Bill C-10: An Act to amend the Broadcasting Act and to make consequential amendments to other Acts

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Questions and Answers

Table of Contents

1. Why did the Minister not respect the Committee’s motion and appear last Friday?
2. Why can’t you give us legal advice?
3. What is a Charter Statement?
4. What is this new document tabled with the Committee?
5. Why did the Minister not respect the Committee’s motion and table an updated Charter Statement?
6. Why aren’t Charter Statements updated?
7. Why hasn’t the Justice website been updated with the new Charter Statement?
8. What is the Minister of Justice’s role with respect to Charter Statements?
9. Did you examine the amended bill/amendments for Charter compliance?
10. Is the Charter Statement that was tabled still valid now that Clause 3 has been removed?
11. Does this bill comply with the Charter?
12. Clause 3 (s. 4.1) has been removed. But the Committee has not adopted the other government amendments yet. Without Clause 3, does this bill comply with the Charter?
13. How do the proposed amendments on social media platforms affect freedom of expression?
14. Does this bill/do the amendments violate freedom of expression?
15. How can a limit on freedom of expression be justified?
16. Are the broadcasting objectives sufficiently important to justify limiting freedom of expression?
17. The bill gives discretion to the CRTC. How will the CRTC respect freedom of expression?
18. What is the effect of the proposed amendments on user-generated content?
19. How will the discoverability requirement affect user-generated content and users’ freedom of expression?
20. How will social media services apply the discoverability requirement?
21. What is a “program”?
22. Who is an “unaffiliated user”?
23. If this law is challenged, Mr. Geist says it will remain tied up in the courts. We need this bill soon, so how do you plan to address this?

1. Why did the Minister not respect the Committee’s motion and appear last Friday?

• As you know, each minister is responsible, with the support of parliamentary secretaries as appropriate, for piloting legislation through the House.
• In general, my practice as Minister of Justice and Attorney General of Canada is not to participate in committee proceedings respecting Bills sponsored by other Ministers.
• The Department of Justice is involved in every piece of government legislation. It would not be feasible for me to participate in committee proceedings respecting every bill.
• My routine participation is not necessary because all cabinet ministers, including myself, are by convention collectively responsible for the positions put forward by the sponsoring Minister.
• As I mentioned in my remarks, it is not my role as Minister to provide legal advice to the committee. I respectfully suggest that the Committee may consult the Law Clerk, parliamentary counsel and expert witnesses.

2. Why can’t you give us legal advice?

• As Minister of Justice, I am the official legal advisor of the Government General and the legal member of the Privy Council. As Attorney General, I advise government departments on matters of law.
• In both roles, my client is the government and not Parliament.
• Although I can provide information about the Government’s position respecting legal issues, I cannot give you legal advice. Doing so would conflict with my role as legal advisor to the Government.

3. What is a Charter Statement?

• A Charter Statement identifies the provisions of a bill that may potentially affect Charter rights and freedoms. It briefly explains the purpose and operation of those provisions, and how the provisions potentially affect the relevant rights and freedoms.
• As I’ve mentioned, the purpose of a Charter Statement is to provide information about a bill’s potential effects in order to inform Parliamentary debate and public discussion.
• The statement also outlines the relevant considerations that support the constitutionality of a bill.
• A Charter Statement does not provide a legal opinion on the constitutionality of a bill.

4. What is this new document tabled with the Committee?

• The explanatory document tabled with the Committee takes a similar approach as we do with Charter Statements.
• That is, it outlines the relevant legislative amendments and provisions that are under discussion. As stated in the tabled explanatory document, it identifies that one potential Charter effect is on freedom of expression.
• The document then goes on to outline the relevant considerations that continue to support the constitutionality.
• It is not unusual for public servants to appear before Committees during clause-by-clause consideration, not to provide legal advice, but to provide the position of the government and information. This is similar to the intent of the explanatory note, which identifies potential effects and relevant considerations for the purposes of the Charter.

5. Why did the Minister not respect the Committee’s motion and table an updated Charter Statement?

• As outlined in section 4.2 of the Department of Justice Act, the Minister’s statutory obligation to table Charter Statements relates to Bills as introduced in Parliament.
• Charter Statements are not updated as a bill progresses through Parliament.
• Given the Committee’s interest in understanding the impact of proposed amendments on Bill C-10, my department has provided an explanatory note that identifies potential Charter effects and the relevant considerations that support the constitutionality of the Bill and the amendments.
• Similar to the role officials play at Committees during clause-by-clause consideration of Government legislation, this written explanatory note outlines the position of the government with respect to the Charter effects of the amendments to Bill C-10.

