Hon. Leo Housakos: Senator Gold, your government repeatedly said that user-generated content would not be regulated by Bill C-11. You explicitly ruled out the regulation of podcasts.

On May 12 of this year, the Canadian Radio-television and Telecommunications Commission, or CRTC, released a myths and facts communiqué stating that concerns over the regulation of podcasts were a myth, and that anyone who creates a podcast isn’t a broadcaster under this law.

Quietly, last Friday, the very same regulator announced that podcasts must be registered with your government. Senator Gold, for a government supposedly consumed with misinformation and disinformation, this government continues to engage in it. Why were Canadians lied to in this manner by the Trudeau government and the Canadian Radio-television and Telecommunications Commission, or CRTC?

Hon. Leo Housakos: I would like to thank Senator MacDonald for his subamendment and his continuous support of user-generated content and digital-first providers.

We’ve heard a number of interventions this afternoon and this evening on Bill C-11. I just want to respond to a number of issues that are of deep concern.

In his intervention, Senator Cardozo talked about how the opposition and those who are opposed to the bill are somehow lining up with multi-billion-dollar digital corporations and platforms and so on and so forth. I’m starting to think that many of our interventions have probably gone unheard or are not really understood.

For those of us who are concerned, the concern that we have is not lining up with the digital giants. It’s the government, actually, who is lining up with multi-billion-dollar corporations. I said in my second-reading speech, my third-reading speech and in committee that we believe the whole purpose of this bill — and the government has said it outright — is to align traditional broadcasters in this country with digital platforms. Those of us who participated in the in-depth study at the Transport Committee, we understand clearly that digital providers are not broadcasters, far from it. They’re just platforms that actually help broadcasters and communication messages arrive to certain destinations more quickly, on a larger scale and in larger volumes. That is the actual reality of what digital providers like Facebook, Twitter, Google and all the other digital providers do.

We felt from the beginning that Bill C-11 is an attempt not to align broadcasters but, actually, to save the broadcasting industry, which we all acknowledge their business model is struggling. It is struggling because times have changed. What better testament of the fact that times are changing than having the CEO of CBC herself, a day after we passed the bill in this chamber or the day before, going public and saying how in a few years, CBC will be out of cable broadcasting and transforming their operation into digital platforms. That’s why you get organizations such as Quebecor running QUB radio, which is a full-fledged digital radio operation. They’re doing that because they’re starting to recognize the world is changing, and young Canadians are going toward that direction.

Senator Cardozo, let me tell you where I’m standing. I’m standing with user-generated content producers.

Hon. Leo Housakos: My question is for the government leader and it has to do with user-generated content and digital-first content providers. It’s nice to hear the minister say that digital users and content providers will not be part of this Bill C-11. It’s nice to hear the sponsor of the bill say it in this chamber. It’s great and reassuring to hear it in your speech. But the reality of the matter is the amendments that we sent over in good faith which made it clear that user-generated content would not be caught up in the web that’s being spun by this piece of legislation were rejected by the government.

My question is a very simple one: Why wouldn’t the government accept those amendments making it clear in the law — not a commitment on the part of government — that user-generated content will be excluded and carved out? Why did the government reject those amendments given the fact that we should take it at face value and accept that those amendments would put in the law the stated intent of what you just shared with us in your speech?

Hon. Leo Housakos: Not to belabour the point, but user-generated content is definitely scoped into this bill. That was the opinion of the chairman of the CRTC when he testified before our committee. That was the opinion of the legal expert of Heritage Canada who, on numerous occasions, was asked directly about the language that Senator Cardozo referred to. It is clear that the government is refusing to tighten that language and accept reasonable amendments that state, in black and white in law, that user-generated content will be excluded. Nonetheless, I also want to correct a couple of things.

In his exchange with you, Senator Gold, Senator Cardozo highlighted really what the problem is between those who are fine with the bill and those who are against the bill. I know that the CRTC has the authority to make regulations because the law that we’re about to pass and the government wants to pass is giving that authority. In the old Broadcasting Act and the current Broadcasting Act, our colleague Senator Cardozo is right: The government and Canadian Heritage can not only influence the regulatory framework; they can give directives and overrule the CRTC. That’s precisely why when you have laws like the Broadcasting Act that leave this Parliament and become law, there have to be safeguards to make sure whoever is in government has parameters that they have to work within that we parliamentarians give them. And if we’re negligent in our responsibility in making laws that are clear, that’s when, of course, problems can occur.

