Parliament may be on a summer recess, but the debate over Bill C-11, which is now in the Senate, continues. Yesterday, I engaged in a Twitter debate with Matthew Gray, an official in the office of Heritage Minister Pablo Rodriguez that ultimately focused on the relative importance of the government’s “policy intention” vs. the actual text of the bill. While officials and Minister Rodriguez regularly point to what they intend the bill to do, experts note that the text does not reflect those intentions.
On Sunday, Gray had jumped into another Twitter debate involving Rodriguez’s Chief of Staff John Matheson, who posted several tweets which made the case that the bill does not include Canadian content quotas or content standards (I responded to those tweets by noting that the bill does open the door to Canadian content display quotas and the CRTC’s recent Radio-Canada decision confirms the risk of content regulation). Gray claimed that “only the largest services that are household names with hundreds of thousands of subscribers will be regulated” by Bill C-11. I responded that is plainly false under the bill as it is currently written since there are no thresholds and the government rejected several proposed amendments that would have established them. Gray didn’t find that persuasive, however, responding that his previous comment reflected the government’s “expectation and policy intent”, later adding that “it is hard to engage in forward policy if when we communicate our intent the reply is ‘it’s untrue you haven’t done it yet.'”
My tweet thread response notes that the disconnect between the government’s professed intent and the actual text in Bill C-11 has been a persistent issue:
- government claims intent isn’t to regulate user content (contradicted by the CRTC chair),
- government claims intent isn’t to include algorithmic manipulation (contradicted by the CRTC chair)
- government claims intent is to help digital creators (contradicted by the creators themselves),
- government claims intent is to avoid content regulation (undermined by the CRTC engaging in content regulation in the Radio Canada case)
- government claims intent is no Cancon quotas (undermined by the possibility of display quotas)
- government claims intent is to exclude video games and other similar content (currently included in the bill and will require policy direction the government won’t release to exclude)
- government claims intent is to leave regulations to an independent CRTC (yet it regularly seems to have pre-determined what the outcome will be)
- government claims intent is to ensure Bill C-11 is consistent with its trade obligations (the U.S. has now raised concerns with the bill and potential CUSMA violations)
- government claims intent is to help independent production sector (experts now concerned the bill will undermine decades-old policy that support the sector)
All of this raises the question of whether the government’s intent matters if the bill itself does not reflect those intentions. I would argue that it does not. Courts frequently examine legislative history, but what matters aren’t tweets from officials or best intentions, but rather the actual record. When a court examines the actual record of Bill C-11, they will find CRTC chairs, experts, and numerous creators identifying what the bill actually contains rather than what the government said it wants to accomplish. In fact, groups such as Music Canada and Digital First Canada specifically discussed the government’s stated intent and urged it to amend the bill to ensure those intentions were reflected in the legislation.
The government had the opportunity to do just that during the clause-by-clause review, yet it cut off debate and rushed through voting on over 100 amendments without discussion or even public disclosure. Further, the government had the chance to release its planned policy direction to the CRTC in advance of the bill receiving royal assent (as it did with Bill C-10), but it refused to do so. In other words, there have been meaningful opportunities to ensure that the bill does what the government says it intends. The fact that the government has declined to do so is deeply troubling. As the saying goes, the road to hell is paved with good intentions. It will be up to the Senate to ensure that Bill C-11 takes a different road.