouTube doesn’t have any precise statistics to share. In fact, YouTube officials don’t really care where the creators are from, because according to them, we live in a global world, so we should take their word for it and hope for the best.

However, the survival of our francophone culture cannot depend on only one or two successful artists like Charlotte Cardin and Coeur de pirate, whose names we hear over and over. People need to be able to discover and listen to others.

The second option proposed in Bill C-11 is a compromise. It involves bringing new platforms into the Canadian regulatory framework, but not in the same way as traditional broadcasters. The platforms will have to help fund production of Canadian content and will have to showcase Canadian content while continuing to offer a rich and diverse menu of program options. The CRTC will have the complex task of tailoring the rules to each foreign player. At least, that is the promise. I’ll be frank; it will be a mammoth undertaking, and I fear the CRTC will be overwhelmed.

I personally support the broad strokes of Bill C-11. Canadians will retain the best of digital platforms, that is, the freedom to listen to and watch what they want, based on their preferences, while giving our artists a chance to carve out a place for themselves and find their audience in this new broadcasting ecosystem.

However, as is often the case, the devil is in the details. Here are some of the main issues. The bill delegates a lot of power to the CRTC to make the rules for online platforms and implement Canada’s broadcasting and cultural policy. Many of us think it would have been better for the government to give the CRTC its instructions right now. This kind of feels like handing over a blank cheque.

One of the central issues the CRTC will have to consider is Canadian content. How should we define it now? Are some criteria more important than others? Should the focus be on subject matter, artists or intellectual property in productions? It will be up to the CRTC to review this crucial definition.

Much ink has been spilled about discoverability; it has taken up a lot of bandwidth. The term “discoverability” appears only twice in the legislation, which does not provide further details.

How will discoverability work for Canadian content on digital platforms? Is promoting that content without influencing algorithms and viewers’ or listeners’ choices enough? How will new content requirements differ from the old quota system? A lot of questions remain.

For example, at our brief hearings in June, I asked the chair of the CRTC how he would ensure the discoverability of Canadian content without involving the algorithms. He answered that the platforms themselves would have to change their algorithms to achieve the desired result of having Canadian users consume more Canadian music and shows.

As you can imagine, this answer shocked those who were closely following the hearings. For them, it was proof that algorithms must be changed even if the bill states that the CRTC does not have that authority. Under Bill C-11, the CRTC, and I quote, “shall not make an order . . . that would require the use of a specific computer algorithm.”

I believe that the debate on this specific point is so polarized that it is difficult to come to a conclusion. For example, YouTube and TikTok state that, without changing their algorithms, they go to great lengths to promote Canadian creators, whether through subsidies, programs or revenue sharing. They boast about their efforts and the success of certain Canadian artists.

Why are they worried about Bill C-11 when they will be able to choose how to get results in terms of the Canadian music that is listened to? Is it because only algorithms really have the power to influence the habits of the users of these platforms?

The logic of algorithms is simple. The only content suggested to the customer is similar to what they have watched before in order to keep them watching. How then can we hope for minority cultural content, whether it be French or Indigenous, to be automatically recommended to customers in a predominantly anglophone North America? How can we trust the mathematical algorithms to point to the exception rather than the rule?

Another distinction needs to be made. For artists from English Canada, the playing field is global, whereas for French-speaking Quebec artists, the main market is Quebec. These artists create in a beautiful language, but it is a minority language.

By making the algorithms off limits, as the platforms want, are we giving in on the main issue and allowing Canadian culture and artists to be steamrolled by American giants? However, if we tinker with the algorithms, we risk harming the lesser-known artists that we want to support, since they could be downgraded by the existing system if customers do not accept the recommendation in question. It is quite the dilemma.

Personally, I am of the opinion that the foreign players in our market should be responsible for finding innovative solutions so that we can see ourselves in this flood of global content. I understand that they feel rushed and that they do not want to lose users, but let’s remember that Canadian broadcasters are subject to much heavier and rigid regulations regarding Canadian content.

