Senator MacDonald: Well, as you know, I’m not alone in these concerns. As I mentioned in the speech, Senator Simons raised the same concerns. Proposed sections 4.1 and 4.2 are contradictory. One suggests it’s going to be protected, and the next provision removes that protection. So what are we to make of it?

It doesn’t give me any confidence. Certainly, it doesn’t give the witnesses, who are very well versed in this stuff, any confidence. I think this stuff has to be better explained and better justified. That’s why I’m looking forward to it going to committee to see if we can get a handle on these particular provisions, because I don’t think they give Canadians the confidence that they deserve and need when it comes to free speech, freedom of expression and free access to information on the internet.

(On motion of Senator Martin, debate adjourned.)

(At 3:17 p.m., the Senate was continued until tomorrow at 2 p.m.)

Hon. Michael L. MacDonald: Honourable senators, I rise today to speak to Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.

I am privileged to be a member of the Senate, for more than 13 years now, so I’ve seen many bills pass through our chamber. For most of this time, I was a member of the Transport and Communications Committee, eventually serving as both deputy chair and finally chair of the committee, until this new Parliament was established after last year’s election. I have acquired a lot of experience, over those years, in dealing with communications issues.

I believe I am safe in saying that this bill is one of the most controversial pieces of legislation to have been brought before any recent parliament. Many of the more controversial bills have been opposed by particular special interest groups; other bills have, to varying degrees, been controversial with the Canadian public.

However, with this bill, we have a piece of legislation that has truly aroused intense concern among ordinary Canadians. By “ordinary Canadians,” I mean people who normally do not have an interest in politics — particularly people under 40 years of age who do not watch the news or read the newspaper. This is what makes this legislation so unique.

Many Canadians believe this bill will have a very direct impact on them in a personal way because it touches directly on their viewing and listening habits. Other Canadians — usually younger Canadians — recognize that this legislation may impact their ability to express themselves online. This bill raises the spectre of government regulation interfering with that ability.

I would like to reference some quotations that help illustrate the depth of concern that has been expressed regarding this legislation. During the Transport and Communications Committee’s study on Bill C-11, Tim Denton, the Chairperson of the Internet Society Canada Chapter, made the following comments:

. . . We oppose Bill C-11 because it embodies a fundamentally illiberal idea of communications, because it constitutes a vast overreach of governmental authority and because it threatens the engine of innovation and economic growth, which is the internet.

What we object to is the nearly boundless extension of governmental regulatory authority over communications. . . . [This bill] captures virtually all online audio and video.

Then we have J.J. McCullough, a YouTuber and columnist, who told the committee:

. . . 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.

Morghan Fortier, the Co-Owner and Chief Executive Officer of Skyship Entertainment — a Toronto-based company that produces children’s content and has more than 48 million subscribers and more than 20 billion views in the past two years — testified before the Senate committee that:

Bill C-11 poses a danger not only to my company but to thousands of Canadian content creators who have been steadily building this industry with nothing more than their unique voices and their hard work. Their content is enjoyed by millions of Canadians here at home and many millions of people outside of Canada. They do it all without a government handout and without the government forcing it down people’s throats through false algorithm manipulation.

Senators may or may not agree with these perspectives, but the common element between them is the belief that Bill C-11 represents an attack on consumer choice and on the freedom of Canada’s online entrepreneurs. In essence, Bill C-11 is increasingly seen as an attack on freedom of expression, freedom of consumer choice and freedom of the press.

Freedom of the press was established in 1835 — in what is today known as Canada — by Joseph Howe, who was the editor of Nova Scotia’s leading newspaper. Howe was accused of libel by those who wielded social and political power at the time, and, since no lawyer would represent him, he had to represent himself in court.

Howe won his case, but I wonder what he would think of today’s circumstances surrounding Canadian mainstream media. The CBC and our legacy print media are now subsidized by approximately $2 billion annually. With most of our mainstream media now on the payroll of the government, thoughtful Canadians demand access to independent points of view — not compromised by government interference.

The social engineers in this government want to give the CRTC control over the information that Canadians can access. They want faceless, unaccountable bureaucrats to decide what content Canadians should consume. Who will benefit from that? Rogers, Bell and Shaw might benefit financially — don’t they always? All three service providers rake in billions of dollars annually — sometimes quarterly — with Rogers presently trying to purchase Shaw for a mere $26 billion. They don’t seem to be hurting under the present circumstances, do they?

Yet Canadians pay some of the highest fees worldwide for phone, internet and cable services. The CRTC has proven to be little more than a toothless tiger when it comes to looking out for the best interests of the Canadian consumer.

Now the government wants to give the same CRTC control over the algorithms that will direct people toward information and opinions that they prefer and approve of, but limit access to information and opinions that don’t subscribe to their views of what the CRTC deems to be appropriately Canadian.

