Senator Miville-Dechêne: Like you, Senator Gold, I take my work in the Senate very seriously. I believe in the principle of restraint that you talked about and that you explained in your speech.

As you know, Bill C-11 is very important to me when it comes to defending francophone and Indigenous minorities in Canada. We will see what comes of all this, but the idea is to try to defend minority languages. In that sense, I’m of the opinion that Bill C-11 is more important than my two amendments that were rejected. However, as a former journalist, I care a lot about facts and, quite frankly, I didn’t understand what you were getting at when you criticized the amendment to subsection 4.2(2). I will just mention one point that made my hair stand on end.

You said that sports games that are rebroadcast on platforms like YouTube will not be able to be taxed or used to help fund our culture. However, that isn’t at all the case because when we rewrote the amendment, we specifically kept paragraph (c), which indicates that we can include the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that is required to be carried on under a licence — as is the case with sports — or is required to be registered with the CRTC but does not provide a social media service.

I simply don’t understand how you can say that a loophole is being created and that we won’t be able to include sports at all in Bill C-11. It’s quite clear that this is part of the amendment.

Senator Gold: Thank you for the question.

I thank you for your work, and I also thank all my colleagues for their work to improve the bill.

According to the government’s analysis of the possible and foreseeable consequences of the amendment, and how it might be interpreted within the CRTC or within organizations that are, quite honestly, staunchly against regulations, changing these factors and eliminating some of them pose a real risk. Some uncertainty remains around the interpretation and clarity of the wording of the amendment in question, which focuses on how music is played. This could lead to problems interpreting the legislation. As I mentioned earlier, it could result in a loophole.

As is often the case, legislative texts can be interpreted in a number of ways. I accept that there is no way to prove that one interpretation is better than another, even after a court has ruled on it.

That is the position of the government, two opposition parties and the stakeholders I’ve mentioned. The risk is too great, and the bill, unamended, is a better way to achieve the objectives of the legislation.

Hon. Leo Housakos: My question is for the government leader and it has to do with user-generated content and digital-first content providers. It’s nice to hear the minister say that digital users and content providers will not be part of this Bill C-11. It’s nice to hear the sponsor of the bill say it in this chamber. It’s great and reassuring to hear it in your speech. But the reality of the matter is the amendments that we sent over in good faith which made it clear that user-generated content would not be caught up in the web that’s being spun by this piece of legislation were rejected by the government.

My question is a very simple one: Why wouldn’t the government accept those amendments making it clear in the law — not a commitment on the part of government — that user-generated content will be excluded and carved out? Why did the government reject those amendments given the fact that we should take it at face value and accept that those amendments would put in the law the stated intent of what you just shared with us in your speech?

Senator Gold: Well, we are restricted in this debate to the message and not the rest of the bill, but with regard to the amendments that were rejected, I’ve given my best explanation as to what the government’s thinking was on why they were rejected. Senator Housakos, respectfully, it’s not simply “nice” that the minister says this or “nice” that the Government Representative says it. It is a commitment of this government to do so. Either we believe in our institutions and the integrity of our institutions or we don’t. The government has been clear that, in its opinion, the bill as it stands does not apply to user-generated content. It is going to make it even clearer in its policy directive and it has made a public commitment to do so. That is sufficient for my purposes.

I believe the government when it says this. I believe in our ability to hold the government to account when it says this. I believe that this bill, as it was drafted and improved by the Senate, notwithstanding the rejection of this amendment, is a bill that applies to the platforms to support Canadian content and does not apply to user-generated content, notwithstanding the concerns that have been expressed.

Senator Gold: Thank you for your question, Senator Wallin. At the risk of repeating myself, the bill is clear that it does not apply, first of all. Second, the fact that the government and two of the opposition parties in the other place disagree with the necessity for this particular amendment does not mean that the government, the members of the other house or the stakeholders do not have legitimate concerns. I tried to express that about this particular amendment.

This is not giving me or anyone else a blank cheque. This is a very complicated, structured piece of legislation that requires — as legislation of this kind does require, and I appeal to those in this room who have experience as we all do or should have with the regulatory process — layers below the legislation. There are regulations and policy directives required in order to take account of emerging trends and technological developments.

This is a good bill. It does not apply to user-generated content. It applies to the platforms when they engage in the broadcasting of commercial programs. The law is clear, the government has been clear and I hope that I have been clear.

Hon. Andrew Cardozo: My question is to Senator Gold.

I’m looking at proposed subsection (2.1) of Bill C-11:

Exclusion — carrying on broadcasting undertaking

(2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users . . . does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.

So it seems to me that user-generated folks are excluded. The next proposed subsection, (2.2), is titled “Exclusion — social media service and programming control,” and it is followed by subsection (2.3), which is another exclusion.

It seems to me there are several exclusions which are quite explicit. I’m not seeing the need for yet another exclusion to be guaranteed when it seems to me to be quite clear there. I find your explanations satisfactory in terms of those issues being quite clearly stated in those proposed sections of the act.

My question is more direct in terms of the process. As I see it, we’re dealing with three types of instruments. The first is legislation, which is passed by Parliament. We’re seeing how long it takes to pass legislation. Apart from the 31 years, it has now taken 2 or 3 years to do it. Then you have the next level as a directive from the cabinet and Governor-in-Council to the CRTC. On the third level, you have regulations that the CRTC can make, following extensive consultation.

I was a commissioner there, and, by the way, while people cite former commissioners who are against this, here is a commissioner who is in favour of this bill. There are others; we’re not that rare. I have been party to part of the process of how regulations are made. I have to tell you they are mind-numbingly extensive and detailed.

