Hon. Claude Carignan: My question is for the proud Leader of the Government. Senator Gold, you gave Senator Plett a rather clear answer about how the Prime Minister didn’t know that there was a meeting of the Pierre Elliott Trudeau Foundation just a few feet from his office in an annex. I don’t know whether you have ever been to his office, but the room in question is quite close to it — and yet the Prime Minister did not know that was happening.

Can you answer my question? Does the Prime Minister at least know whether he paid for his infamous $9,000-a-night vacation to Jamaica? Did he pay for that? Can you answer that question?

If you can answer that he didn’t know there was a meeting four steps away from his office, then I would imagine that you have had the information about whether the Prime Minister paid for his vacation out of his own pocket for about two weeks now. The credit card statements for December and January have arrived.

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. The mistreatment and abuse of temporary foreign workers is completely unacceptable, period. Everyone deserves to work in a safe and healthy workplace with dignity. That is why the Government of Canada requires all employers to provide all temporary foreign workers with information about their rights in Canada. It prohibits employers from retaliating against workers and it prohibits employers from charging workers recruitment fees.

The Government of Canada has committed to strengthening these integrity measures to ensure that temporary foreign workers work in a safe and decent environment.

Hon. Amina Gerba: Honourable senators, my question is for the Government Representative in the Senate. The labour shortage is forcing employers to turn to temporary foreign workers. In 2022, Quebec welcomed 38,500 temporary workers, an increase of more than 50% compared to 2018.

However, a documentary entitled Essentiels, which recently aired on Télé-Québec, reveals that temporary immigrants who often arrive in Canada with closed work permits experience inhumane working conditions at their sole employer. Moreover, they are not allowed to settle in Canada.

Senator Gold, what is the government doing to end these slavery-like practices experienced by temporary workers who play a vital role in our country?

Hon. Jim Quinn: My question is for Senator Cormier in his capacity as Chair of the Standing Committee on Official Languages, or OLLO.

The Official Languages Committee undertook an exhaustive pre-study on Bill C-13. However, recently, the House of Commons Official Languages Committee made substantial changes to the bill at the request of the Government of Quebec. As a government priority, I expect the bill to be in the Senate soon. My question is as follows: Given New Brunswick’s unique constitutional position as the only bilingual province and the Senate’s role to give a voice to official language minority communities, what is the committee’s plan to ensure the bill is reflective of the views of francophones in New Brunswick and support the development of French and English linguistic minority communities in Canada?

Hon. Marc Gold (Government Representative in the Senate): I will answer your question, Senator Batters. I will answer your question. But I’m also first going to say what has kept me very preoccupied since yesterday. Our Speaker made a ruling. You had the right to challenge the ruling. I’m looking at you collectively.

Senator Plett: So did you.

Hon. Denise Batters: Senator Gold, in Speaker Furey’s ruling last night on the time allocation point of order, he quoted and relied upon the first sentence of the definition of the government leader from the Senate Rules. Senator Gold, speaking about you as Leader of the Government or government leader, Speaker Furey said, “The Senator who acts as the head of the Senators belonging to the Government party.”

So, Senator Gold, after seven and a half years of you, your predecessor Senator Peter Harder, Prime Minister Justin Trudeau and senior minister Dominic LeBlanc stating frequently and unequivocally that the Trudeau Government Representative doesn’t belong to the government party, according to Speaker Furey’s ruling, you do. Because this is required under the Senate Rules so you can use your cherished newfound time allocation power, can you confirm, Senator Gold, that you, Senator Gagné and Senator LaBoucane-Benson all belong “to the Government party” — that is, the Liberal Party of Canada?

Hon. René Cormier: Thank you for your question, Senator Quinn.

I recognize your passion and dedication for New Brunswick, and I appreciate having received your very important question in advance, so I will make sure I answer it properly.

With respect to the current process of modernizing our country’s Official Languages Act, the OLLO committee has always been and will continue to be very sensitive to the issues affecting official language minority communities, such as francophones in New Brunswick. I can assure you that francophones outside of Quebec, along with the English linguistic minorities in Quebec, have been and will continue to be heard by our committee and their interests are taken into due consideration. Actually, they are at the core of Bill C-13.

For instance, between 2017 and 2019 our committee conducted a comprehensive five-part study on the perspective of Canadians on the modernization of the act, including those of official language minority communities. During that study, we heard from approximately 300 witnesses, including nearly 200 in committee sessions and in 100 informal discussions during our study missions, which were held actually in places like Prince Edward Island and New Brunswick. Last year, as you mentioned, our committee conducted a pre-study of Bill C-13 where we have heard from organizations and experts on some of the provisions that will directly support the vitality and development of French and English linguistic minority communities in Canada, such as those related to positive measures to be taken by federal institutions. I invite you, senator, to consult our final report, which details some of the witnesses’ comments and observations in this regard.

Finally, concerning New Brunswick, it is not forgotten in Bill C-13. The province is explicitly mentioned six times in the bill, namely in the preamble and Part VII. It is mentioned that the Constitution provides that English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and Government of New Brunswick, and that the Constitution provides that the English language linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): Senator, thank you for raising this. It’s a serious and tragic issue, and I don’t know what the government’s current plans are around the sanctions in this area. I’ll have to make inquiries and get an answer as best as I can.

Hon. Leo Housakos: Government leader, our problem isn’t with the Speaker’s ruling in itself; our problem is that this government likes to bend the rules to meet their political narrative. All you have to do is take out a Liberal Party membership, and you can move time allocation, you can be the government leader as per the Constitution. Life moves on, and we don’t have to have these debates.

My question is for the Leader of the Government, which happens to be a Liberal government, but I digress. Last week, I raised my concern in this chamber about the troubling human rights situation in Turkey, in particular, the abduction, torture and detention by regime officials of eight Canadians. The Kaçmaz and Acar families, with whom I met personally last month, filed a submission with Global Affairs asking the Government of Canada to implement targeted sanctions on 12 Turkish officials responsible for gross violations of human rights committed against them and against their friend Gökhan Açikkollu, who was tortured to death in a Turkish prison around the same time. Senator Gold, can you please confirm to this chamber if the government intends to implement targeted sanctions on these 12 Turkish officials, and if not, why not?