So let’s review the public policy objectives this legislation purports to address. A core perception of Bill C-11 proponents is that, today, Canadian law does not apply to the foreign-based web streaming services, like broadcasters that operate over the internet. The perception is that those tech giants siphon billions of dollars out of the country, without any requirement to invest back into the Canadian system. But the reality is that many of those tech giants actually do reinvest in the Canadian economy, and they invest billions in that regard.

That reality notwithstanding, a common perception is, nevertheless, that their investments are insufficient. This bill is supposed to address that.

This bill also purports to ensure that investment flows to Canadian-based companies and artists. It is designed to try to force streaming services to give Canadian audiences a chance to discover Canadian shows. I understand the depths of this perception. I know that this perception has served as the foundation of Canadian cultural policy for, at least, part of the past half-century.

But this approach does not align with many of the realities of the internet world in which we now live, so we seem to have a dichotomy: The traditional view, from elements of our cultural history, is that Canadian culture is highly vulnerable unless we have significant government regulation and control. The other view is that the past 30 years demonstrate exactly the opposite, namely that Canadian culture and Canadian content have actually thrived in an era with little regulation.

What concerns me about this bill is that it largely comes down to favouring the former position. It pays very little attention to the new realities that have emerged over the past several decades.

So although I’m not currently a member of the Transport and Communications Committee, I’ve been following the mounting critiques of the bill, and it is increasingly evident that this bill — based on cultural policies that originated in the last century — constitutes a serious overreach by the government. Notwithstanding the public policy arguments in favour of the legislation, the bill is too one-sided since it ignores contemporary realities. I fear that — unless we amend the bill in a significant way — there’s considerable danger that we will generate backlash that’s so significant that the bill itself, including policies that are worthwhile, will become unsustainable.

Much of what is wrong with this bill seems to be grounded in sections 4.1 and 4.2. Those are the sections related to the incorporation of user-generated content within the scope of the bill. Those are the sections that Senator Simons has accurately characterized as the “problem child” of the bill. This characterization is very widely shared and has certainly been fed by the government’s extremely poor handling of the issue of user-generated content in both Bill C-11 and the previous Bill C-10.

In relation to this issue, the Consumer Technology Association warned — in a brief to our Senate committee in August — that:

(1510)

The association noted its strong concern related to the breadth of Bill C-11, about the bill’s lack of precision in certain areas, particularly in terms of the power it is granting to the CRTC and how those powers may be used. So what do sections 4.1 and 4.2 of the bill precisely do?

I’ve tried to understand this issue in layman’s terms, and in essence, these sections purport to exclude user-generated content, but then immediately create an exception to that exclusion. Section 4.1(2) notes that despite what is stated in subsection 4.1, the act does apply to user-generated content if a program:

(a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or

(b) is prescribed by regulations made under section 4.2.

Point (b) is a considerable concern, since the regulations allowed for under section 4.2 are, to say the least, extremely expansive.

According to some witnesses, theoretically, the CRTC could arbitrarily consider any factors that it wants in making regulations prescribing programs in respect to the act. This is precisely why so many ordinary Canadian creators and consumers are so concerned.

When she testified at the Senate committee, Morghan Fortier referenced the situation as follows:

What keeps me up at night about this bill is the potential to gate content that is deemed not Canadian . . . .

Ms. Fortier referenced potential retaliation from other countries:

. . . should this type of a law pass through, we’re done. I don’t mean my company. I mean we don’t need to talk about this bill anymore because it’s over. That will affect regionalized content creators, small content creators and larger content creators. The world is watching. Australia will follow, and the U.K. If the U.S. were to decide, well, what’s fair is fair, that’s a complete game changer that no one seems to be talking about, which scares me.

She continued to say:

It’s the free, open internet for a reason. Attempting to put in place a bill that insists the government mandates its behaviour and intentionally gates content of a particular nature is exceptionally problematic.

I know that the Senate Transport and Communications Committee is looking at these concerns very seriously, and I know senators on both sides of the aisle are aware of these concerns. Some of you have noted in your remarks the potential negative implications. I am encouraged by that, since I think we are witnessing a groundswell of concern throughout the country about the implications of this bill and about some of its more troublesome provisions. I am hopeful that when we consider the bill at third reading, we will receive a bill from our Senate committee that will at least try to address some of these serious issues. I fear that if we pass this bill without addressing these concerns that have been raised by so many Canadians, particularly young Canadians, we risk undermining the legitimacy of our entire broadcasting policy.

In this regard, I think it is useful to reiterate the comments made by J.J. McCullough before the committee when he said:

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.

We need to understand that if we do not heed this warning, these Canadians have options. Should they choose to simply opt out of Canada, we will all end up losing.

I encourage all senators to listen to the substantive and legitimate concerns of all Canadians regarding these issues. Freedom of speech, freedom of expression and freedom of the press are protected in our Constitution. Those are core Canadian values that should never be compromised. Thank you.

[Translation]

Senator MacDonald: Yes.

Senator MacDonald: Yes.