Now, in terms of the regulatory framework, it is so customary on bills that are technical — like Bill C-11 — for governments to attach regulatory frameworks in advance. With Bill C-10, the precursor bill of Bill C-11, if you remember, at the final stages of that bill, under a lot of pressure from work in this chamber, the government came out with a framework at that particular point in time. It wasn’t a very good one, but they came up with a framework. It doesn’t require tossing it to the CRTC for two years.

But I don’t want to digress. I want to get to my follow-up question because there are a lot more problems with this bill than just user-generated content.

When we’re reforming the Broadcasting Act, one of the main pillars that needs to be reformed, which was not even looked at in this bill, is CanCon. My question to you, government leader, is the following: How could a story written by Margaret Atwood, The Handmaid’s Tale, with Canadian actors, filmed in Canada, with a Canadian director and so on and so forth — how could something like that, in the eyes of this current bill as we want to pass it, not qualify as Canadian content?

Senator Housakos: We tried to move amendments at committee dealing with Canadian content, and they were rejected. They were rejected and, by the same token, it’s part of the parliamentary process. Now, again, if you don’t want to answer the question, it speaks volumes, government leader, how the government is negligent in doing an in-depth dive on dealing with Canadian broadcasting.

Senator Housakos: It does not address my concerns, and it did not address the concerns of all of the digital-first content producers who came before our committee. You were a diligent part of that process.

With all due respect, pop-ups and advertising strips do not drive content. That was also validated by the platforms themselves when they came before our committee. There was never an ambiguity that there is only one way to drive outcomes, and that is algorithmic manipulation. That is clear in the report. There was no witness that called that into question — not the platforms themselves and not the CRTC chairs themselves.

Furthermore, the problem we have, as we’ve seen in history, the CRTC has full discretion in the old Broadcasting Act and they do today. The CRTC chair admitted that he has full authority in order to implement the Broadcasting Act. We had an example last year when the CRTC censored a particular program and a journalist at Radio-Canada because a word was used that was deemed inappropriate by the CRTC. They had the power with the old Broadcasting Act to censor that journalist. I will not get into the details and I will not use the word because it is inappropriate, but it is an example of how the CRTC has the power to censor. We should be very careful. And why are we fearful?

Hon. Leo Housakos: Honourable senators, it is an understatement to say that this legislation has been contentious. I would like to start on a positive note by pointing out two things upon which I think it is fair to say that we all agree: that the Broadcasting Act is in desperate need of modernization, and that Canada has a rich culture and incredible talent pool of artists who should be shared with the world.

I disagree with the government and some of my colleagues as to how we go about doing that without compromising the individual choice that is at the core of what is offered by the internet.

The online world is known as low to no barrier for creators and storytellers and consumers. That is what makes it so great.

It is all about options with the internet providing limitless opportunities for creators and consumers to reach each other based upon their own individual choices.

Best of all, one person’s choice does not affect the ability of another person’s choice to see content based upon their own preferences and choices. One creator’s success does not come at the cost of another creator’s success. That is the difference between the internet versus traditional broadcasting and is, perhaps, the thing that us Boomers are having the most difficulty wrapping our heads and hearts around.

That is the overarching problem with this legislation. The government and the bureaucrats who wrote the bill and, quite frankly, many of us in this chamber, continue to wrongly treat the internet as a form of broadcasting. It is far from that. It is imperative in the context of our work here that we understand the differences.

As Vivek Krishnamurthy from the University of Ottawa stated during our pre-study at committee:

There is only so much . . . spectrum available for linear broadcasting or bandwidth on a traditional cable connection, so certain kinds of restrictions on content are more justifiable in a broadcasting context than an internet . . . context.

He went on to point out that with no spectrum scarcity in the online world, an individual can watch as many cat videos as they want on a platform without affecting the ability of other people to see different content online as well.

Unlike traditional broadcasting, where there are only so many minutes in the broadcasting day and where there are only so many slots available, the slots on the internet are infinite and, as I said, one person’s success doesn’t come at the price of another person’s success, as is the case in traditional broadcasting.

Instead of modernizing the Broadcasting Act in a meaningful way to address the realities of the digital world, what this legislation is actually doing is ignoring the realities of the digital age and seeking corrective action to problems that no longer exist.

What Bill C-11 does is put limits and barriers back in place and perpetuates a system of picking winners and losers by dictating, based on factors other than individual user preference and choices, what Canadians should post and what Canadians will see. I’m not out to lunch to say that; it’s the entire point of this bill. This legislation will affect what pops up in the feeds of Canadian users — all of us. It’s the entire foundation of the bill. The government has clearly stated that as its objective and goal.

Everyone in this chamber who has spoken in favour of it has acknowledged that’s the point of this legislation. It’s to ensure that online undertakings promote and showcase content based on criteria laid out by the government through its regulator.

