PROPOSED AMENDMENTS Standing Senate Committee on Transport and Communications Bill C-11 Legislation to amend the Broadcasting Act and to make related and correlated amendments to other legislation OCTOBER 18, 2022

INTRODUCTION CPSC-SCFP | 1 INTRODUCTION The Conseil provincial du secteur des communications (CPSC) of the Canadian Union of Public Employees represents some 6700 persons working for various broadcasting undertakings in Quebec (Groupe TVA, Bell Media, Global (Corus), RNC Media, Videotron and Cogeco). Although some amendments made to C-11 by the Standing Committee on Canadian Heritage have met its expectations, CPSC -CUPE believes that further fine -tuning of the bill is needed so that all broadcasting companies operating in whole or in

part in Canada are required to meet equivalent obligations and thus be able to compete on a level playing field. CPSC-SCFP is therefore proposing amendments complementing those already passed by the House of Commons to the Standing Senate Committee on Transport and Communications (TRCM or Committee). Some may seem minor, but the intent in each case is to make the legislation clearer and its effects more predictable for both the Canadian Radio -television and Telecommunications Commission (CRTC) – which will have to enforce the provisions – and for the broadcasters and the public.

CPSC-CUPE believes that no one would come out ahead if the new legislation were challenged in the courts as soon as it was enacted. The requested amendments will also enable the Senate to ensure that the social and economic objectives of Canadian broadcasting policy – particularly those dealing with employment – will actually be implemented by the CRTC, that the regulator will be accountable to Parliament, that the authorities granted by C-11 to the government and to the public will be better supported and that the wording of the legislation will be more consistent.

Time is running out for traditional broadcasters that are running on fumes. Their business model was turned upside d own more than ten years ago by the arrival of foreign online undertakings in Canada. Ever since , the latter have been exempted from regulations, which enabled them to become more popular and enjoy unfettered growth to the point that they dominate the Canadian broadcasting market1. It is time for them to contribute to re-establish equity in the implementation of Canadian broadcasting policy objectives.

Healthier competition is essential in order to maintain strong Canadian broadcasters that are able to contribute to our cultural sovereignty by producing or arranging for the production of entertainment programs, to our democracy by producing quality local, regional and national news and to our economy by maintaining and creating jobs in Canada. C-11 will not solve all of the challenges facing traditional broadcasters, but by passing it, Parliament will establish healthier competition by bringing the Far Web of online broadcasting into line with the current linear regulatory model.

CPSC-CUPE supports Bill C-11 because it sincerely believes that regulation is the lone rampart that will enable us to safeguard our identity, our culture and the social and economic gains in the Broadcasting Act from the onslaught of the Web giant steamroller.

Proposed amendments have been divided into six major themes in the following pages to improve it in the interest of society and Canadian workers, which are two compatible issues. 1 Subscription Video on Demand (71%) now exceeds broadcasting distribution subscriptions (66%) in Quebec, and foreign services dominate (Netflix 57%, Amazon Prime Video 29%, Disney + 18%, Club illico 16%, Tou.tv Extra 9%, Crave 8%, in: Académie de la transformation numérique, Portrait numérique des foyers québécois, volume 12, number 4, 2021.

PROPOSED AMENDMENTS CPSC-SCFP | 2 PROPOSED AMENDMENTS 1. CLARIFYING THE SCOPE OF C-11 AND AVOIDING POSSIBLE LOOPHOLES 3(1)(

a) When the bill was introduced in the House of Commons, the Minister of Canadian Heritage stated that the provisions of C-11 “… will update Canada's broadcasting rules to include online streaming services2.” He added that: « The online streaming act would bring online broadcasters under similar rules and requirements as our traditional broadcasters. Unlike traditional Canadian broadcasters, platforms profit from our culture but have no obligation to contribute to it. […] We have to act.3. » These excerpts clearly show that the government’s intention is to include online streaming undertakings in Canadian regulations. One can therefore ask why paragraph 3(1)(

a) goes further by including all foreign broadcasting undertakings in the broadcasting system. This creates needless uncert ainty for traditional broadcasting undertakings which, in addition to being confronted by online broadcasters, could have to compete with cable companies and other foreign linear television stations if the government were to withdraw direction on the ineligibility of non-Canadians4. Consequently, we propose that the wording of paragraph 3(1)(

