November 16, 2022 Mr. Vincent Labrosse Standing Senate Committee on Transport and Communications The Senate of Canada Ottawa, Ontario Canada, K1A 0A4 CRTC INDEPENDENCE INTRODUCTION Under the Broadcasting Act, Parliament has charged the CRTC with the obligation to: “regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1) of the Act, having regard to the regulatory policy set out in

section 5(2)”. The task of determining how to best regulate and supervise is left to the CRTC: an independent, quasi-judicial administrative tribunal. The CRTC believes that maintaining and respecting its arm’s length relationship from Government is crucial to the proper administration of the Act. Under the current Broadcasting Act, the Governor in Council (GiC) has the ability to issue policy directions to the CRTC, which must be “of general application on broad policy matters,” with respect to the objectives of the broadcasting policy or the regulatory policy set out in subsections 3(1) or 5(2) of the Act.

Bill C-11 proposes to add a further interpretive provision to this power, which would become the new subsection 7(7) of the Act, providing that “for greater certainty, an order may be made under subsection 7(1) with respect to orders made under subsection 9.1(1) or 11.1(2) or regulations made under subsection 10(1) or 11.1(1).” For the reasons explained below, the CRTC recommends deleting this interpretive provision, or amending it to clarify its purpose.

THE SCOPE OF SUBSECTION 7(7) AND THE CRTC’S INDEPENDENCE Subsection 7(7) would appear to deviate from the purpose of the policy direction power set out in subsection 7(1) of the Act, which provides that directions must be general in their application, and must relate to policy matters broadly. The sections identified in this interpretive provision relate to the CRTC’s order-making and regulation-making powers, which may not necessarily relate to broad policy matters nor be of general application.

The CRTC’s ability to make regulations and issue orders is at the core of its regulatory expertise and can, when the circumstances warrant, be exercised in a very specific and detailed manner. Subsection 7(7), as proposed, could be interpreted to provide the GiC with the ability to intervene in the minutiae of the CRTC’s work. In addition, the current wording of the proposed subsection 7(7) references “orders made”, appearing to contemplate that a policy direction could be issued and applied in respect of a specific order or regulation after it has been issued by the CRTC.

As a result, although this provision has been introduced to add clarity, it is unclear whether such directions could be retroactive in their effect. This would also appear to blur the lines between policy directions and the GiC’s more specific power to review CRTC decisions under

section of the Act. In the CRTC’s view, there is a risk that maintaining this amendment will shorten the arm’s length relationship between the CRTC and the GiC. Parliament has historically recognized the importance of the CRTC as a specialized, impartial, court-like body, able to regulate in highly complex and technical matters. The powers afforded to the CRTC – which allow the regulator to exercise its mandate independently, based on evidence gathered from the public record of its proceedings – give CRTC decisions objectivity, transparency and legitimacy.

While the CRTC understands that the government wishes to ensure that it has the ability to make its policies known, care must also be taken to ensure that political considerations do not intrude on the CRTC’s public, quasi-judicial processes. The CRTC respects that it is Parliament that will ultimately determine where the correct balance is struck. For its part, the CRTC considers that the existing scheme under

section 7, without the addition of this interpretive provision, already strikes the appropriate balance. RECOMMENDATION The CRTC recommends that subsection 7(7) be deleted.

Alternatively, we suggest the following amendment which we believe strikes a better balance between the regulator and the executive branch, allowing the GiC to issue directions of general application on broad policy matters in respect of the Canadian broadcasting system: 7(7) For greater certainty, an order may be made under subsection (1) with respect to a subject-matter identified in subsections 9.1(1), 10(1), 11.1(1) or 11.1(2) but such orders must be of general application on broad policy matters.

In our view, this amendment would accomplish the goal of clarifying that policy directions can speak to the subject-matters over which the CRTC can regulate, but would also ensure that such directions are still understood as being of general application, rather than applying to specific facts or circumstances, and would also remove any suggestion as to their possible retroactivity. REGULATIONS UNDER

SECTION 34.995

Section 34.995 of the revised Act would provide the Governor in Council with the ability to make regulations in relation to the administrative monetary penalties scheme set out in

Part II.2 of the Act. Some witnesses before the committee have raised this

section and subsection 10(1.2) as examples of amendments that undermine the CRTC’s independence. The CRTC notes that

section 34.995 sets out regulation-making provisions that have parallels in other AMP schemes the Commission administers, such as Canada’s Anti-Spam Legislation (CASL)1 and the general AMPs regime found in the Telecommunications Act2. Common between all of these frameworks is that the regulation-making power does not enable the GIC to direct a specific decision, but indicates further considerations that the Commission must have regard for before making any decision. These lists of factors are also not exhaustive.3 The CRTC does note that some other elements of

section 34.995 go to procedural matters that might be better situated in the hands of the regulator, such as the power to make regulations respecting the service of documents. However, the CRTC does not consider its ability to act independently is jeopardized by this particular provision of the Bill. As a result, the CRTC does not have recommendations to offer with respect to

section 34.995 and defers to Parliament who will ultimately determine the matters upon which the GIC should have the ability to make regulations. 1 paragraph 20(5)(b). 2 paragraph 72.0093(b) 3 See paragraph 34.5(2)(

h) of Bill C-11 that would preserve the CRTC’s ability to consider “any other relevant factor” in determining the amount of a penalty.