Hon. Paula Simons: Let us start with the good news.

The government has, indeed, accepted most of this chamber’s amendments to Bill C-11, amendments from all four Senate groups.

The government has accepted, for example, a small but crucial amendment proposed by Senator Denise Batters which clarifies and expands the legal meaning of the word “decision” in the act.

It has accepted an amendment from Senator Miville-Dechêne which underlines the right to privacy following recommendations from Canada’s Privacy Commissioner. This is a real victory and a pleasant surprise since the government opposed this amendment in committee.

The government has accepted a whole series of amendments proposed by Senator Bernadette Clement which stressed the importance of Black and Indigenous representation in Canada’s broadcast ecosystem.

They have accepted an important amendment by Senator Pamela Wallin, adding critical language that ensures freedom of expression and journalistic independence, and equally important language from Senator Donna Dasko which insists that our broadcast system promote innovation, be adaptable to technological change and responsive to audience choice.

Senator René Cormier’s contributions include amendments to support French Canadian broadcasting and to underline the importance of independent producers.

Senator Cormier and Senator Jim Quinn have proposed successful amendments to make the Canadian Radio-television and Telecommunications Commission, or CRTC, more transparent and accountable in the administration of this new regulatory framework.

I am pleased to see two amendments that I championed in partnership with my friend Senator Dasko included in the revised legislation. The first relieves community broadcasters of responsibility for combatting disinformation; the second, far more substantive, was an amendment to remove in its entirety section 7(7) of the act, which would have given extraordinary new powers to the Governor-in-Council to micromanage all kinds of CRTC decisions.

Several expert witnesses testified before our committee about their concerns that this section would give new, unprecedented powers for cabinet to intervene in the rulings of the independent broadcast regulator. I am delighted that the government and the other place accept this amendment which depoliticizes regulatory decision making.

Let me take this opportunity, too, to thank not just the witnesses but former senator Howard Wetston for his wise counsel as Senator Dasko and I worked on this vital section of the bill. Senator Wetston’s deep knowledge of regulatory law was incredibly helpful as we wrestled with ways to fix this particular issue.

That’s the good news. I don’t want to minimize its importance. Bill C-11 came to us a flawed bill, and by working together, the Standing Senate Committee on Transport and Communications created a better bill. It is a credit to our more independent, less partisan Senate that we have been able to deal with some of Bill C-11’s most glaring omissions and errors.

However, the other place failed to accept the one amendment that may have been the most critical of all: the amendment proffered by Senator Miville-Dechêne, with my support, which would have clearly scoped out user-generated content from the bill.

One of the challenges of this legislation was to find a compromise that would include corporate content across all major streaming platforms, including YouTube and TikTok, while at the same time not capturing individual artists, creators, journalists and social and political commentators who use these platforms to upload their content.

We needed to find a way to ensure that commercially released Canadian music on YouTube, TikTok and other platforms was captured by Bill C-11 without sweeping up independent, individual creators who use the platforms to reach audiences, build their brands and earn their livings. We needed to find a way to protect the rights of commercial recording artists and, at the same time, protect the rights of cutting-edge digital entertainment innovators.

Senator Miville-Dechêne and I thought we had found that compromise. We didn’t do it alone. We were supported by our excellent staff who helped to craft and shape the language of the amendment after months and months of consultation with independent creators, artistic lobby groups and the platforms themselves.

The legislation sent back to us today gives the CRTC the power to override the section of the bill which exempts user-generated content based, in part, on whether that content generates revenues directly or even indirectly, which could, in theory, capture a tremendous amount of user-generated content.

Our rejected amendment to section 4.2(2) would have eliminated all mention of revenues, be they direct or indirect. Instead, its metric would have been whether a piece of content had been broadcast on a conventional commercial service or whether it had an international, unique identifier number assigned to it as a professional commercial recording.

