A driving force for Bill C-11 is to make Quebec happy. Now, Quebec is objecting to Bill C-11, making for an awkward situation.
The politics of Bill C-11 got even more murky recently. For those following the politics behind Bill C-11, they know that making Quebec happy is a huge driving force in pushing for this legislation in the first place. During the last government, when Bill C-11 was called Bill C-10, the NDP, a party that would normally fully object to such a bill, backed the bill. The reason for this support seems to be more about politics. The party was, at the time, wanting to support Bill C-10 in a political power play to try and get more votes in Quebec in a then upcoming election. When the party failed to really get any additional votes, well known MP, Charlie Angus, broke his silence and called Bill C-10 a “dumpster fire“.
Well, that flip-flop didn’t last long because the NDP would later flip-flop again and support the now called Bill C-11. This after striking the supply and confidence deal with the Liberals. As a result, they were right back in there supporting Bill C-11. It seems that the NDP is all too happy to vote for dumpster fires in all of this. Of course, the NDP isn’t the only one of note in all of this.
The Bloc Quebecois have also long supported this bill from the very beginning. That party, thanks to the typical intense lobbying, saw this bill as a way to defend Quebec culture. In fact, some would go so far as to say that an attack on Bill C-11 is an attack on Quebec culture and an attack on Quebec itself. The image many Bill C-11 supporters wanted to project is that Quebec is totally united and everyone in that province supports Bill C-11. Some even went so far as to say that opposition is largely an English vs French debate with the English parts of Canada being more divided. Of course, that analysis was always flawed and Quebec was far from united on this bill.
Digital first creators are actually opposed to Bill C-11. Whether they are from Quebec or the rest of the country, digital first creators are practically unanimously opposed to the bill assuming they have an opinion on it at all. This point was generally proven during the Bill C-11 Senate hearing with Frédéric Bastien Forrest. Bill c-11 supporters were furious that this opposition appeared at all and were quick to attack Forrest, even going so far as to suggest that his views don’t represent the views of the Quebec music sector. This was largely more indicative that Bill C-11 supporters were terrified that anyone outside of Quebec would find out that Bill C-11 is actually a very divisive bill rather than one of unanimous support. Forrest appearance, however, wasn’t the only sign of division in the province.
Another aspect of Bill C-11 is the fact that it hands over huge powers over the Internet and what we see or hear over to the CRTC. This aspect is a particular weakness to Bill C-11 supporters in Quebec thanks to the infamous CBC N-Word ruling. That ruling not only overruled the Canadian charter and ruled against the CBC, but it was over a French language program that aired in Quebec. Up until that point, Bill C-11 supporters in Quebec were giving full throat support that the CRTC is the best organization to make decisions on what you see or hear online. Yet, with the N-Word ruling, some of those same supporters were lashing out at the CRTC for overstepping their boundaries.
Fundamentally, this leads to some very uncomfortable questions for some of those Bill C-11 supporters. One of those questions is whether or not those supporters support handing so much power over to the CRTC that can decide what can and cannot air on French airwaves like they did with the CBC. From our perspective, questions like that was met with awkward silence and then a dial tone. The idea of handing that much cultural power over to a federal government institution like the CRTC no doubt eventually led to some very uncomfortable debates within the province afterwards.
Now, we are learning that reconciling those two competing points proved too much for Quebec to continue supporting Bill C-11. The Quebec National Assembly has passed a motion condemning Bill C-11. The motion reads as follows:
By leave of the Assembly to set aside Standing Order 185, Mr. Lacombe, Minister of Culture and Communications, together with Ms. Setlakwe (Mont-Royal–Outremont), Ms. Ghazal (Mercier), Mr. Bérubé (Matane-Matapédia) and Ms. Nichols (Vaudreuil), moved:
THAT the National Assembly acknowledge that the federal government could soon pass Bill C-11, which aims to amend the Broadcasting Act;
THAT it underline that this bill does not recognize the application of Québec laws regarding the status of artists;
THAT it recognize that this bill, as it is currently written, grants Québec no rights of inspection on the directions that will be given to the CRTC, and that those directions will have a significant impact on Québec’s cultural community;
THAT it remind the federal government that Québec’s linguistic specificity must be respected;
THAT it highlight for the federal government that as a nation, it is up to Québec to define its cultural orientations; THAT it demand that Québec be officially consulted on the directions that will be given to the CRTC regarding the bill and that, for this purpose, a formal mechanism be added to the bill;
THAT it affirm that Québec will continue to apply, in its areas of jurisdiction, the laws democratically passed by the National Assembly;
THAT, lastly, the National Assembly inform the federal government that Québec will use all the tools at its disposal to continue protecting its language, culture and identity.
By leave of the Assembly, the motion was carried.
The word “awkward” would be an understatement here. First of all, this leaves the federal Bloc Quebecois high and dry as they now find themselves supporting a bill that is against the interests of Quebec. Second, it means that the NDP original sold out their principles supporting a bill in the name of Quebec that Quebec now does not like. Third, it puts the Liberals in a really awkward position because they thought that supporting Bill C-11 would mean making Quebec happy.
