Thoughts on Online Streaming Bill (April 20, 2023)

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.