Senator Simons: I will.

Hon. Paula Simons: Honourable senators, on Friday, Edmonton’s journalism community came together to mourn one of their own: Janice Johnston, who covered cops and courts for the CBC. She was a reporter’s reporter, the kind of tough and tender woman who put the broad in broadcaster.

For more than 30 years, Johnston covered some of the biggest crime stories in the country without fear or favour. She went toe to toe with the police, never hesitating to call them to account. At one point, they actually, outrageously, got a warrant to tap her private phone because they were so frustrated that she would not give up her sources. She was just as hard on judges — fighting publication bans because she believed the public had a right to know what went on in public courtrooms.

Along the way, she earned the respect of homicide detectives and Crown prosecutors, defence attorneys and judges, for her precise professionalism and ferocious work ethic.

One of the most important stories of her long career involved an Indigenous woman who had been the victim of a brutal, near-lethal sexual assault. The Crown prosecutor, worried the woman might not show up to testify, had her jailed. The woman was transported to and from court in shackles, right next to the man accused of raping her. Like an avenging angel, Janice worked to expose what had happened.

With passion and heart, she covered murders and child abuse trials, police misconduct hearings and disbarment proceedings. She was a ferocious competitor and loved nothing better than getting the scoop. Very, very occasionally, I would beat her to a story. Watching her fury filled me with glee, because to beat Janice was a victory indeed. It was even more fun when we worked in tandem to fight a publication ban or unseal an exhibit because, while she was a great competitor, she was also a hilarious and inspiring comrade-in-arms.

At her memorial service, her husband Scott, a veteran city hall correspondent, talked about what it was like to live in a house where, he joked, he was always the second-best reporter. Just once in their 36-year marriage he beat her to a story about the resignation of a police chief. She called him moments after his scoop went to air, with words he could not repeat in a United Church.

Earlier, in the 1990s, she worked for CFRN, Edmonton’s CTV affiliate. But when she turned 39, the station’s new managers slowly pulled her off air, replacing her with younger faces. She quit in protest and announced that she was leaving journalism. But she couldn’t be kept away. After a few years as a media consultant, she returned to the fray at CBC, where she did some of her best and most important work — long after her hair went silver.

She’ll be so missed by Scott, their daughter Samantha and their granddaughter Cali, and missed by every Edmontonian who turned to Janice Johnston for truth in our city’s darkest moments.

Thank you, hiy hiy.

[Translation]

Senator Simons: Would you not agree, Senator Dawson, that it was a problem that needed to be fixed? Senator Housakos is not wrong in that the bill did, by its language talking about revenues, appear to scope in user-generated content? Do you agree then, and will the government support the amendment that Senator Miville-Dechêne and I co-authored to make it absolutely crystal clear that user-generated content is not included?

Senator Dawson: I think the amendment as presented will be debated during this week, and you will be speaking about it later. It will be in the bill when it is sent to the House of Commons. I cannot presume — and I won’t be here anymore — what the government will do with your amendment, but it was adopted by our committee. It will be adopted, I’m quite sure, by the chamber, and we’ll see what happens after that. Trying to clarify what has already been clarified would be a little bit difficult to do.

Hon. Paula Simons: Senator Dawson, I’m perplexed as I listen to this badinage back and forth because it seems to me that in our committee we adopted an amendment to section 4.2(2), which I will go into in greater detail in my speech. Does it not address precisely the issue that Senator Housakos is raising?

Senator Dawson: Yes, but you did not put those cute little words into the — he wants a simple — that is the amendment you proposed and the amendment that was adopted, and will be sent to the chamber once the bill is adopted. It reaches that objective of clarifying it. We could have tried to clarify it even more, but I don’t think — if you would have used any other words — that it would have changed the attitude of the official opposition on the bill. I don’t know what else you could have done except for that amendment.

Senator Simons: Honourable senators, because I have spoken at some length and at several opportunities about this bill and its precursor, Bill C-10, I will not dwell on my philosophical concerns about the purpose and nature of internet regulation. Today, I instead want to home in very specifically on some of the critical amendments we made to this bill in committee.

As you have heard, we heard from more than 130 witnesses and had hours of often-impassioned debate. What we have before us today is not the original Bill C-11 first introduced in the other place and not the bill that was sent to us as amended by our other place colleagues. What we have before us today is a significantly improved bill as amended by our committee. It includes important amendments that make the bill clearer, that stress the importance of freedom of speech and freedom of audience choice, that celebrate and bolster Canada’s cultural diversity and ones that ensure that Canadians and Canadian artists who post user-generated content to social media are not captured by the legislation.

We heard from academic and legal experts; from media corporations, large and small, foreign and domestic; and from brilliant artists and creators who are using online platforms in bold and experimental ways to tell their unique stories and share their unique visions.

We heard and we responded.

Senator Dasko successfully championed amendments that underlined the vital importance of innovation, including technical innovation, to Canada’s broadcast system. This was a welcome amendment, because it signalled that we don’t want a broadcast system that is frozen in amber but one that is responsive to technological and social change.

