Hon. Donna Dasko: I have a question for Senator Plett, if he would take it.

Senator Dasko: Thank you for the enthusiasm. Senator Plett, you have today offered high praise for the six amendments that were rejected by the House of Commons. You have lauded them, and you said that you insist on the entire amendment package.

However, senator, you did not support the bill with these amendments in it at third reading. I ask you, how can you urge us to insist on the 26 amendments when you yourself did not support them at third reading of the bill?

Hon. Donna Dasko: Honourable senators, I’m pleased to stand today to speak to the message received on Bill C-11, the online streaming act, from the House of Commons. I will be very brief today.

Colleagues, it’s a rare moment when a government bill comes back to us as a message, and it’s also rare for any bill to receive as much review, scrutiny, analysis and change as Bill C-11 has.

The process in this chamber, and in our Standing Senate Committee on Transport and Communications in particular, in examining this bill has been as thorough as anyone could hope for. The committee held 31 meetings, heard from 138 witnesses and received 67 briefs on Bill C-11. Virtually everyone in this country with any stake or interest in this bill was invited to committee as a witness.

Nine committee meetings were held to conduct clause-by-clause consideration, and this is a record number of such meetings. A total of 73 amendments were presented at committee, and 26 were adopted, covering a very wide range of topics.

Clearly, colleagues, in my view, we have completed our work, and, without question, we have been thorough and diligent. I am very proud to have been part of this process, and I thank all of my colleagues for their contributions. I thank all of the witnesses, as well, who came before us.

Now, let me turn very briefly to the government’s choices with respect to Senate amendments. As we know, the House of Commons, upon recommendation of the minister, has voted on a motion to accept 18 of the 26 amendments and to slightly modify two others. These amendments were accepted by a majority of members in the other place by a vote of 202 to 117.

The 18 plus 2 amendments accepted in the other place are substantial and significant. I am confident that all of our amendments received fair consideration. I supported the amendment on user-generated content that my colleagues put forward. I thought it was a reasonable and good compromise and a very reasonable way to deal with the topic and activity of user-generated content. Therefore, I was disappointed when this amendment was not accepted by the government.

After we received that notice on March 7, 2023, I discussed with officials the reasons that this amendment was not accepted, and I have to say that I am satisfied that the government’s choices were based on valid considerations. I note that the motion before us today reiterates that the intention of the bill is not to apply to user-generated content, and it’s important to remember that any decisions about the regulation of any user-generated content will involve an open process at the Canadian Radio-television and Telecommunications Commission, or CRTC, where I believe all of those affected will have a real say in the decisions and outcomes that are made.

Minister Rodriguez recently remarked that this bill has spent the most time in the Senate in the history of Canada. Even The Globe and Mail declared this past Saturday that Bill C-11 is the most debated piece of legislation in Senate history. Well, colleagues, it’s great to be part of Senate history.

We have made a huge contribution, and I feel it’s now time for us to move on. I feel our work is done. I will be voting for the message and the motion before us, and I hope you will as well.

Thank you.

Senator Dasko: Senator, as you know, there are many other ways that can be used to promote and showcase Canadian content. That is a topic that came up a great many times at our committee. The platforms can use various kinds of promotion, they can use advertising, they can use categories of presentation, they can use pop-ups — they have all kinds of other methods to showcase Canadian content.

When you take those opportunities, those possibilities, along with what I just read — which is very clear that algorithms cannot be ordered to be manipulated — and when you put these possibilities together, you actually have a very good picture of how discoverability can be carried out by the platforms. It seems to me to be very reasonable and would seem to address your concerns. Thank you.

Hon. Donna Dasko: Thank you, senator, for your very thorough speech. I wanted to remind you that Bill C-11 already includes an exclusion with respect to the use of algorithms. Whatever it is that the chair, now the former chair — whatever it is he may have said — and he did, as you quoted correctly, make these statements to our committee — you will know that clause 9.1(8) actually states:

The Commission shall not make an order under paragraph (1)‍(e) —

— that is the one you are suggesting be changed —

 — that would require the use of a specific computer algorithm or source code.

So, in fact, the bill, as it is, says that no algorithm manipulation will be allowed under orders of the CRTC.

