Hon. Fabian Manning: Honourable senators, I rise today to propose an amendment to Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. This bill has been amended at committee, but I still think there is plenty of room for improvement.

Senator Manning: Yes.

Senator Manning: A principal issue related to this bill is the question of to whom this legislation would apply.

The government has repeatedly stated that there is no intent to apply this legislation to small players. Yet, there are no boundaries in the legislation to ensure that that intention is respected and this does not happen.

The Senate Transport and Communications Committee heard from numerous witnesses who clearly stated that the bill had to incorporate a revenue threshold in order to ensure that the legislation focuses on services that are truly of consequence in the digital marketplace, rather than capturing user-generated content.

Tim Denton, Chair of the Internet Society Canada Chapter, said that any online service that earns less than $150 million in Canada annually should be excluded from the act and “. . . from any regulation or obligation to contribute to Canadian content production . . . .”

As it stands now, it may surprise many of you to learn that neither charities nor religious organizations are exempt from regulation under this legislation, and proposed subclause 2(2.3) does not shelter the online activities of individuals, whether professional or amateur.

I know that some colleagues believe and will argue that social media is now exempt based on the amendment from our colleague Senator Miville-Dechene adopted at committee. However, I, and many stakeholders, are still of the mind that this amendment doesn’t go far enough because of the wide discretionary power it still affords the CRTC in deciding what is or isn’t scoped into this legislation.

As Mr. Denton said, social media platforms are far from the only places on the internet where entities and individuals may transmit audio or audiovisual content. Individual and community websites abound with such content. Neither subclause 2(2.3) nor clause 4.1 addresses the much broader regulatory reach of Bill C-11.

Konrad von Finckenstein, former chair of the CRTC, addressed another aspect of this. He noted that vesting in the commission such large powers with such vague parameters will prove extremely onerous for the CRTC. Every single stakeholder will come forward with specific requests for exemptions of conditions and argue they fall within the vast powers given to the CRTC.

Mr. von Finckenstein said that one cannot forget that the CRTC is a court of record that identifies issues, either on its own or via petitions; seeks input from affected parties and stakeholders; holds hearings, live or on paper; and then issues a decision.

All that has to be done in accordance with due process and can be judicially appealed.

Consequently, narrowing the powers will allow the CRTC to make good, timely and targeted decisions. The goal, of course, is to protect and strengthen Canadian broadcasting and foster Canadian production. Hence, the legislation should target only large streamers who can meaningfully compete with established broadcasters.

Isn’t that what the government keeps telling us is the point of this legislation? To target streamers who behave like broadcasters?

Small innovative internet players should be able to give their innovative drives full rein to contribute to the overall productivity of the Canadian economy.

Professor Michael Geist also told our committee:

I believe there is a clear need for thresholds and limitations in the legislation itself. Without it, services may regard the regulatory uncertainty — which the House committee heard will take years to sort out — to block Canada, leading to less choice and higher consumer costs.

This aspect is key. The full ramifications of this bill will take years to sort out as the CRTC goes through its regulatory processes. That means years of uncertainty for smaller players. It is that uncertainty they cannot afford.

Here I would like to quote Matthew Hatfield, the Campaigns Director of OpenMedia, who said, “It’s nonsensical for Bill C-11 to place obligations on platforms with a few thousand Canadian subscribers . . . .”

He also said:

It would be a very cruel consequence of this bill for diasporic Canadian communities to be cut off from the invaluable cultural lifeline provided by foreign streaming services.

Colleagues, I cannot stress enough how vital it is that we recognize the uncertainty this is creating for ordinary players. As Monica Auer, Executive Director of Forum for Research and Policy in Communications, told our committee, “. . . Bill C-11 is not coherent and not readily understood.”

The bill leaves creators guessing, and we should not be putting them in that position.

I would also like to reference what smaller creators told our committee, specifically Justin Tomchuk, an independent filmmaker who told our committee on September 27 that Bill C-11, as currently drafted:

. . . makes it clear that my business will fall under the call of the CRTC’s directives, as I derive direct and indirect income through my artistic efforts.

Scott Benzie, Managing Director or Digital First Canada, told the committee on September 28:

Our ask is simple: [The bill] needs clarity into what is in and what is out, because it currently includes the entire internet. Something this critical cannot be left to the CRTC to wade through.

Morghan Fortier, Co-Owner and Chief Executive Officer of Skyship Entertainment, said:

What keeps me up at night about this bill is the potential to gate content that is deemed not Canadian, either entering into the country or within the country. With retaliation from other countries, should this type of a law pass through, we’re done. I don’t mean my company. I mean we don’t need to talk about this bill anymore because it’s over. That will affect regionalized content creators, small content creators and larger content creators.

Frédéric Bastien Forrest, animator and content creator, told our committee on October 4:

My take on this is that it is scary. We have the feeling that the politicians behind this law are well intentioned and they want to promote our culture, which is great, but the side effects of the law could break stuff.

Oorbee Roy, content creator and skateboarder, also expressed her fears about how a small undertaking like hers could be impacted by CRTC regulation. She noted the arduous process that she and other creators face in registering their material as Canadian content.

