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Shimon Koffler Fogel
View Shimon Koffler Fogel Profile
Shimon Koffler Fogel
2021-06-16 17:03
With your permission, Mr. Chair, I'll quickly begin and make the following observation.
I think the pace of change in the landscape or backdrop with which we're looking at these issues is breathtaking. The idea that it behooves us to review those instruments, policies, regulations and legislation that are currently in place on a regular basis is one that I think is self-evident.
We never would of thought, even two years.... I mean, smart phones only came into existence at the end of 2012. It's really only now that we're beginning to appreciate the power of social media as a vehicle either for good or, in this context, something very, very not good. So I think that it does behoove us to look at old legislation, old regulations and old approaches, and test them against the reality of today.
I'll also point out that, for example, in a concrete way, we're always trying to balance—and I know your committee is struggling with balancing—the issue of free speech with freedom from threat. Some of you will recall that there was a contentious debate about section 13. It was ultimately eliminated by the government of the day, because it is a two-edged sword. On the one hand it enshrines the notion we all believe in, which is freedom of expression. On the other hand, it's also been used as a way to insulate groups that are trying to foment hate with protection from the very thing we're trying to prevent.
It's adding work to your plate, but I think it behooves you to routinely build into legislation and recommendations a need for periodic review that would test the reality against what you are trying to achieve.
Mustafa Farooq
View Mustafa Farooq Profile
Mustafa Farooq
2021-06-16 17:06
I'll say briefly that I think Shimon is right, as I think he often is, on the critical tension here between a desire to protect folks versus those critical constitutional values that we uphold and know that we need to be upheld.
I think those are exactly the kinds of reasons that we had concerns around overly broad language vis-à-vis terrorist propaganda. We were pleased to see that the most recent iteration of legislation narrowed it down to a more focused “counselling” offence. We thought that was important.
From our perspective, we want to see the legislation applied equally, but that's not the same as seeing.... As in the sense that white supremacist terrorist group should be dealt with appropriately through the listing provisions that are there, we have to careful about overexpanding our Criminal Code, especially around terrorism sections. I think there are existing tools that need to be utilized, and if there are other ways of approaching white supremacist groups, such as the creation of a new listing procedures, I think that could be done outside of the precise mechanics of terrorism legislation, which, of course, has with it a whole regulatory and legislative set of considerations to deal with.
View Jean Yip Profile
Lib. (ON)
Can you reiterate Canada's commitment to the promotion and protection of freedom of expression around the world?
View Marc Garneau Profile
Lib. (QC)
Canada feels extremely strongly about freedom of expression. It is part of the basic values that are enshrined in our Charter of Rights. We will always speak up with respect to human rights.
As we know, in the case of China, there are numerous examples, whether we're talking about the Uighurs, about Tibetans, or about Hong Kong citizens, not to mention the detention that has been imposed on tow of our citizens, who were arbitrarily detained. These violations of human rights are issues that we bring up on a regular basis with the Chinese government.
View Steven Guilbeault Profile
Lib. (QC)
Thank you, Mr. Chair.
Mr. Chair, members of the committee, good morning.
I would first like to acknowledge that I am joining you from Montreal, on the traditional territory of the Mohawk and other Haudenosaunee peoples.
Thank you for inviting me to speak to you today. With me, as you said, are Joëlle Montminy, senior assistant deputy minister, cultural affairs, and Pierre-Marc Perreault, acting director, digital citizen initiative.
Like you and many other Canadians, I am concerned by the disturbing rise and spread of hateful, violent and exploitive content online and on social media.
As a legislator and father of four children, I find some of the content of these platforms to be profoundly inhuman.
I am also deeply troubled by the consequences and the echoes of that content in the real world.
The overall benefits of the digital economy and social media are without question. In fact, I published a book, shortly before I took up politics, wherein I talked about the benefits of the digital economy, of artificial intelligence in particular, but also about some unintended negative consequences.
In Canada, more than 9 out of 10 adults use at least one online platform, and since the beginning of the pandemic, online platforms have played an even more important role in our lives.
We use social media platforms like Facebook, Twitter, Instagram and YouTube to stay connected to our families, friends and colleagues. We use them to work, to conduct business, to reach new markets and audiences, to make our voices and opinions heard, and to engage in necessary and vital democratic debate. However, we have also seen how social media can have negative and very harmful impacts.
On a daily basis, there are Internet users who share damaging content, either to spread hate speech, the sexual exploitation of children, terrorist propaganda, or words meant to incite violence.
This content has led and contributed to violent outbursts such as the attack on the Islamic Cultural Centre in Quebec City in 2017, and similar attacks in Christchurch, New Zealand, in 2019.
Canadians and people all over the world have watched these events and others unfold on the news with shock and fear. We all understand the connections between these events and hateful, harmful online discourse. We worry about our own safety and security online. We worry about what our children and our loved ones will be exposed to.
According to a recent poll by the Canadian Race Relations Foundation, an overwhelming 93% of Canadians believe that online hate and racism are a problem, and at least 60% believe that the government has an obligation to prevent the spread of hateful and racist content online.
In addition, the poll revealed that racialized groups in Canada are more than three times more likely to experience racism online than non-racialized Canadians.
Since the beginning of the COVID‑19 pandemic, we have seen a rise in anti-Asian hate speech on the Internet and a steady increase in anti-Semitic rhetoric, further fuelled by recent events.
A June 2020 study by the Institute for Strategic Dialogue found that Canadians use more than 6,600 online services, pages and accounts hosted on various social media platforms to convey ideologies tinged with white supremacism, misogyny or extremism. This type of content wreaks havoc and destroys lives. It is intimidating and undermines constructive exchange. In doing so, it prevents us from having a true democratic debate and undermines free speech.
The facts speak for themselves. We must act, and we must act now. We believe that every person has the right to express themselves and participate in Internet exchanges to the fullest extent possible, without fear and without intimidation or concern for their safety. We believe that the Internet should be an inclusive place where we can safely express ourselves.