I want to be very clear about this because there seems to be some confusion. Our amendment specifically made allowance for things like the rebroadcast of sports games or the rebroadcast of an entertainment show like a singing competition.

Our amendment would have meant that if a broadcaster such as Rogers or CBC reposted a baseball game or a news documentary on YouTube or Facebook, that would have absolutely been captured by the legislation, as would have any other parallel use of a social media platform to mirror that which was already on a conventional broadcast service.

It is absolutely incorrect to suggest that our amendment only dealt with music. That is not true. But our suggested language would also have ensured that if a major record label such as Sony released a new single or album on YouTube, that posting would have been treated as would have been the release of that same song on Spotify, Amazon Music or TIDAL.

At the same time, digital creators, including financially successful ones, would have been clearly exempted from Bill C-11, even if they uploaded their comedy, music, animation, film or TV episodes to a social media platform.

In committee, our common sense compromise amendment was accepted by a significant majority of members, and endorsed by the majority of senators in this chamber. It was embraced and celebrated by digital creators across the country, by producers, academics, media critics and analysts. It received broad and enthusiastic public support.

Unfortunately, the government has not seen fit to accept it, despite its efforts to strike a reasonable balance.

Here’s the official language for the official reason:

. . . this would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time . . .

What exactly does that mean? If, like me, you have a bit of a thing about split infinitives, that was especially painful to read and hear. But grammatical pedantry aside, let me attempt to translate. The government is saying — I think — that our amendment would limit cabinet’s power to tell the CRTC how to regulate social media services.

The first part of the sentence is a bit strange. Nothing in our amendment would have prevented the government from holding public consultations at any time on any subject. The last clause is also a bit odd. Nothing in our amendment would have prevented the broadcasting system from adapting to technological change.

It’s the middle of the sentence that matters. It’s the meat of the sandwich — the part about scoping the regulation of commercial programs on social media. And this is precisely the problem. The minister and the government keep telling us — and everyone else — that they do not intend to include user-generated content and that Canadians who post their comedy sketches or animated shorts or children’s songs to Twitter, YouTube, TikTok and Instagram would not be scoped into the ambit of the CRTC. Yet, the government’s own written response to our amendment demonstrates that they wish to retain the power to direct the CRTC to do precisely that — to regulate the distribution of content on social media.

The government has accused us of creating a loophole. In fact, it’s exactly the other way around. It is subsection 4.2(2) that creates the loophole. The government can’t have its cake and eat it too. It can’t pledge to keep user-generated social media out while simultaneously leaving open the possibility — dare I say the threat — of shoehorning it in.

Senator Gold said to us today that using a social media service does not make you a broadcaster. That is absolutely true. Would that the bill said so.

So now we are left with a constitutional quandary. Do we send the bill back and insist, with all due parliamentary politeness, that the government reconsider our amendment? We have pinged; now should we “pong?” Or do we say to the government something like, “Well, on your head be it. We in the Senate identified a real and serious failing of this bill. We suggested a practical, non-partisan compromise that achieved broad consensus in the Senate. You didn’t listen. Now you, as the elected representatives accountable to the voters, will have to deal with the consequences of that?”

When a bill or a part of a bill is clearly unconstitutional, then our way is clear. It is our job in the Senate to protect the Charter of Rights and Freedoms, including freedom of expression. However, while I think subsection 4.2(2) does impinge on free speech and free expression, it doesn’t explicitly infringe on free expression. Despite the ongoing social media panic, rage farming and thought scams, this is not a censorship act, it’s not a plot by the World Economic Forum, it’s not a communist plot, it’s not a Nazi plot and it’s not an Orwellian plot. It’s just, well, a flawed bill.

However, this is the bill the government ran on. In terms of the Salisbury convention, it was very much part of their last election platform. You could argue they received a mandate for this policy, though this was hardly a ballot question.

So while I might be tempted to ask you, my fellow senators, to send this bill back with an insistence that the government reconsider our amendment, I frankly don’t detect any appetite in the other place to budge on this point. More’s the pity. As well, I don’t think “ponging” this amendment up the street will make a blind bit of difference.