a) be amended as follows: « 3(1)(

a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians, and it is recognized that it includes foreign broadcasting online undertakings that provide programming to Canadians 2(2.3)(

a) To avoid the possibility of online undertakings having a major impact on the implementation of Canadian broadcasting policy – such as Apple TV + or Amazon Prime Video – being excluded from the reach of the Act because their services relate to another activity “ … not primarily engaged in the transmission of programs to the public...”5, it is recommended that paragraph 2(2.3) be amended as follows: “2(2.3) A person does not carry on an online undertaking for the purposes of this Act in respect of a transmission of programs over the Internet (

a) that is ancillary to a business not primarily engaged in the transmission of programs to the public and that is intended to provide clients with information or services directly related to about that business;” 2 House of Commons Debates, Official Report, 44th Parliament, 1st Session, Volume 151, No 032, February 16, 2022, . p. 2319. 3 Ibid., p. 2320. 4 Direction to the CRTC (Ineligibility of Non-Canadians), DORS/97-192, C.P. 1997-486, April 8, 1997. 5 Bill C-11, proposed s. 2(2.3)(a).

PROPOSED AMENDMENTS CPSC-SCFP | 3 4.1(2) Sections 4.1 and 4.2 are at the heart of the opposition to Bill C-11, whether because of concerns about freedom of expression, user-generated content or the open Internet. For workers at traditional broadcasters,

section 4 of the Bill is also problematic because it raises some major uncertainties. Paragraph 4.1(2)(

a) indicates that the legislation applies to suppliers of a social media services, but subsection (3) seems to exclude them. Paragraph (4) contains several negations, which refers back to a clause that is drafted in the negative, which makes it totally incomprehensible. What is more, this

section of the Bill does not seem to cover broadcasting undertakings that televise their programming themselves over a social media service, which constitutes a major loophole. CPSC-CUPE proposes that a provision be added to paragraph 4.1(2)(

c) to address this issue. “4.1(2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program (

a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or (a.1) is uploaded to the social media service by a broadcasting undertaking; […]” 2. ENSURING FAIRNESS AND THE IMPLEMENTATION OF THE

SECTION 3 OBJECTIVES 3(1)(

f) Parliament has made employment a specific objective of Canadian broadcasting policy by drafting clause 3(1)(

f) in the present tense, which places a duty on the CRTC to achieve this objective6. That said, the end of the paragraph makes this obligation conditional in certain situations. We therefore propose to remove this part of the paragraph to ensure that Canadian undertakings make a maximum contribution to employment7. « 3(1)(

f) each Canadian broadcasting undertaking shall employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources in the creation, production and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources; »

Data submitted to the Senate Committee by the Forum for Research and Policy in Communications (FRPC) show that more than 20% of jobs in radio and television have been lost since 19908, which fully justifies clarifying and strengthening the employment objective in the Streaming Act. 6

Interpretation Act, s. 11: “The expression “shall” is to be construed as imperative and the expression “may” as permissive.” 7 Bill C-11 has already added flexibility to the achievement of this objective in CRTC’s mission at proposed s. 5(2)a.2). 8 FRPC appeared at TRCM on Septembre 27, 2022.

PROPOSED AMENDMENTS CPSC-SCFP | 4 The CPSC-SCFP is not opposed to the proposal from certain groups seeking removal of paragraph 3(1)(f.1) and expansion of 3(1)(

f) to include all broadcastin g undertakings operating in Ca nada9. However, the Committee must ensure that this paragraph continue s to be written in the present tense and that it always refers to Canadian human resources. The suggested amendments remove this qualifier10 without explanation, which was adopted during the work on C-10 and retained in C-11. 3(1)(i)(

v) When the Broadcasting Act was passed in 1991, independent production was in its infancy, and broadcasters did the lion’s share of the production of Canadian programs. Para. 3(1)(i)(

v) of the Canadian broadcasting policy, which stipulates that programming o ffered by the Canadian broadcasting system, should “… include a significant contribution from the Canadian independent production sector” to encourage the development of a nascent industry with the potential to diversify programs on television. Thirty years later, the situation has completely changed.

With the effect of this provision, independent producers have carved out an enviable niche in the television industry to the point that, in 2018 - 2019, they employed four times more personnel (48,060 direct jobs) than broadcasting undertakings (12,660 direct jobs) in the production of Canadian programs .11 The number of direct independent production jobs has more than doubled since 2012 -2013 (23,100 12), while internal production of television stations has remained at the same level (12,10013).