[Translation]

Senator Miville-Dechêne successfully proposed an amendment based on the advice of the Privacy Commissioner of Canada. This amendment seeks to protect the privacy of consumers and creators, ensuring that social media companies cannot exploit their personal information.

Senator Cormier defended amendments seeking to highlight the importance of protecting official language minority broadcasters and an essential amendment reaffirming the importance of independent producers in Canada.

Senator Clement also successfully pushed for an amendment to recognize the unique needs of Indigenous, Black and racialized groups.

[English]

Senator Wallin won our support for an amendment that underlined the importance of freedom of expression and journalistic independence. Senator Batters successfully championed an amendment that helped clarify the definitions around “community broadcasting” and the way community broadcast boards are structured. I worked in tandem with Senator Dasko to push through an amendment that relieved community broadcasters of a unique responsibility to fight disinformation.

Senators Quinn and Cormier gave us amendments to require greater transparency from the CRTC and its reporting, and Senator Downe succeeded in having us adopt an amendment to prevent the CBC from running advertorial — what’s sometimes known in the industry as native advertising or sponsored content — advertising that creates the illusion of being journalistic content when it’s actually a cleverly disguised commercial.

These were among the amendments that I believe make Bill C-11 a better bill.

But there were also two other key amendments I wish to discuss at further length today. As mentioned by Senator Dasko, the first involves the change to subclause 7(7). Several expert witnesses, including Monica Auer, Executive Director of the Forum for Research Policy in Communications; Robert Armstrong, a broadcasting consultant, economist and former CRTC manager; and Ian Scott, who was, at the time, head of the CRTC, testified before our committee about their concerns that subclause 7(7) of the bill could give new and unprecedented powers to cabinet to intervene in independent CRTC decisions. As Dr. Armstrong put it in his testimony before us:

In this sense, Bill C-11 reduces enormously — potentially — the powers that the CRTC has and hands them over to the Government of Canada. . . .

He continued:

If you look in detail at what the government is giving itself through this particular clause, it’s giving itself a whole series of very detailed opportunities to, in my view, interfere with the normal functioning of the CRTC. . . .

In the face of those concerns, raised by multiple independent experts, we agreed as a committee to completely delete subclause 7(7) in its entirely and to maintain the CRTC’s independence from the potential for government micromanagement.

But I think the biggest and most critical amendment we made was to a vexing part of the bill, subclause 4.2(2), which I like to call the “exception to the exception” clause. 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. Indeed, that is what clause 4.1 (1) of the bill says — that the act does not apply to a program that is uploaded to a social media service by a user of that service.

Unfortunately, clause 4.2 (2) of the bill, as it came to our committee, undid that assurance by giving the CRTC 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.

At the same time, the government insisted it couldn’t simply exempt all social media platforms from Bill C-11 because some large commercial broadcasters and large record labels were using services such as YouTube and Facebook to release or re-release commercial content. If we exempted social media entirely, we were told, it would give YouTube an unfair market advantage over a music streaming service such as Spotify or Amazon’s Prime Video when it came to the release of music by major record labels. It could also allow commercial broadcasters to do an end run around Canadian content, or CanCon, rules and regulations that they would potentially be subject to on other platforms.

So after extensive consultation with a wide variety of francophone and anglophone stakeholders and legal experts from music producers to digital creators to academics, Senator Miville-Dechêne and I, at our offices, came up with an amendment that we believe — and that the majority of our committee members believe — will help to address this knotty problem.

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.”

I’m sorry that not everybody is here to hear me say those words, but it says, “platforms in, users out.” Is it sexy? Well, my idea of what’s sexy may not be your idea of what’s sexy, but I think Senator Miville-Dechêne and I have given a very nice workaround to a problem.

Is it a perfect solution? Well, no, it probably isn’t. Public policy perfection is hard to come by at the best of times and even more so when you have so many competing cultural, social, economic and political interests at play. But I believe — and I think our committee, in balance, believes — that this is a workable compromise — one that the government should not just accept but embrace.

As you will doubtless recall, I have been quite critical of Bill C-11 since its inception and somewhat dubious of any government’s capacity or obligation to curate what Canadians can see and hear. There are still things in this bill that I believe to be philosophically wrong-headed, but to compare this bill to the draconian regimes of Hitler and Stalin is a grievous insult to the memories of all who suffered and died at their hands, including members of my family. However, I believe that our committee’s amendments have made substantive and substantial improvements to the legislation and address several of its deepest flaws.

Thus today, colleagues, I commend our revised version of Bill C-11 to you. I invite you to accept it as amended and, in so doing, to send to the government the clear message that it is this bill — as amended — that has earned your support. Thank you. Hiy hiy.

Hon. Paula Simons: Honourable senators, I want to thank Senator Manning for the intention behind this amendment. However, I believe, if I may say so, that the senator may be conflating two separate issues with Bill C-11. The first has to do with user-generated content created by small social media producers. I share the concern of Senator Manning and Senator Housakos that clause 4.2.2 of the bill, as originally written, was an exception to the exception that had the potential to scope in small YouTubers and small TikTok artists because the criteria was whether it generated revenues directly or indirectly. It could have been a very small amount of revenue, or it could have been revenue that was created not from advertising or subscription but from sponsorship or from selling products.