While we are spending a bit of time here dealing with this, the commission’s role, like most other commissions, is to deal with these sorts of things full time. They put questions out, they get answers back; they put out a draft, they get answers back and then they make regulations. The process is extensive.

The wisdom of having this process is that it takes 31-plus-3 years to make changes to the law, whereas a cabinet directive can be done at the drop of a hat. Changes to regulation take several weeks and maybe months, but not years. To me, that’s the wisdom of having this process where you describe the framework in the act, and you leave directives and regulations to deal with the details. Those details have to —

Senator Gold: Thank you for the question. I’m going to be brief because I know others may want to ask questions. As long as my legs hold up, I will be happy to take questions.

That is precisely right, Senator Cardozo. First of all, this is not a framework agreement; let’s be clear. The Broadcasting Act is very detailed. Bill C-11 is a very technical, detailed act. So we are talking about an act that sets out very clear criteria. As you pointed out very helpfully and in greater detail than I did, the act is clear that it doesn’t apply to digital creators but only to the platforms. The legislation is clear. It sets out clear criteria and principles to guide the CRTC.

Yes, you are 100% right, as I’ve tried to explain. The level of policy directive development, the process around that and, of course, the process of regulation allows stakeholders — and that includes YouTubers and all the folks who will continue to have questions, indeed, or concerns or both — to have input and to be heard. This is the proper way to modernize a long-overdue and long-out-of-date Broadcasting Act. So, yes, I think this is the right way.

I did want to remind colleagues that this is not just a framework where we tell the CRTC to do what they want. It’s very clear about what it’s supposed to do. Anyone who has been involved in the regulatory process knows you need a certain amount of flexibility within the regime in order to do the work. There are 30,000 pieces of YouTube content uploaded if not every minute, every day. It’s mind-boggling. Triage will have to be done at the regulatory process. Guidance is being provided in law and further guidance in policy directives and, whether mind-numbing or otherwise, further detailed guidance in the regulations.

Senator Gold: The government has not been negligent. The government has been responsible in trying to get this bill over the finish line for the last three years. The government does not have a Spartan warrior who is praised for delaying it for a year and will delay it for another year if your leader’s hope is realized.

The fact is this government is not being negligent. The proper legislative process is for a bill to be passed, policy directives and regulation. And again I say, Senator Housakos, with the greatest of respect, we’re at the message stage of the bill. The Rules of the Senate require that we stay focused not on part of the process generally but on the actual message that’s before us.

I’m not rising on any procedural point, but simply to remind senators that at this stage of our process, we have a particular responsibility to this process. It is not to reopen the whole bill and all the things that you don’t like about the bill and all the reasons why you and your party would like to kill the bill.

Senator Housakos: With all due respect, government leader, this is a very important legislative process. We have an obligation to debate all aspects of the bill, even elements of the bill, government leader, that you don’t like to talk about.

I think you have an obligation in this chamber to answer all questions that directly and indirectly apply to this particular bill and the Broadcasting Act. These were all elements that were dealt with, not just amendments that were refused or rejected.

Furthermore, we have a capable Speaker in the chair, and I think it’s incumbent on that Speaker to do her job, and you can focus on doing yours.

I have one other question, government leader, since I haven’t had any answers to the questions thus far. The bill makes it clear. There are a number of sections that talk about amplifying minority groups in this country and diversity groups. That’s clear in the bill. It’s within the scope of the bill. That includes Indigenous Canadians.

Can you explain to me how we’re passing a bill, a broadcasting act, that’s so preoccupied with — and this government has their heart set on — supporting diversity, supporting Indigenous voices, yet when it comes to this year’s budget, you cut millions of dollars from the Indigenous Screen Office that would be going to Indigenous communities in order to amplify Indigenous voices?

Here is another example where you pass a law for posterity’s sake, yet in practical terms, in this current budget that you passed recently, you actually cut funding to the Indigenous Screen Office.

Senator Gold: Again with respect, Senator Housakos, there is a long-standing practice and rule about message stage, so I am not avoiding answering questions that I “don’t want to answer,” but they are not questions that are raised in the message and that are the proper subject of debate.

Similarly, Bill C-11, even before we amended it, had recognized the presence of Indigenous artists, creators and broadcasting entities and companies. It was strengthened by Senator Clement’s amendments, and the bill has been improved as a result.

Your question about funding for a particular organization clearly belies and ignores the fact that this government has done more to advance reconciliation, though there is an enormous amount of work still to be done. Again, it is only out of respect for the importance of the issue you raised and not the pertinence of the question that I offer that observation.

Senator Gold: Thank you for your question. With respect to our constitutional role, no one is denying what the Constitution Act, 1867 says. But in my speech — and I’m sure you were listening — the Supreme Court made it clear that because of the understanding from 1867 onward of our complementary role, it was not necessary to specify the circumstances under which senators would exercise restraint as a matter of principle, a self‑imposed principle of restraint, because it came with the understanding, which all of us share and should share, of what our role here in this chamber is vis-à-vis the role of other institutions in our government, including the elected officials.

It is a question of what the appropriate and responsible thing for the Senate to do is. This is not a case where, in my humble opinion, the message is about the disagreement with 6 of the 26 amendments — and again, colleagues, the motion focuses on and our practice in the Senate focuses at the message stage on talking only about the message. There are Speaker’s rulings on these points.

Again, I am not invoking procedural arguments to stifle this discussion. I’m just trying to appeal to your experience as a legislator and to those of us with perhaps less experience to remind us what this debate is about and what it’s not about.

Senator Wallin: On that point, in fairness, Senator Gold, you did raise the issue of the constitutional role of the Senate, but that’s for another time.

To stay on topic, I will read the language of your rejection that you’ve shared with us here. The government has rejected the key amendment that we are talking about here on user-generated content:

. . . because this would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time . . . .