These figures clearly show that, since the legislation was passed, the pendulum has swung in the other direction in favour of self -employed workers hired by independent producers. It is anticipated that the largest share of the new of obligations of Canadian online programming undertakings will once again apply to them once C-11 has been passed.

Several persons close to the situation also told the Standing Committee on Canadian Heritage that foreign digital broadcasters had become the largest investors and employers in audiovisual production in Canada .14 These claims were corroborated in the estimates appearing in Profile 2021 which showed that foreign production and production services created 80,460 direct jobs in 2020-2021.15. 9 CDEC et FNCC, notably. 10 CDEC, p. 4 and FNCC, p. 17. 11 CMPA, AQPM, Telefilm Canada and Canadian Heritage, Profile 2014 - Economic Report on the Screen-Based Media Production Industry in Canada, April 2022, p. 18.

Despite the COVID-19 pandemic, the proportion of direct jobs in the audiovisual industry remained pretty much the same with 38,980 in independent production and 10,080 in internal production for 2020-2021. 12 CMPA, AQPM, Telefilm Canada and Canadian Heritage, Profile 2014 - Economic Report on the Screen-Based Media Production Industry in Canada, 2014, p. 8. 13 Idem. 14 CHPC, Evidence (Wendy Noss, Stéphane Cardin, John Morgan Lewis), committee no. 23, May 24, 2022. 15 Op. cit., note 11.

PROPOSED AMENDMENTS CPSC-SCFP | 5 Source: CMPA, AQPM, Telefilm Canada and Heritage Canada, Profile 2021 – Economic Report on the Screen -Based Media Production Industry in Canada, April 2022, p. 18. In light of these statistics, it is clear that a modification has to be done to the language of the act so that broadcasters’ production teams do not see their work transferred to independent producers . It is also obvious that Canadian producers, whether independent, affiliates or owned by a Canadian broadcaster, are losing ground due to the disproportionate means that foreign online undertakings have at their disposal. The amendment adopted by the House of Commons to

section 3(1)i)(

v) has the advantage of maximizing their involvement in the “…the creation and presentation of Canadian programming;”16 However, CPSC- CUPE is proposing a small clarification to confirm that “ owned by a broadcasting undertaking ...” does indeed include the broadcasters themselves. 3(1)(i)(

v) include the greatest possible contribution from the Canadian production sector producers, whether it is independent, or affiliated with, or owned by a broadcasting undertaking , or such an undertaking; 9.1(1)(

j) The House of Commons amended paragraph 3(1(

q) of C -11 so that online undertakings providing programming services from other broadcasting undertakings provide services at affordable rates, which is a very good thing. This protects consumers and guarantees that programming distributors on the Internet have obligations on a scale similar to those that traditional broadcasting distribution undertakings (BTU) have to meet.17 However, C-11 does not grant CRTC the authority to determine the terms and conditions of the contracts of online undertakings but does so only for traditional BTUs.

But maintaining a distinction in C-11 between two types of undertakings performing the same type of business activities, albeit with different 16 Broadcasting Act, ss. 3(1)e). 17 Broadcasting Act and Bill C-11, ss. 3(1)t)(ii). Note: in the brief, BDUs are including cable, satellite, or IP broadcasting distribution undertakings. Broadcaster in- house production 7% Canadian independent production - TV 29% Foreign location and service production 61% Canadian theatrical feature film production 3% Direct jobs attributable to cinematographic and television production in Canada- 2020-2021

PROPOSED AMENDMENTS CPSC-SCFP | 6 technological means, will perpetuate the inequity of the system to the detriment of Canadian distribution undertakings that contribute to t he Canada Media Fund (CMF) and are the only ones to finance community programming. We suggest that the following amendment be made to the Commission’s decision making authority to establish equity between all regulated broadcasting, online and linear (by cable, satellite or IP) undertakings: « 9.1(1)(

j) terms and conditions of service in contracts between distribution broadcasting undertakings and their subscribers; » 11.1(1) C-11 considerably strengthens the community element by vesting it with the completion of major social objectives.