Hon. Marilou McPhedran: My question is for Senator Gold. On February 1, 2021, Myanmar’s military took power in a coup, abruptly halting the country’s fragile transition toward democracy. More than 16,000 people have been arrested, many tortured and executed. Almost 700,000 persecuted people, mostly Rohingya, have been forced to abandon their homes and are living in the world’s largest refugee camp in Bangladesh.

The economy is in crisis. Public services have collapsed. UN rapporteurs assert that the Tatmadaw military’s actions meet criteria for war crimes and crimes against humanity. Canada has responded to this crisis, for the most part, via coordinated sanctions with international partners, with one notable difference: the oil and gas industry.

Gas revenues sustain the Myanmar’s Tatmadaw junta. Last month, Chevron, the American multinational energy corporation, announced it was selling its 41% stake in Myanmar’s Yadana gas field project to Et Martem Holdings, based in the tax haven of Bermuda and a subsidiary of Edmonton-headquartered MTI Energy. Chevron and TotalEnergies, a French company, previously announced in January that they’re exiting the country.

Senator Gold, how does Canada allow this kind of support for Myanmar’s oil and gas, which props up the Tatmadaw? Why are Canadian companies permitted to invest in this brutal regime in Myanmar?

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I’m rising today again to speak to Senator Gold’s motion regarding the message from the House of Commons on Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. Specifically, I am speaking to the subamendment proposed by Senator MacDonald.

Senator MacDonald moved that Bill C-11 be amended to insist that amendment 3 be insisted upon by the Senate. Senator MacDonald was quite right when he stated a few days ago that this amendment really lies at the core of the amendments that the Senate sent back to the House just a few weeks ago.

Colleagues, the Senate reviewed Bill C-11 for many months. I have said it before, but I must say it again: Bill C-11 is a bad bill. The Standing Senate Committee on Transport and Communications heard from 140 witnesses, and many of these witnesses raised issues that were very troubling to them. The minister himself indicated that the Senate had heard some 42 hours of testimony.

Why did the Senate hear from so many witnesses for such an extended period of time? The answer for that is very simple, colleagues: We heard from so many witnesses because they were Canadians who wanted and deserved to be heard. They were Canadians who were very concerned about the bill, about fairness, about their livelihood and about the impact of government meddling in things it really doesn’t understand. They were often Canadians who had been denied a similar opportunity to be heard in the people’s house, the House of Commons.

It has already been pointed out how often the government has introduced closure or time allocation on this bill. While the government has shamefully introduced time allocation on this bill in the Senate, before it did that it had already used that draconian tool on numerous occasions in the House of Commons. What was the result of that? Senators will remember the result was simply this: We witnessed fiasco upon fiasco in the House of Commons Standing Committee on Canadian Heritage. Members of the House voted on amendments when they weren’t even sure what the amendments did. Certainly, the public had no idea what the amendments were because no amendments were explained. No debate was permitted. No questions from government officials were permitted.

The committee was under a government-imposed guillotine, and it behaved accordingly. It behaved exactly like a kangaroo court.

I heard Senator Simons say just a few days ago:

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 . . . 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.

Those are her words. I don’t know if she watched the gong show that occurred in the House of Commons where amendments were voted down by the government and NDP members without even bothering to know what the amendments were, but if that spectacle wasn’t sufficient to cause alarm about implications for free speech and free debate in this country, then I suppose nothing will raise such alarm bells.

If she wasn’t moved to fight for her amendment after hearing from dozens and dozens of witnesses who appeared before the Standing Senate Committee on Transport and Communications, then I suppose that there is not much that will move her to make such a fight.

What sort of fight were we talking about? At this stage, it was only a call to send this matter back to the government, at least one more time, in order to emphasize the importance of this issue for so many Canadians. We were not asking for it to go back and forth. Just one more time. Was this amendment not worth at least that? Was it not worth saying to the government that this matter had to be reconsidered?

Make no mistake, colleagues, Canadians are very concerned about numerous components of this bill. On that there can be no doubt. Because the Senate was able to hear in considerable detail how this bill will impact multiple areas and components of the broadcast sector, I would like to highlight some of those concerns.

First of all, there were many concerns related to inflexibility in the definition of “Canadian content.” We certainly heard from many witnesses very concerned about this issue, an issue that was completely unaddressed by Bill C-11. Witnesses pointed out in convincing detail the implications of this. The government argues that the traditional approach to defining “Canadian content,” and I quote, “. . . has been, at the centre of the definition of Canadian programs for decades . . . .”

The government also asserts that any amendment of these provisions, “would remove the ability for the CRTC to ensure that that remains the case.” This response mirrors so much of what we have heard from the government on all aspects of this bill throughout this process.

When it comes to the specific matter of Canadian content, the government argues that the principle that Canadian programs are first and foremost content made by Canadians can only be defined in one way, and that, for the most part, must be the way in which the Canadian Radio-television and Telecommunications Commission, or CRTC, chooses to define it.

The government is also arguing that because this approach has been, to use its own words, “. . . at the centre of the definition of Canadian programs for decades . . .” that issue must continue to be approached in exactly that same way. As it has throughout this debate, the government is asserting that the CRTC must have full discretion on this matter. This is a position that it repeats almost like a mantra. The CRTC must have discretion.

It is a message that we have heard about varied elements of the bill — almost as a fallback slogan that acts as a substitute for a real argument. Notwithstanding the fact that the Senate may have heard from a diverse number of witnesses on this very matter, the CRTC’s view must always be one that counts. The CRTC, we have to remember, is entirely appointed by the government of the day.

We have to be honest and say that it is very likely that the commissioners will reflect the ideological and policy orientation of the government.

Colleagues, in my view, this paternalistic and patronizing approach to defining Canadian content is completely out of place in our 21st-century world. Certainly, our Transport and Communications Committee heard that loud and clear from many of the witnesses who appeared before the committee. The common message that we heard from these people, who actually operate in the real world, was that the current official government definition of Canadian content is inflexible and outdated.