I think your concern about algorithms is a little bit misplaced because, in fact, the CRTC cannot make a ruling on algorithms.

Hon. Donna Dasko: Honourable senators, I am pleased to stand today to speak to Bill C-11, the online streaming act, at third reading.

Our chamber and our committee have been working on this bill and its predecessor for close to two years. Introduced into our chamber in the Forty-third Parliament as Bill C-10, it died on the Order Paper in the fall of 2021 and came back to us last spring as Bill C-11.

As our Senate Transport and Communications Committee began pre-study work last June, many of us, including me, were concerned that the government’s apparent desire to pass the bill urgently might result in a truncated study process. Thankfully, that did not happen. I am grateful to everyone involved for that — to committee members for pressing hard for a serious study, and to the government representative for carrying through on his promise of a fulsome review.

We certainly had a fulsome review. Our work on the bill was as thorough as anyone could hope for. The committee held 31 meetings, heard from 138 witnesses and received 67 briefs on Bill C-11. Our witnesses included experts, government officials from several ministries, current and former chairs of the CRTC and stakeholders from across the industry, including broadcasters, digital creators, platforms, arts and cultural representatives, unions and representatives from diverse communities.

Nine committee meetings were held to conduct clause-by-clause consideration. We are told that this is a record number of such meetings ever held in the Senate. A total of 73 amendments were presented at committee and 26 were adopted. Amendments were passed covering a wide range of topics, including community broadcasting, privacy protection, Black and racialized producers, Indigenous producers, disinformation, user‑generated content, independent producers, Canadian content, French-language programming, innovation, audience recognition and CRTC processes such as requirements for hearings and reporting.

The most prominent issues in Bill C-11 that received the most attention focused on the regulation of user content and the potential intrusion into viewer or listener choices if algorithms were altered for the purpose of Canadian content discoverability. But there was so much more in this bill. The challenge of Bill C-11 for me was that almost every time I studied it, I found new issues that I felt needed to be addressed.

Let me provide some examples. Rather late in the process, I came to the realization that nowhere in the bill was there a recognition of audience interests and preferences. What Canadians wanted to see and wanted to listen to was not considered to be an element of our broadcast system. As former CRTC chair Konrad von Finckenstein pointed out, audience interests and preferences were simply not recognized as part of Canadian broadcasting, and they were never recognized in our broadcasting acts since the beginning of broadcast legislation.

Our history of broadcast legislation in Canada is about cultural priorities, cultural protection and producers — who they are and what they should or can produce. But how could it be that we have built a broadcast system without considering viewers and listeners as one of the integral parts of our system? It’s like having a transportation system without thinking about passengers. How can we have such a system? Who is our system for? How can we not include these people in our system?

In the end, the committee voted to accept my amendment to Bill C-11 that says that the broadcasting system must, as one of its objectives, reflect and be responsive to audience preferences and interests. In a similar vein, I was pleased that the committee also voted to recognize that innovation, specifically promoting innovation, should be a guiding principle of our broadcasting system — I’m thinking especially of my colleague Senator Deacon. That, too, had never been recognized in broadcast legislation. Imagine that: We’re talking about an area where there is huge technological change, and yet we had not considered that innovation should be considered a principle of our system.

Another example of how the bill revealed issues involved the very short, innocuous-looking clause 7(7) in Bill C-11, which began with the phrase, “for greater certainty.” This clause was easily overlooked. However, witnesses came before us and sent briefings with comments that, in their view, this was the most consequential clause in the whole bill. In contrast to existing law, which gave cabinet the power to direct the CRTC in broad policy matters, it was argued that clause 7(7) would give cabinet the power to give very specific and detailed direction to the CRTC and possibly create a two-tiered system whereby those with sufficient resources would have special access to the government to make their case.

This clause proved especially vexing for us to analyze because government officials argued that the clause would have almost no impact. There was major impact on the one hand, versus no impact at all on the other, so you can see how challenging it was to actually analyze this clause. In the end, the committee voted to remove clause 7(7). I think my colleague Senator Simons is going to talk more about this.

Bill C-11 was filled with issues like these that were not always apparent and yet proved to be extremely important.

With 31 committee meetings, 73 amendments presented and 26 accepted, it’s clear that committee members devoted much thought and effort to this work. Sober second thought was clearly achieved.