At a time when current Canadian broadcasting policy is rather brief as to the mission of the community element by merely indicating that broadcasting system program “should …include educational and community progr ams,”18 C-11 does entrust it with major responsibilities in terms of diversity, inclusion, accessibility and as regards local information, citizen participation in public discourse and the fight against disinformation, while at the same time being innovative in programming.19” The mandate is far-reaching, and as a result, the bill must explicitly recognize the need to provide the community element with adequate financing to enable it to achieve the objectives entrusted to it.

It is thus proposed that paragraph 11.1(1)(

a) be clarified by making direct reference to community programs in addition to independent productions. Local news programs should also be clearly mentioned therein given their essential contribution to Canadian democracy, their significant cost and the communicating vases created by the CRTC to finance local news using amounts set aside for community channels of BDUs.20 “11.1(1) The Commission may make regulations respecting expenditures to be made by persons carrying on broadcasting undertakings for the purposes of (

a) developing, financing, producing or promoting Canadian audio or and/or audio-visual programs, including local news programs, independent productions, and community programming, for broadcasting by broadcasting undertakings; (

b) supporting, or promoting or training Canadian creators of audio or and/or audio-visual programs for broadcasting by broadcasting undertakings; or (b.1) training of Canadian creators creative and other human resources – involved in the creation, production and/or presentation of audio or and/or audio-visual programs for broadcasting by broadcasting undertakings; […] » CPSC-SCFP is also suggesting that paragraph (

b) be amended as above to ensure that all Canadian workers are eligible for tra ining expense coverage, including those hired by broadcasters and who, in spite of their television production work, could not be considered creat ors since this term is not defined in C-11. 18 Broadcasting Act, ss. 3(1)i)(iii). 19 Bill C-11, proposed ss. 3(1)i)(ii), 3(1)i)(iii.4), 3(1)i)(iv), 3(1)o), 3(1)p), and 3(1)s). 20 CRTC, Policy framework for local and community television, Broadcasting Regulatory Policy CRTC 2016-224, s. 90.

PROPOSED AMENDMENTS CPSC-SCFP | 7 3(1)(d)(ii) Paragraph 3(1)(d)(ii) was amended during the last day of work on the Bill C-11 project with the Standing Committee of Canadian Heritage to create an environment conducive to the export of Canadian programs worldwide. Although this is laudable, it extends beyond the framework of legislation regulating broadcasting in Canada21. Moreover, this could lead the CRTC to favor the distribution of programming by multinational online undertakings to the detriment of Canadian BDUs. An amendment i s therefore proposed to avoid the possibility of Canadian broadcasting policy result in unfair treatment of the latter: «3(1)(

d) the Canadian broadcasting system should […] (ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis oncerning Canada and other countries from a Canadian point of view, and foster an environment that encourages the development and export of Canadian programs globally, » 3.

STRENGTHING THE MISSION AND ACCOUNTABILITY OF THE CRTC 5(1) and 5(3.1) The CRTC is the lone guardian to achieve the objectives of the Broadcasting Policy for Canada 22. Of these, some are drafted in the present tense and therefore mandate the CRTC to achieve them23 as part of its supervisory and regulatory mission24. These objectives are as follows: 1. Canadian ownership and control of the Canadian broadcasting system [para. 3(1)(a)] 2. The public service mission of the system and official languages [para. 3(1) (b), 3(1) (

c) and 3(1)(k)25] 3. The contribution of all system components to Canadian programming [para. 3(1)(e)] 4. The use of a maximum number of Canadian human resources [para. 3(1)(

f) and (f.1)] The achievement of these prime objectives must be better framed in the Act. The combination of the two following amendments to Bill C -11 is therefore proposed to strengthen the Commission’s supervisory and regulatory mission as it relates to the Canadian ownership of the broadcasting system, official languages, Canadian programming and employment in Canada: “5

(1) Subject to this Act and the Radiocommunication Act and to any directions to the Commission issued by the Governor in Council under this Act, the Commission shall regulate and supervise all 21 Broadcasting Act and Bill C-11, s. 4(2). 22 Broadcasting Act and Bill C-11, art. 3(2) 23

Interpretation Act, s. 11: “The expression “shall” is to be construed as imperative and the expression “may” as permissive.” 24 Broadcasting Act, ss. 5(1) 25 The English and French wording of this paragraph do not mean the same thing. This must be standardized so to keep the meaning of the French version (“doit être offerte” rather than “shall be extended”).