We also have to be mindful not to rely on what other countries are doing. This specific aspect of the bill, in other words the idea of requiring platforms such as Spotify, YouTube and others to showcase Canadian works, is a world first; it has never been done anywhere else. Many have thought about it, but Canada is the first to try. This is uncharted territory.

Another issue that raises debate has to do with social media, YouTube in particular, which offers both content for users to download and commercial content. I believe it is possible to further clarify in the text of this legislation what commercial content is in order to reassure content creators.

Obviously, although the purpose of Bill C-11 is to develop Canadian culture and artistic expression, it has several economic dimensions.

At the heart of these debates are Canadian organizations such as producers, broadcasters and unions. There is a mix of corporate, protectionist and other interests behind the requests to amend the bill.

For example, independent producers want to keep the advantage they’ve had for the past 30 years under the Broadcasting Act. They want to be given priority. On the other hand, broadcasters want their own production companies to be treated as independent businesses.

It’s not necessarily a matter of promoting more or less Canadian content; it’s a matter of promoting certain players and changing the power dynamic. This bickering among the players in Canada ultimately undermines efforts to come together.

Beyond these more specific issues, Bill C-11 also brings out different political, cultural and economic views and sometimes pits them against one another.

As I look at my colleague, Senator Housakos, I can see that division here.

In this new global cultural market in which Canadian creators have access to the entire world but are also competing with the entire world, should we be trying to protect our creators from this competition or finding ways to help them stand out? Is it possible to give our creators, artists and tradespeople a chance without needlessly restricting the Canadian public’s options and preferences?

Clearly, I don’t have all the answers. While I agree that Canada must protect its cultural sovereignty, including francophone culture, my duty is to assess whether this bill can be improved and, if so, how.

My personal belief is still that culture is not just another commodity. It deserves substantial support from governments, particularly in cases of a minority culture, such as French in North America.

I’m extremely concerned about the underlying trends in Quebec, particularly in terms of the music people listen to. We can’t surrender all of our cultural sovereignty and national identity to algorithms and market forces. It would be akin to cultural suicide in the medium term, the result of a voluntary blindness to the reality of the power imbalance that is at play. In that regard, I believe that Bill C-11 has a legitimate political objective.

That said, we need to find compromises and modern solutions that also respond to the desire of Canadians and Quebecers to participate in and consume cultural products from around the world, without unduly limiting their choices. Defending and promoting our distinct identity is more valid and timely than ever, but we can’t expect a return to the past, to a time when the availability of cultural content was strictly controlled.

Our challenge is to strike the right balance.

Thank you.

[English]

Hon. Donald Neil Plett (Leader of the Opposition): Welcome, minister. Minister, 10 people were brutally murdered and another 18 injured in a series of stabbings in the vicinity of the James Smith Cree Nation. The individual in question had a long criminal history. In fact, he had 59 criminal convictions. Despite this record, he was serving a sentence of only 53 months for an additional series of violent offences, and he was at large despite having violated the conditions of his statutory release.

We were told that the Parole Board of Canada is conducting a review of this horrific case, but the problem in our Canadian justice system is a systemic one which exposes the deep flaws in our revolving-door justice system. What we need now is transparency so Canadians know that your government is actually doing something.

Minister, in that regard, how specifically is your department engaged in this review, which not only involves an Indigenous offender but also had a horrific impact on a vulnerable community that was effectively left unprotected?

Senator Plett: Minister, your answer to the question about how your department is engaged in the Parole Board’s review of the murders was not specific. I also tried to get an answer on this issue yesterday from Senator Gold, the Leader of the Government in the Senate.

The terrible crimes in Saskatchewan clearly demonstrate that the way we are approaching criminal justice matters in our Indigenous communities is failing to protect them. Indigenous leaders in Saskatchewan have said that their communities are not equipped to develop programs that might help better address criminality in their communities.

Minister, Canadians need to understand how you are working with the communities in the face of this. How are you working with the Parole Board in its review of this specific case to better balance Gladue factors and risks?