Instead of consumers deciding what shows up in their feeds, it will be decided by government, by bureaucrats at the CRTC and by other gatekeepers who don’t want to lose their grip on their power to pick winners and losers under what we’ve acknowledged is an antiquated structure and is failing.

In so doing, we will be taking the industries in which Canadian creators are currently thriving, and we will be dragging them back. The question is: why? If you truly believe, colleagues, like Senator Dawson claims to believe, that Canadian stories, Canadian culture, Canadian music and Canadian creators are in need of government intervention in order to thrive in the digital age, I would say you’re not paying attention.

I understand the reflex of what is supposedly the central rationale for this legislation, which is to protect our cultural sovereignty and ensure that foreign streaming companies who operate like broadcasters and make money in the Canadian marketplace “pay their fair share.”

It sounds admirable. The problem is I don’t believe it. I don’t believe it’s necessary, and I don’t believe that is the true impetus.

Echoing Senator Dawson — or perhaps it’s the other way around — the minister responsible for this file, Minister Pablo Rodriguez, would have us believe that our film and television industry is bleeding money and losing out on some imaginary windfall of $1 billion. I say “imaginary,” colleagues, because neither the minister nor his department have ever been able to provide any documentation of where that number comes from. It’s mythical, colleagues, to say the least.

That didn’t stop the bill’s sponsor once again in his remarks earlier this week giving his best Oprah Winfrey impersonation, handing out everything but cars to everybody.

It is a fact that conventional broadcasters in Canada are seeing a decline in revenue and, in turn, entities like the Canada Media Fund don’t receive the same amount of money they once did. Dollars are scarce, colleagues.

However, this notion that foreign streamers aren’t paying their fair share is as completely inaccurate as the myth of a magical billion-dollar windfall once this legislation passes. Investment in Canadian productions, Canadian culture and Canadian storytelling isn’t drying up. Colleagues, on the contrary; the investment is there. It’s just no longer taking the more tortuous and long and winding road. The gatekeepers are being cut out of the process.

I could argue that by cutting out the middle men — the gatekeepers who decide winners and losers — there’s actually more money for the artists and creators themselves. That’s not a bad thing. That should be our objective.

According to Wendy Noss of the Motion Picture Association — Canada, the organization spent more than — listen to the number — $5 billion across Canada just in 2021, accounting for more than half of all production in this country and 90% of the growth in the sector over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented creative workers and supported more than 47,000 businesses in 2021 alone. This so far exceeds the footprint, colleagues, of government-supported corporations like the CBC that it should give us all pause and reflection.

Our committee was told that right now in the film industry right across Canada, there aren’t enough people to fill the jobs. Like almost every other sector, the film industry is struggling through a labour shortage.

However, despite this impressive economic footprint and success that these companies have in Canada, our government is asking them to pay more into our paternalistic system that supports domestic companies. Meanwhile, Canadian broadcasters draw benefits and protections that the foreign streamers will not, even while paying into the same central pie. Does that sound like a fair playing field, colleagues? Does that sound like a good legislative approach to broadcasting and communications?

The U.S. government certainly doesn’t think so, as outlined earlier by Senator Plett. As a matter of fact, far from backing off their concerns that this legislation is in violation of the Canada-United States-Mexico Agreement, or CUSMA, their concerns appear to be growing, and it’s being reported that it could even be a topic of discussion when President Biden makes his first official visit to Canada. That is nothing to scoff at, colleagues; this is very serious business.

If indeed the U.S. employs retaliatory measures against Canada, what industries will suffer as a result? That’s the question. We will be picking winners and losers not only in our own cultural sector but affecting other Canadian economic sectors as well.

So what is it about the outdated definition of what is or isn’t Canadian content that is so problematic?

Unlike conventional broadcasters in Canada, who have the advantage of using localized sports and news programming to count against their minimum CanCon requirements, online streamers are global undertakings and they can’t do that. Meanwhile, these streamers don’t get credit for the investments they do make in Canadian storytelling and supporting Canadian artists because the IP ownership is a determinative factor in CanCon.

If this is really about foreign streamers paying their fair share and reinvesting in Canada the money they make off the Canadian marketplace, why is it that the millions of dollars a foreign production or streaming company is willing to invest in telling a Canadian story and in employing Canadian artists, writers, actors, producers, editors, camera people and audio techs is not good enough unless they also hand over ownership of the product?

At the end of the day, isn’t it great that foreign investors from California, Paris or London want to come to Canada and invest in Canadian culture? Isn’t that an impetus? Isn’t that a success story that we need to build on?