PROPOSED AMENDMENTS CPSC-SCFP | 8 aspects of the Canadian broadcasting system with a view so as to implementing implement the broadcasting policy set out in subsection 3(1) and, in so doing, shall (

a) have regard to subsection (2) and to the results from the annual report mentioned at subsection (3.1)(f) (

b) apply subsection (3)” 5(3.1) In exercising its supervisory role, the Commission publishes an annual report setting out, among other things : (

a) the number of Canadian and non-Canadian undertakings operating in whole or in

part in Canada; (

b) the number of full-time or equivalent jobs provided to Canadians and non- Canadians, in Canada, by each broadcasting undertaking and by the entire Canadian broadcasting system; (

c) the number of original Canadian programs in English, French and Aboriginal languages broadcast by the Canadian broadcasting system, by program category; (

d) the average duration of such programs in each category; (

e) the number of broadcasting services offered in English and French to all Canadians, by means of distribution; (

f) how the objectives of subsection 3(1), and in particular subsections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(e), 3(1)(f), 3(1)(f.1) et 3(1)(k), are being met. 9.1(1)(

o) Since Bill C -11 does not allow the CRTC to demand ownership or control information from online undertakings – whether Canadian or foreign – the CRTC will be blind to a possibly increasing portion 26 of broadcasters operating in whole or in

part in Canada. If Parliament’s will is really to maintain Canadian ownership and control of the broadcasting system, as implied by paragraphs 3(1)(

a) and 9.1(1)(p), in addition to the demand for an annual report, the Commission must be given powers enabling it to have an overview of information on the ownership of broadcasting undertakings operating in Canada as per ss. 9.1(1). The Commission must also be able to obtain all o f the necessary information to determine whether or not the objectives in s. 3(1) pertaining to official languages, employment in Canada and Canadian programming have been achieved. This amendment would enable the Commission to take any corrective measures required if it notes that the objectives of Canadian broadcasting policy have not been achieved. « 9.1(1)(

o) the provision to the Commission, by persons carrying on broadcasting undertakings, of any other information that the Commission considers necessary for the administration of this Act, including (

i) financial or commercial information, 26 CRTC, Harnessing Change – The Future of Programming Distribution in Canada, 2018: https://crtc.gc.ca/eng/publications/s15

PROPOSED AMENDMENTS CPSC-SCFP | 9 (ii) information related to programming – including the language used – the programming services offered to Canadians and employment in Canada, (iii) information related to expenditures made under

section 11.1, and (iv) information related to audience measurement, other than information that could identify any individual audience member; and (

v) on ownership, governance and control » 4. CONFIRMING THE PUBLIC’S AUTHORITY AND FRAMING THE GOVERNMENT’S AUTHORITY 18(2) The Broadcasting Act grants powers to the CRTC, 27 the Governor in Council 28 and the public29 to achieve the objectives of Canadian broadcasting policy. By involving citizens in the regulatory process, Parliament ensured itself for years that the Commission would be required to take the public’s interest into consideration in its decisions. Bill C -11 reduces the potential of the public’s contribution to the achievement of the objectives in

section 3(1) by restricting the need for public hearings to just licences when they are granted, revoked, suspended, amended and renewed.30 Though this may cre ate the impression the status quo has been maintained, such is not the case, because C-11 separates the licence operating conditions. Public hearings on licences will no longer deal with the implementation of Canadian broadcasting policy and will only concern the attributes of the licence itself: the holder, duration, frequency, etc. Going forward, operating conditions will be covered in the orders for which the bill does not require public hearings.

The public will no longer have an opportunity to enlight en the CRTC verbally on the content of the operating conditions to impose on broadcasters, answer their questions or respond to interventions by other parties. Even though C-11 still requires the Commission to hold a consultation when issuing proposed orders,31 CPSC-CUPE believes that a process that solely involves written petitions will detract from public interest by limiting the participation of citizens.

To return to the status quo, orders should be added to subsection 18(2): 18(1) Except where otherwise provided, the Commission shall hold a public hearing in connection with (

a) the issue of a licence, other than a licence to carry on a temporary network operation; (

b) the suspension or revocation of a licence; (

c) the establishing of any performance objectives for the purposes of paragraphs 11(2)(

b) and 11.1(6)(b); and (

d) the making of an order under subsection 12(2). 27 Broadcasting Act, s. 9 to 17. 28 Broadcasting Act, s. 7 and 26. 29 Broadcasting Act, s. 18 and 28. 30 Broadcasting Act, s. 18. 31 Bill C-11, proposed ss. 9.1(4).