The committee did, of course, hear from some stakeholders, generally representing the larger Canadian players, that the ownership of production should remain the central component in defining what is and what is not Canadian content. We also heard from numerous smaller players who pointed to the inherent rigidity of that approach.

As was referenced repeatedly in our committee, this approach means that a program like “The Handmaid’s Tale” — a story written by a Canadian and shot in Canada; a story that is, in part, about Canada and is a production in Toronto, employing Canadian actors and production people, bringing millions of dollars into Canada — is, nevertheless, colleagues, not considered Canadian content, simply because the production company happens to be American.

This inflexible approach creates significant problems. For one, it undermines investment in Canada. We heard that quite clearly in testimony from some of the big international players. David Fares, Vice President of Global Public Policy for The Walt Disney Company, told our committee on September 15:

. . . over the last three years, we spent approximately $3 billion on content production in Canada. Each one of the productions contributes to the hiring and development of high-skilled talent in Canada and infrastructure, which actually benefits the entire AV ecosystem.

He added:

We are also working with the local production companies . . . . We’re hiring people as we build out the virtual production . . . .

But, he said, “We need a flexible regime to allow us to be able to do that.”

That position is entirely understandable. If a Disney program tells a Canadian story and broadcasts that story to the world; if it hires Canadian actors, Canadian writers and a Canadian production crew to do that; if that program is shot in Canada, why should that program not be defined as Canadian content and seen as contributing to the export of Canadian culture to the world?

Addressing this basic inflexibility was what the amendment proposed in the Senate was intended to do. The amendment proposed by the Senate added a single line to the bill, and that line stated:

(1.11) No factor set out in paragraphs (1.1)(a) to (e) is to be determinative of any matter provided for by a regulation made under paragraph (1)(b).

This amendment was based precisely on what witnesses told us that was needed.

Wendy Noss, the President of the Motion Picture Association-Canada, who appeared before our committee on October 4, stated:

. . . the CRTC must create a modern, flexible definition of Canadian programs in order to expand opportunities for Canadian creatives; promote content made by, with or about Canadians; and bring Canadian stories to the world. We therefore propose an amendment to section 10 to ensure that “no one factor is determinative” . . . .

Senators agreed with that recommendation and they supported the amendment accordingly. But now we have the government saying that flexibility in legislation is not a good thing.

It is reasonably clear that, internally, even the Department of Canadian Heritage realizes that this position is not sustainable. A recent memo drafted by the Broadcasting, Copyright and Creative Marketplace Branch of the Department of Canadian Heritage that was obtained by Professor Michael Geist states the following:

We assume foreign streamers are already producing shows that would qualify as Canadian content . . . but don’t currently qualify because of foreign ownership. Under existing rules, the copyright holder must be a Canadian, which precludes foreign companies like Netflix from producing their own Cancon in-house. In the latest BCCM model, we estimate such “unofficial Cancon” production represents about $48 million per year. Once foreign streamers are allowed to produce their own shows (which, presumably, Bill C-11 would seek to encourage), this spending would shift toward certified Canadian content.

So the Department of Canadian Heritage privately acknowledges the reality. It tacitly acknowledges the current dilemma of the inflexible Canadian content definition. But all of that notwithstanding, the department and the government rejected the Senate amendment on this matter.

Quite frankly, colleagues, the government’s position is one of pure stubbornness, and, with this closure motion, they are seeking to ensure that this issue is not discussed any further. The government is saying “no” to legislative direction and, instead, it proposes to rely on a CRTC regulatory process that is likely to take years. How many jobs and how much opportunity will be lost in the interim?

I find the government’s approach of simply closing off debate on this and other issues draconian. It did exactly the same thing on numerous occasions in the House, and I find it to be highly objectionable. I lament that government-appointed senators have simply acquiesced with this same draconian tactic.

Then there is the concern about age verification, one of the other matters that this closure of debate will ensure cannot be addressed or insisted upon. I have spoken about this issue before, and it relates to Senator Miville-Dechêne’s proposed amendment to incorporate an age verification requirement when it comes to the viewing of explicit adult content. Bill C-11 is, after all, “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.”

Such an amendment was perfectly suited to this bill and well within its scope, so the Senate adopted it because we believed in its importance. So why did the government reject this amendment? To quote the government’s own words, it did so because:

. . . the amendment seeks to legislate matters in the broadcasting system that are beyond the policy intent of the bill, the purpose of which is to include online undertakings, undertakings for the transmission or retransmission of programs over the Internet, in the broadcasting system . . . .

Here we have another mantra that has so often been repeated.

In several of their responses to the Senate amendments, the government has repeated an argument that an amendment in question is “beyond the policy intent of the bill.” In effect, the government is asserting that the policy intent of the government is more important than seriously considering the amendment itself.

When Senator Gold spoke to the amendment at committee, he, of course, as he so often does, thanked Senator Miville-Dechêne for making the amendment, but then he said:

Keeping our children safe is not only a priority for this government but for all of us and any government. But in the opinion of the government, Bill C-11 simply isn’t the right vehicle to accomplish this important objective and this important work.

What vehicle would be important to protect our children? I would suggest it’s any vehicle that we can possibly use.

Senator Gold stated that the government is looking to introduce legislation to address potential online harms, with the goal of keeping all Canadians safe online. But, quite frankly, the government has had eight years to do this, and we have not seen any such legislation yet. In fact, we have seen no indication that this issue has ever been a government priority.

“Keeping our children safe” — I do not recall any Throne Speech references to this issue, nor any major policy statements on it, so I am sure that Senator Gold will understand why we may be a bit skeptical.

The Senate has, on at least two occasions in the past few weeks, expressed its view on this matter. We recently adopted Senator Miville-Dechêne’s private member’s bill, Bill S-210, An Act to restrict young persons’ online access to sexually explicit material. However, given this government’s position on the amendment that was inserted by the Senate in Bill C-11, it is difficult to be optimistic that this Senate bill will be supported.