This is notwithstanding the money they are often pouring into our economy in Canadian towns and cities. How many of our cities and regions of the country have seen direct profits because of the movie industry that’s just booming — documentaries, films, productions of all sorts right across this country — not to mention the tourism benefits because of the exposure that certain regions of our country are getting right across the globe?

This isn’t about protecting or promoting Canadian culture and Canadian artists. This is about protecting the big broadcasters in Canada. Colleagues, let’s be honest; this is what it is. And if we haven’t caught on, it’s time to catch on. It’s about protecting the status quo. It’s about those guys in the corner offices at Bell Media and at Rogers and Quebecor.

We did adopt an amendment at committee that addresses the outdated definition of what counts as Canadian content. The amendment states that no one factor, including IP ownership, should be determinative as it pertains to CanCon. I strongly urge the government to do the right thing for Canadian culture and storytelling and adopt this amendment.

Colleagues, we’ve heard during committee how we have a case like “The Handmaid’s Tale,” written by a famous Canadian author, being filmed on Canadian soil, starring Canadian actors and employing Canadian producers and what have you, and it’s not considered CanCon. Come on; Margaret Atwood is not considered CanCon? Let’s get with it.

However, that still leaves a lot of questions about the niche streamers that offer exclusively foreign content, like BritBox, for example.

It remains unclear how this legislation will impact them and, thus, what’s on offer to Canadians through streaming apps. Does this mean streamers like BritBox won’t be allowed to operate in Canada?

The answer is yet to be determined, colleagues — not by us but by the regulator, the CRTC. I don’t know about you, colleagues, but that makes me extremely uncomfortable. It’s one thing to have an independent regulator; it’s quite another thing to cede our authority and responsibilities as parliamentarians in making legislation. This is not about frameworks, like Senator Simons said yesterday in response to a question that I asked her. We’re not talking about frameworks. This is not a motion. This is legislation. This is a bill. This is far more significant than any framework.

I’d like to shift to another part of this legislation that greatly troubles me — it’s the other part of the government’s stated rationale for this legislation. They say they want to ensure access to and remove barriers for under-represented artists and creators in Canada, and who would argue against that?

Unfortunately, again, I’m not convinced that the bill — in this form — does any of that, nor are the very creators themselves convinced. That was abundantly clear throughout our committee study. We heard it from BIPOC and Indigenous creators, as well as francophone creators who also appeared at our committee. They told us that they’re enjoying great success online because it is barrier-free in ways that traditional radio and television never were. That’s almost word for word what Darcy Michael told our committee. Darcy Michael, a self-described gay, pot-smoking comedian from British Columbia, wowed our committee with his lighthearted yet earnest and passionate testimony about how much better he’s doing in the online world where he owns everything he creates versus CTV having the rights to his previous television content.

The witnesses who objected to this claim — that creators aren’t better off in the digital age — were associations and lobbyists; it was not the creators themselves but their gatekeepers, the middlemen, the ones who are at the trough, not producing art or culture — but the gatekeepers.

This brings me to the debate earlier this week following Senator Richards’ remarks. I do think there is a certain level of romanticism about how much of the role these institutional supporters have played in the success of some of Canada’s great singers, playwrights and actors. Senators rose to talk about this Canadian, or that one, who supposedly would have never risen to their level of success without government intervention and government handouts. My question is as follows: How many amazing, talented Canadians didn’t make it because a gatekeeper somewhere along the way decided — for whatever reason — that they weren’t worthy or good enough for their support? We’ve never heard of those success stories, so why would we want to hold on to that system of picking winners and losers when we no longer have to?

[Translation]

Senator Miville-Dechêne, I respect the fact that things are a little different in our province of Quebec. I understand the concerns that you raised, just as I admire and respect your fierce defence of Quebec artists. I think that you raised a very important issue when you spoke about the generational conflict and Quebecers’ nostalgia for the quota of 65% of francophone music on Quebec radio. I sincerely believe that that is part of the problem with this bill. It tries to re-create something that worked in the past but that no longer applies in the digital age.

You spoke about young Quebecers who no longer listen to local artists. Perhaps they don’t listen to the ones we know, but that doesn’t mean that they aren’t listening to Quebec artists simply because they aren’t the ones in our preferred data set. It also doesn’t take into account all of the people around the world, outside Quebec and Canada, who now listen to Quebec and French-Canadian artists.

Once again, I assure you and I repeat that I understand and respect what you’re saying about Quebec singers and musicians. I understand why the amendment you proposed to section 4 in committee makes sense in that context.