PROPOSED AMENDMENTS CPSC-SCFP | 10

(2) The Commission shall hold a public hearing in connection with the amendment or renewal of a licence or an order unless it is satisfied that such a hearing is not required in the public interest. 7(7), 8(2), 8(3) et 28(1) Separating licences from the concept of operating conditions in C -11 also denies the public an opportunity to appeal to the Governor in Council as per subsection 28(1) when the said conditions “derogate from the attainment of the objectives of the broadcasting policy for Canada32.” This power possessed by citizens does seem to have been transferred to the Governor in Council by the addition of paragraph 7(7) that will enable the government to issue orders regarding Commission orders and regulations at their own initiative.

Since C-11 also dropped subsections 8(2) and 8(3), this can be accomplished in future without the supervision of a House of Commons committee currently provided for in the Broadcasting Act. CPSC-CUPE supports the analysis by the FRPC to the effect that the new provision of ss. 7(7) undermines the independence of the CRTC by subjugating its order and regulatory pow ers to government direction orders.

At the very time when major foreign online undertakings have substantial means to do lobbying are included in the Canadian regulatory system, turning all of these powers over to political representatives will create a situation that decisions regarding their operating conditions will be taken behind closed doors rather than during the course of public processes such as those of the CRTC. Furthermore, ss. 7(7) will shield all government decisions on orders or regulations f rom challenge before higher courts,

whereas CRTC decisions are submitted to the Federal Court of Appeal for review on matters of law or jurisdiction.33 It is therefore recommended that ss. 7(7) be removed from the Bill, that ss. 8(2) and 8(3) of the current bill be restored and that s. 28 be amended to restore the public’s right to appeal to the Governor in Council if an order or regulation by CRTC derogates from Canadian broadcasting policy. The Governor in Council shall retain the opportunity to intervene , but their action will be better delineated. “

(7) For greater certainty, an order may be made under subsection (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). » « 8(2) The Minister shall (

a) specify in the notice the period — of at least 30 days from the day on which the notice was published under paragraph (1)(a) — during which interested persons may make representations; and (

b) publish the representations that are made during that period. Where a proposed order is laid before a House of Parliament pursuant to subsection (1), it shall stand referred to such committee thereof as the House considers appropriate to deal with the subject-matter of the order. 32 Broadcasting Act and Bill C-11, s. 28(1). 33 Broadcasting Act and Bill C-11, s. 31(2).

PROPOSED AMENDMENTS CPSC-SCFP | 11

(3) The Governor in Council may, after the period referred to in paragraph (2)(

a) has ended and the proposed order has been laid before each House of Parliament, implement the proposal by making an order under

section 7, either in the form proposed or revised in t he manner that the Governor in Council considers appropriate. The Governor in Council may, after the expiration of forty sitting days of Parliament after a proposed order is laid before both Houses of Parliament in accordance with subsection (1), implement the proposal by making an order under

section 7, either in the form proposed or revised in such manner as the Governor in Council deems advisable. « 28

(1) If the Governor in Council is satisfied that the a decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1), the Governor in Council may, within ninety 180 days after the date of the decision, on petition in writing of any person received within forty-five days after that date or on the Governor in Council’s own motion, by order, rescind, set aside the decision or refer the decision back to the Commission for reconsideration and hearing : (

a) the decision to issue, amend or renew a licence; (

b) any order made under subsections 9.1(1) or 11.1(2) or any regulation made under subsections 10(1) or 11.1(1); […]

(3) Where a decision is referred back to the Commission under this section, the Commission shall reconsider the matter and, after a hearing as provided for by subsection (1), may (

a) rescind the decision or the issue, amendment or renewal of the licence; (

b) rescind the issue of the licence and issue a licence to another person; or (

c) confirm, either with or without change, variation or alteration, the decision or the issue, amendment or renewal of the licence (

d) rescind or confirm any other decision, with or without change; » 5. PROVIDING FOR TIMELY DELAYS 28(1) Subsection 28(1) of C-11 extended from 90 days to 180 days the deadline to issue a decree to return a CRTC ruling for further review and a new hearing. CPSC -CUPE believes this is too long for undertakings covered by the legislation.