I would argue that if the government was serious about keeping children safe online, they would have looked to support this amendment, or they might have suggested modifications to this amendment. But, of course, they did no such thing. It’s not a government priority to keep our children safe; they’ve shown that. They have other priorities, so this problem will remain unaddressed.

As we will see when we reach the vote on this motion, our so‑called independent senators will be fine with that. If we vote for this bill, then keeping our children safe is not a priority for us.

I believe that the arguments made by Senator Miville-Dechêne at committee remain as valid today as they were when she proposed her amendment, and I believe that we should insist on her amendment. I certainly hope that she will insist on her amendment.

Senator Miville-Dechêne’s amendment would simply have required online undertakings to implement methods, such as age‑verification methods to prevent children from accessing programs on the internet that are devoted to depicting, for a sexual purpose, explicit sexual activity. As she explained, the amendment targets adult content and pornographic material distributed on online platforms. She noted that the CRTC already has authority over adult content available through traditional broadcasters. Her amendment focused on adult content exclusively. As she said at committee:

What this amendment would do is simply make sure that this type of adult content was available only to adults, whether it was distributed online or by traditional broadcasters. In no way, shape or form is this about censorship. All I am trying to do is ensure that online adult content is treated the same as offline adult content, which is available only to those 18 or older.

What a great amendment — it’s something that I think all of us would want to see included.

Senator Miville-Dechêne referenced the briefs that the committee had received from groups supportive of the amendment. Indeed, one of the briefs from the Canadian Centre for Child Protection called on Canada to follow in the footsteps of countries such as Germany and France, which have already implemented age-verification regulations.

As the Canadian Centre for Child Protection told our committee:

There has been little government oversight over online platforms, and in particular those that provide sexually explicit content to users. However, the evidence is clear that there is serious harm to children when exposed to such content, particularly if the content they are exposed to is illegal, violent, or degrading.

Bear in mind, colleagues, that the arguments made in this submission are fully supported by numerous professional health organizations. Alberta Health Services has reported that a Canadian study done with 470 adolescents found that 98% of them had been exposed to pornography. The average age of first exposure was around 12 years old, and one third were exposed as young as the age of 10. That study also found that one in five youth experience unwanted online exposure to sexually explicit material, and one in nine youth experience online sexual solicitation.

It has also been reported that 15% to 30% of youth have sexted, with this prevalence increasing with age. As Senator Miville-Dechêne stated in this chamber when speaking on Bill S-210, the harmful impacts of this continuous exposure to children of adult content are well documented. Very sadly, those harmful impacts are affecting an entire generation of children today — your children, my children and our grandchildren.

According to a study conducted for the American Bar Association, excessive exposure — particularly where the content is violent, as well as includes gender stereotypes and/or is sexually explicit — skews children’s worldview, increases high-risk behaviours and alters their capacity for successful and sustained relationships.

The study also found that:

Pornography is arguably more sexist and hostile towards women than other sexual images in the media. The aggression and violence towards women found in much of today’s popular pornography can teach boys and young men that it is socially acceptable, and even desirable, to behave aggressively towards and demean women.

Yet another study by the American Academy of Family Physicians found that:

Children, adolescents, and young adults consume digital media from a variety of sources, many of which are mobile, are accessible 24 hours a day, and offer both passive and active engagement. Many of these media platforms feature entertainment that contains significant doses of violence and portrays sexual and interpersonal aggression.

For too long, we have ignored this issue as a society, and I believe that Bill C-11 was an entirely appropriate means to correct that, as did the majority of senators in this chamber. I very much fear that the government’s claim that it plans to act on this issue in the months ahead will fall very far from the mark.

I also fear that Bill S-210 will be quietly permitted to fade into oblivion.

Were the government actually serious, it would have at least come back with a counterproposal on this amendment, but it did not, and now the government is closing off all debate on this matter and on every other issue that arises from Bill C-11. I fear the implications for this when it comes to this specific component of the bill, and I very much fear it will be Canadian children and youth who will pay the highest price.

But despite all of the many problems with Bill C-11, the Senate did at least attempt to address one issue. This is the matter on which Senator MacDonald’s amendment is now focused, that being the matter of the government’s regulation of user-generated content.

The fact that this amendment was actually originally proposed by government-appointed senators is a testimony to the importance of the issue. It is also a testimony to just how persuasive witnesses at the Senate committee were. A majority of senators on the committee believed that the issue could not simply be ignored.

From my perspective, this amendment was a modest and minimal one that, in essence, responded to the minister’s commitment when it comes to regulated user-generated content.

I have stated this before, and Senator MacDonald also stated that when the minister appeared before the Standing Senate Committee on Transport and Communications, he specifically claimed:

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

The minister’s comments may have been stated before, but they are worth highlighting. As Senator MacDonald and others have pointed out, the government has repeatedly claimed that section 4.2 is only designed to catch commercial content. They are the ones who claimed that they listened to social media creators, but it was very clear from witness testimony that most social media creators did not see it that way.

So, as has been pointed out, the proposed amendment was designed to confirm the minister’s own words. That was all the amendment did.

In essence, all that the Senate did was to take the government up on its claim and to test its commitment. But when put to the test, the government failed. It effectively declared that it would continue to reserve the right to permit the CRTC — the Canadian Radio-television and Telecommunications Commission — to regulate user-generated content if required.

There is absolutely no doubt that this is, in fact, the government’s position. If it were not its position, the Senate’s amendment would pose no difficulty for the government.

But it does pose a difficulty for the government. The government was caught out, given the Senate’s amendment, and as a result, it felt it had no choice but to show its cards and reject the Senate’s amendment.

I believe that this rejection of the amendment by the government will have far-reaching ramifications. I believe this because numerous witnesses have told us so. I would like to quote just a few of those witnesses.

Monica Auer is the Executive Director of the Forum for Research and Policy in Communications. When she appeared before our committee, she warned us all about the nearly unrestricted power that Bill C-11 would give to the CRTC. She said:

The simple fact is that no matter how many times Canadians are told to trust the CRTC, the important objectives of Bill C-11 are unlikely to be achieved if the Bill does not enable Parliament to exercise proper oversight over the CRTC’s work, and the CRTC’s compliance with statutes such as the Broadcasting Act.

