The Hon. the Speaker pro tempore: Do we have people who have questions for Senator Downe? We have four minutes.

[Translation]

Senator Miville-Dechêne: Would you take a question, Senator Downe?

Hon. Leo Housakos: Would Senator Cardozo be kind enough to take a question?

Senator Simons: Fire away.

The Hon. the Speaker pro tempore: Is there an agreement on a bell? One-hour bell. The vote will occur at 4:45 p.m. Call in the senators.

Motion in amendment of the Honourable Senator Downe negatived on the following division:

Senator Downe: Would Senator Simons take a question?

Some Hon. Senators: Question.

The Hon. the Speaker pro tempore: Senator Downe, your time for debate is over. There are three more senators who wish to question you. Are you requesting five more minutes?

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, February 7, 2023, at 2 p.m.

Senator Downe: Thank you. If my amendment passes, we really don’t have to trust the CRTC because there’s a penalty in it. There would be a $2 million fine for the CBC, payable to a local library in the region, for every day they cancel the service in direct violation of the Broadcasting Act.

What we found, as I stated earlier — I won’t repeat it — is that all the rules were followed, but there was no enforcement. This brings in a penalty and enforcement.

Hon. Pierre J. Dalphond: Would Senator Downe take another question?

I will be quick. In paragraph (b) of your amendment, you propose to make public the salary of a certain number of people in comparison with the salary of a senator and not that of an MP. If you want the amendment to be accepted by the other place, perhaps you should include the salary of MPs as well.

My question is this. Does this not constitute a violation of privacy under the Privacy Act?

[English]

Senator Simons: Is it the most appropriate place? I would have to question that. I mean, it’s a very fine, granular thing to put in a regulatory framework that is supposed to be broad, general application. I don’t think the place to have this discussion needs to be in legislation. It can be clearly given as a ministerial directive or policy. Frankly, it’s something that the board of the CBC should be pressured to do. To put the micromanagement of the CBC’s pay salary into a broad regulatory framework that may have to last us for another 20 or 30 years is the wrong place for the right message.

Senator Cardozo: Thank you, senator, for your question. I would have felt ignored had you not asked a question of me, so I thank you very much.

Indeed, the question you raise is important. I am not using the word “narrowcasting.” I’m using the word “broadcasting.” I think what this bill does is provide more revenue for the creation of Quebec content — of Canadian content — to go across the world. I think this bill is doing exactly what you’d like to see it doing. Certainly, it will provide more revenue that comes from all Canadians for Canadian content and for Quebec content as we want more Canada to go across the world.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Rob “Scratch” Mitchell, former lieutenant-colonel in the RCAF and former Snowbirds team lead. He is the guest of the Honourable Senator Batters.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Leo Housakos: Thank you, Senator Downe, for this important amendment that you’re putting forward. We’ve been asked, with Bill C-11, on countless occasions by the government and others to trust the CRTC going forward in order to set reasonable standards and a framework for Bill C-11. We see now a very blatant example of how the CRTC neglects to enforce licensing obligations on a particular broadcaster.

The question I have for you is the following: Can we have faith, when they do not impose the obligations already — for example, they’ve never fined the CBC when it’s well within their right to do so when they don’t respect licensing; the CBC has never had public hearings in order to justify the reduction of services — can we trust the CRTC to ultimately do the job they’ve been given to do?

Senator Downe: Well, if they pull this stunt again, it would be great for the local libraries that would be flooded with money. That may be a better expenditure than the CBC broadcasting some of their current shows. This is a way of trying to put some pressure on them. If they were off for another seven days again, that would be $14 million.

I want to go back to the point. At the beginning of the pandemic, all Canadians were desperate for information, and we were counting on the CBC. We were counting on the only locally produced TV news, and they weren’t there. It’s totally unacceptable what happened. Hopefully, this amendment will prevent that from ever happening again.

[Translation]

Hon. Senators: Agreed.

(Motion agreed to.)

On the Order:

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

Some Hon. Senators: Nay.