I’m proud of the work we did on this bill, and I think it is a much better piece of legislation because of that work. In the end, I do not feel I can lend my voice to its passage, but today, I want to thank all the independent digital creators — the animators, filmmakers, musicians, comedians, journalists and commentators — who spoke out so thoughtfully against this particular aspect of the legislation. You give so much to our country and our culture. I will continue to push for your rights and your independence to be respected in government regulation and by the CRTC. We need your visions and your voices in our media milieu. Thank you for what you give to Canada and to the world. Thank you for being ambassadors for all things Canadian and for all the multiplicity of ways to be Canadians. You are in the vanguard, and I hope that, in time, the rest of us will catch up.

Thank you. Hiy hiy.

Hon. Paula Simons: Honourable senators, in November 2021, when Governor General Mary May Simon delivered her first Speech from the Throne, she read to us these stirring words:

When someone in our country is targeted because of their gender, or who they love, or where they come from, the way they pray, the language they speak, or the colour of their skin, we are all diminished.

She went on to underline the government commitment to stand up for LGBTQ2 communities — a commitment that seems even more urgent now, a year and a half later, as we see the rising tide of anti-trans hate spilling over the U.S. border and into the lives of Canadians.

It is against that backdrop that I rise today — on Yom HaShoah, as it happens — to celebrate one of the most important human rights victories in Canadian history, and to salute the courageous Edmontonians who made it possible.

This month marks the twenty-fifth anniversary of the Supreme Court of Canada’s Vriend decision, which expanded the Charter to protect queer rights in Canada.

In 1991, Delwin Vriend, a 25-year-old lab instructor at The King’s College in Edmonton, was fired from his job for being gay. Delwin was a quiet, thoughtful young man who loved math and science, and who grew up in a warm and devout Christian Reformed family who loved and accepted him for who he was. The board of the college was not so open-minded.

After his dismissal, Vriend filed a complaint with the Alberta Human Rights Commission. At the time, Alberta was one of only two provinces that hadn’t added protection from discrimination on the basis of sexual orientation to its human rights laws. And so, the Alberta Human Rights Commission told Delwin Vriend that he had no case.

He appealed to the Court of Queen’s Bench of Alberta — and won. Madam Justice Anne Russell ruled Alberta’s human rights legislation unconstitutional. She called the province’s refusal to add sexual orientation “a legislative limitation which controverts the very principle it purports to embody.”

The Alberta government appealed in its turn. Edmonton’s LGBTQ community rallied around Delwin, and so, too, did a small brave band of Edmonton lawyers, led by Sheila Greckol and Doug Stollery, who took his case to the Court of Appeal of Alberta.

In a strange irony of history, the Court of Appeal of Alberta panel that heard the case was chaired by Mr. Justice John McClung, the grandson of Nellie McClung, who was the suffrage crusader and one of the Famous Five instigators of the Persons Case. It was the case that not only established that women had the right to sit in the Senate, but also established the legal principle that Canada’s Constitution was a living tree — in the immortal words of Lord Sankey, “a living tree capable of growth and expansion within its natural limits.”

But this McClung was no “living tree” fan, and he wasn’t sold on the Charter either. While Sheila Greckol, Delwin Vriend’s lead counsel, was addressing the court, Mr. Justice McClung actually swivelled around in his chair, turning his back on her as she spoke — and his written judgment in the case dripped with disgust and disdain.

The Alberta legislature, he wrote, was “not to be dictated . . . by federally appointed judges brandishing the Charter.”

It was not the role of legislatures, McClung wrote, to enter into every “morally-eruptive social controversy,” nor to choose between what he called “the divinely-driven right and the rights-euphoric, cost-scoffing left.”

McClung also wrote:

I am unable to conclude that it was a forbidden, let alone a reversible, legislative response for the province of Alberta to step back from the validation of homosexual relations, including sodomy . . . .