Justin Tomchuk is an independent filmmaker who appeared before our committee on September 27. He made the following comments related to the regulation of user-generated content:

Proposed paragraph 4.2(2)(a) of Bill C-11 makes it clear that my business will fall under the call of the CRTC’s directives, as I derive direct and indirect income through my artistic efforts.

One of the goals of Bill C-11 is to prioritize Canadian content to Canadians through discoverability measures. . . .

As someone who built a business through these platforms, I can confidently say that these platforms are algorithms. You cannot realistically mandate discoverability outcomes without forcing platforms to change their algorithms.

Mr. Tomchuk then explained what this would mean for himself and countless others:

This spells massive consequences not only for my artistic business but also for anyone who is a producer of manufactured goods, promoter, trader or exporter in Canada who utilizes social media platforms to reach an international audience.

J.J. McCullough is a YouTuber and columnist who appeared before our committee on September 27. He made an impassioned plea for freedom of speech and against the regulation of user-generated content. He said the following on the bill:

. . . content creators and consumers don’t merely consider Bill C-11 a badly written bill — although it is . . . many people consider the bill at its core badly motivated. Of the dozens of online video makers and viewers I’ve heard from, all have been crystal clear that they have zero desire to live under a government with the power to force platforms like YouTube to push, promote, suggest or otherwise encourage certain kinds of Canadian content to Canadians who have not freely chosen to see it.

In Mr. McCullough’s remarks, we have a clear statement that many Canadians will see this bill as an open attack on freedom of speech.

As has been said earlier, we have heard that very warning from senators here in this chamber. The words of Senator Richards were very powerful in this regard, and they were widely quoted outside of this chamber. The government, colleagues, has ignored all of it.

We should be under no illusion that many people who have the means will now simply vote with their feet. They will leave Canada or otherwise move to circumvent the restrictions that the CRTC may impose.

Perhaps many of the senators opposite don’t care about that. Perhaps they believe it is all a bluff. But senators should care, because the implications for Canada’s future creativity are profound, colleagues.

Senator Simons, of all people, should know this. A few weeks ago she spoke about the loss of creativity that Canada experienced because of racist policies of the past. But bad government policies accompanied by negative messaging are not simply things of the past. The loss of potential national talent is something that we must always be cognizant of as we make laws and policies, because such a loss of talent can come from many sources.

Government laws and policies that overreach, or are perceived to overreach, can be tremendously damaging in deterring talented people from remaining in the country. I am disheartened that so many senators in this chamber have ignored that and have instead succumbed to the narrative that “resistance is futile.”

I wish the Senate had not simply rolled over on Bill C-11. Our role as senators is to speak for ordinary Canadians whose livelihoods are impacted, some of whom have appeared before our committees. If their arguments are credible and those of the government are not, then we have an obligation to act for those Canadians and to be their instrument. When we fail in that duty, Canadians are absolutely right to question the utility of the Senate itself.

This chamber should be more than simply an academic talking shop where we pass motions, make minor amendments to bills and then call it a day — but I fear that is what we have done with Bill C-11.

The Senate spent several months hearing from witnesses and then sheepishly proposed a few amendments to the government, only some of which could be called substantive. When the government said it wasn’t interested, the majority of senators in this chamber simply turned tail. Then, when some of us want to insist, after one day of debate, our government leader says, “I’ve heard enough. Canadians don’t want to hear from you anymore. You’re Conservatives. They don’t want your opinion,” and he proposes time allocation. Since, regrettably, this may be one of the last speeches heard in Parliament on this matter, I feel an obligation to quote what other ordinary witnesses told our committee about some of the pivotal and far-reaching implications of this bill.

Many senators undoubtedly believe that warnings about the negative implications of this bill are overstated and exaggerated. While the government is clearly determined to permit the CRTC to regulate user-generated content, many senators still believe this doesn’t actually mean anything. They believe it is really just about ensuring flexibility for the CRTC that it will never actually use.

However, what does witness testimony actually tell us? We need only begin with what former CRTC commissioner Ian Scott has repeatedly said. Mr. Scott’s words have been carefully catalogued by Professor Michael Geist.

In May 2022, MP Rachael Thomas asked Mr. Scott this question:

All these individuals are individual users generating content. It would appear that the bill does or could, in fact, capture them. Is that correct?

Mr. Scott responded, “As constructed, there is a provision that would allow us to do it as required . . . .”

In the same month, Mr. Scott again confirmed that:

 . . . section 4.2 allows the CRTC to prescribe by regulation user-uploaded content subject to very explicit criteria. That is also in the act. . . .

In an exchange with Senator Wallin before our Senate committee — which has been quoted many times — Senator Wallin asked him:

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

Mr. Scott replied, very directly and simply — and please understand this — very simply and directly, he said, “You’re right. . . .”

Later, in response to Senator Miville-Dechêne, Mr. Scott again confirmed:

I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome. . . .

Colleagues, there is no doubt about the CRTC’s intent or its interpretation of this legislation. I believe that many lay people do not fully appreciate what this means. I am not sure that many senators in this chamber fully understand its implications and I’m not sure many times that I do. However, as witnesses at our committee informed us, the implications are far-reaching.

These are the words of Garrett Levin, President and Chief Executive Officer of the Digital Media Association. He told our committee on September 15:

Algorithms are essential to the streaming user experience and discoverability of music. The combination of personalization and catalogue breadth sets streaming apart from all other distribution models. Accordingly, this committee should add a provision that prevents the CRTC from interfering with algorithm decision making.

Senators and the government responded that:

Section 9.1 of the bill currently prohibits the CRTC from requiring the use of a specific algorithm or source code. . . .

However, as witnesses pointed out — and the chair of the CRTC confirmed — the CRTC will set a policy in anticipation that the platforms will be required to change their algorithms.

Mr. Levin was very clear about what this would mean, as were other witnesses.

