Bill C-11 – and its predecessor Bill C-10 – have long been driven by the government’s view that the bill was a winner in Quebec. Bill C-10 was headed for easy passage in 2021, but was derailed by the government’s decision to remove safeguards over regulating user generated content that came largely from the Quebec-based music lobby. Nearly two years later, Canadian Heritage Minister Pablo Rodriguez and his staff have ignored the concerns of thousands of digital creators, disrespected indigenous creators, and indicated that he will likely reject Senate amendments designed to craft a compromise solution, all in the name of keeping Quebec lobby interests satisfied. Yet as the government considers the Senate amendments, the Quebec legislative assembly this week passed a last minute motion calling for further changes to the bill, including scope to enact its own rules and mandatory consultations with the province on the contents of a policy direction to the CRTC that Rodriguez has insisted on keeping secret until after the bill receives royal assent (a full copy of the motion is contained at the bottom of this post). The Conservatives have been calling for the Quebec motion and the Senate amendments to be sent back to committee for further study, which the Globe reports may delay the government’s response to the Senate amendments.
It is not clear what prompted the Quebec government to finally wake up to the centralizing power over digital culture that comes from the bill (and just wait until it realizes that Bill C-18 encroaches on provincial jurisdiction with the regulation of newspapers). But this issue has been there from the beginning. In March 2021, Philip Palmer, a former Justice counsel, argued that Bill C-10 was unconstitutional, making the case it fell outside federal jurisdiction. In a post on his submission, I noted:
Quebec has a long history of taking issue with federal involvement in broadcasting, putting a potential challenge in play. Indeed, it is odd to see this legislation viewed as a political winner in Quebec, when it effectively asserts federal jurisdiction over an area that has long been contested in the province.
Palmer appeared before the House committee studying Bill C-11 and warned MPs about the constitutional jurisdictional overreach. His opening statement noted:
C-11 lacks a foundation in Canadian constitutional law. Internet streaming services do not transmit to the public by radio waves, nor do they operate telecommunications facilities across provincial boundaries. They and their audiences are the clients of telecommunications common carriers, which are subject to federal regulation. Netflix, for instance, in this case is no more a federal undertaking than a law firm such as McCarthy Tétrault or a chain store like Canadian Tire, both of which rely extensively on telecommunications services.
Liberal MP Anthony Housefather followed up on the issue, asking Palmer to cite caselaw to back his claim. His response:
The principal case for all federal regulation of broadcasting space is, of course, the radio reference of 1932. In that, the court relied upon the provisions of subsection 92(10) of the Constitution Act to find that, in transmitting radio waves, they necessarily exceeded provincial boundaries and, therefore, could only be effectively regulated at the federal level. The key is that, in order to be regulated by the federal government, the “undertaking”, as the Constitution uses the word, has to be one that has the facilities to exceed provincial limitations and provincial boundaries.
Housefather wasn’t convinced and asked Professor Pierre Trudel, a vocal supporter of Bill C-11, for his view. Trudel didn’t deny the issue. In fact, he confirmed it, suggesting that the Supreme Court would ultimately have to determine the question:
If this were unconstitutional, it would be because it would be a matter of provincial jurisdiction. The question would then have to be asked: is it better for 10 provinces to put in place regulations on these matters or for the federal authority to do so? There are arguments that radio waves are not the only basis for federal jurisdiction in these matters. There is, among other things, the question of national interest and the inherently interprovincial nature of the activity. In short, all these arguments may have to be argued before the Supreme Court. Either the federal government has authority, or the provinces do. Therefore, it is to be expected that the Canadian state will intervene sooner or later, whether through the provinces or through the federal government.
The takeaway from this exchange – a former justice lawyer citing caselaw to confirm the shaky constitutional foundation of the bill and a professor confirming the Supreme Court would have to decide – should have provided a wakeup call to Quebec, which has a long history of challenging federal jurisdiction in communications that dates back nearly 100 years with repeated efforts to enact provincial laws and policies in the area. Left unsaid is that if the “national interest” dictates federal regulation of anything that touches the Internet, there are few limits on federal powers and little left for the provinces.
The question of federal jurisdiction over broadcast is well-settled, but the key point with Bill C-11 is that it represents a massive expansion in the very conception of broadcast. Under the bill, the Canadian “broadcast system” is no longer primarily limited to radio and television, but now expands to the Internet. In fact, the bill adopts an expansive approach with all audio-visual programs located anywhere in the world subject to Canadian federal jurisdiction. In other words, the federal government is asserting jurisdiction over every streaming service anywhere in the world (notably including many French-language services) and tossing in the regulation of the content of thousands of digital creators along the way. This digital culture jurisdiction grab is then used to give the CRTC the power to establish regulations over the streaming services and over much of the content posted by users on services such as TikTok and Youtube. That Quebec has spent decades challenging federal jurisdiction over radio and television stations, but then says nothing about handing over regulatory authority over Internet content services and user content is inexplicable.
Indeed, the notion that Quebec would welcome this expansion of federal jurisdiction with its enormous implications for expression and culture never made much sense. This summer’s CRTC decision involving Radio-Canada and the use of the N-word in a broadcast was widely rejected in the province and viewed as censorship. If it didn’t like that decision, think of the Bill C-11 world in which the federal government and CRTC have regulatory power over a broader range of content that would include user content and thousands of streaming services worldwide. That means the federal government and its regulator decide what counts as Canadian, how that content should be promoted on digital services, and how the digital services contribute to the cultural sector. That is obviously why many have been arguing for changes to the bill. More power to the CRTC and the federal government over cultural content is something Quebec has fought for decades, yet under Bill C-11 it gets no say over key issues involving the most important cultural engine of our time. It has taken a long time, but it appears it has finally awoken to the long-term implications of the bill and it isn’t altogether comfortable with what it sees.
The Quebec motion states the following:
By leave of the Assembly to set aside Standing Order 185, Mr. Lacombe, Minister of Culture and Communications, together with Ms. Setlakwe (Mont-Royal–Outremont), Ms. Ghazal (Mercier), Mr. Bérubé (Matane-Matapédia) and Ms. Nichols (Vaudreuil), moved:
THAT the National Assembly acknowledge that the federal government could soon pass Bill C-11, which aims to amend the Broadcasting Act;
THAT it underline that this bill does not recognize the application of Québec laws regarding the status of artists;
THAT it recognize that this bill, as it is currently written, grants Québec no rights of inspection on the directions that will be given to the CRTC, and that those directions will have a significant impact on Québec’s cultural community;
THAT it remind the federal government that Québec’s linguistic specificity must be respected;
THAT it highlight for the federal government that as a nation, it is up to Québec to define its cultural orientations; THAT it demand that Québec be officially consulted on the directions that will be given to the CRTC regarding the bill and that, for this purpose, a formal mechanism be added to the bill;
THAT it affirm that Québec will continue to apply, in its areas of jurisdiction, the laws democratically passed by the National Assembly;
THAT, lastly, the National Assembly inform the federal government that Québec will use all the tools at its disposal to continue protecting its language, culture and identity.
By leave of the Assembly, the motion was carried.