As Quebecor mentioned in its brief to the Standing Committee on Canadian Heritage: “It must be understood that at the same time, there is an urgency for an aggrieved party to act within its rights and it is essential for the Governor in Counc il to rule on review applications as quickly as possible.

Further extending the deadline for a decision on a review application would render this tool totally ineffective and would harm the proper functioning of the CRTC’s rules of procedure.34“ It is therefore recommended that the deadline be maintained at 90 days as indicated in subsection 28(1) above. 34 Québecor Média, Review of Bill C-11, Online Streaming Act, – Brief submitted by Québecor Média inc., on behalf of Vidéotron ltée and Groupe TVA inc., May 31, 2022, par. 53.

PROPOSED AMENDMENTS CPSC-SCFP | 12 34.01(1) Under the current Broadcasting Act , the Commission can renew broadcasting licences and the conditions relating thereto – the licencing conditions – for a maximum of seven years. However, renewals of that length have not been granted to television programming undertakings for a good ten years or so due to the financial difficulties they encounter, evolving technology and changing consumer habits.

Large vertically integrated groups, 35 and independent television stations in Quebec36 have all been granted licence renewals limited to three or five years in 2012, 2017 and 2018. Bill C -11 separates licences from operating conditions imposed on broadcasting undertaking operators. As a result, the licences and their renewals shall be for a n undetermined period 37 and orders38 shall be taken by the Commission to impose on broadcasters the conditions indicated for the implementation of Canadian broadcasting policy.

According to ss. 34.01(1), the CRTC shall review these orders after consulting with the operators of broadcasting undertakings and the public at least every seven years. CPSC-CUPE fears this timeframe is too long for the operating conditions of broadcasting undertakings to adapt to the evolution and turbulence of a sector where innovation is constant, which could have a deleterious effect on the achievement of Canadian broadcasting policy objectives. Bill C-11 also contains substantial amendments to the Act, and the impacts on broadcasters shall be monitored in the shorter term.

It is therefore suggested that s. 34.01 be amended as follows: 34.01(1) Every seven five years the Commission shall consult with all interested persons with respect to orders made under

section 9. 1 and regulations and orders made under

section 11. 1 and shall publish, on the Internet or otherwise, a report on the consultations that also lists the orders and regulations that the Commission proposes to review as a result of the consultations and sets out its plan for conducting the review.

(2) The Commission shall publish the first report within seven five years after the day on which this subsection comes into force and, subsequently, within seven five years after the day on which the most recent report is published. 35 CRTC, Groupe TVA inc. – Licence renewals, Broadcasting Decision CRTC 2012-242, Ottawa, April 26, 2012; V Interactions inc. – Review of certain conditions of licence, Broadcasting Decision CRTC 2012-243, Ottawa, April 26, 2012; CRTC, Corus Entertainment Inc. – Licence renewals for English-language television stations and services, Broadcasting Decision CRTC 2017-150, Ottawa, May 15, 2017; CRTC, Bell Media Inc. – Licence renewals for English- language television stations and services, Broadcasting Decision CRTC 2017-140, Ottawa, May 15, 2017; CRTC, Rogers Media Inc. – Licence renewals for English-language television stations, services and network, Broadcasting Decision CRTC 2017-151, Ottawa, May 15, 2017; CRTC, Québecor Média inc. – Group-based licence renewals for French- language television stations and services, Broadcasting Decision CRTC 2017-147, Ottawa, May 15, 2017; Groupe V Média inc. – Licence renewals for French-language network, television stations and services, Broadcasting Decision CRTC 2017-146, Ottawa, May 15, 2017. 36 CRTC, RNC Média inc., Various conventional television stations – Licence renewals, Broadcasting Decision CRTC 2018-336, Ottawa, August 30, 2018; CRTC, Various conventional television stations – Licence renewals, Broadcasting Decision CRTC 2018-337, Ottawa, August 31, 2018. 37 Bill C-11, para. 9(1)(

b) and (

e) proposed. 38 Bill C-11, ss. 9.1(1) and 11.1(2) proposed.