But Delwin Vriend didn’t give up — and Greckol, Stollery and their team wouldn’t give up. They launched an appeal, funded in no small part by Doug Stollery’s parents, well-known Edmonton philanthropists Bob and Shirley Stollery, for whom Edmonton’s Stollery Children’s Hospital is named.

Vriend’s team gathered other powerful legal allies. Everyone from the Canadian Labour Congress to the Canadian Jewish Congress, as well as the United Church of Canada, signed on to intervene in support of Vriend.

Julie Lloyd — who is, today, an Alberta family court judge — was, back then, a young lawyer, and one of the first openly lesbian lawyers in Alberta. She represented the Canadian Bar Association at the Supreme Court that day.

Lloyd told me:

It remains one of the most moving experiences of my life. It was transformational. You could see the momentum. All the ridiculous arguments that had been given to discriminate against gays and lesbians just started to fade away. They disappeared like a puff of smoke in the clear light of the Supreme Court. Each of the arguments was revealed to be specious, haranguing, alarmist and simply untrue. They collapsed like a house of cards.

Everyone that day expected that Sheila Greckol would make the closing arguments; she was the seasoned litigator. But, at the very last moment, she insisted that Doug Stollery, a soft-spoken solicitor who had almost no courtroom experience, speak for Vriend — and for himself, as a gay man.

Stollery told me this years later:

I remember when it was my time to argue, I should have been nervous. Instead, I was hoping I wouldn’t cry. And I didn’t actually cry. But I came close.

And then, on April 2, 1998, Canada’s Supreme Court said it didn’t matter that the Canadian Charter of Rights and Freedoms didn’t include sexual orientation when it was written in 1982. The court deemed sexual orientation an analogous ground — analogous to race or gender or religion.

In their unanimous decision, the judges said our Constitution was still a living tree, and that we — in Canada — had grown and evolved to the point where it was unconstitutional to discriminate against LGBTQ Canadians. The court went further, and read in that protection to the Charter and to Alberta’s Individual’s Rights Protection Act.

In Alberta, the hateful backlash was fast, ferocious and frightening. In the wake of the decision, Premier Ralph Klein came under immense pressure, including from his own caucus, to invoke the notwithstanding clause and, thus, perpetuate legalized homophobia in Alberta.

I remember covering the story for the Edmonton Journal which had, under the courageous moral leadership of publisher Linda Hughes and editor-in-chief Murdoch Davis, argued passionately against invoking the clause. Tensions were high. We didn’t have Twitter or Facebook or TikTok back then, but the city and province were humming with anger and anticipation, waiting to see what would happen next.

In the end, Premier Klein pushed back against certain right-wing voices in his own party, moved in part by the wave of nasty homophobic letters, faxes and phone calls to his office. He was, I’ve been told, genuinely appalled by some of the hateful messages, and said he’d had no idea that gay Albertans faced such hatred and discrimination.

It is another accident of history, though, that one of his closest political advisers and confidantes, Fay Orr, happened to be a queer woman. And because Ralph Klein had a lesbian friend, he was able to put a human face to a political and philosophical decision. And so, the ruling stood and established the rights of gay, lesbian, bisexual, trans, non-binary and two-spirited people in Alberta and all across Canada. Everything else, from same-sex marriage to the ban on conversion therapy, has flowed through the Vriend decision.

The ruling also helped to delineate the powers and rights of the Supreme Court to interpret the Canadian Charter of Rights and Freedom. It helped to reinvigorate the doctrine of the living tree, and to free us from the tyranny of textual literalism. It gave our courts permission to interpret the Constitution and the Charter in keeping with the times, as social mores and ethos evolved. And, indirectly, I’d argue, the Vriend decision helped demonstrate the practical limits of the notwithstanding clause, and the moral and political risks to politicians who were tempted to invoke it. But the Vriend decision didn’t just change Canadian law — I believe it profoundly changed the way ordinary Canadians thought about their gay friends and neighbours and relations.

