Hon. Julie Miville-Dechêne: Honourable senators, I want to briefly take part in this debate on Bill C-18 in order to offer some clarification on two of the amendments that I presented and that were rejected by the government.

At this stage, I accept the elected members’ decision, even though I do not accept the justification for this rejection. My role as a senator is to propose legislative changes that seem necessary to me, but I’m not about to lead a one-woman crusade against the will of a majority of MPs. I note, however, that the Senate has three former journalists among its ranks and that, at the end of the day, not one of them supports Bill C-18 in its current form.

I want to clear up any lingering misunderstandings over the amendments that I proposed, which sought to enshrine into law the concept of an exchange of value, monetary or otherwise, between the platforms and the media.

After months of study, consultation and discussion with experts and stakeholders, it became clear to me that there was a flaw in this bill.

It was the witness Konrad von Finckenstein, former chairman of the CRTC and an independent voice, who first brought it to our attention: The bill didn’t specify what had to be negotiated between the media and platforms such as Google and Facebook, resulting in very different expectations on both sides. Mr. von Finckenstein suggested to the committee that the objective of the negotiations be stated in the bill.

Of course, I’m perfectly aware of the imbalance of power between news outlets and internet giants. That’s obvious.

Nonetheless, I believed it was necessary to explicitly state in the bill that the negotiations and the arbitration had to focus on an exchange of value, monetary or otherwise, between the two parties, and not be a wage subsidy for newsrooms.

This didn’t come from me. That is what the government and its spokespersons told us. That is what they stated publicly, and this realistic reference to an exchange of benefits is included in the Australian code, the model on which Canada has mostly based its legislation.

No one, and definitely not Google or Facebook, made me move this amendment. Rather, it is a logical consequence of our debates, our research and the witnesses we heard from.

I won’t deny that I was hoping this clarification — an explicit and pragmatic recognition of the two-way relationship between the media and these platforms — could reduce tension and enable a more constructive dialogue among Facebook and Google, the government, and the media.

What I want most of all, of course, is for quality journalism that’s independent, accessible and financially healthy to continue to exist in Quebec and in Canada so that we, as citizens, can be informed and critical.

That’s one of the requirements for a healthy democracy. In these times of technological change, the fair, equitable, realistic solution isn’t obvious.

As I’ve said, I sincerely hope the government’s gamble will pay off. Thank you.

[English]

Hon. Leo Housakos: Thank you, honourable senators, and Senator Gold, thank you for reordering the Order Paper because I stepped out there briefly, on C-18, but if I knew that all it took for me to delay Bill C-18 was to step out, I wouldn’t have come back. You will all have to bear with me for a few more minutes as I speak on behalf of the opposition on Bill C-18.

Senator Gold — and Senator Harder has said this before — Bill C-18 is not a silver bullet or a magic bullet, but I am afraid that Bill C-18 must be the last bullet that goes into the heart of journalism, which is already in the ICU in this country.

Of course, I am fine with the objectives of Bill C-18. We all understand that journalism is going through a major transformative period, as all industries are in our country because of digital platforms. It is not unique to journalism. The retail industry is going through it. The taxi industry is going through it. Transportation, the way we communicate as politicians with citizens — there has been a major transformation because of these new digital platforms.

Some in the journalism world have transformed very well and are doing very well, and some are not. At the end of the day — as I have said over and over again in previous speeches — there’s The Globe and Mail, there’s Village Media, there’s Western Standard, and the list goes on and on of successful news outlets that have adapted and are using these new highways. And I repeat that digital platforms are not broadcasters and they are not journalists; they are nothing more than the highway that provides the unique opportunity for all these industries to, in a transformative way, reach out to bigger markets.

These platforms have given opportunities to Canadians to expand and sell Canada to the world and also give Canadians a view of the world that was difficult to get before these platforms.

As much as all of us believe in democracy and understand that we need vibrant journalism for democracy to flourish, I also believe the government has no business in the newsrooms of the nation. I don’t care if the government is Conservative or Liberal. We need to have not just robust media, but independent media, without any direct or indirect influence from civil servants, regulators or government officials.

That’s where I part company with the government’s public intention of what they say and what I’m afraid this bill can actually do. I believe, at the end of the day, when this bill is implemented with its regulations and gives complete authority to the CRTC and Canadian Heritage, it will do more damage to media and to newsprint particularly that, like I said, is already in the ICU.