At the same time, again, you highlighted the systemic nature of it. There are socio-economic underpinnings to the reality that Indigenous communities face that make them vulnerable and susceptible to this type of crime. It is not an Indigenous issue; it is a societal issue that has its deep roots in colonization, in dispossession and ones that are not fixed with simple solutions.

That said, there is a crying need to reform, as we have said as a government, First Nations policing to make it an essential service in communities and to reform the way policing itself is done. That is a much greater conversation where I welcome your advocacy.

Hon. Paula Simons: Honourable senators, I also rise today to speak to Bill C-11, and I hope you’ll indulge me if I begin with a historical anecdote.

In 1881, the French engineer Clément Ader showed off his latest invention, the théâtrophone. Ader set up 80 telephone transmitters across the front of the stage of the Paris Opera, which allowed people to hear operatic performances at the International Exposition of Electricity some two kilometres away from the theatre. Ader, you might say, was the first person to livestream a show, the original over-the-top streamer. For context, this was 15 years before Marconi patented radio and almost a quarter of a century before radio waves were evolved enough to broadcast music.

By 1890, La compagnie du Théâtrophone was running a full‑fledged subscription service in Paris so that subscribers could listen to the latest concerts, plays and opera via their home telephones. And if you didn’t have a phone of your own, pas de problème; the company set up cheap coin-operated telephone receivers in all the coolest Paris hotels, cafes and clubs so that you could listen to the hottest new shows at your leisure, without the expense or bother of going to see them in person.

The novelist Marcel Proust was an enthusiastic subscriber. In 1911, he wrote to friends about the pleasures of listening to Richard Wagner’s Die Meistersinger von Nürnberg and Claude Debussy’s Pelléas et Mélisande from the comfort of his own home. However, eventually, the théâtrophone was outcompeted by radio — supplanted. And just as “video killed the radio star,” radio killed the théâtrophone.

[Translation]

Why this remembrance of things past?

[English]

Because I think this tells us a lot about why over-the-top streaming services are so popular today. It is human nature to want to access entertainment as cheaply and conveniently as possible, even if it means that artists and performers themselves do not get much by way of compensation. It is human nature to try to use the latest technologies and platforms to access entertainment, because we are all suckers for novelty and for the feeling that we are on the cutting edge. And it is human nature to get tired of an old technology when a new technology comes along, and then pine, somewhat romantically, for the joys of the technology we just lost.

While we cannot sustain or subsidize an older technology if no one wants to use it anymore, we often still miss the things that made it special and of its time.

And thus we come, as promised, to Bill C-11, a bill that attempts to bring international streaming services, such as Spotify, Netflix, Apple TV+ and Disney+, into the ambit of the Canadian broadcast regulatory system.

Let us start by trying to sort the signal from the noise. As my friend Senator Dasko has already assured you, Bill C-11 will not censor or regulate your free speech. It will not allow the government to take down your critical tweets. It will not allow the CRTC to micromanage your Facebook feed or curate your Tumblr. It is not a Communist plot or a conspiracy dreamt up by the World Economic Forum. It is not the work of the Illuminati.

I know that far too many Canadians believe all those things and worse, because for months now, my email inbox, Twitter mentions and Facebook page have been filled with thousands of angry and terrified messages from Canadians who have been led to believe that Bill C-11 is a full-frontal assault on the Charter of Rights and Freedoms and the fabric of Canadian democracy.

That is just not true.

I myself do not support Bill C-11 in its current form, but I am interested in analyzing its actual flaws — and there are plenty — and not in indulging in the rhetoric of political hysteria that has been whipped up around this piece of legislation and used as a bogeyman to frighten and divide Canadians. Such malicious mischief not only creates a culture of fear and paranoia, and undermines faith in Parliament, but also makes it next to impossible to talk about the actual weaknesses of the actual bill.

