Hon. Pierre J. Dalphond: Dear colleagues, allow me to explain why I support Bill C-11.

I should point out that I don’t intend to comment on each clause of this bill or on the proposed amendments.

I also won’t be commenting on the important role that the Broadcasting Act has played in supporting and developing Canadian culture, whether in French, English or Indigenous languages or in languages other than the official and Indigenous languages. Others who spoke before me did so enthusiastically, including our new colleague, Senator Cardozo, and one of our longest-serving members, Senator Dawson.

I will only speak to one issue, which I consider to be at the heart of this bill, and that is the discoverability of Quebec and Canadian cultural products on the most well-known platforms.

First, I would like to make it clear that I do not believe that there is a vast conspiracy among platforms to make English the universal language and promote certain American values.

A 2009 UNESCO report entitled “Twelve years of measuring linguistic diversity in the Internet: balance and perspectives” noted that the presence of English on the internet had fallen from 75% in 1998 to 45% in 2005.

More recently, the Observatory of the Linguistic and Cultural Diversity in the Internet, an organization that is part of the Organisation internationale de la Francophonie, reported that in 2021, the share of English as an overall percentage of all pages available on the web was no more than 26.5%.

This shows that web content is becoming more and more diverse. The virtual warehouse, so to speak, is getting bigger and bigger and contains more and more products in different languages.

Another important statistic that stuck with me has to do with internet penetration. According to 2020 figures from internet World Stats, only 35.2% of French speakers worldwide have access to the internet, while 77.5% of English speakers, 70.4% of Spanish speakers and 53% of Arabic speakers do.

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The reason for the lack of internet access among French speakers is the low internet connection rate in French-speaking Africa, which is currently just 41%. It is estimated, however, that by 2060, internet penetration will be 85% among African French speakers. As Senator Gerba already pointed out, Africa is vital to the future of the Francophonie. There is no doubt that gradually connecting hundreds of millions of francophone Africans will create a need to produce many French-language cultural and other products, which will increase the amount of francophone content on the internet. I am delighted about that.

Of course, the existence of French-language online content is a prerequisite for the consumption of French-language cultural products. If none is available, if there is nothing on the shelves, then nothing will be consumed.

It should be noted that although English-language content no longer represents the majority of the content available — far from it — that is not the case when we look at content viewed. In fact, 61.1% of the most visited sites are in English, according to the September 2022 edition of the W³Techs Web Technology Survey.

Another study found that 85% of streams on Spotify are from 0.7% of the catalogue. There are several factors that may explain the over-consumption of certain products, including cultural products in English.

One of those factors is the smaller number of French-language platforms. That is why the member countries of the Francophonie, including Canada, launched the platform TV5MONDEplus in September 2020 to showcase French-language products. This free platform is like Netflix for the Francophonie. It enhances the online presence of television shows and movies produced in French, helps to promote the international Francophonie’s creations, and increases the discoverability of French-language content on the internet. TV5MONDEplus’s French-language productions are currently available in 196 countries.

However, another similar factor seems to account for the low consumption of French-language cultural products, and that is what are known as the platform’s suggestions.

A study found that 70% to 80% of the content watched on YouTube is based on recommendations. Users visit one page, and then they are given other recommendations and end up spending a lot of time watching.

As you know, these recommendations are made based on algorithms.

No outside experts, in either Europe or North America, have access to the details of the programming parameters of these algorithms, since the platforms consider them to be trade secrets. Europe is actually preparing regulations on this issue.

In light of this situation, researchers have begun measuring the discoverability of Quebec’s French-language cultural content on the main platforms.

In a March 2021 report entitled Être ou ne pas être découvrable?, the Université du Québec à Montréal’s research lab on discoverability and the transformation of cultural industries in the e-commerce era proposes the following definition of discoverability:

The system of “discoverability” is a set of processes that structure and determine the possibility and ability of audiences to discover cultural products online, i.e. to locate this content or have it presented to them, without necessarily searching for it in a vast database of content organized by prescription- and recommendation-based systems.

This definition emphasizes the multiple complex processes and dynamics that occur between an online consumer and a platform, as well as the impact these processes have on an audience’s propensity to discover products.