Print media has been suffering now for well over a decade, and the government has waited towards the end of their mandate in government to do anything about it, which in itself raises questions.

I also question the authenticity of this government that has a tradition of standing and supporting the oligarchs and supporting the oligopolies of the broadcasting industry. Minister Rodriguez, the Prime Minister and their government have said time and time again that the Conservative opposition is standing up for giant tech companies and big corporations, and that is not that case. We are standing up for those Canadian citizens that want choice and competitiveness in news and communications. It is the government that is actually standing up for these corporate giants. It is the government that is standing up for these oligopolies and monopolies that the regulators, to whom we are giving the keys to news media, have established in this country. I am not making this up. We know who Bell Media, Rogers and Quebecor are; they have become huge, successful giants in the country because of government regulation. The people who have, in exchange, not gotten competitiveness and better prices in all aspects of telecom in the last 30 years are Canadian citizens, and that’s a fact.

Another thing I question with this government’s hypocrisy is they say, on the one hand, they want more diversified news, to help local and regional media, to help ethnic media, to help Indigenous media and so on and so forth, so they are putting Bill C-18 out to help all these dying news outlets. Well, why don’t you start with cleaning up your own house? Why don’t we start with government media buying? We know the government is one of the biggest media-buying agents in the country. I used to be in the business of communications. If you want to help these diversified news outlets across the country, take the pie that’s already there — there’s at least $150 million of direct media buying that the government has that we can see easily, not to mention some of the indirect media buying that the various departments exercise. If you see what percentage of that goes to small, local print media or ethnic media or Indigenous media across the country, you’ll be mesmerized. It is not more than 2.5% or 3% in total of that budget. When you see what percentage of that goes to the big broadcasters — the large media outlets — it is the vast majority.

It is typical of this government. The oligopolies keep becoming smaller, but their pockets keep becoming bigger. Bill C-18 is also supposed to help journalism. On the eve of passing this bill, Bell Media thought it was wise to let go of 1,300 journalists. We have seen, again, over the last decade that journalists are the ones who have been paying the price in radio and print media. We’ve seen the debauchery that has gone on in Postmedia across the country for many years now — and now we see Bell Media. What are they doing? They gave a pink slip on the eve of passing this legislation that’s supposed to help save journalism in Canada, but 1,300 journalists were sent home.

Who is going to benefit from all of this additional revenue that the government is giving these oligopolies and gatekeepers? I guarantee you it will be the executives at the CBC, Bell Media, Rogers and Quebecor; I know I’m not very popular with them, and I know they are not going to give me the front page regarding my speech. But this has to be said because, at the end of the day, I’m not here to please these oligopolies. I’m here to speak on behalf of Canadian consumers.

If the government wants to gain my confidence, and put to rest my suspicions, why don’t they start — for example — by not taking a media outlet to court and bypassing their paywall? If we listen to the government and the minister, the whole idea behind Bill C-18 is to stop the content of journalists from being stolen and disseminated. Colleagues, we have copyright laws in this country that protect journalists, as well as protect copyright and intellectual property. If those copyright laws are not solid enough, let’s strengthen them — that’s our job.

The truth of the matter is that when the government takes the work of Blacklock’s Reporter, which is a successful media outlet — it is a modern day way of media outlets operating, and you see it now with La Presse in Montreal and, like I said, The Globe and Mail. These are just small examples of paywall print media that have transformed the way they are doing business in a successful way. If you are not respecting those paywalls, that is stealing intellectual content. When our Canadian government is before the courts right now — basically because they don’t want to pay for the content of a particular news outlet — it raises suspicion about the intention behind what the government is trying to do.

Another problem I have with this bill — and I have articulated this many times — is that we are suddenly supposed to trust the Canadian Radio-television and Telecommunications Commission, or CRTC. The CRTC is the agent that has created these oligopolies in Canada, and created these huge broadcasters — because that’s what they are: regulatory broadcasting agencies. That’s their job; they were mandated by successive governments — Conservative and Liberal. Let’s see the end result in broadcasting in Canada. They have created these giants that offer less service for more money. If you look at what Canadians pay for all of the services these oligopolies offer, you realize that we are all paying significantly more than any other nation on earth.