Hon. Pamela Wallin: Honourable senators, after weeks of committee hearings and hour upon hour of testimony on Bill C-11, I feel as strongly as ever about the extraordinary overreach inherent in this poorly conceived bill. The legislation — the very idea itself — is out of touch with reality and with the people who actually use this technology for learning, teaching, communication, entertainment or for earning a living.

The government insists, despite much evidence to the contrary, that this is simply a modernization of the Broadcasting Act. It is neither simple, nor just an update of the rules. The internet is most definitely not a traditional broadcaster, so trying to impose the broadcasting rules, including content rules, Canadian or otherwise, is a flawed approach and will bring unintended consequences.

The internet and its platforms are global structures and entities — infinite in size and time — and are, therefore, completely unlike a finite, 24-hour, linear radio or TV station where you can actually enforce a percentage requirement or quota for designated content. For example, 30% of 24 hours is measurable and enforceable. How do you impose quotas on a system that crosses all borders, including time and space?

Well, this concept of discoverability is used. It will force platforms to make some content easier to find, or more discoverable, and other materials less discoverable. This is not an update of the broadcasting rules. This is government, through its agencies like the Canadian Radio-television and Telecommunications Commission, or CRTC, deciding what is most important, and then deciding that it is also most important for you and me. I cannot imagine that the global internet audience will be any happier than I am about the domestic content choices selected and promoted by our government overriding their own personal choices.

Our behaviour online is what teaches the algorithms to offer us more of what we like. The platforms track our interests, preferences and browsing habits, and then show us more of what we have chosen — not what the government has chosen. This is at the very heart of this bill — the fundamental issue of algorithmic manipulation. For me, it raises this question: Should any government or organization in a democracy be given the authority to override my choices or the choices of users everywhere?

We know that Bill C-11 gives the CRTC the ability to manipulate algorithms because of the chair’s own admission. Forcing platforms to manipulate algorithms to meet quotas — or to promote some content and obscure other choices — is simply not the business of governments. If you, as a consumer, enjoy country music or podcasts about philosophy, you would want to be able to access it without interference, and this kind of interference goes beyond the socially agreed-upon reasons for censorship, such as cases of hate speech or the incitement of violence or defamation.

There is also a fundamental arrogance with the notion. I ask honourable senators and Canadians listening or watching at home, who is up to the task of being censor-in-chief, deciding what you should see and hear? Would you give this superpower to the government of the day with its own biases and political interests? You might share the views of a certain party, but what if the government changes? Do you want a government you don’t agree with having such power?

In the words of Christopher Hitchens, one of our great writers:

. . . every time you violate or propose to violate the free speech of someone else . . . you’re making a rod for your own back . . . .

This whole concept is the antithesis of free expression. Free speech is not just about your rights; it’s about the rights of others, even those with whom we disagree, to have their say. It’s about my right to disagree with them, engage them or ignore them, but not to deny them the right to express their views. So many of our great thinkers have opined on the fundamental importance of free speech. Linguist Noam Chomsky was crisp: “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”

This bill poses exactly the same issue. Using discoverability to promote some anointed music, art, language or idea, you are silencing others. Let me make my choices about what I want to hear, listen to, debate or disagree with — or even discover. One of the most appealing characteristics of the internet is the serendipitous discovery — by searching for something you like, you stumble upon something unknown or special. Curiosity cannot be legislated or regulated by government.

I gratefully acknowledge the committee’s recognition of the importance of freedom of expression and journalistic independence in section 3.1 by adopting my amendment. It is fundamental, given that this bill gives extraordinary new powers to the CRTC, and to the government itself. At the very least, it must explicitly ensure protection of our right to free and open expression. Let us hope that it is accepted.

As mentioned earlier, the impact of this bill on content producers, particularly on young Canadians building their careers online as part of the digital economy, is very concerning. From TikTok to YouTube to podcasts, there is a thriving digital space that has provided new avenues to share information and ideas, and to carve out a professional future and be paid for it. This bill is truly counterintuitive because by picking favourites, the government is hurting the very people it is purporting to help — this new generation of Canadian content creators and their audiences. Their reach and success will be impacted if platforms, or even countries, decide our rules are unfair.