One of government’s most important roles is to respond appropriately to technological change. As radio and television technology developed as global technologies in the last century, Canadians understood that our closeness to the United States, our smaller population and the existence of two official languages would ultimately mean that Canadian voices would be lost unless we took special measures. Thus, a public broadcaster was created in 1932, and the first Canadian content regulations were legislated in 1958.

As consumer choice greatly expanded via private television networks in the 1960s, cable distribution in the 1970s and satellite in the 1980s, each of these new technologies came to be regulated under a regulatory framework, adjusted each time, while keeping fairly true to the original objectives.

The assumptions behind Bill C-11 are thus familiar. Canadian culture still needs protection, our broadcasting system is built on Canadian requirements and, therefore, the new online streaming services and technologies should also be brought under our regulatory framework. After rejecting regulation of internet broadcasting twice, in 1999 and 2009, with the rationale that tech innovation in broadcasting had to be encouraged, the government has now decided that regulation is needed.

Does Canadian culture still need to be protected from outside influences? That is a very difficult question to answer. I recently came upon an Environics Institute poll from last September, which shows that Canadians themselves are divided on that question, with 44% saying that Canadian culture needs more protection from outside influences and 47% saying we need to be more open to outside influences. However, the public is more supportive of creating a so-called level playing field, with two thirds of Canadians in a Nanos poll last May saying they support the idea that steaming services should financially contribute to creating Canadian content just like Canadian broadcasters do.

When it comes to regulating new technologies, however, we cannot assume that just because the technologies of the past were brought under this framework necessarily means that this effort will be a success. For me, that is the real conundrum of Bill C-11. Even though we have studied the thing to death, called superb witnesses and made many fine amendments, in the end, we don’t know whether this approach will work or work well. Will Canadian production increase and will diverse voices thrive, as we have heard from Senator Dawson and as has been promised, including the voices of digital creators who have expressed such concerns, or will innovation and the innovators, and new services and new technologies, be stifled by these rules?

The fact that these questions cannot be answered is not the fault of the legislation. These questions cannot be answered because we cannot predict the future. We here have done our work as best as we can and we have asked all the questions we can, but Bill C-11 represents a leap. We must take the leap or not. Each of us must judge for ourselves.

Thank you.

Hon. Donna Dasko: Honourable senators, I am pleased to stand today to speak at second reading to Bill C-11, which is called “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts,” otherwise called the “Online Streaming Act.”

This bill has been in the works for some time. Introduced in the Forty-third Parliament as Bill C-10, it’s now back as Bill C-11, with significant changes. Our Standing Senate Committee on Transport and Communications began pre-study work in June, and we returned to this work last week.

One of government’s most important roles is to respond appropriately to technological change. For much of our history, when it came to television and radio broadcasting, entry into the system was guided by something called “spectrum scarcity,” where consumer choices were limited by the technology of the day. The regulator would set conditions, including Canadian content requirements, in return for a broadcasting licence and the ability for a broadcaster to reap advertising revenues. That was and still is the business model of traditional broadcasting.

Does anybody remember the phrase, “a licence to print money”? That phrase was made famous not by the owner of a sports franchise but by the owner of a television broadcasting licence. That person was a Canadian — Roy Thomson, Baron Thomson of Fleet — who famously and notoriously described his new licence to run a television network in Scotland as his licence to print money. That was in 1956. But those profitable enterprises have seen their revenues decline with the rise of the internet, as advertisers flee to the internet platforms, and consumers flee to the vast array of choices available on streaming services and social media.

In its recent report documenting broadcast revenues and viewership in 2021, the Canadian Radio-television and Telecommunications Commission, or CRTC, said that revenues from commercial radio have declined by 31% from 2016 to 2021, and those from conventional television have declined by 15% over the same period.

While television shows a one-year increase from 2020, the long-term trend is downward. Since Canadian content expenditures are tied to broadcast revenues from the Canadian broadcasters, so Canadian production as well has declined from this source.

The government has positioned Bill C-11 as a response to this changing technological and market landscape. And just as governments regulated the cable and satellite technologies in the past — and, remember, in those days, that represented an increase in consumer choice — so now government intends to regulate the new internet services.