What I am about to say is an oversimplification, but basically, this complex and dynamic process is somewhat akin to product placement at your local supermarket. Often, the product that sells the best gets the spotlight. That product is strategically positioned, so there may be four or five competing products in close proximity to the featured product, but they are placed on the top or bottom shelf, where most consumers are unlikely to see them.

Sure, consumers have free choice because they’re the ones choosing the most visible, ideally positioned product, but we all know that positioning is the supermarket’s decision, whether it’s because the product’s profit margin is bigger or because the supplier paid for advantageous in-store product placement.

If the government chooses to intervene and require equitable positioning of all products, no one can seriously suggest that would impinge on consumers’ freedom of choice. One could actually argue that it gives them greater choice.

For products in an online platform’s warehouse, the shelves become algorithms. Without algorithms, these platforms would be more like massive libraries with no filing system.

These algorithms are growing increasingly sophisticated thanks to artificial intelligence. They can recognize each consumer, remember everything they’ve viewed for the past few weeks, months or even years, know how much they’re willing to pay when they make a purchase, and more. The algorithm is designed to anticipate the consumer’s latest needs and present content for their consideration.

In some cases, this is an entirely neutral operation that produces the result the consumer wants, even if the algorithm’s parameters aren’t verifiable.

As a result, according to them, interfering with the algorithm or even obtaining the details of these parameters is tantamount to threatening freedom of choice. That is what I have heard in several speeches over the past few days.

That assumes that the algorithm and its artificial intelligence are completely neutral and are capable of anticipating users’ needs in an impartial manner. That assumes that there is no possible cultural bias in the algorithm’s very complex programming.

That also assumes, of course, that there is no programming designed to boost clicks, watch time or the associated revenues.

Unfortunately, now and then, various investigations and revelations, particularly before the U.S. Congress, have proven these assumptions to be false. That is why the European Union and many other countries have decided to regulate the products offered by platforms in order to protect their country’s cultural specificity.

The scientific report published on March 8, 2021, by the research lab on discoverability that I spoke about a few moments ago shows that Canada needs to do the same for French-language cultural products. That report found that there are barriers to discoverability and pointed out the following problems.

First, there is no “Quebec category” on Netflix, iTunes, YouTube and the like.

Second, the presence of Quebec audiovisual content is very low, which explains why the algorithms do not find any or offer any. For example, none of the 29 Quebec films produced in 2016 are on Netflix. As for the 29 new films that were made during the study, 10 are on iTunes and 19 are on YouTube’s for-pay platform.

Third, there were hardly any Quebec films and shows available to stream on transnational platforms.

Fourth, new platforms such as Disney+, Amazon Prime and Apple TV contain little or no Quebec audiovisual content.

Fifth, lists of the latest Quebec songs can be found on most platforms, but they are not very visible and are rarely recommended. The situation is even worse for older hits.

Sixth, when it comes to streaming music, tests done from March to August 2019 showed that none of the “premium” streaming services met the very specific expectations of the example listener used for testing purposes.

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Seventh, the platforms do not provide any details on the content consumed in Quebec or the consumption of Quebec content.

In conclusion, both the content of the platforms and the reference algorithms led to poor results for Quebec cultural products.

In this context, it only makes sense to regulate Quebec and Canadian content on these platforms, as well as the discoverability of the Quebec and Canadian products stored on them. What I said about French-language cultural tools also applies to Indigenous- and English-language Canadian cultural tools.

That’s why I support Bill C-11, which will promote Canadian content and ensure that algorithms will also present these products and make them discoverable.

Thank you for your attention. Meegwetch.

[English]

Senator Dalphond: Once more, I am learning something from you. All the famous people come from Saskatchewan, obviously. The proof is made on a daily basis here.

Paul-André Crépeau was a great jurist who left us too early in his life. He left a legacy not only in his books, but he also founded at McGill University the Centre for Private and Comparative Law, which I think is one of the leading institutions. It was once led by Justice Kasirer, who is now at the Supreme Court.

I think Mr. Crépeau’s contribution and legacy are important. If he were looking at us today, debating in the Senate about the bijural nature of Canada, I think he would be proud of us — proud of a question from somebody from Saskatchewan and proud to see that ideas coming from Saskatchewanians are the ideas being adopted in Quebec and are the ideas that govern federal legislation nowadays. I think it is quite an achievement, and he would be proud of us.