Our government is therefore committed to taking concrete steps to address harmful content online, particularly if the content advocates child sexual exploitation, terrorism, violence, hate speech, and non-consensual sharing of intimate images.
In fact, this is one of the priorities outlined in the mandate letter given to me by Prime Minister Justin Trudeau. So we have begun the process to develop legislation that will address the concerns of Canadians.
Over the past few months my office and I have engaged with over 140 stakeholders from both civil society organizations and the digital technology sector regarding this issue. This has included seven round-table discussions. We also spoke with indigenous groups, racialized Canadians, elected provincial officials, municipal officials and our international partners to assess our options and begin to develop a proposed approach.
In addition, given the global nature of the problem, I have hosted a virtual meeting with my counterparts from Australia, Finland, France and Germany—who were part of the multi-stakeholder working group on diversity of content online—to discuss the importance of a healthy digital ecosystem and how to work collectively.
I am also working closely with my colleagues the ministers of Justice, Public Safety, Women and Gender Equality,Diversity and Inclusion and Youthas well asInnovation, Science and Industry to find the best possible solution.
Our collaborative work aims to ensure that Canada's approach is focused on protecting Canadians and continued respect for their rights, including freedom of opinion and expression under the Charter of Rights and Freedoms. The goal is to develop a proposal that establishes an appropriate balance between protecting speech and preventing harm.
Let me be clear. Our objective is not to reduce freedom of expression but to increase it for all users, and to ensure that no voices are being suppressed because of harmful content.
We want to build a society where radicalization, hatred, and violence have no place, where everyone is free to express themselves, where exchanges are not divisive, but an opportunity to connect, understand, and help each other. We are continuing our work and hope to act as quickly and effectively as possible. I sincerely hope that I can count on the committee's support and move forward to build a more transparent, accountable and equitable digital world.
I thank you for your attention and will be happy to answer any questions you may have.
View Kenny Chiu Profile
CPC (BC)
Thank you.
My second question is for Ms. Lhamo.
With regard to the trolls of the CCP proxies, the 50 Cent Army, that you referenced, do you have any good suggestions? Let's just assume that these are people who live in Canada here. Do you have any good suggestions for government to deal with these people to make them understand the limit of freedom of speech versus criminal actions?
Chemi Lhamo
View Chemi Lhamo Profile
Chemi Lhamo
2021-05-31 19:08
I think it's to lead by example. When the government takes concrete action by implementing legislation to counter covert Chinese government interferences—and there are examples led by other governments like the U.S. or Australia that you folks can take and implement within the Canadian government—that will have a ripple effect within the Canadian constituents. People will understand the seriousness of the issues, the human rights violations that are happening in China, in Tibet, in East Turkestan, in Hong Kong and wherever else this is happening. With that, I believe Canadians will also learn more about what is actually happening and why we're doing what we're doing. When that happens, we can start creating a space of safer spaces and communal healing where people know what the difference is.
Rukiye Turdush
View Rukiye Turdush Profile
Rukiye Turdush
2021-05-31 19:09
I want to quickly add something.
Also, the Canadian government should educate those communities and the people, too, because they cannot differentiate between crime and freedom of speech. They say, “Okay, you're anti-China and anti-Communist Party, but I support them. That's my speech freedom. That's why I'm attacking you.” So many Canadians, not only Chinese people, not only ethnic Chinese—I saw so many Pakistanis, too—are supporting China's Communist Party, distributing fake news and attacking me through social media. These people are YouTubers, influential people. People have to be educated. Education is important, too.
View Christine Normandin Profile
BQ (QC)
Thank you.
Mr. Matthews, I have a question for you. The Chinese Communist Party is successfully curtailing freedom of speech here, especially for Tibetan, Hong Kong and Uyghur nationals.
Are you concerned that this curtailing of freedom of expression will extend to the average person in Canada and that it will involve more and more subjects?
Kyle Matthews
View Kyle Matthews Profile
Kyle Matthews
2021-05-31 20:03
I saw a finger being held up there, so I'm not sure whether I'm allowed to talk or not.
The Chair: It means we have one minute.
Mr. Kyle Matthews: One minute?
Listen, this is playing out on the Internet across the globe, but today I read that the Jamestown Foundation shows that the Chinese government has two million paid Internet commentators and 20 million part-time volunteers to engage in Internet trolling. When people express something online—or even make a comment—in a Canadian Internet sphere, there are people swarming them, trying to stop them from speaking. The harassment becomes so bad that they just no longer comment on it.
It is, then, about freedom of expression. You can weaponize social media—bots and real people—to silence others. This is also a big problem, and there are discussions about why the Chinese authorities get to use social media platforms that their own citizens aren't allowed to use.
View David Lametti Profile
Lib. (QC)
Thank you very much, Mr. Chair. Good afternoon.
I wish to acknowledge that I'm speaking to you today from Ottawa on the traditional territory of the Algonquin people.
Thank you, Mr. Chair, for the invitation to appear before you to discuss the charter statement that was tabled for Bill C-10, as well as the explanatory document requested for the proposed amendments now before the committee.
As you can see, I'm appearing alongside Minister Guilbeault, who is the minister responsible for Bill C-10. I am accompanied by officials from my department.
I want to begin by discussing the duty I have under the law, as Minister of Justice, to prepare statements regarding the Canadian Charter of Rights and Freedoms for government bills introduced in the House of Commons.
I will discuss the purpose of charter statements and provide the context, including their history. I will explain what charter statements are meant to do and not do.
I will also gladly speak to the charter statement tabled in relation to Bill C-10, as well as the explanatory document provided to the committee concerning the potential effects of the proposed amendments on freedom of expression.
I should note at the outset that it is not my role as Minister of Justice and Attorney General to give legal advice to parliamentary committees. You have access to your own legal counsel and independent witnesses.