[English]

In fairness, I do think your amendment is an improvement, but I also think we could have gone a lot further. And I am disappointed that Senator Plett’s amendment earlier today — just a moment ago — was defeated on this floor. However, I did support your amendment at committee and still do today. The concern I have is that it still leaves an awful lot of discretion to the CRTC.

Part of the problem with that is while the government continually uses the catchphrase, “Platforms are in; users are out,” that’s not how the internet works, colleagues. Users of a platform are directly affected by any regulation imposed on the platform itself, especially when it comes to something like discoverability. Platforms are empty shells. They’re just highways. The beef and the meat are always filled by the digital‑first content producers — the Canadians right across the country that provide content on those platforms.

The other part of the problem is that I’m not convinced the regulator is hearing it — no matter how many times the government says it. You may recall this very telling exchange between Senator Wallin and then-chair of the CRTC Ian Scott when he appeared before our committee this past June. Remember, this is the CRTC that will be given full leeway to interpret and create the regulations.

Senator Wallin said this to Mr. Scott — and this is very important, colleagues:

I know that you, the minister and other officials insist that you’re not regulating user-generated content, but I think there’s a bit of parsing the words. You will regulate the platforms, and then the platforms will impose your rulings and directives, as you said. You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly and explicitly or indirectly, but you are regulating content.

The response from Mr. Scott was “You’re right.”

This has become an absolutely pivotal issue, as supporters of the bill attempt to defend a provision in the legislation that clearly has much broader implications than they want us to believe it does.

Mr. Scott wasn’t alone in his interpretation, by the way; another former chair, Mr. Konrad von Finckenstein, said it too. Even when Mr. Scott and other CRTC officials appeared before committee a second time at the end of our study, they were not able to assure us that they can enforce discoverability requirements on online platforms without those platforms having to manipulate their algorithms. Lest there be any doubt that the government and the CRTC understand exactly what they are saying here and what it will mean in practice, allow me to further quote Mr. Scott during his testimony before our Senate committee:

I will give you simple examples. Instead of saying — and the act precludes this — “We will make changes to your algorithms,” as many European countries are contemplating doing, we will say, “This is the outcome we want. We want Canadians to find Canadian music. How best to do it? How will you do it? I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome.”

That’s the former CRTC chair.

Let me repeat that last part: “I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome.”

Mr. Scott is saying that this legislation allows him to say to the platforms, “We, the government, won’t manipulate your algorithm; we’ll just make you do it for us.”

Colleagues, this is serious. He is acknowledging that although there is text in the bill that says the regulator can’t force a platform to employ algorithmic manipulation, they see a way around it for the regulator. In court, we would call that a clear and recorded admission of intent.

While it’s all well and good for the government — and for us as parliamentarians — to talk about what is or isn’t intended with this bill, unless we make it crystal clear, ironclad in the legislation itself, and do our job in giving directives to the regulator, we won’t have a leg to stand on if the regulator interprets it otherwise.

The time and opportunity for Parliament to make its wishes clear are now. Now is the time to do our job. Whenever Parliament delegates — whether to regulation or another body — it loses some degree of control. If we wish to retain that control, we must make our intentions crystal clear. We must eliminate discretion by specifying the rule, or we must subject the rule or rules to parliamentary control, for example, through affirmative resolution or tabling before coming into force.

Obviously, anything we do at the statute level remains much more frozen in time, so responding to new or urgent situations is often difficult, especially if they arise when Parliament, for a variety of reasons, is dissolved. But this is the Broadcasting Act, and deciding whether particular content should be scoped in or what content should be prioritized is not something that would occur in an emergency situation.

I understand the argument that the regulator needs flexibility in some areas — but in this area, colleagues, I don’t think so. Flexibility is the entire problem with this legislation. What it needs, especially as it pertains to user-generated content and algorithmic manipulation, is clarity, certainty and no ambiguity. While I’m not convinced we seized the opportunity to fully address it with clause 4, I do believe we have another opportunity to address it in clauses 3 and 10. I believe we can do so by removing the requirement on platforms. I believe we must make it clear that individual user choice is paramount to government intervention in what we consume and post online, and that’s why I will be proposing an amendment as it pertains to discoverability.

For anyone who isn’t sure what we’re talking about when we say “discoverability,” colleagues, it’s the promotion of some content over the other. It’s a tool that allows users to discover content that is available to them through what’s often identified as a feed. Think of YouTube. We all know what that is. We’re on it often. When you watch one video on YouTube, you’ll see others in the queue where it says, “Suggested videos.” That’s discoverability. It’s done through algorithms. Typically those algorithms are tailored to put additional content in front of you for your consideration based on where you’ve already been, what you’ve watched and what your preferences are.

