Canada postage stamp: constitution by Karen Horton (CC BY-NC-ND 2.0) https://flic.kr/p/9YFxLN

Canada postage stamp: constitution by Karen Horton (CC BY-NC-ND 2.0) https://flic.kr/p/9YFxLN

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Failing Analysis: Why the Department of Justice “Updated” Charter Statement Doesn’t Address Bill C-10’s Free Speech Risks

The Department of Justice yesterday released its updated Charter statement on Bill C-10. To the surprise of absolutely no one, the department argued that the bill is Charter compliant. That conclusion was never in doubt as the statement is quite clearly more a political document than a legal analysis. The only real questions were whether the department would seriously grapple with the freedom of expression implications of treating all user generated content as a “program” subject to regulation by the CRTC and if Minister of Justice David Lametti would come to the Standing Committee on Canadian Heritage to answer questions on the statement. It turns out the answer is no to both questions: the statement glosses over the actual concerns with Bill C-10 and Lametti will be a no-show at the committee hearing.

While it might not surprise that the government maintains that Bill C-10 is consistent with the Charter, it is disappointing that the review does not engage with the central concerns that have emerged in recent weeks. Indeed, the statement is utterly lacking in analysis and would likely get a failing grade from constitutional law professors. Under Bill C-10, all user generated content is treated as a program and subject to regulation by the CRTC, which effectively outsources the enforcement of that regulation to the tech companies. Never in Canadian history has the expression of so many individuals been treated as falling within the jurisdiction of a broadcast regulator. Indeed, no other country in the world contemplates regulating user generated content in this manner.

Further, though there are limits to the CRTC’s powers, the fact that it can prioritize or effectively de-prioritize content in the name of discoverability has a direct impact on the expression of millions of Canadians. That necessarily invokes Charter considerations, but the updated Charter statement does not grapple with them. Instead, the statement acknowledges that the law will apply to all video and audio user generated content (referred to as programs from “unaffiliated users”) and identifies the CRTC powers with regard to that content, including imposing requirements in respect of discoverability of Canadian creators.

Unfortunately, there is no analysis of the freedom of expression implications of this regulation. The full Section 2(b) discussion:

As indicated in the Charter Statement, 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 with section 2(b) of the Canadian Charter of Rights and Freedoms. By virtue of clause 1 (section 2(2.1)), unaffiliated users of social media services would not be subject to broadcasting regulation in respect of the programs they post. The objectives of the bill in updating the Commission’s regulatory powers and providing new powers applicable to online services remain. The bill maintains the Commission’s role and flexibility in determining what, if any, regulatory requirements to impose on broadcasting undertakings, taking into account the Act’s policy and regulatory objectives and the variety of broadcasting undertakings subject to the Act. With respect to the proposal to give the Commission new limited powers in regulating an online undertaking that provides a social media service in respect of programs posted by its unaffiliated users, the relevant Charter considerations include the Commission’s discretionary role and flexibility.

The proposed narrowing of the Commission’s discretionary powers to regulate a social media service in respect of programs posted by its unaffiliated users, to only the discrete matters outlined above, is an additional consideration. The Commission is subject to the Charter, and must therefore exercise any discretionary powers it has in a manner that is consistent with the Charter. The Act provides that it must be interpreted and applied in a manner consistent with freedom of expression. As stated in the Charter Statement, in making regulatory decisions, the Commission must proportionately balance the objectives of the Act with the protection of freedom of expression in light of the facts and circumstances. The Commission’s decisions on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.

In other words, there is no analysis or discussion about how the regulation of programs 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 de-prioritizing speech, and no discussion of the implementation issues that would outsource regulation to tech companies not subject to Charter limits and could require Canadians to disclose personal, location-based information in order to comply with the new requirements.

Instead, the government emphasizes that users are not regulated as broadcasters and the CRTC is required to rule in a manner consistent with the Charter. Neither provide constitutional comfort. As Professor Emily Laidlaw argues:

The government does not propose to regulate users directly. But it does propose to regulate the platforms that then must regulate users. Indirectly, UGC is regulated. It’s actually worse, because the state does not set any rules on how the platforms do this that is proportionate and minimally impairing.

As for the CRTC discussion, that isn’t a Charter analysis, it’s a “trust us” declaration that seemingly guarantees the bill will be subject to a Charter challenge, leading to years of delays in implementation as the courts consider the issue.

The updated Charter analysis is ultimately a bust with little actual analysis. Given its vulnerability, Lametti’s no-show at the committee shouldn’t come as a surprise. As a long-time law professor, he has graded enough exams to recognize a failing analysis when he sees it.

15 Comments

  1. David Thornley says:

    Right on point. This was bad public policy from day one. The question remains: Why is the government so determined to go down this rabbit hole?

    • To me there are two possibilities: corruption and tribalism.

      The SNC Lavalin scandal showed the measures the liberals would take to implement the legislation SNC paid for. The question then becomes who benefits from this legislation and what are their ties to the Liberals.

      This legislation reminds me of Quebec’s language laws. Both are based on the claim that our tribe’s existence is threatened by foreign tribes. Severe protective measures, including suppression of rights, are then justified to ensure our tribes existence.

      This also raises the question of would the Liberals invoke the Charter’s not-withstanding clause if the Courts rule Bill C 10 violates Charter rights.

  2. peter d james says:

    Golly, Mikey — the deep state conspiracy only expands. It now encompasses the government front bench, civil servants in Justice and Heritage, and who knows which other dark forces. As you say, constitutional law professors would not give this ‘opinion’ a passing grade — but then, no one is asking what mark you and your colleagues would give to the statement. It is now obvious that your ‘sky is falling’ free speech canard has not worked again (see EFF on section 230; open media on DSM, etc.). The lazy journalists that swallowed your bait will soon move on to other ‘scandals’. But all is not lost: Google & YT will continue to make money and provide grants for academic research.

    • 9.1 (1). Your move.

    • Elizabeth Morris says:

      You are evidently unfamiliar with the role of the federal public service, from which I’m retired, and the job of bureaucrats – specifically to deliver the government’s mandate, in this case Bill C-10, and as the government wishes. More research on your end will expose your argument as nonsensical and uninformed.

      • Agreed. Back when I was a public servant a consideration in anything that we did was to not embarrass the government of the day.

  3. Justa Reader says:

    Good analysis. I’m not a legal expert.

    However, I can spot pernicious euphemisms. How is “user generated content” not speech? What I’m saying here is user generated content. If I make a protest sign, that’s speech, whether I put it on my lawn, or on Facetube or Mybookr. It should only concern the government if I trespassed and hung it on the CN Tower.

  4. Jeffrey Brooman says:

    Message to Micheal – not for public posting – Quebec wants to open Charter to proclaim Quebec is a nation and French is it’s language. I’ve been predicting for weeks to my wife that they will find some reason to reopen constitutional talks to change the rights with respect to choice over our bodily autonomy. I see this as the beginning of that process. By the time they are finished we’ll have no rights over our bodies. You heard it from me first.

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