Jeanette Patell, Head of Canada Government Affairs and Public Policy at YouTube, said:

. . . Mr. Scott has further testified that the text would allow the CRTC to ask platforms to manipulate their algorithms to produce required outcomes. . . . handing the CRTC the power to decide who wins and who loses.

We believe that this would actually backfire for the very creators that it attempts to support. Building and growing an audience today is about connecting with the most fans who will love your content, whether they are in Canada or around the world.

As Scott Benzie, Managing Director of Digital First Canada, explained about algorithms, “. . . messing with them is messing with Canadian businesses and access to their audiences.”

The amendments proposed by Senators Simons and Miville-Dechêne are far from perfect, but there is no doubt that at least they have helped address this issue. However, the government’s rejection of these modest amendments confirms that policies that will require algorithm manipulation are absolutely on the table.

What has always struck me in this debate is that, on one side, we have the government and the cultural elites, and on the other side we have ordinary Canadians who are concerned about the tremendous overreach of governmental authority that is on display here.

Creators from all over the country who appeared before our committee said exactly that. Many of these people had never even considered speaking before a parliamentary committee until this bill came along.

Who else did our committee hear from, and what did they tell us? Their message was clear: Just leave us alone to allow us to do what we do best.

One of the witnesses was Frédéric Bastien Forrest. Mr. Forrest is a radio personality and content creator in Quebec who appeared before the Senate Transport and Communications Committee on October 4. He described his videos as part education, part entertainment, and he views his work as trying to contribute and give back to society. He spoke for many Canadians when he said:

Sometimes it’s healthy to create without gatekeepers. That lets us be 100% ourselves, regardless of our differences. It enables us to reach an audience of people like us.

He implored the committee:

Right now, I’m reaching out to all the politicians in Ottawa, Vancouver, Toronto, St. John’s, Winnipeg, Montreal and Quebec. Please help us empower digital creativeness. Because a creator is a small business. Small businesses are the backbone of our economy and internet platforms allow small creator businesses to thrive. If we are to tax the tech giants, let’s make sure we subsidize local internet creators with that money. Let’s not miss this opportunity for stronger creators and a stronger economy. More specifically, on Bill C-11, fix clause 4.2 and keep user-generated content out of any discoverability enforcement.

Here is an individual who may never have appeared before a parliamentary committee before. What does he say? It is worth repeating:

. . . I’m reaching out to all politicians in Ottawa, Vancouver, Toronto, St. John’s, Winnipeg, Montreal and Quebec. Please help us empower digital creativeness. . . . Let’s not miss this opportunity for stronger creators and a stronger economy. More specifically, on Bill C-11, fix clause 4.2 and keep user-generated content out of any discoverability enforcement.

Colleagues, what has been our response to that? Effectively, the response from the Parliament of Canada — and now from the Senate — is, quite simply, “Sorry, but we’re not interested.” Instead, the government senators have agreed to prematurely shut down all debate on a controversial bill with multiple identified problems and serious issues and just force it through. Colleagues, this is nothing short of shocking.

I would like to reference what another witness who we are also going to ignore told us. Vanessa Brosseau — an Indigenous digital content creator known as “Resilient Inuk” — appeared before the Senate committee, and she said:

My concerns about Bill C-11 are that it will create more barriers for Indigenous peoples who create user-generated content and make it harder for other Indigenous creators to achieve the success that I’ve been lucky to have.

Indigenous creators like me — digital first creators who use UGC platforms like TikTok and YouTube — until now have not been consulted or asked for our views on Bill C-11. . . . I understand that Indigenous cultural organizations representing traditional artists may have been consulted, independent digital creators like me are not represented by these organizations, and we have needs and goals unique from their members.

Colleagues, how often are we reaching out to the Indigenous community and wanting to support them? Here we have an opportunity. Colleagues, when it comes to Indigenous issues, we have heard the government even repeatedly assert that it abides by a principle “Nothing about us, without us.”

But what does this actually mean in practice when ordinary people in the Indigenous communities are simply left out of the equation? This is a question that I believe every senator in this chamber needs to ask themselves. The witnesses I have cited, and so many others who have appeared before our committee, are just a few of the many Canadians the government has chosen to ignore. And now you are choosing to ignore them as well. The gatekeepers who take it upon themselves to police our nation’s culture were historically able to get away with their regulatory overreach.

Today, in the internet age, this archaic approach to regulation is ineffective. Via the internet, Canadian creators are mobile. They will not be easily regulated. As I have said, many may, unfortunately for Canada, vote with their feet, but others will simply get around the Canadian Radio-television and Telecommunications Commission, or CRTC, in other ways. In that sense, I believe Bill C-11 is likely to further undermine the respect that many people have for government and, indeed, for our parliamentary system.

I wish that a majority of the senators in this chamber had stood up for creators like Mr. Forrest and Ms. Brosseau. I wish they had stood up for other witnesses like Scott Benzie, Oorbee Roy, Justin Tomchuk and J.J. McCullough, but they did not. Now the government is using the guillotine of closure to end all future debate on this bill. It has to be said to the people of Canada who oppose the bill, who are simply concerned about this bill, that we simply do not want to hear from you anymore.

The Senate introduced a very modest amendment to protect ordinary creators, particularly small players. What the amendment we have before us would do is to ask the government to reconsider the issue one more time. The Senate has done that very same thing many times in the past. In my view, it should certainly have done so again on this issue.

Senator MacDonald asked senators in this chamber to listen to Canadians instead of listening to direction from the Prime Minister’s Office. The majority of the government-appointed senators are saying no to that. This, colleagues, is shameful.

Colleagues, at this point, it is quite clear to everyone in this chamber what is going to happen. First, as has been the practice, 96% of the so-called independent senators are going to support the government on this bill. Even though the odds of such a thing happening are incredibly small, if these truly were independent senators, they will not only vote together as a block once again, but they will also insist that they did so independently. It’s like flipping a coin and getting heads 96 times out of 100, and doing this time after time after time and yet not believing that the coin is biased.

