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

Minister’s Opening Remarks

Standing Committee on Canadian Heritage

Bilingual version

Speech (7 minutes)

May 2021

Good afternoon, Mr. Chair. Bonjour chers collegues.

I wish to acknowledge that I am speaking to you today from Ottawa, on the traditional territory of the Algonquin people.

Thank you, Mr. Chair, for the invitation to appear before you to discuss the Charter Statement that was tabled for Bill C-10 and the proposed amendments before the Committee.

I am very pleased to be with you. I am accompanied by officials from my department.

I would like to begin my remarks by discussing the statutory duty imposed upon me, as Minister of Justice, to prepare Charter Statements for Government bills that are introduced in the House of Commons.

I will discuss the purpose of Charter Statements, their background and their history. I will explain what Charter Statements are intended to do, and I will talk about what Charter Statements do not do.

I will also be pleased to address the Charter Statement that was tabled for Bill C-10, as well as the explanatory document that has been shared with you, and that discusses the potential effects of the proposed amendments on freedom of expression.

Charter Statements (purpose and history)

I should note at the outset that it is not my role as Minister of Justice and Attorney General to give legal advice to Parliamentary committees, which, of course, have access to their own legal counsel and independent witnesses.

As you are aware, however, I do have obligations under the Department of Justice Act in terms of reviewing proposed Government bills for inconsistency with the Charter and preparing Charter Statements for Government bills. These two sets of obligations, examining bills and preparing Charter Statements, are both focused on the bill as tabled.

Section 4.2 of the Department of Justice Act requires the Minister of Justice to ensure that a Charter Statement is tabled in the House of Commons for every Government bill. This duty came into force in December 2019.

The examination of legislation for inconsistency with the Charter under section 4.1 is one of my most important responsibilities. In addition, let me assure you that the duty in section 4.2 to ensure the tabling of Charter Statements is one that I take very seriously.

I would like to highlight the purpose of Charter Statements.

The purpose of a Charter Statement is to help inform public and Parliamentary debate on Government bills. Charter Statements promote transparency in relation to the effects of Government legislation on the fundamental values protected by the Charter.

They provide additional information to parliamentarians to further inform our important legislative debates on behalf of Canadians, and they provide additional information to Canadians to help them participate in those debates through their representatives.

The duty to ensure the tabling of Charter Statements demonstrates our Government’s commitment to respecting and promoting the Charter as an integral aspect of the good governance of our nation.

We can never abdicate our responsibility as a Government to ensure that our decisions, including those reflected through law reform, comply with our fundamental rights and freedoms. Section 4.2 of the Department of Justice Act reinforces the obligation of current and future governments to adhere to this most basic duty.

I would like to take a few moments to explain the content of Charter Statements.

In keeping with their purpose, Charter Statements are drafted at a high level and they set out, in an accessible way, potential effects that a bill may have on rights and freedoms guaranteed by the Charter. Charter Statements also explain considerations that support the constitutionality of the bill.

In our discussion of the Charter, it is also important to stress that it is entirely legitimate that Parliament when legislating may affect Charter rights and freedoms, including by "limiting" their enjoyment or exercise when it is in the broader public interest to do so. The rights and freedoms guaranteed in the Charter are not absolute, but rather subject to reasonable limits so long as those limits can be demonstrably justified in a free and democratic society.

This means that when identifying a "potential" effect of a bill that may amount to a limit on a right or freedom, it may also be necessary to consider the reasonableness and justifiability of that limit. A Charter Statement therefore may also outline considerations relevant to the potential justifiability of a bill, when appropriate to do so.

The fact that Charter rights and freedoms can be limited however, is not a license to violate them. Rather, it is a reminder than any legislated limits to rights and freedoms must be carefully considered in the context of the shared values of Canada’s unique, free and democratic society.

As Parliamentarians, it is our responsibility to discuss and debate potential effects on Charter guarantees, and to exercise our judgment on behalf of Canadians as to whether proposed legislation strikes the right balance between rights and freedoms, and the broader public interest. Charter Statements are one more source of information to add to our deliberations.

I would also like to take a moment to explain what a Charter Statement is not.

A Charter Statement is not legal advice. It does not include a full analysis of the constitutionality of a bill.

As mentioned, a Charter Statement provides legal information to the public and Parliament about a bill’s potential effects on Charter rights, as well as the considerations that support the bill’s consistency with the Charter.

As we are all aware, 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 Department of Justice Act, there is no requirement to update Charter Statements as a bill progresses through Parliament.

With this background in mind, let me turn now to the proposed amendments to Bill C-10 relating to social media that are before this Committee.

Proposed amendments to Bill C-10

My colleague, Minister Guilbeault, has discussed the scope of the proposed amendments. He has highlighted the important policy objectives that these amendments are intended to serve, and he has discussed their intended effects on social media services and users of those services.

To summarize, the effect of the proposed amendments is that the CRTC could regulate a social media service in respect of programs posted by its unaffiliated users only as concerns:

Charter considerations

In keeping with my obligations under the Department of Justice Act, I tabled a Charter Statement for Bill C-10 in the House of Commons on November 18, 2020.

The Charter Statement for Bill C-10 identifies the rights and freedoms that may potentially be engaged by the bill, and relevant considerations that support the bill’s consistency with the Charter.

In considering the Committee’s recent discussions focusing on the impacts of the proposed amendments on social media, I understand there has been extensive debate on freedom of expression.

We have prepared and shared with you an explanatory document that examines the amendments and discusses their potential effect on the right to freedom of expression in section 2{b) of the Charter.

I am confident that the considerations that support the Charter consistency of the bill remain those outlined in the Charter Statement. It is our position that the bill as tabled and these proposed amendments are consistent with the Charter.

As the Charter Statement indicates, the bill’s regulatory requirements have the potential to engage freedom of expression in section 2{b) of the Charter. The following considerations support the continued consistency of the proposed regulatory requirements with section 2{b).

By virtue of clause 1, which would remain in the bill, unaffiliated users of social media services would not be subject to broadcasting regulation in respect of the programs they post. The objectives of the bill in updating the CRTC’s regulatory powers and providing new powers applicable to online services remain.

The bill maintains the CRTC’s role and flexibility in determining what, if any, regulatory requirements to impose on broadcasting undertakings. With respect to the proposal to give the CRTC new limited powers in regulating an online undertaking that provides a social media service in respect of programs posted by its unaffiliated users, the relevant Charter considerations include the CRTC’s discretionary role and flexibility.

The proposed narrowing of the CRTC’s discretionary powers to regulate a social media service in respect of programs posted by its unaffiliated users, to only the discrete matters that I have mentioned, is an additional consideration.

The CRTC is subject to the Charter, and must exercise any discretionary powers it has in a manner that is consistent with the Charter. The Act states that it must be interpreted and applied in a manner consistent with freedom of expression. The CRTC’s decisions on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.

In my view, the relevant considerations that are set out in the Charter Statement remain valid. Those considerations are not impacted by the proposed amendments.

Conclusion

Mr. Chair, thank you once again for the opportunity to address the Committee today. I would be pleased to remain with you to answer any questions.