6. Why aren’t Charter Statements updated?

• Charter Statements are tabled as early as possible in the legislative process in order to support discussion and debate about the bill in the form in which it is introduced in Parliament.
• Charter Statements are not updated as a bill progresses through Parliament.
• There is no obligation under s.4.2 of the Department of Justice Act, to update a Charter statement as a bill is amended and debated in committee.
• This may reflect a certain deference to the role of Parliamentary committees and the law clerks that advise them.

7. Why hasn’t the Justice website been updated with the new Charter Statement?

• The Charter Statement for Bill C-10, which was tabled in November, remains accurate and valid in respect of the bill that was introduced.
• Along with all other Charter Statements for tabled bills, it will remain on the Justice website.
• The explanatory document tabled with Committee last week focuses on the most recent package of proposed amendments to the bill and the potential effects on the Charter.

8. What is the Minister of Justice’s role with respect to Charter Statements?

• The Minister of Justice has two obligations under the Department of Justice Act with respect to the Charter.
• Section 4.1 of the DOJ Act requires the Minister of Justice to review proposed Government bills for inconsistency with the Charter.
• Section 4.2 of the DOJ Act requires the Minister of Justice to ensure that a Charter Statement is tabled in the House of Commons for every Government bill.
• These two obligations, examining bills for Charter inconsistency and preparing Charter Statements, are both focused on the bill as tabled.
• The Minister of Justice tabled a Charter Statement for Bill C-10 on November 18, 2020. This satisfies his Charter obligations under the DOJ Act.
• Bills frequently change over the course of their passage through Parliament. A Charter Statement reflects the bill at the time that the government introduced the bill in the House of Commons.
• Under section 4.2 of the DOJ Act, there is no requirement to update Charter Statements as a bill progresses through Parliament.
• The considerations that support the Charter consistency of Bill C-10 remain those outlined in the Charter Statement. The Government’s position is that the bill as tabled and the proposed amendments are consistent with the Charter.

9. Did you examine the amended bill/amendments for Charter compliance?

• The original bill was reviewed in accordance with my duty in s. 4.1 of the Department of Justice Act, and I was satisfied that it was not inconsistent with the Charter.
• The government carefully examines and considers its own amendments to any bill, in accordance with the rule of law and the Charter.

10. Is the Charter Statement that was tabled still valid now that Clause 3 has been removed?

• The Charter Statement tabled in November addressed Bill C-10 as introduced. The relevant considerations outlined in that Charter Statement remain valid.
• The effect of the removal of clause 3 and the other proposed amendments are set out in the explanatory document.

11. Does this bill comply with the Charter?

• Yes, it is the government’s position that both the bill as tabled, and the additional amendments currently under discussion, are consistent with the Charter.
• The Charter Statement and the explanatory document state that the bill’s regulatory requirements have the potential to engage freedom of expression.
• When it says that freedom of expression is engaged, it means that the bill, or its implementation, might limit freedom of expression.
• The Charter guarantees freedom of expression within limits that are justified in a free and democratic society. When a law or government decision limits freedom of expression, it must be justified. If the limit is justified, then the Charter permits it.
• The government’s position is that the relevant considerations as set out in the Charter Statement, remain valid and these considerations are not impacted by the proposed amendments.

12. Clause 3 (s. 4.1) has been removed. But the Committee has not adopted the other government amendments yet. Without Clause 3, does this bill comply with the Charter?

• The government’s position is that Bill C-10 is consistent with the Charter. The proposed amendments, including the removal of Clause 3 (s. 4.1), does not change that position.
• The government’s intention was for all of these amendments to be considered together. That is what the explanatory document focuses on.
• The relevant considerations set out in the Charter Statement for Bill C-10 remain valid.
• These include the important policy objectives that are being advanced, the discretionary powers being given to the CRTC, the proposed narrowing of these powers to only certain matters, and the CRTC is subject to the Charter in exercising its powers.

IF PRESSED

• As you know, the role of Minister of Justice is to provide legal advice to the Government of Canada. My role is not to provide this Committee with legal advice, but rather this respectfully falls within the mandate and responsibility of the Law Clerk. That said, the government’s position is that Bill C-10 is consistent with the Charter. The proposed amendments, including the removal of Clause 3 (s. 4.1), does not change that position.

13. How do the proposed amendments on social media platforms affect freedom of expression?

• Users who upload programs to social media platforms, and are unaffiliated, continue to be excluded from regulation.
• To the extent that social media platforms would be regulated, it is limited to four specific matters, referred to in the explanatory document.
• In addition, any regulation by the CRTC would be itself subject to the Charter.