It’s a bit surreal to stand here and watch this unfold. Yesterday, we had a vote on time allocation. In every single vote on time allocation that I can recall, government senators supported the motion and opposition senators opposed the motion. That is exactly, colleagues, what happened in yesterday’s vote. You can protest, huff, puff and pretend all you want, but this emperor has no clothes. It is abundantly clear to Canadians who the government senators are, whether they admit it or not.

The second thing that is going to happen is this: A blue wave is coming. To the millions of Canadians who have followed debate on Bill C-11, to the thousands of them who took the time to sign petitions, to write to MPs, to write to senators, I say to all of them, I am sorry. I am sorry that our political system is letting you down. I am sorry that some of you truly believed that the Senate was independent. But do not despair, Pierre Poilievre has promised that he will kill Bill C-11 when he becomes the Prime Minister, and that day cannot come too soon. C-11 will be a short-lived bill.

I can assure you that a Conservative government will stand up for individual creators. It will stand against cultural gatekeepers. And it will stand against bureaucratic overreaching that squashes creativity. That day is coming. Take heart. God bless Canada.

[Translation]

Hon. Claude Carignan: Honourable senators, today we begin final debate on Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.

More specifically, we will first deal with Senator MacDonald’s subamendment to Senator Plett’s amendment to the main motion. As you know, we’ll be having an abbreviated debate after the Leader of the Government in the Senate moved a time allocation motion, which has passed.

However, before I begin my speech on the substance of Senator MacDonald’s subamendment, I would like to revisit some of the remarks that Senator Gold, the proud Leader of the Government, made yesterday. In addressing the issue of time allocation, Senator Gold said the following:

It is important to remind ourselves that the original purpose of time allocation was not only to allow a government majority to manage the finite time of a legislative chamber, but also for the legislative body itself to overcome the use of tactics deliberately geared at delaying the progress of government legislation.

Then, Senator Gold added the following:

In a nutshell, colleagues, time allocation can be either curative or abusive, and context is everything.

He concluded with this:

Moreover, colleagues, as precedent demonstrates, there is nothing extraordinary about time allocation. In fact, it has been regularly applied to various stages of government business . . . .

Senator Gold also mentioned that when I was deputy leader and leader of the government in the 41st Parliament, I myself used time allocation motions 22 times. I am not going to contradict Senator Gold on that point, because he is absolutely correct. However, this fact cannot be taken out of context. I will repeat what the Leader of the Government told us yesterday. He said, “time allocation can be either curative or abusive, and context is everything.”

The context was rather simple at the time. The Liberal senators had lost their majority in the Senate since December 2010 and quite frequently refused to collaborate with the government to advance its legislative agenda. However, as I mentioned last night, we never used a time allocation motion on the message to the House of Commons, and certainly not at the stage of sending a response to the other place. Every time I used a time allocation motion it was to advance a bill at second or third reading stage, when bills that were important to the government were getting stuck in partisan ruts thanks to the Liberal opposition.

In short, supported by a Liberal opposition that was well practised in obstructionist tactics, the Liberal Senate caucus — including Senator Ringuette, Senator Furey and Senator Cordy at the time — repeatedly used dilatory measures to unduly delay debates. Obviously I had to use this time allocation tool that is available to governments. In fact, that was the objective of the Liberal opposition at the time: every important bill had to be passed after a time allocation motion was moved so that it could then be used in their partisan narrative against the government.

However, despite these tactics, I always tried to find common ground with the leaders of the opposition. When those negotiations failed, usually because of partisan imperatives, I was responsible for advancing the government’s agenda, and I never hesitated to do so.

Yesterday, the Leader of the Government was boasting that, like his predecessor, Senator Harder, he has never had to use a time allocation motion. By so doing, Senator Gold simply drew attention to the fact that he and his predecessor were always able to reach an agreement with the opposition to advance the Trudeau government’s agenda within acceptable, reasonable timeframes.

The opposition’s good faith therefore cannot be called into question, and it is especially surprising that the Leader of the Government is imposing time allocation on our debates today at the stage where the Senate is responding to the message from the House of Commons.

As all of the senators appointed by Prime Minister Trudeau decided, we must therefore meet these procedural requirements and deal with all of the amendments and subamendments within a rather tight time frame of six hours.

I will therefore come back to Senator MacDonald’s subamendment, which seeks to amend Senator Plett’s proposal.

Let’s first look at the nature of Senator Plett’s amendment.

As a result of the collaborative work of all senators in this chamber, the Senate adopted 22 amendments to Bill C-11. In its response, the government accepted 14 of them, rejected six and submitted two counterproposals for amendments. Senator Gold is proposing that we do not insist and that we accept the response of the House of Commons as presented, because he is guided by the will of his Liberal government.

Through his amendment to Senator Gold’s proposal, Senator Plett is proposing, in contrast, that we do insist and urge the House of Commons to make the 22 amendments to Bill C-11.

Meanwhile, Senator MacDonald wants us to insist essentially only on amendment 3, one of the amendments that was rejected in the message from the other place. That amendment, if adopted, would amend the text, as proposed in Bill C-11, of the new subsection 4.2(2) of the Broadcasting Act.

I agree with what Senator MacDonald said in his speech on April 20, 2023, as follows:

This is probably the most significant amendment the Senate made to Bill C-11, and it was based on what the Senate Transport and Communications Committee heard over several months from dozens of witnesses.

As Senator Simons pointed out in her speech on January 31, 2023, without this amendment, the CRTC has, and I quote:

 . . . the power to scope in a program uploaded to a social media service if it directly or indirectly generates revenues. That exception-to-the-exception clause rightly worried all kinds of small and not-so-small independent producers who use services such as YouTube and TikTok to distribute their programming, though they retain the copyright.

In my view, it is incomprehensible and unreasonable that MPs, in the message they sent to the Senate, refused this amendment. I am of the opinion that it is truly necessary to insist with the House of Commons that this amendment be kept in Bill C-11.