Because I very much shared the concern voiced by Senator Housakos and Senator Manning, Senator Miville-Dechêne and I worked very hard to craft an amendment that surgically removed all user-generated content of this type from the bill.

As I explained in my earlier speech, the amended bill you have before you fixes this problem by removing all revenue thresholds or mentions of revenue and scoping the bill specifically to include commercial content that has that unique identifier number that is only given to commercially released music. If I sing a song on YouTube — and I shall spare you an example — that would in no way have a unique identifier number except perhaps a user-content warning. So it would scope in that commercially produced music released by large commercial labels and scope in, for example, a sports specialty channel that rebroadcasts a sports game on Facebook. Those would be the only people who are now covered by the bill before you.

I understand what Senator Housakos is saying. We have no guarantee that the folks in the other place will accept our amended bill. I would say to you that the strongest way to send a message to the government that this amendment is absolutely essential is for us to be united as a chamber in saying that this is the correct surgical solution. There is no political blowback. We are not doing this for partisan reasons. We are not doing this to be obstreperous. We are doing this because we listened to 138 witnesses, and we came up with a workable compromise.

Now we come to the issue of thresholds.

I have been taking the time, while Senator Housakos was speaking, to review the testimony we heard at the Transport Committee. The threshold issue, as I recall and as my quick read through the transcript supports, never had anything to do with social media users. What it did have to do with was small streaming services.

This remains a concern because the question is that it is fine that Netflix, Disney, Amazon Prime and Apple TV have huge revenues, and it is one thing to scope them in. What do you do with a small streaming service from Nigeria that is serving a Nigerian-Canadian diaspora population? What do you do about a small streaming service that is offering audio content in Punjabi? What do you do about a small streaming service serving an ethnocultural community or a community that has very specific interest that does not reach a broad general audience?

That was the threshold question in debate. It was never about social media users because they would never be captured. Even the most extraordinarily successful YouTube vlogger is not going to be making $150 million or $10 million. In fact, if you think about it logically, this could never have included YouTubers because YouTube makes more than $10 million, makes more than $150 million. This amendment would not protect somebody who is uploading content to a platform like YouTube or TikTok. Our amendment to clause 4.2.2, which is in the bill now, does that. This threshold would do nothing to protect them because they are on YouTube and TikTok, which have revenues well over $10 million in Canada.

The question that remains is what we do about those small niche streaming services. I thought long and hard before bringing a threshold amendment myself. When we spoke to the experts, the challenge was how to create a threshold that can stay static in legislation. What I would hope for is the intention behind Senator Manning’s amendment, which is not a bad intention, should be encapsulated in regulation. I want to say here on the record that I think it would be ludicrous for a small international streaming service that serves a niche language audience in Canada, a diverse and multicultural country, to be accidentally captured by legislation that is clearly meant to target the largest behemoth streaming services.

My final concern about the motion that we have before us is a technical one about the clarity of the language. Now that I have the amendment, it says, “regulations shall not prescribe a program of a broadcasting undertaking that generates annual revenues of less than $10 million.”

I’m not clear whether the $10 million refers to the broadcasting undertaking or to the program. There is a huge difference. Is it the intention of this amendment to scope out a program that generates annual revenues of less than $10 million, or a broadcasting undertaking that generates annual revenues of less than $10 million? If it is the former, almost no program would generate that amount. If it is the latter, a service like YouTube or TikTok would easily be scoped in, and then this amendment would do nothing to help those social media users that Senator Manning is rightly concerned about.

Therefore, I would suggest that this is an unclear amendment that does not do what its avowed intention is. I suggest to you also that we need to have further discussion to make sure that small niche streaming services are indeed exempted in regulation.

I thank Senator Manning for bringing forward this amendment, but I will not be able to support it.

Senator Simons: With respect, Senator Housakos, I don’t think there is a wide latitude. There was in the bill that came to us, but I think, as amended — and I am grateful that you supported the amendment — it is pretty clear. It includes only, at the discretion of the CRTC, pieces of professionally recorded and released music that have that unique international identifier number and things that have been previously broadcast on conventional broadcasting. It is crystal clear at this point, I think, that it absolutely does not include social media users.

More to this point, this amendment doesn’t speak to social media users. This amendment, as I read it, would in no way capture a mom who puts her skateboarding adventures on TikTok, or a comedian who posts his stuff to Twitter, because those platforms make way more than $10 million. This amendment wouldn’t help the people who you are trying to help, whereas the bill, as currently amended, does.

That said, I think it is important that we say on the record that there is a remaining concern about streaming services, because the thresholds were never supposed to be about people giving cooking tips on YouTube. They were supposed to be about how we deal with ethnocultural streaming services that fall below the threshold of the big companies.

[Translation]