By the same token, Bill C-11 will not magically create a billion-dollar production fund, some instant bonanza for Canadian musicians and filmmakers. It will not offer salvation for private radio, local TV news or the beleaguered francophone music industry. Overly optimistic promises by the government have led many to believe that Bill C-11 is some kind of enchanted cornucopia — an infinite horn of plenty — that will lead to hundreds of millions of dollars of income for Canadian artists and creators.

Alas, this is just not true, especially not in the short term.

So what does the bill do? Bill C-11 attempts to bring big international streaming services, most of them American, under the remit of the CRTC. It would require Apple, Disney, Netflix, Spotify, Amazon, YouTube, Google and others to contribute monetarily and substantively to Canadian film, television and music production, and it would require them to make Canadian content more discoverable. The logic is straightforward and blunt: These companies — huge cultural behemoths — make millions of dollars in a small Canadian market. The government wants some of that money, and it wants that money to underwrite Canadian cultural industries. So, the government is simply going to strong-arm the big corporations to cough up the cash.

Now, you may not have too many tears to shed for Apple, Google, Amazon and Disney, some of the largest and most profitable companies on the planet. They can well afford to ante up, and they have the capacity in their enormous catalogues to showcase more Canadian productions. But despite Senator Dawson’s assurances yesterday, I worry that these rules may inhibit small specialty streaming services from entering the Canadian market, especially non-English-language streamers and niche arts channels. I’m not worried that ordinary Canadians’ free speech rights will be impinged, but I am sincerely worried we may be denied the opportunity to watch unique international programming because we’ve made entry into the Canadian market prohibitively expensive or complicated.

What is my second major concern with Bill C-11? As my friends have outlined, it’s that tricky issue of discoverability. What does the word mean? It’s never defined in the bill. It would be one thing if we were simply asking Netflix and Spotify and the like to create a search bar for Canadian content or to curate CanCon for our various tastes. Such static discoverability would not be a big concern. Although, honestly, who goes down to the rumpus room to watch Netflix for an hour and say, “Gosh, I feel like watching some Canadian content”? That is not how ordinary people consume television. They say, “Hmm, I’m in the mood for a romantic comedy or a nature documentary or a superhero action flick.”

No, I’m far more concerned that when the government says it wants more discoverability of Canadian content, it really means that it wants services such as YouTube, Instagram, TikTok and Apple to tweak their algorithms to privilege Canadian programs and posts. That’s where things get dicey. Those mysterious proprietary algorithms rule and organize so much of what we see online. Once the government starts trying to monkey with them, the consequences could be unexpected.

If YouTube serves up CanCon you aren’t particularly interested in and you don’t click it, you could actually be sending a message. You could be prejudicing a Canadian artist’s chances of being seen by telling the algorithm that this isn’t content that people want. This kind of online protectionism could backfire internationally and keep CanCon trapped in a kind of regional tidal pool and cultural backwater, and deny Canada’s brilliant digital-first producers a chance to compete for international attention and revenue.

I know the government has insisted this bill isn’t about algorithms, but just last June at a hearing of the Standing Senate Committee of Transport and Communications as we were conducting our pre-study, we heard something quite different from Ian Scott, the head of the CRTC.

Let me clarify some of the mud. In answer to a question posed by my friend Senator Miville-Dechêne, Mr. Scott said the CRTC would ask streamers to change their algorithms to meet Canadian content expectations. Here’s precisely how he put it:

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 manipulate it to produce a particular outcome.

Fine, so the government won’t directly manipulate algorithms, but if the CRTC directs or compels companies such as YouTube to manipulate their algorithms to achieve the government’s desired outcome, it starts to become a distinction without a difference, doesn’t it?

Next comes the issue of user-generated content. Bill C-11 starts off in section 2 with admirably clear language, making it plain that the stuff we all post on our social media is not captured by the bill. Our Twitter posts, our Instagram reels, our Twitch streams are not included. That’s fine until you get deeper into the bill to clause 4.2(2), where we get an exemption to an exemption: one that appears to scope in larger producers and posters who are monetizing their content.