As you are aware, however, I do have obligations under the Department of Justice Act in terms of reviewing proposed government bills for inconsistency with the charter and preparing charter statements for government bills. This obligation was created by our government to be open and transparent with Canadians about the charter considerations of our legislation.
These two sets of obligations—examining bills and preparing charter statements—are both focused on the bill as tabled.
Section 4.2 of the Department of Justice Act requires the Minister of Justice to ensure that a charter statement is tabled in the House of Commons for every government bill. That obligation came into force in December 2019.
Examining bills for potential inconsistency with the charter, as set out in section 4.1, is one of my most important responsibilities. Rest assured that I also take very seriously the obligation to ensure charter statements are tabled in the House, as set out in section 4.2.
Now I will turn to the purpose of charter statements.
Charter statements are intended to inform parliamentary and public debate on a government bill. They foster transparency regarding the effects of a government bill on the fundamental values protected by the charter. They provide parliamentarians with additional information to further inform the important legislative debates they have on behalf of Canadians. Charter statements also provide Canadians with additional information to help them participate in these debates through their elected representatives.
The obligation to table charter statements is a testament to our government's commitment to respect and uphold the charter, as an integral part of the country's good governance.
We can never abdicate our responsibility as a government to ensure that our decisions—including those reflected in the reform of an act—respect our fundamental rights and freedoms. Section 4.2 of the Department of Justice Act strengthens the obligation this government and future governments have to respect this most basic of requirements.
I would like to take a few moments to explain the content of charter statements. In keeping with their purpose, charter statements are drafted at a high level. They set out in an accessible way the potential effects a bill may have on the rights and freedoms guaranteed by the charter. Charter statements also explain considerations that support the constitutionality of a bill.
In our discussion of the charter, it is also important to stress that, when Parliament legislates, it may have an effect on charter rights and freedoms. This may include limiting people's enjoyment or exercise when it is in the broader public interest to do so. This is entirely legitimate. The rights and freedoms guaranteed in the charter are not absolute, but rather subject to reasonable limits, as long as those limits can be demonstrably justified in a free and democratic society.
This means that, when identifying the potential effect of a bill that could limit a right or a freedom, it may also be necessary to consider whether the limit is reasonable and justified. A charter statement may therefore outline considerations relevant to the potential justifiability of a bill.
The fact that charter rights and freedoms can be limited, however, is not a licence to violate them. Rather, it is a reminder that any legislative limits to rights and freedoms must be carefully considered in the context of the shared values of Canada's unique, free and democratic society.
As parliamentarians, it is our responsibility to discuss and debate potential effects on charter guarantees. We exercise our judgment on behalf of Canadians as to whether proposed legislation strikes the right balance between rights and freedoms and the broader public interest. Charter statements are one more source of information to add to our deliberations.
I would also like to take a moment to explain what a charter statement is not.
A charter statement is not a legal opinion. It does not provide a comprehensive analysis of the constitutionality of a bill.
As I mentioned, a charter statement provides Parliament and the public with legal information relating to the possible effects of a bill on the rights guaranteed by the charter and to the considerations that support the consistency of the bill with the charter.
As we all know, bills often change when they are being considered by Parliament. A charter statement reflects the bill at the time it was introduced by the government in the House of Commons. Section 4.2 of the Department of Justice Act does not require that charter statements be updated as a bill progresses through Parliament.
Keeping that in mind, I will now turn to the proposed amendments to Bill C-10 in relation to social media, which are before the committee.
My fellow minister Mr. Guilbeault talked about the scope of the proposed amendments. He highlighted the key objectives underlying the amendments and discussed their intended effects on social media services and users.
In short, the proposed amendments are intended to empower the Canadian Radio-television and Telecommunications Commission to regulate a social media service in respect of programs uploaded by its unaffiliated users, strictly in relation to the following: payment of regulatory charges, such as to support the creation of Canadian programming; discoverability of Canadian creators; registration of the service; provision of information; and auditing of records.
In keeping with my obligations under the Department of Justice Act, I tabled a charter statement for Bill C-10 in the House of Commons on November 18, 2020. The charter statement for Bill C-10 identifies the rights and freedoms that may potentially be engaged by the bill, and relevant considerations that support the bill's consistency with the charter.
In considering the committee's recent discussions focusing on the impacts of the proposed amendments on social media, I understand there has been extensive debate on freedom of expression.
We have prepared and shared with you an explanatory document that examines the amendments, and discusses their potential effect on the right to freedom of expression in section 2(b) of the charter. I'm confident that these considerations support the charter consistency of the bill, and that they remain as outlined in the charter statement. It is our position that the bill, as tabled, and these proposed amendments are consistent with the charter.
As the charter statement indicates, the bill's regulatory requirements have the potential to engage freedom of expression in section 2(b) of the charter. The following considerations support the continued consistency of the proposed regulatory requirements of section 2(b).
By virtue of clause 1, which would remain in the bill, unaffiliated users of social media services would not be subject to broadcasting regulation in respect of the programs they post. What remains is an updating of the CRTC's regulatory powers, and providing it with new powers applicable to online service. The bill maintains the CRTC's role and flexibility at determining what, if any, regulatory requirements to impose on broadcasting undertakings.
Regarding the proposal to give the CRTC new limited powers to regulate an online undertaking that provides the social media service in respect of programs posted by unaffiliated users, the relevant charter considerations include the CRTC's discretionary role and flexibility.
The proposed narrowing of the CRTC's discretionary powers to regulate its social media service in respect of programs posted by unaffiliated users, to only discrete members that I have mentioned, is an additional consideration. The CRTC is subject to the charter, and must exercise any discretionary powers it has in a manner that is consistent with the charter.
The act states that it must be interpreted and applied in a manner consistent with freedom of expression. The CRTC's decisions on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.