Writing for the Alberta Court of Appeal, Mr. Justice John McClung had scoffed at the idea that legislation or a court decision could change public attitudes, but he was wrong about that too.

As Julie Lloyd once told me:

Vriend absolutely was the foundation. It ringingly welcomes gays and lesbians into society. It was an education for people to understand that you can’t put the rights of a reviled minority rights to a popular vote. The only way to protect the Charter rights and freedoms enshrined in our constitution is to make the courts the active guardians of those rights.

The decision and its aftermath changed the face of Alberta, too. Sheila Greckol, who’d been treated so disgracefully by John McClung, went on to become a respected Court of Appeal justice herself. Doug Stollery went on to become chancellor of the University of Alberta. Julie Lloyd, as I mentioned, became a provincial court judge. Michael Phair, a gay activist who fought hard for Vriend from the very beginning, became Edmonton’s first out gay city councillor. And Ritu Khullar, who was then a young labour lawyer who intervened in the Vriend case on behalf of the United Church — well, she is now Alberta’s new chief justice. Oh, and King’s College, which now is called King’s University College, today hosts its own regular pride events organized by its student group, SPEAK, which stands for Sexuality, Pride, and Equality Alliance at King’s.

Albertans and Canadians owe so much to the quiet, self-effacing courage and principle of Delwin Vriend himself. We have a statue of Nellie McClung and the rest of the Famous 5 right outside this building. We have a picture of Viola Desmond on our $10 bill. But there are no statues or portraits of Delwin Vriend, who was every bit as much a human rights hero. That’s probably all right with him. He has never sought the limelight. Indeed, he has done all he can to avoid it. He left Canada years ago, to work as a computer expert, first in Silicon Valley, later in Paris. Delwin Vriend has always understood that his battle was not for him alone, that it was a battle for every single one of us:

Even at the time we were fighting our case, we didn’t just see it as a fight about sexual orientation. This was about so much more than getting sexual orientation in. The ruling says you can’t exclude people. It means every single Canadian is equal and you must include them.

Still, today, 25 years later, when we see the mounting backlash across the continent to gay rights and trans rights; when we see ugly persecution by governments in countries including Hungary, Uganda and Afghanistan and when we see countries like Italy rolling back LGBTQ rights, it’s important that we never forget that at its heart, Vriend was a decision about recognizing the dignity, the humanity and the citizenship of queer Canadians.

On this twenty-fifth anniversary, when we’ve recently seen hateful protesters picketing drag shows in B.C. and homophobic thugs honking in the streets of Ottawa and threatening Ottawa school trustees, I want to leave you, my Senate colleagues, with these words from my friend, Judge Julie:

It is the duty of citizens to oversee their government. It’s the duty of citizens to do things, even when it’s hard. The Constitution doesn’t whip itself into shape. We have to do it ourselves.

We as senators have a profound duty to oversee the government and hold it to account, to protect the Constitution and the Charter, to stand always as a bulwark against majoritarian tyranny and to stand up for the rights of Canadians even, and particularly, when that’s unpopular. It’s especially important to remember that today, on Yom Hashoah, the Holocaust day of remembrance, when we remember the 6 million Jews who died because of hatred run amok and remember, too, the thousands of homosexuals persecuted, imprisoned and murdered by the hate-curdled Nazi regime.

On this silver anniversary, I want to thank all the remarkable Edmontonians who fought so hard, so courageously and so successfully for equality and justice for all Canadians. But I also want to ask us in this chamber to do all we can to ensure that the government lives up to the promises of its own Throne Speech and continues to make Canada a queer rights and human rights beacon for the world. We are all the guardians and gardeners of the living tree that is our Constitution, and we must be sure to tend and protect it.

Thank you and hiy hiy.

(On motion of Senator Gagné, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Seidman, for the third reading of Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), as amended.