(On motion of Senator Martin, debate adjourned.)

The Senate proceeded to consideration of the ninth report of the Standing Senate Committee on Indigenous Peoples (Subject matter of Bill C-32, An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 3, 2022 and certain provisions of the budget tabled in Parliament on April 7, 2022), tabled in the Senate on December 6, 2022.

Senator Dalphond: Bijuralism is a rather Quebec-specific concept. When I was in university, we did not have the Canadian Charter of Rights and Freedoms yet, but we had a lot of discussions about bijuralism and the need to harmonize federal laws with Quebec’s civil law. My professor, André Morel, wrote many articles on the subject.

When the federal harmonization policy was adopted in 1991 or 1993, but before bilingual drafting was introduced, a separate civil law unit was created at the Department of Justice. I believe that happened in 1991. It was a good sign. A deputy minister for civil law was appointed. I believe it was Justice Anne-Marie Trahan. When the bijuralism policy was announced in 1995, it was welcomed in Quebec. I attended many law faculty lectures, and I must confess that I own the three-volume collection published by the Department of Justice on lexicology, history and bijuralism.

Not enough people realize what Canada contributes. As a bijural federation, it is something of a rarity internationally. Our contribution, not only to common law in French and civil law in English, but to bijuralism at the same time, is entirely unique, in my opinion. In that sense, in Quebec and elsewhere in Canada, I think we can be proud. We are participating in two of the world’s great legal traditions, which is also fantastic. I hope that answers your question.

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[English]

Hon. Pierre J. Dalphond: Honourable senators, I, too, would like to all too briefly pay tribute to the Honourable Jean Lapointe, an important figure in Quebec, known for his songs and for his great talent as a composer, comedian, impersonator and actor.

Though he is dead, he will continue to live on in the hearts and minds of Quebecers through the lasting memories he created and his remarkable philanthropic institution, La Maison Jean Lapointe, which, for 40 years, has been helping men and women escape the clutches of alcoholism as he did himself.

He joined this chamber rather unexpectedly in 2001 and held the position for nine years as “a Liberal in quotation marks,” as he was fond of saying. He never liked political posturing in the Senate and he was not shy about speaking out about the ways time was being wasted, something that still happens all too often today.

As Senator Saint-Germain pointed out, in his maiden speech in the Senate, Senator Lapointe proposed to reduce the time spent on the “tributes occasioned by deaths,” which he described as interminably long. Mr. Lapointe, wherever you are today, we’re listening to you and we allocated only 15 minutes to your tributes when you deserve hours of them.

Even though politics made him “unhappy” and “disappointed,” in 2022, he still saw the Senate as “the guardian angel of the people, of minorities and of the poor.”

He arrived in Ottawa a declared and staunch federalist, and said shortly after his retirement that he understood the realty of the two solitudes, saying about Quebecers, and I quote, “We don’t think the same way, we’re not made the same way.”

In an interview with Patrice Roy from Radio-Canada television a few months ago, he said, “One day or another, Quebec will be independent. That’s my wish.”

Those who worked with him unanimously describe him as spirited and tormented, but very compassionate. He sung to Quebecers about things they could relate to.

To his daughter Anne Elizabeth, to his son, Jean-Marie, and to the other members of the Lapointe family, I offer my deepest condolences on the passing of one of our greats.

Thank you.

[English]

Hon. Pierre J. Dalphond: Welcome to the Senate, minister. This anticipated Quebec City-Toronto high-frequency rail project has been in the news. You announced it on the train that I take regularly, so I’m pleased to see that this project is finally being started. I hope that it will be completed before I retire so I have the opportunity to take it.

In any event, minister, have you planned for the participation of provincial and municipal authorities in this massive project? All the route changes required for a rail system that is more frequent, efficient and attractive than travel by automobile or plane must be coordinated.

[English]

Indeed, this is going to be a massive and complicated project that will need to involve provincial governments, municipal governments and Indigenous communities. For example, we’ll have to negotiate with municipalities about access to their downtown cores for the trains to stop there.

So there is still a lot of work that needs to happen. It is going to be complicated, as large projects of this scope tend to be. However, it is exciting to be involved in this work, because for decades, Canadians have heard governments talk about it; now, they’re seeing work being done.