These are your words — the government’s words.

This rationale, of course, makes it quite clear that the government wants the power to continue to direct the CRTC on user content today, and maintain that power into the future. That’s what it states.

Obviously, these questions remain: Why are you so adamant to regulate user content online? What is your fear?

I ask this because in the discussions over Bill C-10, Minister Guilbeault, who was the minister in charge at the time, suggested that he was concerned about the criticisms of the government that he was seeing online. We have heard very clearly from Minister Lametti that he thinks it is okay to restrict rights and freedoms online if the government chooses to legislate in that direction.

Any bill that requires government policy direction to provide guidance on regulating user expression is leaving too much uncertainty on the most fundamental questions of freedoms.

Why does the government insist on having the ability to directly instruct the CRTC on user-generated content — the actual content — when this is supposed to be an arm’s-length institution?

Senator Gold: Again, Senator Wallin, it is not the intention of the government — or of this bill — to regulate user-generated content. It is in response to the concerns expressed, as the government has tried, and continues to try, to clarify — obviously, with not complete success in this chamber, anyway — that the bill does not, and will not, apply to user-generated content. Both the text of the bill and the government’s commitments make that clear.

It is also clear — again, colleagues, you don’t need me to tell you this — that the Canadian Charter of Rights and Freedoms applies to every bill. The CRTC is required to take the Charter into account. Freedom of expression is guaranteed in the bill itself, although that is not necessary given the overarching presence of the Charter, and amendments promoting journalistic freedom further emphasize that.

It is not the case, Senator Wallin, with all respect, that the government intends — or wants — to regulate user-generated content. It is trying to provide guidance to the CRTC on how to adapt this bill to the rapidly changing technological environment and, at the same time, provide reassurances to those in our communities who have expressed concerns. As I said, those concerns will be addressed in the policy directive upon Royal Assent.

Hon. Scott Tannas: This is more out of curiosity, I suppose, although it may have some utility, leader, but I wanted to ask, first of all, about the statement regarding taking note of the government’s stated intent: I think it is very creative, and makes many of us more comfortable in terms of saying goodbye to Senator Simons’s and Senator Miville-Dechêne’s excellent amendment — which I spoke in favour of, and which allowed me a reason to send it to the House of Commons.

Could you elaborate on the provenance of that passage? Did you develop it? If we wanted to amend it, would it be a government position that would have to involve the House of Commons? Is this a passage that we’re putting in here in the Senate, or was a compromise arranged with the other house that, if we edited it, it might cause a problem?

Hon. Paula Simons: Let us start with the good news.

The government has, indeed, accepted most of this chamber’s amendments to Bill C-11, amendments from all four Senate groups.

The government has accepted, for example, a small but crucial amendment proposed by Senator Denise Batters which clarifies and expands the legal meaning of the word “decision” in the act.

It has accepted an amendment from Senator Miville-Dechêne which underlines the right to privacy following recommendations from Canada’s Privacy Commissioner. This is a real victory and a pleasant surprise since the government opposed this amendment in committee.

The government has accepted a whole series of amendments proposed by Senator Bernadette Clement which stressed the importance of Black and Indigenous representation in Canada’s broadcast ecosystem.

They have accepted an important amendment by Senator Pamela Wallin, adding critical language that ensures freedom of expression and journalistic independence, and equally important language from Senator Donna Dasko which insists that our broadcast system promote innovation, be adaptable to technological change and responsive to audience choice.

Senator René Cormier’s contributions include amendments to support French Canadian broadcasting and to underline the importance of independent producers.

Senator Cormier and Senator Jim Quinn have proposed successful amendments to make the Canadian Radio-television and Telecommunications Commission, or CRTC, more transparent and accountable in the administration of this new regulatory framework.

I am pleased to see two amendments that I championed in partnership with my friend Senator Dasko included in the revised legislation. The first relieves community broadcasters of responsibility for combatting disinformation; the second, far more substantive, was an amendment to remove in its entirety section 7(7) of the act, which would have given extraordinary new powers to the Governor-in-Council to micromanage all kinds of CRTC decisions.

Several expert witnesses testified before our committee about their concerns that this section would give new, unprecedented powers for cabinet to intervene in the rulings of the independent broadcast regulator. I am delighted that the government and the other place accept this amendment which depoliticizes regulatory decision making.

Let me take this opportunity, too, to thank not just the witnesses but former senator Howard Wetston for his wise counsel as Senator Dasko and I worked on this vital section of the bill. Senator Wetston’s deep knowledge of regulatory law was incredibly helpful as we wrestled with ways to fix this particular issue.

That’s the good news. I don’t want to minimize its importance. Bill C-11 came to us a flawed bill, and by working together, the Standing Senate Committee on Transport and Communications created a better bill. It is a credit to our more independent, less partisan Senate that we have been able to deal with some of Bill C-11’s most glaring omissions and errors.

However, the other place failed to accept the one amendment that may have been the most critical of all: the amendment proffered by Senator Miville-Dechêne, with my support, which would have clearly scoped out user-generated content from the bill.

One of the challenges of this legislation was to find a compromise that would include corporate content across all major streaming platforms, including YouTube and TikTok, while at the same time not capturing individual artists, creators, journalists and social and political commentators who use these platforms to upload their content.

We needed to find a way to ensure that commercially released Canadian music on YouTube, TikTok and other platforms was captured by Bill C-11 without sweeping up independent, individual creators who use the platforms to reach audiences, build their brands and earn their livings. We needed to find a way to protect the rights of commercial recording artists and, at the same time, protect the rights of cutting-edge digital entertainment innovators.

Senator Miville-Dechêne and I thought we had found that compromise. We didn’t do it alone. We were supported by our excellent staff who helped to craft and shape the language of the amendment after months and months of consultation with independent creators, artistic lobby groups and the platforms themselves.

