Hon. Pamela Wallin: Honourable senators, to begin, a few thoughts on the Senate’s constitutional powers, rights and obligations that have been conveniently redefined in the context of a government simply wanting its bill passed.

Legislation in Canada must be approved by both houses. We are here to offer thoughtful critiques of legislation, to hold governments to account and to resist unnecessary aggregation of power by governments.

We are not required by law, or the Constitution, to defer to the elected house. They have rights and authorities and so do we.

Sober second thought is not just a turn of phrase, it’s our obligation. Our amendments are not just the whims of an appointed talk shop. We are parliamentarians. We are members of a legitimate house with a legitimate voice and a valid contribution to make. We are not just to be tolerated, patted on the head or told what a good job we’ve done at committee and then go to our room.

In the elected house, government members ran roughshod over the committee process and the consultation process. The arrogance was shocking. We here in this chamber had no choice but to offer Canadians a voice and a place to express their legitimate concerns about this unprecedented piece of legislation. They were heard, and our amendments were based on that testimony.

I am profoundly disappointed that the government rejected the most important amendment. This is not a numbers game. Yes, the government accepted some of your amendments, so count that and be happy. The one that was rejected was core to the bill. Our colleagues Senators Miville-Dechêne and Simons, who share many of the similar concerns that I and others have with this bill, proposed wording that would offer a generation of content creators assurances that they would not be captured under the provisions of this bill and, by extension, the regulatory and financial powers of the CRTC.

The government has said that content creators were not intended to be captured in this bill. We offered them the wording and they explicitly rejected that opportunity. Academics, experts and, of course, the content creators themselves have raised concerns that the bill will, in fact, regulate under its provisions, if the government so chooses to do so, their entire sector.

If the government was serious about ensuring that content creators would not be subject to the overreach, then put it in the law.

I believe the government’s rejection justification, the document put forward by Senator Gold, indicates their true views. They want the power today and in the future to assert more control over online content that is, of course, shared over the internet.

The message on why the amendment was rejected stated:

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

Perhaps you could only understand what that means if you sat through the dozens — perhaps hundreds — of hours of our committee process, but it is a cynical power grab. With all due respect to Senator Simons, it is more than just a small impingement on free expression; it implicitly threatens it. They may not have intended to, but in their language, they have belled the cat and admitted to what their intentions were all along.

It is clear that the government wants the power to direct the Canadian Radio-television and Telecommunications Commission, or CRTC, on user content today and maintain that power to regulate it into the future. This power will be granted to this government and every government that follows, giving them all the ability to direct CRTC policy over — among other things — Canadian content without even defining what that means. The government should be in the business of promoting and protecting selected content. Directing CRTC policy to disqualify other content is extraordinary.

In the absence of the Senate amendment, the bill continues to cover podcasts, YouTube videos and other types of content that has yet to be created. The government is looking to be able to regulate new avenues or types of user content that doesn’t exist without even going back to Parliament for debate, review or study. As some ministers have already hinted during this years‑long debate, they want more control over content they might disagree with or that they might want to restrict because it criticizes the government. This is not some conspiracy theory. This is what some of them have said out loud and on the record.

If anyone thinks that forcing an ever-larger regulatory burden on streaming services and content creators — and ultimately giving the government of the day the ability to direct CRTC policy to control content — is somehow giving us better content and greater access to a wider range of information, no, it does no such thing. It is the antithesis of democratic and free expression.

Forcing Canadian content quotas through the so-called concept of discoverability, these are also, in addition to the concerns I’ve raised, overly and overtly protectionist policies that will benefit few and serve as a detriment to many. It is fundamentally at odds with the concept of an open internet.

I’d like to acknowledge the rigorous work done by my colleagues here in the chamber and at committee to try and make this bill better, to make it more palatable for Canadians as well as fair and more realistic for content creators. While we are the chamber of sober second thought, and while the government has rejected our most important change, I maintain that if their stated intentions were actually reflected in their own bill, they would have found support in this place. But I cannot in good conscience support this. If you were looking for a democratic imprimatur, we offered you that — an opportunity to make the words and promises the actual law of the land. Thank you.

Senator Wallin: I have a comment in response to that. I want to put on the record what Attorney General David Lametti said when he spoke about Bill C-10, and when asked specifically about federal regulation of legal internet content. He said that rights and freedoms can be limited. In particular, he said:

. . . when Parliament legislates, it may have an effect on charter rights and freedoms. This may include limiting people’s enjoyment or exercise . . . . This is entirely legitimate. The rights and freedoms guaranteed in the charter are not absolute . . . .

Hon. Pamela Wallin: For the record, Senator Gold, the constitutional design does allow for the Senate to challenge the House of Commons and not just once. You cited the cases yourself. I would also add that declaring “mission accomplished” is also a bit of a risky move when we heard from dozens and dozens of witnesses speaking on behalf of literally thousands of content creators about their concerns. We also heard from former CRTC chairs, from federal judges that this bill would have and could have unintended consequences on a free and open internet.

If I could focus again on what my colleagues have said, if you believe — yes, we have heard the minister say it repeatedly and we’ve heard you say it repeatedly — this bill does not apply to user-generated digital content, why would you not put it in the law itself for clarity? This just continues to raise questions and doubts and it’s just what we do with legislation here. There are, as you know, many questions in the public about the intent of this bill. You have gone so far as to say that you want this to apply to content and generators, other forms of media that have not even been imagined yet into the future. You’re asking us to give you a blank cheque on that. Could you just start and answer the question of why you have not put this in the bill in black and white, in clear language, which is what thousands of people asked you to do?

Senator Wallin: The reason we are all asking you questions that seem similar is because it is not clear in the bill. Senator Miville-Dechêne and Senator Simons presented language — a compromise — inside our own committee. They presented language that would have given the government the right and the opportunity to be clear about what you promised and what they promised publicly, on television shows and in front of the committee.

If you really believe it, then put it in the bill. That’s why we keep asking the same question. A promise in a response to questions and in appearances on television is not law, and we would like to see it written in the bill.

Senator Wallin: On that point, in fairness, Senator Gold, you did raise the issue of the constitutional role of the Senate, but that’s for another time.

To stay on topic, I will read the language of your rejection that you’ve shared with us here. The government has rejected the key amendment that we are talking about here on user-generated content:

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

These are your words — the government’s words.

This rationale, of course, makes it quite clear that the government wants the power to continue to direct the CRTC on user content today, and maintain that power into the future. That’s what it states.

Obviously, these questions remain: Why are you so adamant to regulate user content online? What is your fear?

I ask this because in the discussions over Bill C-10, Minister Guilbeault, who was the minister in charge at the time, suggested that he was concerned about the criticisms of the government that he was seeing online. We have heard very clearly from Minister Lametti that he thinks it is okay to restrict rights and freedoms online if the government chooses to legislate in that direction.

Any bill that requires government policy direction to provide guidance on regulating user expression is leaving too much uncertainty on the most fundamental questions of freedoms.

Why does the government insist on having the ability to directly instruct the CRTC on user-generated content — the actual content — when this is supposed to be an arm’s-length institution?