The main goal of Bill C-11 is simple: to bring online streaming services, like Netflix, Amazon Prime Video and Spotify, which are now unregulated, under the Broadcasting Act and under CRTC regulation to create a so-called level playing field. These streaming services will be required to contribute to the production of Canadian content and to showcase and exhibit Canadian content. A whole new word, “discoverability,” has been invented to describe this showcasing aspect.

Bill C-11 will require contributions for official language and Indigenous programming, and there is mention of serving the needs and interests of diverse ethnocultural and racialized communities and those from other diverse backgrounds. Indeed, Canadian culture, Canadian expressions and diversity themes are very prominent in the government’s messaging around this bill.

Above all, the CRTC is charged with determining all these requirements and how they will be carried out in a way that is flexible yet predictable, fair, information-based, equitable and informed by consultation. It will be given the tools to collect information from broadcasters, to audit them and to administer penalties.

Now, some critics of the bill argue that the internet itself cannot be regulated, but the internet is already regulated all over the place. In fact, some people claim it’s always been regulated. The real question we have here is whether this is the best way or even a good way to achieve desired goals and not diminish or discourage the great offerings of the new technologies.

Over the past several months, I have observed widespread criticism of Bill C-11 focused on three major themes. The first theme involves the threat to Canadian freedoms from Bill C-11. In hundreds and hundreds of letters I have received — and I’m sure other honourable senators have also received — since the beginning this year, Bill C-11 is seen to be the end of freedom in Canada. Here is one example of a letter:

Dear senator, I am terrified that our wonderful democratic nation is at the brink of banning free speech. I implore you to vote against Bill C-11. It must be defeated if we hope to keep our country democratic.

This was a letter to me from a woman in British Columbia just a few weeks ago.

So many letters and calls have the same message, yet the vast majority of these folks do not articulate how this bill is actually supposed to end democracy. I, for one, do not think the end of Canadian democracy is at hand, at least not from Bill C-11.

A second theme that has gained widespread attention and criticism is focused more specifically on the potential intrusion into viewer or listener choices by direction that will be given to firms to alter their algorithms for the purpose of making Canadian content more visible on platforms.

I would like to make two points here. Bill C-11 states that the CRTC cannot make orders that would require the use of specific algorithms. However, we do need more clarity on this, especially in light of the contradictory comments made to our committee by the CRTC last June. In fact, the CRTC chair, when he came to our committee, very much muddied the waters on this issue of algorithms, unfortunately, for many people. He had many very valuable things to say, but he most certainly muddied the waters on this issue of algorithms.

My second point is that we also need to focus on alternative methods to achieve visibility of Canadian content — that is, methods that are alternatives to algorithms. There has been a lot of time spent on this topic of algorithms; in fact, I think maybe too much time has been spent. Nevertheless, I’m hopeful that our committee can shed some light on this complex issue.

A third theme that is still getting the lion’s share of attention and criticism is the regulation of user content. Now, the minister has repeatedly said that platforms are subject to regulation and that individuals or users themselves are excluded. Bill C-11 does state this. But the bill also includes the so-called exceptions to the exclusions, which allow the regulation of user content in certain situations. Therefore, colleagues, we are back to the same conundrum as when we started, and this vexing and important issue remains on the table.

Other questions have received less attention but are still important. Should the CRTC have so much more power? Can the CRTC successfully carry out all the new responsibilities and tasks assigned to it? Should the CRTC have more direction from Parliament than Bill C-11 now provides? What will be the bill’s impact? What will happen to Canadian content in production into the future? Will the existing broadcasters really be helped by any of this? After all, that is supposed to be one of the main goals. Will creators from diverse backgrounds benefit from this bill? Will new technologies and innovation actually thrive into the future?

There is much for our Senate committee to examine. However, I want to speak very briefly about the process that has accompanied deliberations on Bill C-11 to date.

Let’s look back over a year ago to June 2021 and Bill C-10. That process was a mess. That bill spent four months in committee at the other place, which met 30 times — 12 times with witnesses and 18 times for clause-by-clause consideration, followed by filibustering and a rare imposition of time allocation at committee. So that was a disaster.

With Bill C-11 this year, I consider that the process was actually rather similar, only this time it happened within four weeks instead of four months at the House committee. Meetings with over 50 witnesses were followed by filibustering, closure motions and over 50 amendments passed in one evening on June 15 of this year. Does this sound to you like a thoughtful process? Does this give you confidence in the bill before us?