The government and the CRTC insists that language is only meant to capture the really big producers, such as major record labels who post their utterly professional music videos to YouTube. Unfortunately, that’s not what the bill actually says. It talks instead about people who are monetizing their content directly, or even indirectly, and that lack of clarity has led to justifiable confusion and concern that successful independent Canadian digital producers who use YouTube or Twitch or TikTok to reach global audiences could indeed be scoped in, captured and treated like Sony and Disney.

Canadian Heritage estimates that some 50% of YouTube content may well be produced by major commercial players who are more akin to Netflix or Spotify. We need to have clearer language and thresholds to ensure that people who are small independent artists won’t lose the unique flexibility of YouTube, TikTok or Instagram to distribute their content to Canadian and global markets.

In short, I have problems with the cultural paternalism of the bill with the government’s somewhat antiquarian belief that we should be induced to consume CanCon because it is good for us, and not simply be allowed to embrace CanCon because it’s good. I have problems with the technical aspects of the bill which may actually be counterproductive and undermine new and emerging Canadian artists in their ability to reach international markets. And I have even more problems with the conspiracy delusions and wild hysteria whipped up around this bill that are keeping us from having a meaningful public policy debate about how we best encourage and enhance Canada’s cultural industries without hamstringing their unique potential.

I’m happy to say that our Transport and Communications Committee has already begun a thoughtful pre-study of this bill. I hope we will soon be able to turn that into a formal study so that we can bring back to this chamber for its consideration an amended bill that truly supports Canadian culture and respects the nature of technological change and human nature.

Thank you, hiy hiy.

(On motion of Senator Downe, debate adjourned.)

Hon. Marc Gold (Government Representative in the Senate), pursuant to notice of September 21, 2022, moved:

That, notwithstanding any provision of the Rules, previous order, or usual practice, until end of the day on December 22, 2022, any joint committee be authorized to hold hybrid meetings, with the provisions of the order of February 10, 2022, concerning such meetings, having effect; and

That a message be sent to the House of Commons to acquaint that house accordingly.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)

The Hon. the Speaker pro tempore: Honourable senators, it is now 3:20. If you agree, we will receive the minister and move to Question Period.

Honourable senators, we will suspend for a few minutes until the minister arrives.

(The sitting of the Senate was suspended.)

[Translation]

(The sitting of the Senate was resumed.)

Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations: Senator, I’m glad you read about what I was up to this summer. At the beginning of summer, in Inuvik, I did have a chance to visit the Inuvialuit Regional Corporation’s food security initiative that they implemented during the pandemic thanks to funds provided by Indigenous Services Canada. Particularly during a pandemic, where supply chains were severely compromised in remote locations — not limited to the remote locations in the North, but across Canada — we had a number of innovative measures, not only Nutrition North Canada, which has experienced challenges and to which we have increased funding, but unique challenges in ensuring that people could get proper food on the land, and fresh food, in a situation where we were shutting down communities altogether to keep people safe and alive. Those solutions worked. I was able to visit some of the amazing initiatives with wild food that is provided to a number of the communities that are in Inuvialuit. I would encourage you to take a look at those initiatives because they are game changers.

In the context of inflation, that is something Minister Freeland focused directly on, namely, those who are most vulnerable. I would point you to the recent announcements that we hope will get the support of all parties in the house to support the most vulnerable and those who are the most subject and sensitive to inflation pressures including getting food on the table.

Hon. Mary Coyle: Welcome to the Senate, Minister Miller. I’m a senator from Mi’kma’ki and a member of the Aboriginal Peoples Committee. My question for you is related to the full implementation of Mi’kmaq, Wolastoqiyik and Passamaquoddy rights-based fisheries. Our Senate Fisheries and Oceans Committee report on this matter, Peace on the Water, outlined 10 recommendations. The committee recommended that the responsibility for negotiating the full implementation of rights‑based fisheries be immediately transferred from Fisheries and Oceans Canada to Crown-Indigenous Relations and Northern Affairs Canada, with your department becoming the lead negotiating department and DFO assuming an advisory role.