In my view, the relevant considerations that are set out in the charter statement remain valid. These considerations are not impacted by the proposed amendments.
Once again, thank you for the opportunity to address the committee today.
I am at your disposal to answer questions.
View Rachael Harder Profile
CPC (AB)
Thank you.
Minister, in the charter statement for BillC-10, clause 3, proposed section 4.1 is cited as grounds for the bill being in compliance with the charter. We know that section was removed. Experts in the industry now say that the removal of section 4.1 takes away the safeguards that were imperative to protect user-generated content.
Do you agree with that?
View David Lametti Profile
Lib. (QC)
As I said in my opening remarks, I'm not going to give legal advice. That is not part of my role as Minister of Justice. I don't give legal advice to committees.
That being said, the Department of Justice has provided a further explanatory document that examines the amendments, and discusses their potential effect on the right to freedom of expression, section 2(b) of the charter.
As I said in my opening remarks, I'm confident that the conclusion of that explanatory document is that the bill remains consistent, and the original charter statement has not changed as a result.
View Rachael Harder Profile
CPC (AB)
I appreciate that you're calling it an explanatory document, because it's not a new charter statement, so thank you for acknowledging that. It is simply an explanatory document. This committee did request a charter statement, so we'll get to that later.
In the explanatory document, there's no acknowledgement of section 4.1 being taken out. Why?
View David Lametti Profile
Lib. (QC)
I do not have an obligation to give legal advice. I have an obligation to give a charter statement under section 4.2. I did that when the bill was tabled, as is envisaged in the law.
We have provided an explanatory document. It's not a charter statement, but it takes into consideration the amendments that were made, and the original import of the charter statement remains true, that is, in our view the proposed amendments are consistent with the charter.
View Rachael Harder Profile
CPC (AB)
It's interesting to me that in your opening statement, you said “the bill as tabled” supports the charter, again giving no acknowledgement to the fact that proposed section 4.1 has been removed. Even now, as I'm asking you questions, you're skirting the issue. You're refusing to address the fact that proposed section 4.1 has been removed and to give a statement as to whether or not the bill is still charter compliant.
Why are you avoiding my question?
View David Lametti Profile
Lib. (QC)
I'm not avoiding the question. In fact, I've answered it. I answered it in my opening remarks. The explanatory document looked at the proposed amendments, and it is—
View Rachael Harder Profile
CPC (AB)
Did this include the removal of proposed section 4.1?
View David Lametti Profile
Lib. (QC)
Yes, including.... Well, all the proposed amendments and the bill as tabled, according to the explanatory—
View Rachael Harder Profile
CPC (AB)
Why won't you just address it? Why not just say, “Yes, 4.1 being removed still respects the charter”?
View David Lametti Profile
Lib. (QC)
I have said that all of the proposed amendments, including that one, are consistent with the charter, according to the spirit of both the explanatory document and the charter statement.
Remember, Ms. Harder, I'm not here to give legal advice. I can't give you legal advice.
View Rachael Harder Profile
CPC (AB)
Dr. Geist makes things very clear when he says, “There is simply no debating that” by removing section 4.1, “the bill now applies to user-generated content, since all audiovisual content is treated as a program under the act.”
Do you agree with that? Is that a correct statement?
View David Lametti Profile
Lib. (QC)
I believe you're quoting Professor Michael Geist. I will defer to my colleague Minister Guilbeault to answer that question.
View Rachael Harder Profile
CPC (AB)
Minister Lametti, I think as I've already expressed.... I know you to be very capable and very competent. I know you to be a strong defender of free expression online. You've certainly written to that effect and made statements to that effect, so I am very glad that you are here today.
I do have a question with regard to discoverability and its requirements within this bill. Again, Dr. Geist said that, in his view, the prioritization or deprioritization of speech by the government through the CRTC necessarily implicates freedom of expression. Based on the charter statement that you produced, would you agree with that?
View David Lametti Profile
Lib. (QC)
As I have stated, the conclusion in both the charter statement and the explanatory document is that the bill is consistent with the charter. If you have a question about the applicability or a particular point of interpretation in the proposed bill, I will turn over the floor to Minister Guilbeault.
View Rachael Harder Profile
CPC (AB)
I have a question with regard to the charter—as to whether or not section 2(b) of the charter is actually held up by this bill—so let me explain further.
If I go to an art exhibition owned by a private individual, I expect to walk in and the art to be curated for me. Some artists are going to be given the front room; other artists are going to be given a back room. The curators are going to choose which paintings come first and which are toward, maybe, the end of the exhibition. That curation is expected because I'm going into a private gallery, and they've offered to do that for me. At the same time, however, if the government was to come in and dictate to that gallery how the art should be hung, where it should be hung or which artist should be promoted, that is censorship in its finest. The same thing is happening on our social media platforms with Bill C-10.
How does that fit within section 2(b) of the charter: to have what we post online carefully curated and censored by a government arm, the CRTC?
View David Lametti Profile
Lib. (QC)
As I mentioned in my opening statement, both the charter statement and the explanatory document looked at the various provisions of Bill C-10 and found that section 2(b) might be engaged, but there were various reasons given—which I outlined in my opening—to conclude that this was in conformity with section 2(b) of the charter.
Again, if there's a substantive application question, I will turn it over to Minister Guilbeault.
View Anthony Housefather Profile
Lib. (QC)
Thank you, Mr. Chairman.
Minister Guilbeault, it's great to see you here again. Thank you.
Also, thank you to Mr. Ripley and the officials from Canadian Heritage.
I want to particularly thank Minister Lametti and express my personal appreciation to him, to Nathalie Drouin and to the team from the Department of Justice for being here today, which is outside the normal course.
Minister Lametti, this committee asked you to provide a document “focusing on whether the Committee's changes to the Bill...have impacted the initial Charter statement provided, in particular as relates to Section 2(b) of the Canadian Charter of Rights and Freedoms.” Somebody was trying to use a technical term in terms of what we're calling the document to tell us whether or not you have delivered. Do you believe the document you provided delivers exactly what the committee requested?