There has been testimony, supported by direct and strong representations from the U.S. government, that discoverability and the requirements to promote selected Canadian content violates provisions of our trade agreements, and would be seen as interference with the conduct of a domestic business in the free‑trade zone. Our trading partners might seek recourse or retaliation. As a trading nation, do we want to become the protectionists that we decry?

Your committee proposed amendments we hope will help protect content producers and entrepreneurs from the impact of this bill. The amendment to section 4.2 offers some assurances to the small, amateur creators that — with the removal of the revenue test and the narrowing of the definition of a “program” — they will, for now, escape some of the costly bureaucratic burdens imposed on others. If the CRTC does not intend to capture small content creators within its sphere, it still has the power to do so if it chooses or is instructed to do so. Again, the CRTC chair admitted that in testimony.

The committee also voted for the removal of clause 7(7) to try to limit the grip of the government on the CRTC and its policies. This arm’s-length institution was designed to be a regulatory body, not a political body, and any oversight should not be at the whim of political considerations of the day. Now we must wait and see if arm’s length is an irrefutable principle or a matter of convenience. Since this bill gives the government and the government-appointed CRTC new powers, the chair and the minister should be required to appear before parliamentary committees in both places on a regular basis so that we can assess the implementation and the impact of this act.

Ultimately, the folly of this entire endeavour is that our digital world is nothing at all like legacy media, and the space and pace of information sharing and content production is unprecedented. Canadians value free speech. They do not want to be told what they should consume, and they do not need a nanny state to present them with material that they are more than capable of finding on their own, if they wanted to in the first place.

Former U.S. president Harry S. Truman warned of this:

Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures . . . .

That is what I fear with Bill C-11 — more command and control over the flow of information.

I believe that what this bill aims to do is not, and should not be, the business of governments. It inhibits markets, innovation and creativity, and I cannot support it.

For now, we await evidence that the government has heard those witnesses who came before us to offer ideas, to build a way forward in the new digital world. I hope that the government will hear their pleas because the government’s track record on heeding the considered advice of the Senate is not encouraging. We hope this time it will be different, but I’m not optimistic. Thank you, colleagues.

Hon. Andrew Cardozo: Honourable senators, it is indeed a great pleasure to speak here on Bill C-11, the online streaming act, which updates the Broadcasting Act of 1991.

While this is my first speech in the Senate, I hope I will have the opportunity to provide something more like a maiden speech in the near future when we’re not as pressed for time. Indeed, I think we all agree here that it is time to be updating the Broadcasting Act when the technology it regulates has advanced so far in the last 32 years.

I should start by telling you that I had the good fortune to spend six years as a commissioner at the Canadian Radio‑television and Telecommunications Commission, or CRTC, around the turn of the century — that is, the turn of the recent century, not the other one.

During this period, my job was to be working under this act, day in and day out, and I have to say that, even then, it was beginning to be out of date as the internet was just taking hold. Yet, it was a very comprehensive law with flexibility that allowed us to regulate the changing scene.

Now here’s the thing I’ve always found to be so special about the Broadcasting Act: It is uniquely Canadian.

[Translation]

The legislation governs a unique society: Canadian society. There is no other country that has all of our unique qualities. Other countries may share some of our broader characteristics, but we are the only country to have them all. I would say that generally speaking, the Broadcasting Act worked well all these years.

[English]

Now, just to age myself, I will note that, in fact, I did appear before the House of Commons committee that was working on the Broadcasting Act during the Mulroney government back in 1991 when I was a very young man. I’m happy to say that some of the changes we advocated back then around the definition of “the Canadian people” were indeed added to the bill at that time. Little did I know that six years later I would be at the CRTC implementing the act, not to mention speaking on the review of that act in the Senate 32 years later.

I would like to focus my comments on section 3 of the act, the unique aspects of the Canadian people that the Broadcasting Act works to enhance. Here are some of the main characteristics that are key to our society.