Let’s recall what this amendment does. It simply includes in the law a commitment that the Minister of Canadian Heritage made on November 22, 2022, before the Senate committee studying Bill C-11. Senators Plett and MacDonald reminded us of this in the speeches they gave on April 20. In her January 31 speech, Senator Simons reiterated the promise made by the Minister of Canadian Heritage:

In the wake of some of the controversy around Bill C-10, the Minister of Canadian Heritage promised that Bill C-11 would not pertain to nor capture users of social media but only big streamers who were analogous to traditional broadcasters.

In this context, the fact that MPs rejected amendment 3 in the message sent to the Senate is a game-changer, as their message contradicts the commitment made by the minister. That type of situation only adds to the concerns that senators had when they passed amendment 3. The senators felt this amendment was necessary to ensure that there was no ambiguity about the minister’s assurance to the committee. On this point, I will quote from Senator Simons’ speech at third reading of Bill C-11 on amendment 3:

Our amendment to clause 4.2(2) removes all mention of revenues, whether direct or indirect. Instead, it focuses on whether or not a piece of content has already been broadcast on a conventional commercial service and/or whether it has a unique identifier number that is assigned to commercial recordings. In other words, our amendment would mean that if a broadcaster such as Rogers or CBC reposted a baseball game or a news documentary to YouTube or Facebook, such a rebroadcast would still be captured by the provisions of Bill C-11.

Our amendment would also ensure that if a major record label such as Sony released a new single or album on YouTube, that posting would be treated in a way that was akin to the release of a song on Spotify, Amazon or TIDAL. At the same time, digital creators, including commercially successful ones, would be properly and clearly exempted from Bill C-11 even if they uploaded their comedy, music, animation, film or TV episodes to YouTube, TikTok, Instagram or some other social media platform we cannot yet predict or imagine.

In other words, my friends, the bill now says, “platforms in, users out.”

By rejecting amendment No. 3, the message from the House confirms to senators that the minister’s promise has no effect and that the bill will therefore bring with it obligations for independent creators on social media, not just on commercial platforms.

As Senator MacDonald said in his April 20 speech, and I quote:

Time and time again, the government has claimed that section 4.2 is only designed to catch commercial content. Time and time again, they have claimed that they’ve listened to social media creators, but, overwhelmingly, most social media creators have repeatedly disagreed with that, and they did so ostensibly before the committee.

This important change in circumstances justifies us sending a clear message to the House of Commons to insist on our amendment 3 in order to protect these independent creators from Bill C-11 as it now stands, since it clearly unduly threatens their income. Thank you.

[English]

Hon. Julie Miville-Dechêne: Would Senator Plett take a question?

[English]

Some Hon. Senators: Hear, hear.

Hon. Leo Housakos: Thank you, Senator Quinn. I want to put on the record that I have enjoyed working with you immensely on Transport and Communication. You made great a contribution.

Of course, the electorate will have the final word, but in between those four years, they are paying approximately $127 million a year for us to be here and do some legislative work, wordsmithing, and speak on their behalf, advocate and hold the government to account.

Do you not think it’s important that we fulfill our constitutional duty, especially on something that is as controversial as this? You were on the front lines and saw how controversial it was. You said in your speech that you were torn when it came to this bill.

So why would we fold as an institution at the feet of the government so quickly? On far less in the past, we have sent legislation back and insisted. Don’t you think that after all we’ve heard from so many witnesses on such a controversial issue, we should — not overrule the elected body; we should await the final democratic decision of the electorate — but don’t you think we have a legislative responsibility on behalf of all of those voices to insist at least one more time?

Hon. Jim Quinn: Honourable senators, I’m rising to speak to this amendment and to the overall discussion we have been having. I have not prepared notes for this, but I feel that it’s time I rise and say a few things, and I am willing to do that.

I am on the Transport Committee, I have been on the steering committee, and we have heard about the number of witnesses we’ve had, the number of deliberations, amendments and things of that nature. We have heard that we sent 26 over, 18 were approved, 2 were amended slightly and 6 were not accepted.

The one I found the most difficult was 4.2(2) and the fact that we had been told by the minister “big guys and little guys out,” the little guys being the user-generated content.

So we have had many discussions here, and I have heard different points of view. I’ve also taken the time to speak with a number of colleagues on 4.2(2) and the bill in general. That’s the beauty of the Senate: the experiences of people across the spectrum, whether former public servants, lawyers, doctors. People from all walks of life are here, and it’s a wealth of information and points of view. I appreciate that.

In my deliberation, I assure you this has been a struggle back and forth for me in terms of whether I will support this bill and whether I will support these amendments. As a former public servant — and some of the people I’ve talked to I have great respect for. I’m very proud to have spent 32 years in the public service. I am very proud of those institutions and the institutions of government, whether it’s the public service, the chamber, the Senate or any other institution.

We passed with unanimity an amendment to the message that would go back eventually to the House in which we said “public assurance.” I’m one person who believes that we need to have clarity in our laws, and I would prefer very much that we have 4.2(2) in the bill. Having said that, we’ve made this message and the amendment to it, which is something the government leader and my leader worked together on to change a few words to give it a little more oomph. I can argue that message doesn’t carry much weight for anything, but as a former member of that institution and now part of this institution, and having worked closely with the other place while I was in the Privy Council Office, I have to believe and trust that the voters of this country will hold folks to account when the time comes for that event to happen.

We have been given the public assurance that user-generated content is out. I have to thank Senator Plett because I thought there were several points in his speech that really influenced why I wanted to get up now, but the last one was the one that really made me want to stand up. He said that the “blue wave is coming.” For me, that is an assurance that the democratic process in this country will eventually run its course. If people are upset with the government because they have broken their promise — that user-generated content is out and they, in fact, allow regulatory development that breaks that very public declaration, not only in committee but in other places — then the people will speak.

That is something that has weighed heavily on me, but I want to thank Senator Plett for helping to give me the confidence to stand up and speak now at this juncture.

I wanted to share those thoughts and ask you to reflect on that.

I want to thank my colleagues who took the time and had the patience of having a discussion with me on where we are today. Thank you.

Some Hon. Senators: Nay.

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those against, please say “nay.”