Now I’m supposed to trust that same regulator — the CRTC — who has no experience in dealing with news, and no experience in dealing with print media. However, they have experience in creating oligopolies. Am I going to trust them with the objective of saving print media and diverse media in this country? They are the ones who have a track record. Are they going to be able to do this successfully?

I have deep reservations that this is the only thing we are attempting to do here: a shakedown of a business model that has given Canadians unique opportunities to, like I said, promote their products. We’ve seen it as politicians, and the news media have seen it as politicians. We are trying to, essentially, take the traditional way of doing things — that no longer applies to the modern world — to create parallels because we have a government that likes to choose winners and losers. We like to determine who receives the bigger piece of the pie despite the fact that, perhaps, their business model doesn’t work. If somebody else’s business model does work and is successful, we are going to take a little bit out of their pocket, and put it into somebody else’s pocket to see what comes. We have seen, time and time again around the world, that this doesn’t work. You need to allow the free market and consumers to choose.

Last but not least, over the last couple of days, we’ve had discussions about the role of this institution — actually, we’ve had these discussions for years. Here is an opportunity where we can, once again, exercise our constitutional right to the government, and send this message: There was no obstruction and no malicious intent — from the opposition — with this bill that came to us. We’ve passed it, as Senator Harder knows, in a relatively quick fashion through the Senate because we do want to achieve what the government is ultimately trying to achieve. But, at some point in time, when we see a bill that has received that many amendments from government-appointed senators, and that much concern from government-appointed senators — as did Bill C-11 — it’s an indication that the government is not doing something right. They’re clearly not consulting sufficiently with stakeholders. They’re clearly not even consulting sufficiently with their own parliamentarians before they bring legislation to this chamber.

Once upon a time, colleagues — and I’ve spoken about this in the past — the Westminster model required parliamentarians to be part and parcel of the political process, and engaged in the process of building legislation. Many of you who are concerned with communications and telecommunications legislation — including Senator Miville-Dechêne, Senator Simons and Senator Dasko, as well as so many of you who I have had the pleasure of working with on the Standing Senate Committee on Transport and Communications — would have been valuable to this government in their national caucus, providing valuable information at the embryonic stage of building legislation. That’s what used to happen — once upon a time — in the bad old Senate, and there was no need for senators, who were government appointed, to tear their shirts in indignation throughout discourse on a bill because they would have done that where it had to be done.

Over the last couple of days, I have heard Senator Gold mention how the Government Representative here lobbies vigorously on your behalf regarding amendments in this chamber. Once upon a time, we didn’t need the government leader to lobby on our behalf because every Wednesday morning, we would have the Prime Minister and the ministers of the Crown before us, and we would be able to make our case ourselves. All of you, as parliamentarians, deserve to have that right and privilege. It has been taken away from you, and it has been taken away from the institution at the detriment of building better legislation.

I insist that this is an opportunity, Senator Miville-Dechêne, to send a message to the government that we are not a rubber stamp, and we are tired of working under time guidelines. An emergency on their part essentially means poor management of the legislative agenda, and it always constitutes an emergency on the part of this institution. That doesn’t help build good legislation either, colleagues. In the last couple of days, we have heard from a colleague who said, “We have to be very careful that this institution doesn’t become a de facto opposition to the government.” Well, I encourage you all to look at the voting patterns over the last five or six years in this chamber. Let me tell you, there is no risk of this institution becoming a de facto opposition to the government. I hope this will remain the case: That same enthusiastic spirit of independence in support of government legislation will occur when there is a new government in a short period of time. You never know; somehow I have a sneaking suspicion that might not be the case.

I have said all I have to say on Bill C-18. Again, I wish this bill luck. I wish the industry luck. However, I hope, at some point in time, the government understands that you can’t force things on the marketplace. Consumers are the people who should have the final say of what choices they make, what they watch, what they read, what they post and what they invest in — in terms of news or anything else.

I will insist that we send this bill back to the House. In the House of Commons, they always threaten us by saying that they have risen, and they can’t come back — and that if we do this, the legislation will die. You have heard it all before: — We’re going to delay it. Getting controlled by government in this place has been going on for 156 years. Now they have passed hybrid sittings over there. They can work as legislators from their bedrooms and kitchens. Some of the legislation that they send over here indicates they spend a lot of time building legislation from their bedrooms and kitchens.

Thank you.

The Hon. the Speaker: Those opposed to the motion, please say “nay.”