What the government wants to do with Bill C-11 is make sure the content that gets higher placement in your feed — in your suggested videos, for example — is based on whether they think it counts as Canadian culture, Canadian storytelling or whatever they deem to be appropriate or a priority.

It’s one thing for the government and parliamentarians to say that we should make sure that Canadian culture and storytelling are available or even to say that we want to make sure that Canadians are exposed to it. It’s quite another thing to legislate and force it down people’s throats. We are dangerously close to doing just that in this bill in order to achieve a government’s idea of what is or isn’t acceptable content under the guise of cultural sovereignty and Canadian storytelling. As Senator Richards said in his remarks earlier this week, it’s censorship passing itself off as inclusivity.

Even if you sincerely believe the government has the best of intentions and that the regulator will adhere to those intentions to the letter, what happens if they don’t? That’s the question mark. Forget parliamentarians not having any recourse. What recourse will Canadians have to say, “Hey, that’s not what the act was supposed to do. That’s not what we were told”? What should they do? Appeal to the CRTC? I’m sure it all sounds fine to those who implicitly trust large government bureaucracies. But as my colleague Senator Batters mentioned yesterday in quoting Monica Auer, Executive Director of the Forum for Research and Policy in Communications:

In terms of accountability and transparency, the problem with the CRTC right now is that it is not making its decisions public. Every year, it’s publishing dozens of decisions that you can’t see because there’s no hyperlink and they don’t publish. When we say that the CRTC is transparent, it is simply not. It is holding public hearings without witnesses. I’m sorry — you’ve been very kind to invite me — but the CRTC chooses not to invite anybody to some hearings, including transfers of ownership.

I’m particularly taken by this quote from Ms. Auer because while there’s a lot of apprehension among my colleagues about the absence of transparency as it pertains to algorithms employed by online platforms, there appears to be very little similar anxiety about the lack of transparency on the part of the regulator we’re entrusting to handle all of this. It is, shall we say, a bit rich.

While I do agree that Canadian consumers have a right to greater transparency, I don’t share in the hand-wringing over what’s behind the algorithms. The online platforms use algorithms to prioritize content for users, typically based on that user’s past consumption. Like any business, these platforms pay attention to the behaviour of their customers. They pay attention to what they like or don’t like, and they adjust what they offer to the customer accordingly. It’s like having a personal shopper who narrows your options for you based on what they already know you like instead of you having to go through all the racks. It’s called customer service, colleagues.

Senator Miville-Dechêne actually used a similar analogy about how things end up at the bottom of the barrel or the back of the closet. But I think our job is to make sure that there’s nothing in the regulation or law that impedes you from browsing through all of those racks and digging to the bottom of the barrel. Something has to be at the back of the closet or at the bottom of the barrel. I just don’t think it’s the job of the government to tell a store owner or customer what that should be, nor at what stores they should shop, for that matter. That’s social media in a nutshell — endless options, endless opportunities and companies that will tailor their product based on your preference. But you are in the driver’s seat. You decide. Nowhere in there is there a role for the government — nor should there be.

Senator Miville-Dechêne, you mentioned that you don’t know if perhaps any algorithm is influenced by a partnership between an advertiser and a platform. What if it is? So what? It happens all the time in retail, and it happens in traditional broadcasting and cultural events. As a matter of fact, is it any different than when the government is sponsoring content or providing subsidies? Is it different? It’s not. With this legislation written the way it is, an arm of the government would be compelling platforms to change the way they do business to retain customers.

We’re also interfering with the business of Canadian digital creators and we are interfering with their livelihoods. As Morghan Fortier, CEO of Skyship Entertainment — perhaps Canada’s most successful exporter of Canadian content on YouTube — told our committee, when you tamper with that, you are essentially doing the same thing as tampering with the ability of radio stations to access ratings information and to adjust their playlists or on-air talent accordingly.

Most legislators wouldn’t dream of advocating that level of interference in private sector marketing, yet that is exactly what we are considering in this bill. Why would we do that and why do we continue to impugn the motives of these companies? Why do we assume nefarious motivations on the part of these platforms when it comes to the conduct of their business that we wouldn’t assume of other businesses like radio stations or bookstores or, for that matter, that we’re not supposed to assume on the part of the government?

You said it yourself, senator. Unlike me, you don’t place blind trust in the free market. And unlike you, I don’t place blind trust in government. I’m sorry. That’s where we differ. Ultimately, I’m in favour of placing greater trust in users of these platforms to know what they want to watch or listen to or promote. I have faith in Canadians to make the choices that they want — I believe in choice — and to judge for themselves what platforms are meeting those needs. It’s an argument in favour of consumer choice and having confidence in Canadians to promote what they think is worthy of promoting.