The legislation sent back to us today gives the CRTC the power to override the section of the bill which exempts user-generated content based, in part, on whether that content generates revenues directly or even indirectly, which could, in theory, capture a tremendous amount of user-generated content.

Our rejected amendment to section 4.2(2) would have eliminated all mention of revenues, be they direct or indirect. Instead, its metric would have been whether a piece of content had been broadcast on a conventional commercial service or whether it had an international, unique identifier number assigned to it as a professional commercial recording.

I want to be very clear about this because there seems to be some confusion. Our amendment specifically made allowance for things like the rebroadcast of sports games or the rebroadcast of an entertainment show like a singing competition.

Our amendment would have meant that if a broadcaster such as Rogers or CBC reposted a baseball game or a news documentary on YouTube or Facebook, that would have absolutely been captured by the legislation, as would have any other parallel use of a social media platform to mirror that which was already on a conventional broadcast service.

It is absolutely incorrect to suggest that our amendment only dealt with music. That is not true. But our suggested language would also have ensured that if a major record label such as Sony released a new single or album on YouTube, that posting would have been treated as would have been the release of that same song on Spotify, Amazon Music or TIDAL.

At the same time, digital creators, including financially successful ones, would have been clearly exempted from Bill C-11, even if they uploaded their comedy, music, animation, film or TV episodes to a social media platform.

In committee, our common sense compromise amendment was accepted by a significant majority of members, and endorsed by the majority of senators in this chamber. It was embraced and celebrated by digital creators across the country, by producers, academics, media critics and analysts. It received broad and enthusiastic public support.

Unfortunately, the government has not seen fit to accept it, despite its efforts to strike a reasonable balance.

Here’s the official language for the official reason:

. . . this would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time . . .

What exactly does that mean? If, like me, you have a bit of a thing about split infinitives, that was especially painful to read and hear. But grammatical pedantry aside, let me attempt to translate. The government is saying — I think — that our amendment would limit cabinet’s power to tell the CRTC how to regulate social media services.

The first part of the sentence is a bit strange. Nothing in our amendment would have prevented the government from holding public consultations at any time on any subject. The last clause is also a bit odd. Nothing in our amendment would have prevented the broadcasting system from adapting to technological change.

It’s the middle of the sentence that matters. It’s the meat of the sandwich — the part about scoping the regulation of commercial programs on social media. And this is precisely the problem. The minister and the government keep telling us — and everyone else — that they do not intend to include user-generated content and that Canadians who post their comedy sketches or animated shorts or children’s songs to Twitter, YouTube, TikTok and Instagram would not be scoped into the ambit of the CRTC. Yet, the government’s own written response to our amendment demonstrates that they wish to retain the power to direct the CRTC to do precisely that — to regulate the distribution of content on social media.

The government has accused us of creating a loophole. In fact, it’s exactly the other way around. It is subsection 4.2(2) that creates the loophole. The government can’t have its cake and eat it too. It can’t pledge to keep user-generated social media out while simultaneously leaving open the possibility — dare I say the threat — of shoehorning it in.

Senator Gold said to us today that using a social media service does not make you a broadcaster. That is absolutely true. Would that the bill said so.

So now we are left with a constitutional quandary. Do we send the bill back and insist, with all due parliamentary politeness, that the government reconsider our amendment? We have pinged; now should we “pong?” Or do we say to the government something like, “Well, on your head be it. We in the Senate identified a real and serious failing of this bill. We suggested a practical, non-partisan compromise that achieved broad consensus in the Senate. You didn’t listen. Now you, as the elected representatives accountable to the voters, will have to deal with the consequences of that?”

When a bill or a part of a bill is clearly unconstitutional, then our way is clear. It is our job in the Senate to protect the Charter of Rights and Freedoms, including freedom of expression. However, while I think subsection 4.2(2) does impinge on free speech and free expression, it doesn’t explicitly infringe on free expression. Despite the ongoing social media panic, rage farming and thought scams, this is not a censorship act, it’s not a plot by the World Economic Forum, it’s not a communist plot, it’s not a Nazi plot and it’s not an Orwellian plot. It’s just, well, a flawed bill.

However, this is the bill the government ran on. In terms of the Salisbury convention, it was very much part of their last election platform. You could argue they received a mandate for this policy, though this was hardly a ballot question.

So while I might be tempted to ask you, my fellow senators, to send this bill back with an insistence that the government reconsider our amendment, I frankly don’t detect any appetite in the other place to budge on this point. More’s the pity. As well, I don’t think “ponging” this amendment up the street will make a blind bit of difference.

I’m proud of the work we did on this bill, and I think it is a much better piece of legislation because of that work. In the end, I do not feel I can lend my voice to its passage, but today, I want to thank all the independent digital creators — the animators, filmmakers, musicians, comedians, journalists and commentators — who spoke out so thoughtfully against this particular aspect of the legislation. You give so much to our country and our culture. I will continue to push for your rights and your independence to be respected in government regulation and by the CRTC. We need your visions and your voices in our media milieu. Thank you for what you give to Canada and to the world. Thank you for being ambassadors for all things Canadian and for all the multiplicity of ways to be Canadians. You are in the vanguard, and I hope that, in time, the rest of us will catch up.

Thank you. Hiy hiy.

Hon. Donna Dasko: Honourable senators, I’m pleased to stand today to speak to the message received on Bill C-11, the online streaming act, from the House of Commons. I will be very brief today.

Colleagues, it’s a rare moment when a government bill comes back to us as a message, and it’s also rare for any bill to receive as much review, scrutiny, analysis and change as Bill C-11 has.