Clearly, sober second thought is greatly needed. Now, there are many good elements to this bill. In a Nanos Research national poll conducted for The Globe and Mail in May, two thirds of the public said they support the idea that streaming services should financially contribute to creating Canadian content just as Canadian broadcasters do. So we do see that high-level support for the idea of Bill C-11.

Also, Bill C-11 enjoys the support of stakeholders across the arts and culture and broadcasting communities, including many people in the Toronto community where I live. I have to say that a couple of weeks ago, one of the stakeholders told me that he really doesn’t like to mention Toronto very much. But I have no hesitation in talking about my city. My city is a vast, creative community of tremendously successful and creative people, and there are many, many people in my community who support Bill C-11 — organizations like the Society of Composers, Authors and Music Publishers of Canada, the Canadian Independent Music Association, the Directors Guild of Canada, Friends of Canadian Broadcasting, the Canadian Ethnocultural Media Coalition and many of Canada’s major television broadcasters.

But there are many outstanding issues, which I mentioned earlier, and the process in the other place, in my view, was fraught. Colleagues, I look forward to the next several weeks of Senate study and debate, for Bill C-11 will receive the sober second thought it so clearly needs. Thank you.

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Senator Dasko: Yes, I think if we all look at the calendar, we would come to this conclusion. I thank Senator Gold for his comments.

With respect to there being no time limit on this, obviously this would seem to take us well into another season, whether that be summer. I don’t know if we’re trying to sit then, I doubt it, but probably into September. I mean, that seems to be logical, yes. That would seem to be a logical time frame for looking at this bill.

I’m pretty sure that we need much more than the number of meetings you just referenced, four meetings. I’m quite sure that our committee needs more time than that to look at this bill. Thank you.

Hon. Donna Dasko: Honourable senators, I rise today to speak on the motion before us, which would authorize the Standing Senate Committee on Transport and Communications to conduct a pre-study of Bill C-11. My comments today are brief.

Bill C-11, sometimes called the online streaming act, is a substantial bill that will essentially take the regulatory framework we now have over broadcasting and apply it to online undertakings. Numerous stakeholders and interests are involved, including cultural producers and creators, the legacy broadcasters in television and radio, online streamers, social media platforms and many others.

Many of us will remember this bill’s predecessor, Bill C-10. That bill was referred to the House Committee on Canadian Heritage for pre-study on February 1 and for regular study on February 19 of last year. That committee held 30 meetings before returning the bill to the House for third reading in mid-June.

Over those four months, that committee heard from numerous witnesses and proposed many amendments. The process involved significant debate of the issues but was contentious, messy and overly political. Indeed, significant changes to the bill were introduced late in that process at clause-by-clause consideration. Unfortunately, it was too late to call any witnesses representing the interests that would be materially affected by those changes.

That bill then made its way to our chamber, completed second reading and was referred to our Senate Committee on Transport and Communications on June 29 of last year. My Independent Senators Group colleagues on the committee and I were willing to work over last summer to examine the bill in committee in response to the expressed urgency in passing this bill, but that offer was not taken up. As a result, the Senate conducted no committee work on that bill, which died on the Order Paper when the election was called. Its successor, Bill C-11, has now completed second reading and has just been referred to committee in the other place. That committee held two meetings this week but has not yet taken up Bill C-11.

We have on the table a motion to send this bill to Senate committee for a pre-study. I have serious concerns about this. In my view, a pre-study is not a substitute for proper Senate study of a bill. Over the last few weeks, Senate committees have been engaged in pre-studies on a number of bills, including Bill S-6 and Bill C-19.

I have been part of some of these deliberations, and I offer some of my observations about this process. First, the participants have been excellent. The committee chairs have done an excellent job. The witnesses have made solid arguments regarding the bills on the table, staff have worked hard and senators have asked pertinent questions.