View David Lametti Profile
Lib. (QC)
Yes, I do. It answers the question that was posed by the committee, which was whether the analysis contained in the original charter statement changed with the amendments. After the analysis, the explanatory document says that, no, that is not the case.
View Anthony Housefather Profile
Lib. (QC)
I know that you've said this already, but I just want to make sure we're all clear on this. In reference to the explanatory document, is it accurate to say that you have determined that the bill, as amended and as proposed to be amended, does not change the relevant considerations in the original charter statement?
View David Lametti Profile
Lib. (QC)
That's precisely the conclusion of the explanatory document. The relevant considerations set out in the charter statement remain valid, and these considerations are not impacted by the proposed amendments.
View Anthony Housefather Profile
Lib. (QC)
Mr. Minister, would you agree that the charter statement carefully considers that the CRTC, in making any regulations on the discoverability issue, including with respect to algorithms, would have to respect the charter, including section 2(b), as opposed to the social media companies themselves, which do not have to respect the charter in their use of algorithms?
View David Lametti Profile
Lib. (QC)
Both the charter statement and the explanatory document took into account all of the various changes that went into the act, and we have concluded that there wasn't a change to the original conclusion of the charter statement.
If you would like a more precise answer on the content of the actual act, I will turn the floor over to Minister Guilbeault, who is responsible for explaining and defending the bill.
View Martin Champoux Profile
BQ (QC)
View Martin Champoux Profile
2021-05-18 15:02
Thank you, Mr. Chair.
Thank you to both ministers for being here today.
Mr. Lametti, you said in your opening statement that the principle of freedom of expression was not absolute. Like it or not, it has its limits.
Can you give us examples of situations in which limiting freedom of expression would be justified?
View David Lametti Profile
Lib. (QC)
I'd like to thank the honourable member for his question.
Although it's an important question, I must say that I am here to explain the purpose of charter statements and to discuss the explanatory document we provided.
I am not here to give lessons on the charter and certainly not legal opinions. Answering a hypothetical question could lead me into very dangerous territory, as justice minister.
If you have any questions about Bill C-10, I will defer to my colleague Mr. Guilbeault.
View Martin Champoux Profile
BQ (QC)
View Martin Champoux Profile
2021-05-18 15:03
No, Minister. My question was about something you said in your opening statement. I was simply asking for specific examples of what you, yourself, said about freedom of expression not being absolute. Obviously, there are cases where freedom of expression has to be limited to a certain extent. I was simply asking you to clarify what you said. I wasn't asking you for a legal opinion or anything of that nature.
Can you give me some examples?
View David Lametti Profile
Lib. (QC)
I am not going to give any examples, but as I said, rights and freedoms are clearly not absolute. In many areas of law, you can find numerous situations in which rights set out in a charter, be it a Canadian or Quebec charter, are limited by other acts or regulations.
What the charter statement does is examine the consistency of the bill with the charter, overall.
As per the statement and the explanatory document, we concluded that the issues…. The fact of the matter is that I can't provide you with a specific answer since the statement can't be specific.
View Martin Champoux Profile
BQ (QC)
View Martin Champoux Profile
2021-05-18 15:05
It's more or less the principle that a person's rights and freedoms stop where another's start.
View Martin Champoux Profile
BQ (QC)
View Martin Champoux Profile
2021-05-18 15:06
No, the question was not directly related to Bill C-10, Mr. Minister. It could have been about any bill.
However, this is a good example. The bill before us is more complex than just the matter of freedom of expression. I am wondering whether, after the bill is passed, people will still have an opportunity to challenge parts of it if they want to, if they are concerned or uncomfortable.
This is simply a question about procedures and how the justice system works.
View Martin Champoux Profile
BQ (QC)
View Martin Champoux Profile
2021-05-18 15:07
Okay, thank you.
Perhaps this is a question I could ask your colleague Minister Guilbeault, who is also here today, but do you feel that we could add the wording to this bill right now that would reassure people who think that freedom of expression is currently being infringed upon? Do you have any idea what we could put in the bill to deal with this issue once and for all?
View Steven Guilbeault Profile
Lib. (QC)
Thank you, Mr. Chair.
I thank my colleague for his question.
Clearly, the committee is sovereign and has the power to propose amendments that it believes will improve the bill. I was the first to admit from the beginning that any bill could be improved.
As you know, we are a minority government. In that context, we have already worked extensively with the opposition parties on a number of amendments. We remain open to working with them throughout the committee's work, of course.
View Alain Rayes Profile
CPC (QC)
Thank you, Mr. Chair.
Mr. Minister, thank you for finally agreeing to come and meet with us. I'm very pleased.
Let me first ask you a very simple question. Does section 2(b) of the charter protect users' freedom of expression and the content they put online, yes or no?
View David Lametti Profile
Lib. (QC)
Thank you for the question, Mr. Rayes.
As I said at the outset, I am not here to give legal opinions or advice. That is not my role today. I never do that in public. It's true that, generally speaking, section 2(b) protects freedom of expression, but I'm not going to go into the details hypothetically. That is not my role today.
View Alain Rayes Profile
CPC (QC)
Mr. Lametti, with all due respect, you are the Minister of Justice. The Canadian Charter of Rights and Freedoms is a public document. My question is simple: I would like to know whether the Canadian Charter of Rights and Freedoms protects only individuals or whether it also protects the content they post online.
In your opening remarks, you said that there may be some limits to rights and freedoms, but you didn't want to elaborate on that, and you're perfectly entitled to refuse to do so.
I'm not asking you to give us a legal opinion or to prove any of this. I just want to know whether or not the Canadian Charter of Rights and Freedoms protects both individuals and the content they put online.
View Alain Rayes Profile
CPC (QC)
That's fine. Thank you, Mr. Lametti.
