Canadian Heritage Minister Pablo Rodriguez took the stage at the Prime Time Conference in Ottawa on February 2nd prepared to take a victory lap on Bill C-11 before the industry crowd. Suggesting that royal assent was only days away, Rodriguez brushed aside Senate amendments to address user content regulation concerns and stated that he would not accept material changes to the bill. Yet within days, the Quebec government altered those plans, indicating that it was unhappy with the bill and demanding changes. The most notable change – reiterated in a motion passed in the National Assembly – would be mandated consultation with Quebec on policy directions from the government directed to the CRTC. Providing any province with a near-veto over federal communications policy should be a non-starter, meaning that Rodriguez risks going from culture hero in Quebec to the person who threatens its regulatory power over culture.
My post yesterday focused on the constitutional and cultural issues that have been simmering in the bill, noting that Bill C-11 is at odds with decades of Quebec broadcast policy. This post explains why fact that the government now finds itself between the proverbial rock and hard place on Bill C-11 is almost entirely a dilemma of its own making. Rather than crafting legislation that was limited to its stated goal – ensuring streaming giants contribute to the Canadian system – it instead opted for an expansive approach to Internet regulation that leaves many key questions to the CRTC. That may have sparked Quebec to intervene as the regulatory uncertainty is a risk for all stakeholders, including the provinces.
While the government will surely seek some compromise (unlike Rodriguez’s unwillingness to address the concerns thousands of Canadian digital creators, the government’s lead MP in Quebec will presumably work to address provincial concerns), granting the province what appears to be a veto over the CRTC policy direction must surely be a non-starter. That Quebec is seeking such power is a function of three things.
First, the government chose to use Bill C-11 to regulate all audio-visual content located anywhere in the world and in the process loop in thousands of streaming services and user content from millions of Canadians. As discussed in this post, this over-broad approach to broadcast regulation is a massive jurisdictional power grab for the federal government. Quebec is late to the game, but its support for a bill that undermines decades of provincial cultural policy was always puzzling.
Second, Bill C-11 is so lacking in specificity that virtually every key issue has some element that must ultimately be decided by the CRTC. The government seems to think this legislative choice is a feature, but for many stakeholders it is a bug. If you are a streaming service, the uncertainty increases regulatory costs and raises the possibility of exiting or blocking the Canadian market. If you are a digital creator, you fear the CRTC’s regulatory power. If you are a province with a long history of cultural policy, reliance on a CRTC that just issued a Radio-Canada decision viewed as censorship is a real worry. It is clear that the federal government has expanded its jurisdictional reach, but many of the specifics remain an unknown. Quebec’s insistence on greater power over the CRTC policy direction may stem from legitimate questions about what will be found in that direction today and what a future government might change.
Third, the policy direction itself remains secret, another government choice. Indeed, under Bill C-10, the draft policy direction for the bill was made public. Rodriguez opted to keep it all secret and maintain a “trust me” approach to the policy direction. Yet given his frequent gaslighting on the bill, Rodriguez has burned through much of benefit of the doubt. Had the government issued the draft policy direction in advance, it might have foreclosed some of Quebec’s concerns. Instead, the province now harbours many of the same doubts found among key private sector stakeholders.
The common thread between each of these three issues is that they are all a product of bad decisions by Rodriguez. The government could have drafted a narrowly tailored bill that limited its encroachment on provincial powers and met its policy objectives. It could have heeded the calls for more definitions, thresholds, and specificity in the bill so that fewer specifics would be left for the CRTC to decide. And it could have released its draft policy direction in advance so that all stakeholders would better understand how the government intends for the bill interpreted. That it did none of those things has created enormous uncertainty for stakeholders and risk to provincial cultural policy, thereby opening the door to Quebec’s demands for last minute changes to Bill C-11.
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