We have two official languages, and the commission constantly works to ensure that we have a robust broadcasting scene in both languages. While at the CRTC, I was pleased to be part of the decisions to ensure TVA became available across Canada, to ensure that the Société Radio-Canada — TV and radio — was made available in all provincial capitals and to significantly increase the number of specialty channels in French. Indeed, with the advancement of digital technology, the commission has been able to ensure more fulsome broadcasting in both languages with a large number of French channels from coast to coast to coast.

Canada also has a well-developed, multilingual broadcasting scene, which rivals any other in the world, broadcast for the benefit of and produced by a variety of Canadian ethnocultural communities. The first multilingual broadcasting was begun by the legendary Johnny Lombardi in Toronto in the 1960s, and, gradually, programming in radio and television expanded across Canada with the CRTC licensing more multilingual services.

The most recent addition to the television scene was the Aboriginal Peoples Television Network, or APTN. Certainly, its licensing in 1999 was one of the most significant hearings during my six years at the CRTC. The hearing was memorable. We heard from some great Indigenous leaders in the field. Abraham Tagalik, from Nunavut, chaired the board of what was then Television Northern Canada. The accomplished grande dame of Indigenous film, Madam Alanis Obomsawin, reminded us of our obligations, and the award-winning actor Adam Beach highlighted the significant talent that exists in Aboriginal culture.

But I remember thinking of the irony at the time that it was the First Peoples who were really the last people to get a television network. Today, 23 years later, APTN continues to grow and expand its services across the country, surpassing all expectations, while there are many other Indigenous radio and television services.

Since around 2000, the CRTC has also focused on ensuring diversity in programming by English and French broadcasters so that what all of us see and hear on mainstream radio and television reflects the Indigenous, cultural and racial diversity that makes up our country.

Now, layer on top of this uniqueness the following. Unlike many other countries, we are located beside the most dominant cultural machine in the world, the American cultural juggernaut. And unlike any other country, even those who consume a lot of Hollywood’s product, we share not only a language, but we share a culture, an accent. We share sports, like football and hockey, and we share expressions. Therefore, distinguishing Canadian music and programming from American content is harder, and Canadian viewers have less reason to be loyal to the Canadian product.

On the French side, French-language broadcasting has unique challenges. While our francophone nation lives in a sea of English-speaking North America, the silver lining is that francophone consumers are uniquely loyal to the French‑language programming produced in Quebec and the rest of Canada. The Quebec star system is vibrant, entrenched and followed widely by fans and viewers. The English Canadian industry can only wish it had the same following in Canada.

However, with the enormous popularity of American music and programs, there is a critical need for the state to help French‑language programming, whether it be the federal government, the Quebec government or any other provincial government. This is why Bill C-11 is so popular in Quebec. It brings more revenue for Canadian-made content in our traditional and online broadcasting.

Now, section 3, especially proposed subparagraph 3(1)(d)(iii) directs the CRTC to regulate and to accommodate this diversity in clear, contemporary ways.

On another matter, various comments have been made recently about the way the CRTC operates, and some of these comments I consider to be a bit gratuitous. I can tell you from my experience that I found it to be one of the most open and transparent agencies in the federal government. Yes, they are not perfect and, occasionally, they are bound by some of the confidentialities they must keep when there are commercial, competitive issues at stake. But I would say to you that it is one of the agencies that works hard to hear from a wide variety of voices and will always work to balance out the powerful corporations from ordinary Canadians.

They were also certainly open to being challenged on how they do hearings and consultations. I would suggest that they do public hearings as good or better than any other federal agency or commission.

There were some comments yesterday about what was termed as “identity politics” which had entered into the affairs of culture. I am a permanent student and teacher of Canadian history and politics, and my reading of Canadian history is that it has always been about identity. Some may call that identity politics. Much of it is positive, some negative.