PROPOSED AMENDMENTS CPSC-SCFP | 13 6. IMPROVING THE ACCURACY OF SOME SUBSECTIONS AND THE CONSISTENCY OF THE ACT 2(1) The Standing Committee on Canadian Heritage added a definition of the term “decision” in subsection 2(1) of Bill C-11. The proposed amendment in French was taken from the Telecommunications Act, but the English version of that Act was not reproduced in C -11.

It should therefore be replaced with the original wording in the Telecommunications Act: ”2(1) decision : includes a determination made by the Commission in any form.” Members of the Standing Committee on Canadian Heritage came up with a new definition of community element, which would require clarification in both languages along with a correction at the end of the French version to make it compliant with the English text.

It is suggested that the following amendments be made: « 2(1) community element includes is the element of the Canadian broadcasting system as part of which members of a community participate in the production of programs that are in a language used in the community including a not -for-profit broadcasting undertaking that is managed by a board o f directors elected by the community;» 3(1)(i)(ii) The Canadian broadcasting policy also says that community broadcasters are in the unique position of being able to provide varied programming to meet the needs of specific audiences.

However, local private television stations can also fit that description , since they also do work nearby with local organizations and community members to produce their news, among other things. It is therefore proposed that the paragraph be amended as follows: « 3(1)(i)(ii) be drawn from local, regional, national and international sources, including, at the local level, from community broadcasters who, through collaboration with local organizations and community members, are in the unique position of being able to provide varied programming to meet the needs of specific audiences, »

PROPOSED AMENDMENTS CPSC-SCFP | 14 3(1)(

o) In addition, even though paragraph 3(1)(

o) refers to community elements, one gathers from reading most of the sections referring to the community element that it includes all community broadcasters 39. The Canadian Broadcasting Regulatory Handbook also mentions that the Broadcasting Act from 1985 only referred to two elements of the system, to wit, the public and the private element. Only in 1991 did the community element appear in the legislation at the committee level 40. It would therefore be logical that paragraph 3(1)(

o) be reformulated to read as follows: “3(1)(

o) programming that reflects the Indigenous cultures of Canada and programming that is in Indigenous languages should be provided — including through broadcasting undertakings that are carried on by Indigenous persons — within the community elements, which are is positioned to serve smaller and remote communities, and other elements of the Canadian broadcasting system;” 3(1)(

b) To be consistent with the explanation in the preceding paragraph , and to ensure an identical understanding of the three elements that make up the Canadian broadcasting system in both French and English, it would be desirable that adjustments to the agreements be made to the French version of 3(1)(b): « (

b) le système canadien de radiodiffusion, composé d’éléments des éléments publics, privés et communautaires, utilise des fréquences qui sont du domaine public et offre, par sa programmation essentiellement en français et en anglais, un service public essentiel pour le maintien et la valorisation de l’identité nationale et de la souveraineté culturelle; » 9.1(7) Finally, CPSC-CUPE believes that the time would be right to strengthen subsection 9.1(7) so that original Canadian programs represent a “strong majority” of original French language programs: « 9.1(7) In making an order under paragraph ( 1)(c), the Commission shall ensure that Canadian original French language programs represent a significant proportion strong majority of the original French language programs to be broadcast. 39 See the definition of the community element in Bill C-11 at the proposed s. 2(1), and proposed ss. 3(1)i)(iv), 3(1)s). 40 Peter S.

Grant and Grant Buchanan, Canadian Broadcasting Regulatory Handbook, McCarthy Tétrault, 2017, p. 17.

CONCLUSION CPSC-SCFP | 15 CONCLUSION CPSC-SCFP supports Bill C -11 with the amendments requested in this brief, which are aimed at clarifying its scope, avoiding loopholes, promoting employment in Canada and achieving regulatory equity between Canadian broadcasters and foreign online undertakings. The group from the CUPE communications sector is also proposing that CRTC’s mission and accountability be strengthened along with its authorities in the area of information gathering.

The group is also in favour of limiting the policy direction authority of the Governor -in-Council and is opposed to restricting the public’s ability to report to the government all decisions not in line with Canadian broadcasting policy. A few propositions on providing adequate time frames and ensuring consistency in the legislation have also been made. CPSC-SCFP wishes to thank the Standing Senate Committee on Transport and Communication for the attention it will give to its recommended amendments.

It hopes that they will be useful to members of the Committee and shall remain at the latter’s disposal to answer any questions. NB:cc/cope491