I know that some senators will say that the Canadian content provisions were amended in committee. However, colleagues, there is no guarantee that that particular amendment will be accepted by the government. I submit that we need this very modest amendment I am proposing, and that the government will have difficulty saying “no” to it.

At committee, the government majority rejected the threshold of $150 million proposed by Mr. Denton. We were told by government officials that with a $150 million threshold some platforms, such as CBC Gem, might be excluded from regulation. But the committee then went on to reject the $100 million threshold proposed by Mr. von Finkenstein, and then it inexplicably rejected even lower thresholds of $50 million and $25 million.

So, colleagues, what I am proposing today is a threshold that would truly only exempt the very smallest of players. This threshold of $10 million is one fifteenth the amount recommended by Mr. Denton and the Internet Society, and one tenth the amount recommended by Mr. von Finkenstein.

Colleagues, I believe we have an obligation to respond to what an overwhelming number of witnesses have told us. The “just trust us” approach is bringing little comfort to the Canadians whose livelihoods depend on whether they will be subject to regulation as a result of this bill.

I hope you will support this amendment to establish greater certainty for ordinary Canadians.

Senator Manning: Thank you very much.

[English]

I don’t pretend to be an expert in all of this, senator, but I am an avid listener, and I listened to many people who came before the committee.

You’re a bit surprised that I came forward with this; I’m a bit surprised that we’re not talking about any threshold. To go back to Oorbee Roy, the single mom who was facing all kinds of financial issues, found a home on the internet through skateboarding videos and took herself out of poverty, she told us. She established a home for her two children — I believe it was two children, if memory serves me correctly — thanks to the opportunities she had through that process.

I don’t think for a moment that Oorbee Roy is going to become a national broadcaster. I don’t think for a moment that the CBC or CTV are going to have to worry about Oorbee Roy.

What I do worry about is people such as Oorbee Roy who found a way to take herself out of poverty through the internet. She is in great fear now; not only her, but several others came forward to our committee and expressed great fear over the fact that, through the regulatory process, now they are going to have an immense amount of — trying to create that Canadian content, what meets Canadian content, what the final decision of the CRTC is going to be on what is Canadian content, as well as that she will be driven away from that opportunity.

When I looked at Bill C-11 in the beginning, and read through it first — before any amendments were made — I believed then that the purpose of the bill was to create an environment where people such as Oorbee Roy could thrive any place in this world. I come from a community in southern Newfoundland of 300 people. Somebody could make a living in that community through this process.

What I’m concerned about is that the last thing you want in anybody’s face is too much government. I believe that, unless we put a threshold in place, we are putting a roadblock up to people like Oorbee Roy, and many others, who would have the opportunity to not only create something, but to make a living for themselves and their families.

We need to have a threshold; is it $10 million? The question mark is we started at $150 million. We went to 100, 50, 25 — now we are down to 10. Now do we go down to a $20 bill before we agree on something? No; I don’t know. The bottom line is, without any threshold, there is no limit. Oorbee Roy is going to be on the same level as a national broadcaster. To me, that doesn’t make sense.

Senator Manning: If the Senate gives me the opportunity, I have all the time in the world, Your Honour.

Hon. Fabian Manning: Therefore, honourable senators, in amendment, I move:

That Bill C-11, as amended, be not now read a third time, but that it be further amended in clause 4 (as amended by the decision of the Senate on December 14, 2022), on page 10, by adding the following after line 32:

[Translation]

Senator Manning: Of all the things I will try to do in my lifetime, especially on this side, I’m not going to try to answer for what the government is going to do. I am afraid to do that half of the time, but I will leave that for another day.

What I’m concerned about is that, as I said in my remarks, your amendment may not be adopted. Yes, with all good intentions, you and Senator Simons put it forward. Certainly, it was a good amendment at the time — but, the fact is, it may not be adopted.

I am not saying that the government would adopt my amendment. We don’t know if the government will accept any amendment. We have sent back legislation from this chamber to the government, and they have not accepted any amendments that we have put forward at any time. The bottom line is that if we have one amendment, or ten, they may not accept any. The more that we have — at least that gives them some thought to put some thought into it.

The bottom line is that we’re — “protecting” may not be the right word to use — giving those people that we have called, in our discussions, “small players in the field” — giving them an opportunity to, at least, be able to stand on their own two feet, and be able to do what they are doing without interference. I believe the whole purpose of Bill C-11 was to create an avenue to do that.

The reason I put forward the amendment is because I believe that some type of threshold is needed. If we talk about no revenues, as I said, the government may not accept that, but they might be open to accepting a threshold; I don’t know.

I can guarantee you my amendment was put forward with the best intentions to protect those that we have brought before us. In my comments, I mentioned half a dozen of those who came before us and expressed this major valid concern they all have. I’m trying to find a way to address that concern. This is my way. I hope my colleagues support my amendment.

Senator Manning: I understand the concern you have. My concern is the absence of anything there to protect those people.

Having it embedded in legislation — yes, I know it takes 30 years to change something; but the fact is that, without something there, the people are not protected on the other end, in my view and in my humble opinion.

I would be more comfortable having something in legislation that people can refer to that becomes the law of the land than the fact that we have nothing there to show any protection to them.