In the end, they find themselves in an even more isolated position pushing this bill forward. By losing Quebec, the only real supporters are the large news media companies and the big production companies in Canada – the original lobbyists for this bill. Everyone else is against the bill. One question that is now on the table is that if the Liberal government won’t listen to the Americans on Bill C-11 (let alone Canadians in general), then would they listen to Quebec now that they are opposed to this bill? At this point, that is actually not an easy question to answer.
University law professor, Michael Geist, also offered his thoughts on this, saying that Quebec has finally woken up to the idea that Bill C-11 is a bad bill:
Bill C-11 – and its predecessor Bill C-10 – have long been driven by the government’s view that the bill was a winner in Quebec. Bill C-10 was headed for easy passage in 2021, but was derailed by the government’s decision to remove safeguards over regulating user generated content that came largely from the Quebec-based music lobby. Nearly two years later, Canadian Heritage Minister Pablo Rodriguez and his staff have ignored the concerns of thousands of digital creators, disrespected indigenous creators, and indicated that he will likely reject Senate amendments designed to craft a compromise solution, all in the name of keeping Quebec lobby interests satisfied. Yet as the government considers the Senate amendments, the Quebec legislative assembly this week passed a last minute motion calling for further changes to the bill, including scope to enact its own rules and mandatory consultations with the province on the contents of a policy direction to the CRTC that Rodriguez has insisted on keeping secret until after the bill receives royal assent (a full copy of the motion is contained at the bottom of this post). The Conservatives have been calling for the Quebec motion and the Senate amendments to be sent back to committee for further study, which the Globe reports may delay the government’s response to the Senate amendments.
It is not clear what prompted the Quebec government to finally wake up to the centralizing power over digital culture that comes from the bill (and just wait until it realizes that Bill C-18 encroaches on provincial jurisdiction with the regulation of newspapers). But this issue has been there from the beginning. In March 2021, Philip Palmer, a former Justice counsel, argued that Bill C-10 was unconstitutional, making the case it fell outside federal jurisdiction.
The takeaway from this exchange – a former justice lawyer citing caselaw to confirm the shaky constitutional foundation of the bill and a professor confirming the Supreme Court would have to decide – should have provided a wakeup call to Quebec, which has a long history of challenging federal jurisdiction in communications that dates back nearly 100 years with repeated efforts to enact provincial laws and policies in the area. Left unsaid is that if the “national interest” dictates federal regulation of anything that touches the Internet, there are few limits on federal powers and little left for the provinces.
The question of federal jurisdiction over broadcast is well-settled, but the key point with Bill C-11 is that it represents a massive expansion in the very conception of broadcast. Under the bill, the Canadian “broadcast system” is no longer primarily limited to radio and television, but now expands to the Internet. In fact, the bill adopts an expansive approach with all audio-visual programs located anywhere in the world subject to Canadian federal jurisdiction. In other words, the federal government is asserting jurisdiction over every streaming service anywhere in the world (notably including many French-language services) and tossing in the regulation of the content of thousands of digital creators along the way. This digital culture jurisdiction grab is then used to give the CRTC the power to establish regulations over the streaming services and over much of the content posted by users on services such as TikTok and Youtube. That Quebec has spent decades challenging federal jurisdiction over radio and television stations, but then says nothing about handing over regulatory authority over Internet content services and user content is inexplicable.
Indeed, the notion that Quebec would welcome this expansion of federal jurisdiction with its enormous implications for expression and culture never made much sense. This summer’s CRTC decision involving Radio-Canada and the use of the N-word in a broadcast was widely rejected in the province and viewed as censorship. If it didn’t like that decision, think of the Bill C-11 world in which the federal government and CRTC have regulatory power over a broader range of content that would include user content and thousands of streaming services worldwide. That means the federal government and its regulator decide what counts as Canadian, how that content should be promoted on digital services, and how the digital services contribute to the cultural sector. That is obviously why many have been arguing for changes to the bill. More power to the CRTC and the federal government over cultural content is something Quebec has fought for decades, yet under Bill C-11 it gets no say over key issues involving the most important cultural engine of our time. It has taken a long time, but it appears it has finally awoken to the long-term implications of the bill and it isn’t altogether comfortable with what it sees.
The absolute best case scenario at this point is that Quebec objecting will be what finally sinks Bill C-11. While that is unlikely at this point as there is no doubt a lot of communications going on between Ottawa and Quebec at this point to try and reconcile the differences. At the very least, though, it will cause even more welcome delay to the bill itself. For what it’s worth, it’s easy to agree with Geist here in that it shouldn’t have taken Quebec this long to realize how much they were screwing themselves over with Bill C-11. The objection, of course, is welcome news for huge swaths of Canada.
Drew Wilson on Twitter: @icecube85 and Facebook.