I heard the arguments in committee by colleagues and departmental officials that there are other ways to achieve the desired outcomes without algorithm manipulation, despite testimony from creators, users, the platforms and the regulator itself saying otherwise — and despite the fact that nobody has clearly stated what all of these other means might be.

Mr. Scott, who was chair of the CRTC at the time, referenced the consultative process that would follow upon the passage of this legislation. He noted that this process would play a central role in determining how platforms could and should best achieve particular outcomes. However, for many of these platforms, there just isn’t enough screen real estate to accomplish the kinds of outcomes we are talking about without algorithmic manipulation. These platforms don’t allow the option of having tabs or drop‑down menus that allow the content to be divided into genres and thus passively promoting or showcasing Canadian content. Many don’t even have the screen real estate to have a sidebar running — like Google — with numerous videos from which to choose. They just populate your feed.

That’s the point that Jennifer Valentyne, Scott Benzie, Justin Tomchuk, Darcy Michael, Morghan Fortier, J. J. McCullough, Frédéric Bastien Forrest and so many more have all made during their testimony before our committee. Colleagues, you saw how acrimonious and divided Canadians are generationally on this bill. The government has overwhelmingly taken a side in supporting traditional cable and traditional broadcasting companies when they themselves have shown their model not to be effective anymore.

That’s not all, colleagues. The consumer experience will be further impacted by the prohibitive cost of regulating user‑generated content by ensuring discoverability in the manner described in this bill. Not only will the higher costs to the platforms be passed on to consumers but, in some cases, they could lead to some platforms pulling out altogether from the Canadian market.

That is a fact, in particular for smaller platforms that serve diaspora communities in Canada from abroad or niche streamers like the aforementioned BritBox. They may very well decide they can no longer afford the cost of doing business in Canada. The consumer experience will also be negatively impacted because they will lose trust in the system. They will be seeing more and more content that is not based on their likes and interests. While it may sound like an enticing prospect to force people out of their comfort zone, I assure you that it will have a negative impact in the long run.

Those negative impacts will be felt mostly by the very people this bill purportedly is designed to protect and promote — Canadian artists and creators. There is a risk that many consumers will tune such content out altogether. They will go elsewhere to find what they’re looking for unimpeded.

As YouTuber Justin Tomchuk told our committee about forced Canadian content:

CanCon content will perform poorly on the platforms because the audience will be mismatched with their interests. You can force a video to play, but you can’t force them to watch it. Canadians will click away and learn to actively avoid CanCon.

That is very important, because that is precisely what we’re seeing now with conventional broadcasting. Viewership in conventional broadcasting is down dramatically because consumers now have choices as a result of streaming. They no longer have to consume what’s being forced onto them. That’s not the fault of streaming platforms, nor is it an indictment of the quality of Canadian content elsewhere. How many of you, over the holidays, are watching Netflix instead of going on your local CTV broadcast or Quebecor TVA broadcast? It’s a choice. It’s your right.

Mr. Tomchuk also explained another risk for Canadian digital creators if algorithms are manipulated to satisfy CanCon discoverability. If content is promoted or discoverable based on something other than what the consumer wants to see or may like based on their previous habits, they will click on it, realize it’s not something they want to see and then quickly move on without watching to its completion. It’s called click, guys. You’re not interested? You just click. If you’re not interested, you click off. If you’re interested, you click on. This will drive down the audience retention rate on that item, and in turn the lower retention rate will drive down the global ranking, thereby driving down its discoverability.

Canadian artists and creators who are enjoying immense success globally will see their success greatly diminished in exchange for the possibility of success at home. As a recent editorial in the Financial Post put it:

Even if Bill C-11 helps them find a little more success here at home, and there’s no guarantee of that, it could be to the detriment of any success they might hope for beyond Canada’s borders.

This will be exacerbated by the threat of other countries responding to the passage of this legislation in kind and enacting their own protectionist laws that will see Canadian content blocked here at home. All of the success and opportunities that our artists and creators are enjoying as a result of the world opening up to them through the barrier-free advent of the internet will be gone. The freedom of the internet is incredibly empowering. As one witness testified, all creators face the same challenges in gaining a following, but the internet is a level playing field in terms of access.

I understand some senators felt the need to leave clause 4 in the bill to protect songwriters and singers and musicians against music labels streaming their music without properly compensating them. What I took away from our committee, though, is that those protections were already available to them through copyright in this country and through their contractual obligations, and is otherwise not something Bill C-11 should be addressing. That’s why I still believe that the right thing to do is to remove user-generated content from this bill altogether.