Unfortunately, it takes time, because of everything involved in such a project. There is no magic button to push where we’ll find that such a project has materialized in front of us tomorrow. Like you, I hope I can use it before I retire, but we’re going to follow the process and we’re going to make sure that it is built, senator.

Hon. Pierre J. Dalphond: Honourable senators, I will be brief. I want to say that being together is important, and we have seen it this week. This chamber was busy, was full of people, and we have had the pleasure to be together. I know that the debates are much better when we are together in this room. I’m convinced that all my colleagues, from whatever side they are, in this room are looking forward to being back in this chamber to do the work together, including those that have to travel one full day to come here and one full day to go back home, while I have the privilege of not having that burden because I can drive back and forth in two hours.

That being said, I am also mindful that as we speak today, there are still thousands of people in hospitals in Quebec who are suffering from a new wave of COVID. We have some colleagues who are immunosuppressed or who have spouses or children who are also immunosuppressed. I think, at the end of the day, that this motion is a reasonable accommodation for the time being, until the end of June.

But I certainly agree with Senator Tannas and with Senator Plett that we should be together here and that the future is that we should all be back here to work together, because I believe in collegiality. I have seen it in committees. It’s not as it used to be and I look forward to having everybody back and enjoying being together and working together to improve bills, to do reports and to debate. Thank you.

Hon. Pierre J. Dalphond: Thank you very much, Senator Simons, for your very interesting speech and history lesson. You suggested that we wait for the situation in Quebec to be addressed, but maybe what we could do is include a clause at the end of Senator Patterson’s bill stating that the constitutional amendment proposed in the bill would take effect only when Quebec adopts a similar motion for senators from Quebec. This way, we could get the system set up, and as soon as the Government of Quebec says yes, we could make the change.

Senator Dalphond: Thank you. First, I’m impressed by the interest you have for that issue, which is an important issue, I must say. Today you have spoken to a bill that you have introduced, and that bill will amend the federal Constitution, in the sense of the Constitution of Canada limited to federal institutions. That can be done only by the federal Parliament amending its internal Constitution by an act of Parliament, which means three readings in the Senate and three readings in the House of Commons. It’s kind of a long process. What you are proposing, however, for Quebec is a motion that will require the consent of the Senate, a motion in the House of Commons, and a motion in the National Assembly, which is a slightly different process.

Would you agree that, in order to make sure that all senators are equal and remain equals in this chamber, that we should first move your motion to amend the Constitution, and if adopted by the other house and adopted by the National Assembly, then we should proceed to adopt your bill concerning the other senators of Canada?

Senator Patterson: That’s a very good question, Senator Dalphond, as ministers sometimes say when they are not sure how to answer a question. I agree with you that it would be desirable to have this provision applied to every province and territory in Canada. It would not be preferable to have Bill S-228 proceed in both chambers and have reform for every part of Canada but Quebec.

What you propose does appeal to me in that it’s logical. But what would like to suggest is that this chamber consider these two bills as companions and consider them together, which is why I am speaking to both the bill and the motion today. That’s my answer: Let’s proceed with the support of this chamber. Let’s proceed and treat them both together as interrelated and for the benefit of all of Canada. Thank you.

[Translation]

Hon. Pierre J. Dalphond: Thank you. Honourable senators, I would like to thank my colleague for raising interesting issues for Quebec senators.

As you pointed out, and as the Supreme Court has indicated in the Reference re Senate Reform case, this will require the consent of the National Assembly of Quebec. Do you think that one of the first amendments to the Constitution of Canada, especially for Quebec senators, will have any likelihood of success in the National Assembly?

Senator Patterson: Thank you for the question, Senator Dalphond. I would certainly not opine on political matters in Quebec. I would not dare to do that. My thinking about this is that I should first seek the support of the Senate for this modernizing amendment to the Constitution, and then let the Government of Quebec deal with that as they see fit.

I have, as you may know, met with I believe all Quebec senators, and I have also spoken to the Quebec government’s office here in Ottawa — they call it la maison du Québec — but that’s as far as I have gone. I would not venture to make an opinion on how that will be dealt with. One would hope that the Province of Quebec would be open to broadening the qualifications to include all of the regions of Quebec and to include every citizen of Quebec who is 30 years of age and otherwise qualified. Thank you.