The chair has made it very clear that you are under no obligation to answer our questions if you do not wish to do so.
My understanding is that you don't want to tell us whether section 2(b) of the Charter protects both individuals and the content they post online. I don't know whether that is true or not, but that is my understanding.
The statement that you submitted on November 18 explicitly included in its analysis the proposed section 4.1 of the Broadcasting Act. That section was removed on a Friday afternoon about three weeks ago. That is at the root of the conflict we find ourselves in. However, you, as Minister of Justice, do not want to give us a legal opinion or at least tell us, based on your expertise, what you think.
You said earlier that lawyers or experts could be consulted once the bill is passed. Experts have already come to speak with us. Yesterday, Le Devoir published an open letter supported by five experts, including several former senior CRTC officials. I am sure you have read it. If not, your advisors or political staff must have read it. Those senior executives explicitly said that this would be challenged. We already know that. We have heard concerns from university professors, experts and policy analysts. I think it is legitimate for members of Parliament, who have to make recommendations, to consider those concerns.
Originally, the bill proposed to add section 4.1 to the act to protect the content that users post online. Now that this section has been removed, how can we be sure that users' content will be protected?
As a member of the House of Commons, how can I make a decision on this issue if you, as Minister of Justice, cannot help me?
View David Lametti Profile
Lib. (QC)
Thank you for the question.
I can tell you that, when the bill was introduced, the original charter statement concluded that the bill was consistent with the charter, subject to the considerations that I explained to you in my comments and my answers to questions. As a result of the amendments made to the bill, we have provided an explanatory document in which, after analysis, we reach the same conclusions.
If you have specific questions, you can ask Minister Guilbeault. It is his bill and he is the one responsible for answering such questions. If you wish, I can give him the floor.
View Tim Louis Profile
Lib. (ON)
Thank you very much, Chair, and I thank Ministers Lametti and Guilbeault for being here. I appreciate that and also I want to thank the representatives from justice and heritage for being here in this important conversation.
We've heard lots of testimony already and numerous arts organizations have come out in support of Bill C-10. Our artists are among the most fierce defenders of free speech in our society. They understand that updating this Broadcasting Act in no way infringes on the freedom of expression nor does it represent any censorship of the Internet.
Minister Lametti, I would like to hear from you. Can you explain the balanced approach that this bill takes in supporting our arts and defending free speech? Specifically, the charter statement says, “In making regulatory decisions, the [CRTC] must proportionately balance the objectives of the act with protection of freedom of expression in light of the facts and circumstances.”
Can you explain exactly what you meant by that? Is it your conclusion that the original import of the charter statement still applies and remains true?
View David Lametti Profile
Lib. (QC)
Thank you for the question. Thank you for regaling us during late night votes with your musical skills and your voice.
Mr. Louis, the charter statement does discuss the regulatory decision-making process of the CRTC and does, as you have said in your question, cite the balance that it has to achieve. I would add, as part of the charter statement—and it's indeed quoted in the charter statement—that the commission is subject to the charter and therefore must exercise its discretionary power in a manner that is consistent with the charter and the act. It therefore provides that the act must be interpreted and applied in a manner consistent with freedom of expression.
That's contained in the charter statement. If you want to delve further, I'm going to give you the same response that I've given to our other colleagues around the table, which is that I will turn the floor over to Minister Guilbeault to give further precision.
View Julie Dabrusin Profile
Lib. (ON)
Perfect.
I don't know how much time I have, but I would like to be able to give some time to Minister Guilbeault to respond. I know that he has indicated a couple of times he wanted to say things. I think, given that it is so important to move forward to clause-by-clause and we've heard from so many of the people in the creative industries about the importance of this bill and from witnesses yesterday as well, the minister might have something that he would like to add.
View Steven Guilbeault Profile
Lib. (QC)
Thank you very much, Mr. Chair and Ms. Dabrusin.
Earlier on in one of her questions, Ms. McPherson said that because the bill had around a hundred amendments, it was a flawed bill. That's a false premise. I know that, just like me, she's a new MP, so we're not used to this. It's not uncommon for bills to have 200 amendments. Going back in the previous Parliament, I can recall Bill C-69, which I followed closely in my previous career, had around 200 amendments. There's nothing extraordinary about that. In fact, a hundred may not be so much after all.
She pointed out that we've heard about experts who have raised concerns. I think just yesterday this committee heard from a number of experts who have actually clearly said that they thought there were no issues regarding freedom of speech. We've heard from a previous director of the CRTC, Janet Yale, and from a law professor from the Université de Montréal, Pierre Trudel.
I could quote this because I don't think it has been done in this committee and I think it is important. It's in French, so I'll switch to French. It's the unanimous resolution from the National Assembly.
The motion recognizes that Bill C-10 “constitutes a significant step in protecting and promoting Quebec culture and..., therefore, [the National Assembly of Quebec] affirms its support for the measures proposed by the bill.”
I think Bill C-10 actually has a lot of support across this country given the benefit it will bring to our artists as well as to the broadcasting ecosystem.
View Heather McPherson Profile
NDP (AB)
Have you considered any proposed amendments that would strengthen the bill's compliance with the charter principles?
View David Lametti Profile
Lib. (QC)
It is the minister in charge, Minister Guilbeault, and his team who would assess amendments and proposed amendments and who would go over their legality with justice lawyers, either embedded in the heritage department or within the justice department, as the case may be, but it is entirely up to Minister Guilbeault and his team.
Janet Yale
View Janet Yale Profile
Janet Yale
2021-05-17 14:35
Thank you, Mr. Chair.
Thank you all for the invitation to be here today. My panel colleague Pierre Trudel and I are very pleased to provide our perspective on Bill C-10.
We endorse the federal government's efforts to update the legislative framework governing the broadcasting system to include both media streaming services and sharing platforms. This approach is consistent with our report, which recognized the realities of a borderless online world in which Canadians will seek to access media content based on personal interest, irrespective of platform or technology.