The process in this chamber, and in our Standing Senate Committee on Transport and Communications in particular, in examining this bill has been as thorough as anyone could hope for. The committee held 31 meetings, heard from 138 witnesses and received 67 briefs on Bill C-11. Virtually everyone in this country with any stake or interest in this bill was invited to committee as a witness.

Nine committee meetings were held to conduct clause-by-clause consideration, and this is a record number of such meetings. A total of 73 amendments were presented at committee, and 26 were adopted, covering a very wide range of topics.

Clearly, colleagues, in my view, we have completed our work, and, without question, we have been thorough and diligent. I am very proud to have been part of this process, and I thank all of my colleagues for their contributions. I thank all of the witnesses, as well, who came before us.

Now, let me turn very briefly to the government’s choices with respect to Senate amendments. As we know, the House of Commons, upon recommendation of the minister, has voted on a motion to accept 18 of the 26 amendments and to slightly modify two others. These amendments were accepted by a majority of members in the other place by a vote of 202 to 117.

The 18 plus 2 amendments accepted in the other place are substantial and significant. I am confident that all of our amendments received fair consideration. I supported the amendment on user-generated content that my colleagues put forward. I thought it was a reasonable and good compromise and a very reasonable way to deal with the topic and activity of user-generated content. Therefore, I was disappointed when this amendment was not accepted by the government.

After we received that notice on March 7, 2023, I discussed with officials the reasons that this amendment was not accepted, and I have to say that I am satisfied that the government’s choices were based on valid considerations. I note that the motion before us today reiterates that the intention of the bill is not to apply to user-generated content, and it’s important to remember that any decisions about the regulation of any user-generated content will involve an open process at the Canadian Radio-television and Telecommunications Commission, or CRTC, where I believe all of those affected will have a real say in the decisions and outcomes that are made.

Minister Rodriguez recently remarked that this bill has spent the most time in the Senate in the history of Canada. Even The Globe and Mail declared this past Saturday that Bill C-11 is the most debated piece of legislation in Senate history. Well, colleagues, it’s great to be part of Senate history.

We have made a huge contribution, and I feel it’s now time for us to move on. I feel our work is done. I will be voting for the message and the motion before us, and I hope you will as well.

Thank you.

Some Hon. Senators: Hear, hear.

(On motion of Senator Yussuff, debate adjourned.)

Hon. Patti LaBoucane-Benson: Honourable senators, I am once again very happy to be speaking on the traditional territory of the Algonquin Anishinaabeg.

I am speaking today at the second reading of Bill C-29, the national council for reconciliation act. The council created by this bill would have a mandate to monitor, evaluate and report on reconciliation efforts federally and throughout Canadian society; highlight and share best practices; engage with Canadians to create a better general understanding of reconciliation and be a catalyst for innovation and action.

First, I want to express my sincere thanks to Senator Audette for sponsoring this legislation and bringing her experience to bear as a former commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

As she said in her remarks when we received the bill back in December:

. . . this bill is of vital importance. It is a step toward healing and reparation. . . .

. . . Bill C-29 gives us the opportunity to start laying the foundation for the shaputuan, the big tent of the Innus, or to take a step towards our collective responsibility. . . .

I agree that Bill C-29’s significance and potential is part of a landscape of reconciliation-focused bodies and organizations to help make lives better in her Innu territory, in my beloved Treaty 6 territory, here on the lands of the Algonquin and the Anishinaabeg people and for Indigenous and non-Indigenous people throughout Canada.

I also extend my thanks to the other senators who have contributed to the debate on the bill so far, including Senators Dupuis, Patterson, McCallum and Anderson. I have no doubt we all share the goal of making sure that reconciliation isn’t just a word but an accurate description of the way we live, the way we heal and the way we build a future together.

Over the course of our debate, we’ve heard concerns about some of the bill’s specifics, such as the national council for reconciliation’s composition and how it should be funded. These are important questions, senators, and I look forward to delving into them at the Indigenous Peoples Committee.

The main purpose of my remarks today is to address the matter of the bill’s genesis and the consultation and engagement process that preceded its introduction.

A couple of weeks ago, we heard Senator Anderson’s view that the process was deeply flawed, to the point that perhaps we should not advance Bill C-29 beyond second reading, at least for a time.

I have a different view. By the way, Indigenous leaders have been disagreeing with each other since time immemorial, so it should be no surprise that the Indigenous people in the Senate also have different perspectives on important pieces of legislation. I think it’s part of a healthy debate that results in good law.

The way I see it, Bill C-29 is the result of years of Indigenous-led efforts, beginning with the Truth and Reconciliation Commission of Canada, or TRC. That commission, led by our former colleague the Honourable Murray Sinclair, spent years travelling across Canada, heard from more than 6,500 witnesses — most of whom were survivors of the residential school system — and issued 94 Calls to Action.

Among those are Calls to Action 53 to 56, which advocate for the creation of a national council for reconciliation, with recommendations about how it should be resourced and how different levels of government could interact with it. Certainly, it wouldn’t be enough to go straight from the TRC Call to Action to legislation. An engagement process is required to get us from point A to point B, and I’m about to get to that, but I do think it’s important to keep the context in mind.

The idea of the national council for reconciliation wasn’t dreamed up in a brainstorming session in a boardroom on Wellington Street. It comes from the work of the TRC.

Next, in 2017, the government set up an interim board of First Nations, Inuit and Métis leaders to advise the minister on how to begin turning the TRC idea into legislation and, ultimately, into a functioning council. Among the interim board members were people with backgrounds in Indigenous government, like Wilton Littlechild, former grand chief of Treaty 6; in community activism, like long-time Quebec Indigenous activist Édith Cloutier; in economic development, like Clint Davis, an Inuk who was a CEO of the Canadian Council for Aboriginal Business; and in Indigenous rights law, like Métis lawyer Jean Teillet.