From the beginning of our history, the First Peoples — Indigenous people — have always been diverse, and they were proud of their diverse identities. Indeed, they have taught us to engage in land recognition where we recognize the history of the territory of the particular peoples on whose traditional lands we find ourselves anywhere across Turtle Island, and we pay respect to them. But with the arrival of the settlers, we should be reminded that they came from England and France, and based on their identities — English versus French — they had a battle back in 1759 on the Plains of Abraham. As they say, the rest is history.

Over many years, the colonizers imposed their identities, languages and religions on this land and spent centuries trying to submerge the identity of Indigenous peoples — sometimes, as we know, using rather unfortunate means.

In a related historical matter, let me talk about the Fathers of Confederation. Yes, it’s the fathers — no mothers. They were just men of British and French origin. Quite pointedly, there were no Indigenous people, even though there had been the Royal Proclamation of 1763, which recognized them and their land rights. Their Indigenous identity was not included in Confederation, certainly not as founders of the Canadian state.

There were also many Black people. They were loyalists who had moved here from the United States — indeed, the ancestors of former senator Don Oliver and Senator Wanda Thomas Bernard — and who had been in Canada for well over a century by then but, again, were not among the Fathers of Confederation.

Let me touch on the British North America Act. Remember that name. What kind of North America? A British one. A foundational document is all about identity. The English and the French had guarantees of Protestant and Catholic schools that were absolutely conditional to the signing of the document. Had those identities not been carved in stone in our Constitution, there would have been no Canada.

Here’s another thing. In the 1800s and early 1900s, when land was being given to English and French settlers and to those from Eastern Europe, the government was specifically taking land away from Indigenous people. The children from one group were being taken by the state and the church and subjugated to horrendous conditions.

So here we are now, and we wonder why some people are rich, and some people are poor; some people have power, and some people don’t. Outside of this chamber, there are people who ask certain groups to just stop going on about their identities, get over it and just be like the rest of us.

So I come to section 3(1)(d)(iii) and want to say that is why it is needed. This is how we’re building the great Canadian nation where we respect Canadians of all identities and origins.

I just want to touch briefly on the Canadian Charter of Rights and Freedoms. Section 15(1) says we are all equal. Section 15(2) says that government programs that aim to ameliorate inequality are permitted to create equality. Indeed, the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, also falls directly under the powers of section 15(2) of the Charter of Rights and Freedoms. Now we see that Bill C-11 also will respect UNDRIP.

As I close, I want to say that ameliorating inequality and advancing equality of all Canadians are some of the fundamental reasons for governance, whether it be in matters of cultural, social or economic policy. Bill C-11 aims to do this. It takes us further on the path to advancing this great country. For the future, it enhances the ability for more Canadian-made content in the online media world. The world needs more Canada, and the increased revenue will allow for increased Canadian-made content in the world.

[Translation]

For that reason and for many others that were explained by my colleagues, I would be honoured to vote in favour of Bill C-11.

Thank you.

[English]

Hon. Percy E. Downe: Honourable senators, I would like to congratulate Senator Cardozo on his excellent maiden speech. It’s nice to have that personal milestone behind you, and your speech today was a reflection of your experience not only as a historian but as a former CRTC commissioner. You bring great value to this debate, given your background. Thank you for your speech.

Colleagues, I have an amendment today, which is an attempt to improve Bill C-11 by addressing some of the shortcomings in the Broadcasting Act. For example, the CBC in Prince Edward Island is an essential service that needs to be fully funded and supported, and my amendment will assist to that end. My amendment will also both improve the broadcaster and hold the CBC accountable for cancelling, at the very beginning of the pandemic in March 2020, the CBC TV news in Prince Edward Island.

As you will remember, at the beginning of the pandemic, there was a lack of understanding of COVID — how it was spread and how to protect yourself and your loved ones. In P.E.I., a province with the highest percentage of senior population in the country and one of the worst internet connections, the local CBC TV news program — the only locally produced TV newscast in the province — was an essential service that, on a whim, was cancelled by CBC Toronto management. This was in direct violation of the conditions of their broadcasting licence, when not only did they not give advance notice but they also failed to justify their decision at public hearings. None of this was done, even though it was required by their licence. As well, we found out after the fact that the CRTC had no way to hold CBC accountable for their decisions.