Bill C-10 would ensure that these new online streaming services, including Netflix, Disney+ and Amazon Prime, as well as sharing platforms like YouTube, are required to make an appropriate contribution to Canadian cultural content. These online services derive significant revenues from Canadian audiences from both advertising and subscription revenues, yet face no obligation to contribute. To imagine that in 2021 we would permit these platforms to make money from Canadian audiences, Canadian consumers and Canadian creativity without any corresponding contribution defies logic, particularly when our system imposes obligations on traditional broadcasters that are now much smaller, less powerful and less prosperous.
In our report, we recommended, as a matter of competitive fairness, that online undertakings be included in updated broadcasting legislation. Our report also made it clear that these regulatory obligations should be restricted to the platforms—that is, if we use the language of the law, to undertakings. Individual creators should remain untouched by regulation, and that is exactly what Bill C-10 proposes.
Let me say it again: Bill C-10 imposes regulatory burdens and the obligation to contribute to Canada's creators only on the undertakings such as the big streaming and sharing platforms, not on individual creators.
I will put it another way. Programs consist of audio and audiovisual content. TV shows, songs, podcasts, postings and that programming—all those programs—exist beyond regulation and will remain beyond regulation. Individuals who create content, whether amateur or professional, and audiences large and small are not affected by Bill C-10 when they upload their programming, share it or even sell it to a streaming service. No one is going to police that content, tell them what they can say or compel them to pay dues.
What Bill C-10 does require—and, from my perspective, thank goodness we are finally taking this step—is that the undertakings—the YouTubes, Disney-pluses and Netflixes of the world that share that content and make money from distributing content—must operate by a set of rules and contribute some amount of the revenues they are harvesting from Canadians to the production of Canadian content.
Finally, to those who argue that Bill C-10 fails to protect user-generated content, we say that is just wrong. Proposed section 2.1 specifically provides that exemption already. New amendments that have been tabled make this exclusion even clearer. Therefore, to persist in creating this illusory scare against freedom of expression is either to misunderstand the legislation, in my view, or to intentionally seek to mislead people for some other purpose.
I will finish by saying this: Legislation, of course, is complex, and broadcasting policy and its regulation can be very technical. Devils do lurk in details, and that is why the scrutiny of this committee is so important. However, what's at stake here isn't hard to understand: We need to make provision for the reality of these immense and hugely powerful online platforms. We need to ensure that they give to, not just take from, Canadian creators and Canadian audiences. We need to update a broadcasting framework that was last amended before the world was even online. We need what is set out in Bill C-10, with all its provisions and all its protections. We urge the government to pass this legislation as quickly as possible.
Thank you.
Michael Geist
View Michael Geist Profile
Michael Geist
2021-05-17 14:39
Thank you very much, Mr. Chair.
As you know, my name is Michael Geist. I appear in a personal capacity, representing only my own views. I always start with that statement, but it feels particularly necessary in this instance, given the misinformation and conspiracy theories that some have floated and that Minister Guilbeault has disappointingly retweeted.
As I am sure you are aware, I have been quite critical of Bill C-10. I would like to reiterate that criticism of the bill is not criticism of public support for culture or of regulation of technology companies. I think public support for culture is needed, and I think there are ways to ensure money for creator programs this year and not in five years, as in this bill.
Further, I am puzzled and discouraged by the lack of interest in Bill C-11, which would move toward modernizing Canada’s privacy rules to help address concerns about how these companies collect and use our data. The bill would also mandate algorithmic transparency, which is much needed and far different from government-mandated algorithmic outcomes.
I’ll confine my opening remarks to the charter-related questions and widespread concerns about the regulation of user-generated content, but would welcome questions on any aspect of the bill.
There is simply no debating that following the removal of proposed section 4.1, the bill now applies to user-generated content, since all audiovisual content is treated as a program under the act. You have heard experts say that and department officials say that. The attempts to deflect from that simple reality by pointing to proposed section 2.1 to argue that users are not regulated is deceptive and does not speak to the issue of regulating the content of users.
I will speak to the freedom of expression implications in a moment, but I want to pause to note that no one, literally no other country, uses broadcast regulation to regulate user-generated content in this way. There are good reasons that all other countries reject this approach. It is not that they don’t love their creators and want to avoid regulating Internet companies; it is that regulating user-generated content in this manner is entirely unworkable, a risk to net neutrality and a threat to freedom of expression. For example, the European Union, which is not shy about regulation, distinguishes between streaming services such as Netflix and video-sharing services such as TikTok or YouTube, with no equivalent regulations such as those found in Bill C-10 for user-generated content.
From a charter perspective, the statement issued by the Department of Justice last week simply does not contain analysis or discussion about how the regulation of user-generated content as a program intersects with the charter. There is similarly no discussion about whether this might constitute a violation that could be justified, no discussion on the implications of deprioritizing speech, no discussion on the use of terms such as “social media service” that are not even defined in the bill, and no discussion of the implementation issues that could require Canadians to disclose personal location-based information in order to comply with the new, ill-defined requirements.
In my view, the prioritization or deprioritization of speech by the government through the CRTC necessarily implicates freedom of expression. The charter statement should have acknowledged this reality and grappled with the question of whether it is saved by section 1. I do not believe it is.
First, the bill as drafted, with section 4.1 in it, was the attempt to minimally impair those speech rights. With it removed, the bill no longer does so.
Second, the discoverability policy objective is not enough to save the impairment of free speech rights. There is no evidence that there is a discoverability problem with user-generated content.
Ms. Yale’s panel, which notably appears to have lost its unanimity, recommended discoverability but cited no relevant evidence to support claims that there is an issue with user-generated content.