Minister, can you tell us what is the status of the government’s response to this critical recommendation and has there been any action taken?

Hon. Bernadette Clement: Welcome, minister.

According to Public Safety Canada’s 2020 annual report, in 2019-20 Indigenous offenders represented 26.1% of the total federal offender population, while Indigenous people make up only about 5% of the total population in Canada. In the federal prison population, Indigenous people account for 32% of incarcerated people.

Since Bill C-5 in its current form will not completely eliminate mandatory minimum penalties, which significantly contribute to the overincarceration of Indigenous and Black people, how is your government instead helping to resource Indigenous communities based on the priorities they have identified? What is your plan for meaningful consultation with the people who are impacted by your government’s policies?

Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations: Thank you, senator. Again, these issues are rooted in systemic problems with the criminal justice system, especially as it regards incarceration and its undue and disproportionate impact on racialized and Indigenous peoples across the country. Those numbers have spiked in recent years. They have gone up particularly in respect of the incarceration of women.

When I talk about the systemic nature of it, it has impacts in areas that don’t naturally jump to our minds when we’re only casual observers of it, but every woman in jail means a kid growing up without their mother, or every man in jail means a kid growing up without their father. It fuels the child welfare system, which itself is broken due to the underfunding of the Government of Canada, and it’s focused too much on intervention rather than prevention.

These are things our government has been working on in a systemic way for years. Yet the results are trailing. We see positive aspects of it, like reducing or getting rid of some of the mandatory minimum penalties, which are disproportionately impacting Indigenous and racialized populations. That doesn’t mean that serious crimes do not get prosecuted, and people don’t have to pay their time in a way that is commensurate and corresponding to the crime they have committed — that’s important — but the reality is that we have a broken criminal justice system when it comes to incarceration and its impact on Indigenous and racialized people across this country. There are many measures, including closing socio-economic gaps, that are key to driving results, which are trailing, unfortunately.

Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations: Thank you, senator. This is something that our team has been seized of ever since I was named the Minister of Crown-Indigenous Relations. Indeed, it goes back to 2015 and a decision by the prior government to keep itself to the terms and not to continue the court case against the Catholic entities involved in the agreement related to residential schools.

There are elements of that agreement that talk about the disclosure of documents, the necessary cooperation that has to happen between Canada and the Catholic entities that people could look at in retrospect and say that this is something that is desirable. At the end of the day, you’re looking at a deal to indemnify one of the co-conspirators of the Indian residential school system, namely the Catholic Church and the Catholic entities that perpetrated unspeakable evils on Indigenous communities and broke their spirits, which is a key element of “removing the Indian from the child.” Canada had its role to play, but when you look at the deal among the parties from the distance that I have several years later, it looks like a bum deal, particularly with the billions of dollars that are necessary to put people back in position, to the extent financial resources can do so, for the unspeakable harms that people are still suffering for and transmitting from generation to generation.

This is equally an indictment of the Catholic Church as it is of the Government of Canada. This is work that we need those churches involved with, particularly to provide information to get to people so they can get an element of solace, some closure and perhaps some accountability. Pointing fingers is one thing, but a lot of them point inward. We have some work to put forward and to produce results.

Hon. Scott Tannas: Honourable senators, my question is about the action plan development phase of Bill C-15 implementing the United Nations Declaration on the Rights of Indigenous Peoples into law in Canada. During the bill’s passage through Parliament, the action plan time frame was voluntarily reduced by the government on request from three years to two years. This raised some eyebrows and some concerns. Governments don’t usually get things done faster. We have certainly, in our experience, seen lots of evidence of that.

The action plan is vital to the success of this historic bill, and the bill carries a lot of hopes and dreams of many Canadians. Now with less than nine months left until the end of the two-year deadline, if the two-year development time frame proves to be inadequate to get this crucial job done properly, will you and your colleagues do the brave thing and take the extra time to get the job done right?