14. Does this bill/do the amendments violate freedom of expression?

• Media of communication are protected by section 2(b) of the Charter. The regulation of broadcasting undertakings engages freedom of expression.
• The government’s position is that the bill and the amendments are consistent with the Charter.
• The proposed amendments would narrow the CRTC’s powers to only certain matters.
• The CRTC is subject to the Charter and must act in accordance with the right to freedom of expression.
• Granting regulatory powers to administrative bodies is a common feature of democratic governance in Canada.
• The CRTC’s decisions are subject to review by the Federal Court of Appeal.

IF PRESSED

• As you know, the role of Minister of Justice is to provide legal advice to the Government of Canada. My role is not to provide this Committee with legal advice, but rather this respectfully falls within the mandate and responsibility of the Law Clerk. That said, the government’s position is that the bill and the amendments are consistent with the Charter.

15. How can a limit on freedom of expression be justified?

• It is well-settled law that rights in the Charter are not absolute.
• Freedom of expression is interpreted very broadly, as any activity that conveys meaning. The only aspect that is not guaranteed is expression that takes the form of violence or threats of violence.
• The Charter permits limits on freedom of expression when they are demonstrably justified in a free and democratic society.
• Limits may be justified when they are aimed at an important objective and interfere with expression in a way that is proportionate to that objective.

16. Are the broadcasting objectives sufficiently important to justify limiting freedom of expression?

• The Charter Statement identifies a number of objectives related to this bill. The Government is pursuing these objectives because they are important to Canadians—I will leave it to my Canadian Heritage colleagues to say more about them.
• The Charter Statement also identifies ways in which any potential impacts on freedom of expression may be kept proportionate to those objectives.

17. The bill gives discretion to the CRTC. How will the CRTC respect freedom of expression?

• The CRTC is part of government and must comply with the Charter. Its discretionary decisions must respect the Charter.
• The Charter permits limits on freedom of expression when they are demonstrably justified in a free and democratic society. When the CRTC makes a discretionary decision, it must consider how freedom of expression can best be protected while achieving the statutory objectives. The courts call this “balancing”.
• If the CRTC properly balances the relevant Charter value with the statutory objectives, the decision will comply with the Charter. If not, the decision will unreasonable and can be overturned by the courts.
• The Federal Court of Appeal can review CRTC decisions for their consistency with the Charter.

18. What is the effect of the proposed amendments on user-generated content?

• Users of social media services who upload programs for sharing with other users, and are not affiliated with the service provider, would not be subject to broadcasting regulation in respect of that activity.
• The CRTC could regulate an online service that provides a social media service in respect of programs posted by its unaffiliated users only in respect of these four matters:
  • the payment of regulatory charges (for example, to support the creation of Canadian programming);
  • the discoverability of Canadian creators;
  • the registration of the service; and
  • the provision of information and the auditing of records.

19. How will the discoverability requirement affect user-generated content and users’ freedom of expression?

• Users of social media services who upload programs for sharing with other users, and are not affiliated with the service provider, would not be subject to broadcasting regulation in respect of that activity.
• The CRTC could regulate an online service that provides a social media service in respect of programs posted by its unaffiliated users as concerns the discoverability of Canadian creators.
• This discoverability power does not entitle the CRTC to prohibit content, or require that a certain proportion of content be Canadian.
• The CRTC will have the discretion to determine what, if any, discoverability requirements to impose.
• The CRTC is subject to the Charter, and must therefore exercise its powers in a manner that is consistent with the Charter.

20. How will social media services apply the discoverability requirement?

• The Act does not impose a discoverability requirement. Rather, it empowers the CRTC to impose such requirements.
• The CRTC will have the discretion to determine what, if any, discoverability requirements to impose.

21. What is a “program”?

• “Program” is defined by the Broadcasting Act to mean audio, visual or audio-visual content that is intended to inform, enlighten or entertain, but does not include content that is predominantly textual.

22. Who is an “unaffiliated user”?

• The Explanatory Document is written in non-technical language and the phrase “unaffiliated user” is a short-form. It means all users but for (i) the service provider itself, (ii) agents of the service provider, or (iii) the service provider’s affiliates. Here, “affiliate” has a corporate law meaning assigned by a definition set out in Clause 1 of the Bill, and it covers entities like subsidiaries of the service provider.
• This means that under section 2(2.1) all users of social media are shielded from regulation in respect of the programs they post but for (i) the service provider itself, (ii) agents of the service provider, or (iii) an affiliate of the service provider.

23. If this law is challenged, Mr. Geist says it will remain tied up in the courts. We need this bill soon, so how do you plan to address this?

• If this law is challenged under the Charter, as the Attorney General, we will defend it in court.
• A law remains in force, even if challenged in court, unless a court rules otherwise.

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