Third, the objective of making YouTube pay some additional amount to support music creation is not enough to save the impairment of free speech rights either. This isn’t about compensation, because the works are already licensed. This is about paying some additional fees, given concerns that section 4.1 would have broadly exempted YouTube. I am not convinced that was the case, as services such as YouTube Music Premium might well have been captured. I am not alone on that. Canadian Heritage officials thought so too in a memo they wrote to the minister. In fact, it was such a non-issue that Mr. Cash’s organization did not even specifically cite the provision or raise the issue in the brief that it submitted to this committee.
I find it remarkable that the minister and the charter statement effectively tell Canadians that they should trust the CRTC to appropriately address free speech rights but are unwilling to do the same with respect to how section 4.1 would be interpreted.
Let me conclude by noting that if a choice must be made between some additional payments by a streaming service and regulating the free speech rights of Canadians, I would have thought that standing behind freedom of expression would be an easy choice to make, and I have been genuinely shaken to find that my government thinks otherwise.
I look forward to your questions.
Pierre Trudel
View Pierre Trudel Profile
Pierre Trudel
2021-05-17 14:44
Mr. Chair and members of the Standing Committee on Canadian Heritage, good afternoon.
I'm a law professor, and I've been teaching the Broadcasting Act since 1979. I was the research director of the Caplan-Sauvageau committee, which produced the 1991 Broadcasting Act. As my colleague Janet Yale pointed out, I was involved in the work of the Broadcasting and Telecommunications Legislative Review Panel.
As noted in the notice from the Department of Justice, which was tabled a few days ago, Bill C-10, amends the Broadcasting Act, which does not authorize measures to be taken against individuals with respect to the content they create and decide to put online. Above all, the act already clearly provides that all measures put in place to regulate broadcasting activities must respect freedom of expression.
Moreover, the Broadcasting Act has never authorized the CRTC to censor specific content. The CRTC's entire practice over the past 50 years is a testament to that. Furthermore, the Broadcasting Act requires that the CRTC refrain from regulating broadcasting in a manner that violates freedom of expression. It's hard to imagine a broader exclusion than that. It is an exclusion that requires a prohibition on interpreting the act in a way that empowers the CRTC to take action and create regulations or orders that violate freedom of expression.
In addition, as you know, the act provides that the CRTC shall refrain from regulating any activity that does not have a demonstrable impact on the achievement of Canadian broadcasting policy. In fact, the Broadcasting Act is enabling legislation. There are no specifics in the act. It is enabling legislation that empowers the CRTC to put in place rules adapted to the circumstances of each company so that they organize their activities in a way that contributes to the achievement of Canadian broadcasting policy objectives, as set out in section 3 of the act.
Therefore, Bill C-10 does not need to expand exclusions for any type of content. Rather, it is a recognition that Bill C-10 already excludes measures that could be suspected of infringing on freedom of expression and ensures that the Broadcasting Act applies to all companies that transmit programming, including on the Internet, which is the primary purpose of Bill C-10.
With regard to these online companies that determine content and that, it's important to remember, already regulate content that is offered to individuals through processes based on algorithms or artificial intelligence technologies, Bill C-10 strengthens the guarantees of fundamental rights for all Canadians. It empowers the CRTC to compel companies to provide information on the logic behind these algorithmic devices, which does not currently exist. It enables the CRTC to put measures in place to ensure that Canadians are offered programming that reflects the principles, values and objectives set out in section 3 of the Broadcasting Act.
Nothing in the Broadcasting Act as it is proposed to be amended would allow the CRTC to impose on anyone programs that they do not want to hear or see, let alone allow the CRTC to censor content on platforms.
Rather, the act provides individuals with a real opportunity for choice. There is currently no guarantee that online companies are offering Canadians a real and meaningful choice that reflects Canadian values as codified in the Broadcasting Act.
There has been a constant since the early years of radio, and that is a tension between those who believe that broadcasting undertakings should be left to market forces alone and those who—rightly, in my view—believe that intervention is required to ensure the effective availability of programming that is the product of Canadians' creative activity.
Bill C-10 is part of this continuum, which has allowed Canadians to have media that offers the best the world has to offer, while also giving prominence to the works of Canadian creators, including creators from minority and indigenous or first nations communities.
Thank you.
View Rachael Harder Profile
CPC (AB)
Awesome. Thank you so much, Chair.
My question is for Dr. Geist.
Ms. Yale, the minister and all of the other witnesses on this panel today have tried to make the claim that our freedom of speech is not being attacked by this bill. In fact, they claim that it's not even impacted, and that somehow content can be moved up or down in the queue without impacting other content. It would be my observation that in order for some information to be bumped up and made more discoverable, other information must be bumped down. I just don't see how it's possible for that not to be the case. When that is the case, it means that there's a mechanism being used to regulate and curate what I can and cannot see, which then would be a form of censorship.
Mr. Geist, I'm wondering if you can comment or elaborate on this further.
Michael Geist
View Michael Geist Profile
Michael Geist
2021-05-17 14:58
I think you've highlighted what is the nub for so many experts that have spoken out on this issue.
First off, let's be clear: User-generated content, when we are speaking of the content, is regulated. It's absurd to simply suggest that you're exempted or the CRTC is bound by some other policy objectives. We are putting it into the basket of regulation. We would never dream of saying the CRTC would or should regulate things like our own letters or our blog posts, but this is a core expression for millions of Canadians, and we are saying that it is treated as a program like any other, and subject to regulation. That's number one.
When you layer on top of that—as the Liberals' proposed amendment does—discoverability requirements, what you are saying is that the government, through its regulator, gets to determine what gets prioritized. It is not about any specific piece of content per se, but it's going to make choices, elevating some and deprioritizing others. That clearly has an impact on individual Canadians' expressive rights. It's doing so in an environment that frankly is completely unworkable, when you think about this from a user-generated content perspective. The notion that somehow this increases choice at a time when there is unlimited choice for user-generated content is frankly just absurd.
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