In addition to bringing their own expertise to bear, the interim board created an online mechanism to receive written submissions on how the national council for reconciliation should be set up, and the interim board held a major engagement session in April 2018 with dozens of Indigenous and non-Indigenous participants from across the country with diverse backgrounds, experience and knowledge.

The participants included Melanie Omeniho, President of Les Femmes Michif Otipemisiwak; Jocelyn Formsma, a board member of the Indigenous Bar Association and CEO of the National Association of Friendship Centres; Maggie Emudluk Sr., President of the Nunavik Landholding Corporations Association; Harold Robinson, a Métis lawyer and mediator with the Canadian Human Rights Commission; Stephen Kakfwi, the former premier of the Northwest Territories and a residential school survivor; and Elder Claudette Commanda, the first Indigenous chancellor at the University of Ottawa.

A few months after that engagement session, later in 2018, the interim board delivered to the minister a report that served as the basis for the bill that is currently before us. That report was shared at the time with the Assembly of First Nations, with Inuit Tapiriit Kanatami and the Métis National Council. This past February, senators, it was shared with all of you, along with a summary of the April 2018 engagement session.

One of the report’s recommendations was that an Indigenous-led transitional committee be established to conduct more targeted, technical engagements and review the draft legal framework to be developed by the government. Essentially, the first body — the interim board — made conceptual recommendations in advance and crafted an initial working draft of the bill, while the purpose of the second body — the transitional committee — was to do the more technical, detailed work of reviewing legislative language as the text got firmed up.

The transitional committee was appointed in January 2021, with some members carried over from the interim board as well as some new appointees. Earlier this year, the Senate had the opportunity to receive a briefing from several of them: Edith Cloutier, whom I mentioned earlier; Rosemary Cooper of Pauktuutit Inuit Women of Canada; Mitch Case of the Métis Nation of Ontario; and Mike DeGagné, the former president of Nipissing University, Yukon University and the former CEO of the Aboriginal Healing Foundation.

The transitional committee submitted its final report to the minister in March 2022. Then, the minister discussed the bill with the leaders of the Assembly of First Nations, or AFN, Métis National Council, or MNC, and Inuit Tapiriit Kanatami, or ITK, in early May. Bill C-29 was introduced in late June.

So that was the process that got us from the idea’s inception by the Truth and Reconciliation Commission, or TRC, through to introduction last spring. There is more consultation to come, as required by subsection 13(2) of the bill, which says:

. . . the Council must consult with a variety of persons with relevant knowledge, expertise or experience, including elders, survivors of the discriminatory and assimilationist policies of the Government of Canada and Indigenous law practitioners.

The government has deliberately avoided being overly prescriptive about the details of how the council will operate, leaving considerable room for the council itself to engage further with individuals and organizations as it develops its methods and procedures and determines its areas of focus. Still, it is certainly legitimate to believe that consultations thus far should have been more extensive, that a wider net should have been cast or that more or different people should have been involved in more or different ways.

I do not, however, accept that the process I have described can be dismissed as “unserious.” On the contrary, this bill is the result of a lot of work done by impressive, credible, eminent Indigenous peoples — First Nations, Inuit and Métis peoples with capacity. These are Indigenous leaders with considerable experience and expertise. We owe them the respect of sending this bill to committee, inviting them to testify and engaging conscientiously with the product of their work.

Speaking of respect, the sponsor of Bill C-29 in our chamber is also an impressive, credible, eminent Indigenous leader who’s not exactly a novice on the subject of engagement with Indigenous people and organizations. That doesn’t mean we all have to agree with Senator Audette or vote the way she would like us to — although I’m sure she would like us to — but I hope it means that our collective approach to this bill will be studious, thoughtful and devoid of derision.

It’s also important to remember that we are not Bill C-29’s first point of contact with the Parliament of Canada. A couple weeks ago, Senator Tannas raised the example of the old Bill S-3, which the Senate held at committee for several months in 2016 and 2017 while the government conducted additional consultations. But that was a bill introduced in our chamber before the members of the other place had a chance to weigh in.

In this instance, we’re talking about legislation that has already been considered and adopted by our colleagues up the street. Their Indigenous and Northern Affairs Committee held eight meetings on it last fall. They heard from 38 witnesses, made several amendments and MPs from all parties ultimately gave this legislation their unanimous support, including First Nations, Inuit and Métis members of Parliament Lori Idlout from Nunavut, Michael McLeod from the Northwest Territories, Jaime Battiste from Nova Scotia, Marc Dalton from B.C., Leah Gazan from Winnipeg and Blake Desjarlais — my friend — from Edmonton.

That doesn’t mean we’re obligated to set aside any concerns we might have — absolutely not; it’s quite the opposite. It’s our turn now to subject this legislation to senatorial scrutiny. But when the people’s elected representatives have completed an extensive study and sent us a bill that they all believe is worthy of support, our job — at minimum — is to get it to committee and conduct our own extensive study.

We will undoubtedly hear testimony at committee from the bill’s architects and supporters, as well as from people who have been making criticisms and asking questions about it. I’m keen to hear from all such witnesses and to ask them questions of my own, including about the consultation process. I am also eager to analyze Bill C-29 in detail with the benefit of their input.

Committee study will be a further opportunity for Indigenous voices to be heard, for differing viewpoints to be considered and for senators to determine if there are ways in which the legislation can be improved. That is at the core of the Senate’s institutional role, which is to serve as a complementary chamber in this bill’s legislative journey.