Some Hon. Senators: Yes.

The Hon. the Speaker: I see two senators rising. Do we have agreement on a bell?

The Hon. the Speaker: The vote will be held at 2:14 p.m. Call in the senators.

Motion agreed to on the following division:

The Hon. the Speaker: I see two senators rising. Do we have agreement on a bell?

Some Hon. Senators: Nay.

Some Hon. Senators: Yea.

The Hon. the Speaker: I think the “yeas” have it.

And two honourable senators having risen:

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

The Hon. the Speaker: Those in favour of the motion, please say “yea.”

The Hon. the Speaker: The vote will be held at 2:14 p.m. Call in the senators.

Motion agreed to on the following division:

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Fifteen minutes.

The Hon. the Speaker: I think the “yeas” have it.

And two honourable senators having risen:

The Hon. the Speaker: Those in favour of the motion, please say “yea.”

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

Some Hon. Senators: No.

Hon. Bev Busson moved third reading of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, as amended.

She said: Honourable senators, I am pleased to take the floor once more to speak to you about Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

This bill has recently returned to this chamber following the study by the Standing Senate Committee on Legal and Constitutional Affairs.

I first want to thank the Department of Justice for their timely support, along with my amazing staff. I also need to thank all the senators of our committee for their comprehensive analysis of the bill and for their engagement with the bill’s important objectives, especially Senator Boisvenu, the critic, for his strong and compassionate commitment to championing the issues around sexual offences and intimate partner violence referenced so forcefully and emotionally on this special day of remembrance for him.

The committee made a number of amendments, which were reviewed in detail in a long and deliberative Monday evening meeting during clause-by-clause consideration of the bill. Some of these amendments were drafted by the government in collaboration with key stakeholders, many of whom testified at committee earlier this month. Others were proposed by individual senators. All, I believe, were part of a collective effort to strengthen the bill. Despite differences of opinion expressed, I remain strongly supportive of this legislation as a whole and urge senators to pass this legislation at third reading.

I will remind you all that because this government bill has originated here in the Senate, it will then be up to our colleagues in the other place to conduct their own thorough study of the bill after we hopefully present it to them as amended.

Bill S-12 responds to the 2022 decision of the Supreme Court of Canada in R. v. Ndhlovu, which struck down elements of the National Sex Offender Registry. In particular, it struck down the law that required judges to order all offenders to register, regardless of their risk level — thus violating the offenders’ Charter rights under section 7 — as being overly broad and not connected to the goals of the legislation.

The bill addresses this concern and also contains elements that would strengthen the sex offender registration regime to ensure it continues to be an effective tool for police, such as increasing the registrant’s obligation to report their intention to travel internationally from no advance warning to 14 days.

As mentioned in my second reading speech, these reforms do carry some urgency. If this bill is not enacted by October 28 of this year, courts will no longer be able to order offenders to comply with the National Sex Offender Registry. This will seriously undermine its effectiveness in protecting our most vulnerable citizens and thus negatively affect public confidence in the justice system.

I can’t overemphasize the seriousness of this situation, and hope that you are committed to acting with the necessary urgency required to respond to the Supreme Court’s decision that automatic registration for all individuals convicted of or found not criminally responsible on account of a mental disorder for a designated sexual offence is unconstitutional. The bill proposes judicial discretion in the form of a rebuttable presumption of registration.

In other words, a court must order registration on the sex offender registry unless the offender can demonstrate that their registration would be grossly disproportionate to the public interest or that their registration would not be connected to the purpose of the act.

It further proposes to retain automatic registration in two circumstances, namely, for repeat sexual offenders and for those who commit sexual offences against children in cases where the Crown proceeds by indictment.

I would like to take a moment to discuss in a bit more detail the policy rationale for why automatic registration should still be preserved in these two particular cases.

As a result of the decision in Ndhlovu, some judicial discretion was reintroduced in the sex offender registration regime in order to bring it into compliance with the Charter. That said, the government has been very deliberate in its efforts to put forward the most targeted and specific reforms possible while respecting the Supreme Court’s decision.

The two specific categories of offenders for which registration would be automatic reflect current social science evidence that demonstrates that these categories of individuals — namely repeat offenders and offenders who prey on children — are at a higher risk to reoffend.