If this ever happens again, the purpose of my amendment is to impose a fine of $2 million per day on the CBC, payable to a local library in the affected community.

Colleagues, as you know, the Senate has three main priorities, one of which is representing the regions of Canada. Thus, the Senate is uniquely qualified to correct this problem by passing this amendment and ensuring that Canadians, regardless of where they live, can expect the same level of service from their national broadcaster. The importance of this amendment to Prince Edward Islanders is reflected in the fact that the other senator from Prince Edward Island, Senator Brian Francis, is seconding this amendment.

The second part of my amendment relates to CBC staff. The Broadcasting Act grants the CBC the right to pay its employees at such rate as the board of directors deems fit. As a taxpayer‑funded public broadcaster, the CBC has a greater obligation than private broadcasters to be open about how it spends money, such as pay for its senior management and on-air personnel. The CBC provides some information about what compensation it pays, but very little and only in the most general terms. Contrast this with the level of transparency provided by the British Broadcasting Corporation. For years, the BBC, like the CBC, resisted any disclosure of salaries, using similar justifications about the competitive environment in which they operate. But since 2017, the BBC has been forced to release the names and salaries of its highest paid on-air talent. Currently, they provide the employee’s name, the program they appear on and the individual’s salary to within £5,000.

By contrast, the CBC merely provides an average salary for all employees within a $50,000 range. So, for example, while we know that Nick Robinson earns between £295,000 and £300,000 to host the BBC “Today” show, we only know that five CBC presenters earn over $300,000, with an average salary of $342,000, but we have no idea as to their names, programs or gender.

This comparison to the BBC is important, and I am not the first to make it. Nine years ago, the Senate Transport and Communications Committee undertook a study of the CBC. In the course of that study, the committee looked at compensation for senior CBC personnel. For the benefit of those senators who were not here then, to say the committee was not impressed by the level of cooperation and transparency on the part of the CBC would be an understatement. When the CBC released salary estimates so low as to be unbelievable, the then chair of the Senate Transport Committee said:

Based on the document, we concluded that Peter Mansbridge makes $88,000. Everyone knows that’s not true. Don’t insult me, as a member of the Senate, as the chair of a committee, by giving me false information.

He went on:

We want a pay scale that shows how much the top earners make. We have that for most public collective agreements and publicly traded corporations. . . . It’s hard to get information from CBC about operations. If I want to find out what any given BBC employee earns, all I have to do is go on the website and the information is there.

He continued:

. . . as my colleagues have said, taxpayers know how much the President of Canada Post makes . . . .

They know what I make as a senator, what an MP or a minister makes, but we can’t get that kind of pay scale from CBC. . . .

This desire for transparency, and disappointment at the CBC’s lack of such transparency, was a view echoed by other members of the Senate Transport Committee, and was reflected in the committee’s report, which recommended that:

CBC/Radio-Canada be more transparent in its operations, specifically with regard to the disclosure of financial information, procurement and contracts, and salaries; and it must make such disclosures easily accessible to the public.

Colleagues, none of that has been done, but this amendment will correct that oversight.

I wish to emphasize that this call for transparency does not arise from simple curiosity. After the BBC was forced to publish the salaries of those earning more than £150,000, it revealed a massive gender gap. I cannot claim the same gender gap exists within the CBC, but nor can I say it does not exist. Without more information from the broadcaster, we simply cannot know.

Frankly, Canadians should know what they are paying the top‑tier employees of a publicly funded organization, if only to ensure they are being paid fairly. There were many stories from the BBC about female on-air personalities being rushed into an office and given an instant raise before the public information of salaries was released. Of course, they found out they were underpaid for a number of years.

I am seeking a level of transparency that the CBC correctly demands of other government departments and Crown organizations and which should also apply to them. What’s good for the goose is good for the gander. This amendment follows the request of the Senate Transport Committee.