French language policy has emerged as a hot-button issue in the breakdown of trade talks between Canada and the U.S. While the U.S. has denied that French is a concern, Prime Minister Mark Carney pointed to U.S. demands involving culture and the French language in his weekend press conference and Canada’s Ambassador to the U.S. Mark Wiseman confirmed that the dispute included the levels of French-language content on U.S.-based streaming services. My post this week speculated that U.S. objections likely extend beyond the CRTC’s discoverability requirements arising from the Online Streaming Act to Quebec’s Bill 109, which is a provincial version of the law focused on French-language content on streaming services. I argued during the legislative process that the Quebec law is unconstitutional, unnecessary, and unworkable, since it encroaches on federal jurisdiction over broadcasting. If the law takes effect, a constitutional challenge will follow, and the federal government will almost surely support it. In other words, the law now cited as evidence that Canada would not cave on culture is likely to be opposed by both the U.S. and Canadian governments, albeit for very different reasons.

The U.S. concerns with Bill 109 are well documented. The Globe and Mail reported Sunday night that U.S. Trade Representative Jamieson Greer has raised the law directly, and CNN and the CBC have since published pieces placing it at the centre of the French-language dispute. The National Assembly adopted Bill 109 last December with support from all parties. However, it is not yet in force, as the provincial government must still establish a new oversight office and enact regulations that address issues such as which platforms are covered and what obligations they face.

The scope of the Quebec streaming law has unsurprisingly caught the attention of Internet streaming services. It establishes a registration regime for those services, requires that interfaces be readily configurable in French, and authorizes regulations governing the presence, proportion, promotion and discoverability of original French-language content. The inclusion of a proportion of French-language content effectively amounts to a quota system that is likely to limit the availability of English-language content on streaming services, as services cut back on English-language programming to meet the government’s requirements for the percentage of French-language content. This means that the library of content on services such as Netflix will be far smaller in Quebec than in the rest of the country.

Government setting limits on the availability of English-language content (and other non-French content) is a bad idea, but the more fundamental problem with the law is constitutional. The Supreme Court of Canada’s rulings on broadcasting jurisdiction date back decades, including the 1978 Dionne decision that rejected Quebec’s attempt to regulate cable television. Bill 109 appears to directly conflict with that jurisprudence and will inevitably end up before the courts. Quebec will presumably characterize the law as a cultural, language and consumer measure within provincial jurisdiction. But the closer its regulations come to dictating what streaming undertakings must offer, recommend, promote and display, the harder it becomes to distinguish Bill 109 from direct regulation of broadcasting, which falls to the federal government. The implication is that the Online Streaming Act and Bill 109 cannot legally coexist: if streaming is broadcasting, Bill 109 is unconstitutional. If it is not, the Online Streaming Act may be in jeopardy. That leaves the Attorney General of Canada with little choice but to intervene once litigation begins.

The constitutional battles over the Quebec law are different from the government’s trade position on cultural sovereignty. The emphasis on sovereignty is on whether the U.S. has a say in how Canada regulates culture within its borders, not on whether the federal government supports specific provincial culture legislation. Indeed, as I noted in my post, Bill 109 was never the federal government’s to trade.

Yet for all the talk of red lines and non-negotiable demands, the very law that has drawn the ire of the U.S. and now sits at the centre of a vocal battle over cultural sovereignty is likely to face a court challenge from streaming services, with support from the federal government. The irony is that the U.S. may eventually obtain through Canadian constitutional law what it failed to secure at the negotiating table: the invalidation of Quebec’s streaming rules, with the Canadian government defending its jurisdiction along the way.