In the view of the government, this represents a balanced and constitutional approach to automatic registration and responds to the Supreme Court’s concerns. The proposed enactment of a rebuttable presumption for all other offenders, including for those who commit sexual offences against women, would only direct courts to exempt an offender from registration if the offender could demonstrate it would unduly impact their rights under the Charter. I know that some of us would like to go further, but I believe the bill strikes the right balance and will ensure that the sex offender registry meets the Supreme Court’s benchmark and remains a valuable and constitutional tool for law enforcement to prevent and investigate crimes of a sexual nature.

The goal of this rebuttable presumption is to ensure registration except in the rare cases where registration would not be connected to the objective of helping police services prevent or investigate crimes of a sexual nature.

Another amendment made by the committee would ensure the application to offenders who are on the registry because of an offence committed abroad. As previously introduced, the bill contained a limitation that unintentionally limited the ability of some offenders from applying for relief. The amendment would ensure that these individuals would be able to apply to be exempt from registration in certain circumstances.

The bill also proposes a number of measures that would empower victims of crime through changes to the rules governing publication bans and a victims’ right to information.

A change was made by the committee to the publication ban provisions relating to the bill’s initial proposals to add the words “otherwise made available” to the list of conduct that is prohibited by the publication ban. There were strong concerns that this vague language might be construed as prohibiting the victim from discussing or communicating with their family, friends or therapist, and was removed from the text completely by an amendment. It also addressed concerns regarding material that’s in place from a prior publication ban.

Honourable senators, the objectives of the proposed reforms to the publication ban regime have received significant attention from victims’ and survivors’ groups and stakeholders across the country. The government, as well as the committee, focused specifically on the proposal that reasonable steps must be taken to ensure that the victim takes an active part in the imposition of a publication ban and in the process by which a publication ban could be revoked or varied.

The committee heard the informed and impassioned testimony of witnesses at committee, including from Suzanne Zaccour, Head of Feminist Law Reform at the National Association of Women and the Law; Morrell Andrews of My Voice, My Choice; and Pam Hrick, Executive Director and General Counsel at LEAF, amongst others.

Committee members heard from these witnesses that we must do better in listening to what victims and survivors of crime are advocating for. While many want the anonymity of a publication ban, others, for a variety of reasons, feel that they should have the power to decide whether or not their identities and their stories will be known, thus empowering them to regain the agency and control that had previously been taken from them by the original offences they suffered.

As a result of this feedback, the committee adopted a number of amendments related to these elements of the bill. First, these amendments build on the bill’s proposals that sought to ensure that victims were more directly involved in decisions concerning the imposition of a publication ban and any subsequent variation or revocation. Words like “consult with the victim” are now replaced with stronger language that directs the prosecutor to ascertain the victims’ wishes, using clearer language that sets out specific requirements for both the prosecutor and the court in regard to the imposition and variance of a ban.

In addition, the bill responds to concerns around victims being unable to share their stories with their loved ones. Some had argued that the current legal framework is paternalistic and interferes with the autonomy of victims to make their own choices. As amended, the bill addresses these varying concerns in a number of other ways, including ensuring that there is a clear and obvious path to having publication bans revoked and varied, a path that gives primacy to the interests of victims; clarifying that publication bans do not apply to certain conduct of victims and witnesses, including the sharing of information about one’s case where it is not done for the purpose of making the information known to the public; and making clear that prosecutions are only possible against persons who are the subject of a publication ban and who have allegedly breached it where they have knowingly compromised the privacy of another person who is the subject of a ban and where a warning is not appropriate.

In confirming that a publication ban is solely for the benefit of a victim or witness, the committee addressed the potential role of any accused in any proceedings for the future and in the process of a publication ban being varied or revoked. To that end, committee members made amendments to the bill that reflected that the applicant would not be required to notify the accused, nor would the accused be allowed to make representations during any varying or revocation process. Additionally, if the publication ban is modified or revoked, it is the prosecutor, not the victim, who would be required to inform the accused of this fact.

Clauses in Bill S-12 that reinforce the victim’s right to be informed by Correctional Service Canada officials when the accused’s situation of incarceration has changed remain an important part of the bill and were retained by the committee.

Honourable senators, this is an important piece of legislation made better by our careful study. I urge everyone to support its enactment as quickly as possible. Quite simply, the stakes for the victims, both now and in the future, are too high, and we cannot afford to delay. Thank you, meegwetch.