However, barring that, I do believe that we still have the opportunity to improve this legislation by removing discoverability and algorithm-manipulation provisions. That’s what my amendment will be focusing on.

In closing, before I get to my amendment, I just wanted to say that the Canadian entertainment and creative industries are thriving. It’s the antiquated system of delivery and, certainly, funding that’s on life support and so, too, should be the old regulatory system. It’s a system that worked well once upon a time, to varying degrees, because it was designed for conventional broadcasting that mainly stopped at our national borders. But it has served its purpose. Its time and usefulness have come and gone. It is certainly not needed when it comes to digital creators and user-generated content.

The creators themselves are telling us that. They’re begging us not to force the old regulatory regime on them. They are showing us that, unlike under conventional broadcasting, they don’t need us. What they need is for us to stay out of their way and for government to stay out of their way. They’re imploring us to look at their success and acknowledge that this success is the result of producing quality, interesting, innovative content that people want to see and hear.

If we leave discoverability in this bill, we are saying that we don’t think that Canadian creators are capable of doing it on their own. We are saying that we don’t think that what they produce is all that interesting on its own and that it won’t succeed without our intervention, especially marginalized and under-represented creators like Indigenous and BIPOC and francophone artists and creators. Frankly, it’s not only disheartening to these creators; it’s extremely paternalistic. If the goal is, as the government states, to remove barriers and ensure promotion and discoverability for under-represented creators, the answer is simple: Don’t put barriers where there is currently none. And don’t leave it to the government or the gatekeepers to decide whose content and what content Canadians should be consuming.

As stated in the Financial Post editorial recently:

If government bureaucrats get to choose what content to push on Canadians, there’s a very real risk the government will be tempted to use its filtering powers to silence its critics.

That might sound like a great idea to people in this chamber, especially in the context of what they consider to be hateful rhetoric on the internet or political views that are not appreciated, but will they be just as fond of it when it’s not a Liberal government in power in a few months?

With that, colleagues, I want to draw your attention to the existing text of subclause 3(7) on page 8, at line 31. It states:

(q) online undertakings that provide the programming services of other broadcasting undertakings should

(i) ensure the discoverability of Canadian programming services and original Canadian programs . . .

My amendment will replace the word “ensure” with “allow.” Doing so would encourage online platforms to make Canadian content available but without forcing a streamer like BritBox out of the Canadian market.

Furthermore, it doesn’t entirely remove the reference of discoverability but replaces the word “ensure” with “allow” in order to give flexibility to the platforms so that they can avoid algorithm manipulation.

The second part of my amendment affects clause 10, on page 14, in lines 26 to 30, outlining the CRTC’s obligation to regulate as follows, in proposed subsection 9.1(1):

(e) the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French-language programs . . .

My amendment will remove all of the text after “for selection by the public.”

I am moving this amendment to Bill C-11 in one more attempt, in a last-ditch effort, to protect the right of Canadians to determine what they post and what they see online. It will remove for online platforms the threat of having the government or the CRTC dictate what their algorithms should be or what content should be prioritized while making other content less discoverable.

Essentially, allow Canadians their choice. Allow the system to function as Canadians want it to function, in terms of what they see, what they hear and what they post.

Senator Housakos: Senator Dawson, will you agree that at that same study we had at committee, the former chair of the CRTC, when he came before the committee, made it clear he has authority under the old Broadcasting Act and the current piece of legislation to force platforms to manipulate algorithms in order to get certain results when it comes to user-generated content? Is that true?

Senator Dawson: I don’t want to repeat what we did during the two-and-a-half years that we have been debating this issue in which people have been trying a little bit of fear-mongering by saying, “We are going to take away the right of people to create, and the right of people to express themselves.” This is not the objective of the bill. It never was. I don’t know how many times we have to tell you, Senator Housakos, that is not going to — I am trying to be creative, and — I know there was a strong political objective on your part — and everybody here knows that it was a very good fundraising period for you to go on television and talk about this bill — but the reality is that you have been raising issues that are not true for Canadians in that bill. I am sad to have to say that, in the last few weeks of being here, it is the first time I have seen you in such an approach — because you have always been quite transparent on what you do — but, on this bill, I don’t know why you decided to be very aggressive. As chair of the committee, you certainly did not — and we accepted every person you asked us to listen to. We accepted every digital creator that you put on our list. Every single last one of them came to committee, and we kept telling them, “Somebody told you this, but it is not true; you are not going to be controlled by this bill.” You can continue saying it again, but it is still not going to be true because you will repeat it in your speech later in the week.