I’m under no illusions that a single bill can achieve reconciliation. But in the last few years, we’ve had the opportunity to support bills about Indigenous languages, child welfare and land management; bills addressing overrepresentation of Indigenous peoples in the criminal justice system; bills implementing self-governance agreements; and, of course, Bill C-15 regarding the UN Declaration on the Rights of Indigenous Peoples.

In my view, Bill C-29 is an important element in this series of legislative measures, with many more to come.

Once again, I thank Senator Audette for sponsoring the bill, and I thank all senators who have participated in this debate. Even when we disagree about particular legislative measures, I know we share the ultimate goal of meaningful, impactful reconciliation.

In that spirit, I hope committee study of Bill C-29 can begin soon.

Hiy hiy.

Hon. Paula Simons: Honourable senators, in November 2021, when Governor General Mary May Simon delivered her first Speech from the Throne, she read to us these stirring words:

When someone in our country is targeted because of their gender, or who they love, or where they come from, the way they pray, the language they speak, or the colour of their skin, we are all diminished.

She went on to underline the government commitment to stand up for LGBTQ2 communities — a commitment that seems even more urgent now, a year and a half later, as we see the rising tide of anti-trans hate spilling over the U.S. border and into the lives of Canadians.

It is against that backdrop that I rise today — on Yom HaShoah, as it happens — to celebrate one of the most important human rights victories in Canadian history, and to salute the courageous Edmontonians who made it possible.

This month marks the twenty-fifth anniversary of the Supreme Court of Canada’s Vriend decision, which expanded the Charter to protect queer rights in Canada.

In 1991, Delwin Vriend, a 25-year-old lab instructor at The King’s College in Edmonton, was fired from his job for being gay. Delwin was a quiet, thoughtful young man who loved math and science, and who grew up in a warm and devout Christian Reformed family who loved and accepted him for who he was. The board of the college was not so open-minded.

After his dismissal, Vriend filed a complaint with the Alberta Human Rights Commission. At the time, Alberta was one of only two provinces that hadn’t added protection from discrimination on the basis of sexual orientation to its human rights laws. And so, the Alberta Human Rights Commission told Delwin Vriend that he had no case.

He appealed to the Court of Queen’s Bench of Alberta — and won. Madam Justice Anne Russell ruled Alberta’s human rights legislation unconstitutional. She called the province’s refusal to add sexual orientation “a legislative limitation which controverts the very principle it purports to embody.”

The Alberta government appealed in its turn. Edmonton’s LGBTQ community rallied around Delwin, and so, too, did a small brave band of Edmonton lawyers, led by Sheila Greckol and Doug Stollery, who took his case to the Court of Appeal of Alberta.

In a strange irony of history, the Court of Appeal of Alberta panel that heard the case was chaired by Mr. Justice John McClung, the grandson of Nellie McClung, who was the suffrage crusader and one of the Famous Five instigators of the Persons Case. It was the case that not only established that women had the right to sit in the Senate, but also established the legal principle that Canada’s Constitution was a living tree — in the immortal words of Lord Sankey, “a living tree capable of growth and expansion within its natural limits.”

But this McClung was no “living tree” fan, and he wasn’t sold on the Charter either. While Sheila Greckol, Delwin Vriend’s lead counsel, was addressing the court, Mr. Justice McClung actually swivelled around in his chair, turning his back on her as she spoke — and his written judgment in the case dripped with disgust and disdain.

The Alberta legislature, he wrote, was “not to be dictated . . . by federally appointed judges brandishing the Charter.”

It was not the role of legislatures, McClung wrote, to enter into every “morally-eruptive social controversy,” nor to choose between what he called “the divinely-driven right and the rights-euphoric, cost-scoffing left.”

McClung also wrote:

I am unable to conclude that it was a forbidden, let alone a reversible, legislative response for the province of Alberta to step back from the validation of homosexual relations, including sodomy . . . .

But Delwin Vriend didn’t give up — and Greckol, Stollery and their team wouldn’t give up. They launched an appeal, funded in no small part by Doug Stollery’s parents, well-known Edmonton philanthropists Bob and Shirley Stollery, for whom Edmonton’s Stollery Children’s Hospital is named.

Vriend’s team gathered other powerful legal allies. Everyone from the Canadian Labour Congress to the Canadian Jewish Congress, as well as the United Church of Canada, signed on to intervene in support of Vriend.

Julie Lloyd — who is, today, an Alberta family court judge — was, back then, a young lawyer, and one of the first openly lesbian lawyers in Alberta. She represented the Canadian Bar Association at the Supreme Court that day.

Lloyd told me:

It remains one of the most moving experiences of my life. It was transformational. You could see the momentum. All the ridiculous arguments that had been given to discriminate against gays and lesbians just started to fade away. They disappeared like a puff of smoke in the clear light of the Supreme Court. Each of the arguments was revealed to be specious, haranguing, alarmist and simply untrue. They collapsed like a house of cards.

Everyone that day expected that Sheila Greckol would make the closing arguments; she was the seasoned litigator. But, at the very last moment, she insisted that Doug Stollery, a soft-spoken solicitor who had almost no courtroom experience, speak for Vriend — and for himself, as a gay man.

Stollery told me this years later:

I remember when it was my time to argue, I should have been nervous. Instead, I was hoping I wouldn’t cry. And I didn’t actually cry. But I came close.

And then, on April 2, 1998, Canada’s Supreme Court said it didn’t matter that the Canadian Charter of Rights and Freedoms didn’t include sexual orientation when it was written in 1982. The court deemed sexual orientation an analogous ground — analogous to race or gender or religion.

In their unanimous decision, the judges said our Constitution was still a living tree, and that we — in Canada — had grown and evolved to the point where it was unconstitutional to discriminate against LGBTQ Canadians. The court went further, and read in that protection to the Charter and to Alberta’s Individual’s Rights Protection Act.