However, in my view, the process has been unsatisfactory. Typically, government witnesses present the bill and take questions, followed by other witnesses who offer a critique of the bill or propose changes to it. In some cases, their suggestions for change cannot be adequately assessed. We want to know: Are they practical changes? Do they fit with the goals of the bill? Are they doable? Are they good ideas? These questions come up after the witnesses testify, but often these questions remain unanswered in this process; that is what I have observed. Often there are time limitations to this process, and that is one of the reasons why some of these questions cannot be addressed, but in other cases, proposed changes from witnesses that do seem desirable cannot become amendments to this bill, because this is not possible with our pre-studies.

My concern with Bill C-11 is that I fear we will be doomed to this inadequate process and its shortcomings and that we will not conduct the proper investigation we need on Bill C-11, and we have no assurances that a regular committee study would follow from our pre-study. With Bill C-11, the ideal process, in my view, would be for us to take into account all the learnings from the House of Commons committee, their proceedings and their report, and build from there.

Let’s look at their witnesses, the issues arising from their work and the arguments that have been made, and let’s go forward from there. Of course, amendments may result from their process as well, which a pre-study here would not have and, therefore, could not consider. We wouldn’t have them in a timely fashion, and therefore, we couldn’t consider them. Remember Bill C-10, and how that bill was significantly changed very late in their process.

Honourable senators, during the pandemic over the past couple of years, the number of our Senate sittings was cut back dramatically, our scrutiny of legislation was reduced, with minimal review of so much legislation, and our committee work was curtailed. I look forward to returning to a better and more thorough process as we go forward.

In the end, colleagues, when it comes to Bill C-11, I am looking for assurances that a regular committee review process will take place. Even if a pre-study is undertaken, we should and must commit to this. If committees are indeed the masters of their fates, as we learned yesterday, I will be seeking the views of committee colleagues over the next several days for their commitment to a fulsome process.

But there is more than just that. We also need assurances that the committee will have the time it needs to do its work. When I hear about the urgent need to pass a bill, I can’t help but wonder whether we will really have the time to review a bill. If we keep hearing about the urgent need, it most certainly raises questions about whether we will be given the time.

Honourable senators, let’s do this properly. Thank you very much.

Senator Dasko: Yes.

Senator Dasko: Thank you, Senator Gold. My view of this process is that I feel it’s a lesser process. From what I have observed, it doesn’t feel like it’s a thorough process; it seems to be truncated, in my observation. It also doesn’t allow us to make amendments.

So from what I have observed, I feel that it’s lacking.

I know you have given some assurances of time, but at the same time, senator, yesterday, you did talk about the absolute need and the pressures coming from various communities. I understand there is pressure. I live in Toronto, and the cultural community in Toronto is very supportive of this bill. They want this to go forward.

But when June comes — and it’s just around the corner — we always get this feeling of pressure to pass bills. I fear that we have this pre-study coming down the track along with the end of June coming, and they end up colliding with each other. Then we end up getting pressure to pass a bill.

In this case, I worry we will be in a process that doesn’t allow us to examine it the way I feel it should be examined, especially given the uncertainties in the other place and what they will do, as well as what sorts of amendments and changes they may come up with. The last time this happened, it was really rather a mess. You might remember from last year what happened in their committee and all of the amendments. They were rejected by their Speaker and they had to go back. It truly was a mess.

That is where I am coming from with my concerns. This is coming along this track and the end of June is there; we know what June is like. You yourself have said that there is an urgency to get this bill passed because of the various stakeholders and so on who are involved. So this all leaves me just a little bit suspicious.

That’s where I’m coming from. Thank you.

Senator Dasko: Senator Gold, I appreciate your comments very much. Thank you for reiterating the issues around time. That’s very important for our considerations.

To go back to the comment that you made yesterday and that I put into my comments today with regard to Senate committees being the masters of their fates, I intend over the next week or so to be in contact with my colleagues on that committee to do a poll, so to speak, of their views with respect to the importance of making sure that we have what I would call the real process of review through the study. That is what I intend to do. Then, hopefully, we can be satisfied that we’re going to get what I would hope that we would have, which is fulsome review. I thank you for your comments. They are much appreciated.

Senator Dasko: Thank you, senator. I am not the person to answer questions about the timing of the bill. I think you should address your questions to the Government Representative. Maybe you’ll get some good answer there.

Let me put you on notice, senator, that I will be contacting you to discuss this issue with you in the coming days, so, thank you very much, and you will be getting a call from me. Thank you.

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