In Alberta, the hateful backlash was fast, ferocious and frightening. In the wake of the decision, Premier Ralph Klein came under immense pressure, including from his own caucus, to invoke the notwithstanding clause and, thus, perpetuate legalized homophobia in Alberta.

I remember covering the story for the Edmonton Journal which had, under the courageous moral leadership of publisher Linda Hughes and editor-in-chief Murdoch Davis, argued passionately against invoking the clause. Tensions were high. We didn’t have Twitter or Facebook or TikTok back then, but the city and province were humming with anger and anticipation, waiting to see what would happen next.

In the end, Premier Klein pushed back against certain right-wing voices in his own party, moved in part by the wave of nasty homophobic letters, faxes and phone calls to his office. He was, I’ve been told, genuinely appalled by some of the hateful messages, and said he’d had no idea that gay Albertans faced such hatred and discrimination.

It is another accident of history, though, that one of his closest political advisers and confidantes, Fay Orr, happened to be a queer woman. And because Ralph Klein had a lesbian friend, he was able to put a human face to a political and philosophical decision. And so, the ruling stood and established the rights of gay, lesbian, bisexual, trans, non-binary and two-spirited people in Alberta and all across Canada. Everything else, from same-sex marriage to the ban on conversion therapy, has flowed through the Vriend decision.

The ruling also helped to delineate the powers and rights of the Supreme Court to interpret the Canadian Charter of Rights and Freedom. It helped to reinvigorate the doctrine of the living tree, and to free us from the tyranny of textual literalism. It gave our courts permission to interpret the Constitution and the Charter in keeping with the times, as social mores and ethos evolved. And, indirectly, I’d argue, the Vriend decision helped demonstrate the practical limits of the notwithstanding clause, and the moral and political risks to politicians who were tempted to invoke it. But the Vriend decision didn’t just change Canadian law — I believe it profoundly changed the way ordinary Canadians thought about their gay friends and neighbours and relations.

Writing for the Alberta Court of Appeal, Mr. Justice John McClung had scoffed at the idea that legislation or a court decision could change public attitudes, but he was wrong about that too.

As Julie Lloyd once told me:

Vriend absolutely was the foundation. It ringingly welcomes gays and lesbians into society. It was an education for people to understand that you can’t put the rights of a reviled minority rights to a popular vote. The only way to protect the Charter rights and freedoms enshrined in our constitution is to make the courts the active guardians of those rights.

The decision and its aftermath changed the face of Alberta, too. Sheila Greckol, who’d been treated so disgracefully by John McClung, went on to become a respected Court of Appeal justice herself. Doug Stollery went on to become chancellor of the University of Alberta. Julie Lloyd, as I mentioned, became a provincial court judge. Michael Phair, a gay activist who fought hard for Vriend from the very beginning, became Edmonton’s first out gay city councillor. And Ritu Khullar, who was then a young labour lawyer who intervened in the Vriend case on behalf of the United Church — well, she is now Alberta’s new chief justice. Oh, and King’s College, which now is called King’s University College, today hosts its own regular pride events organized by its student group, SPEAK, which stands for Sexuality, Pride, and Equality Alliance at King’s.

Albertans and Canadians owe so much to the quiet, self-effacing courage and principle of Delwin Vriend himself. We have a statue of Nellie McClung and the rest of the Famous 5 right outside this building. We have a picture of Viola Desmond on our $10 bill. But there are no statues or portraits of Delwin Vriend, who was every bit as much a human rights hero. That’s probably all right with him. He has never sought the limelight. Indeed, he has done all he can to avoid it. He left Canada years ago, to work as a computer expert, first in Silicon Valley, later in Paris. Delwin Vriend has always understood that his battle was not for him alone, that it was a battle for every single one of us:

Even at the time we were fighting our case, we didn’t just see it as a fight about sexual orientation. This was about so much more than getting sexual orientation in. The ruling says you can’t exclude people. It means every single Canadian is equal and you must include them.

Still, today, 25 years later, when we see the mounting backlash across the continent to gay rights and trans rights; when we see ugly persecution by governments in countries including Hungary, Uganda and Afghanistan and when we see countries like Italy rolling back LGBTQ rights, it’s important that we never forget that at its heart, Vriend was a decision about recognizing the dignity, the humanity and the citizenship of queer Canadians.

On this twenty-fifth anniversary, when we’ve recently seen hateful protesters picketing drag shows in B.C. and homophobic thugs honking in the streets of Ottawa and threatening Ottawa school trustees, I want to leave you, my Senate colleagues, with these words from my friend, Judge Julie:

It is the duty of citizens to oversee their government. It’s the duty of citizens to do things, even when it’s hard. The Constitution doesn’t whip itself into shape. We have to do it ourselves.

We as senators have a profound duty to oversee the government and hold it to account, to protect the Constitution and the Charter, to stand always as a bulwark against majoritarian tyranny and to stand up for the rights of Canadians even, and particularly, when that’s unpopular. It’s especially important to remember that today, on Yom Hashoah, the Holocaust day of remembrance, when we remember the 6 million Jews who died because of hatred run amok and remember, too, the thousands of homosexuals persecuted, imprisoned and murdered by the hate-curdled Nazi regime.

On this silver anniversary, I want to thank all the remarkable Edmontonians who fought so hard, so courageously and so successfully for equality and justice for all Canadians. But I also want to ask us in this chamber to do all we can to ensure that the government lives up to the promises of its own Throne Speech and continues to make Canada a queer rights and human rights beacon for the world. We are all the guardians and gardeners of the living tree that is our Constitution, and we must be sure to tend and protect it.

Thank you and hiy hiy.

(On motion of Senator Gagné, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Seidman, for the third reading of Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), as amended.