The case for Bill C-11 being unconstitutional is quite clear, but the likelihood that the Senate will defend the Charter is low.
Let’s get this out of the way right off the bat: Bill C-11 is blatantly unconstitutional. It is this fact that lawyers will be clamouring to be the ones to defend digital first creators, make a name for themselves, and slap this terrible bill down once it becomes law. Of course, some readers will look at that and say that this assumes a lot about what will happen next. Sadly, the way things seem to be going, that is actually a fairly safe bet to make at this point.
To set the stage, Bill C-11 allows the CRTC to force platforms to prioritize content over others. While some Conservative party supporters insist that the bill will remove content, there are no provisions in the bill that allow for the explicit removal. This is where some opinions vary as to the constitutional nature of the bill. It is also where there is a lot of confusion as to what is considered “Canadian content” or “Cancon” resides.
Some, even during the Senate hearings, wrongly believed that if you are a Canadian, and you produce content, then that automatically means that the content you produce is Canadian content. Really, that is probably how it should work, but the reality is that it’s not even close to how this works. Canada has rules governing what can qualify as “Cancon” which is centred around the Canadian Audio-Visual Certification Office or CAVCO. The system is basically stuck in the past that envisions content production involving vacuum tubes and VHS tapes, not the internet we know and all enjoy today.
Last year, I performed a test to see whether content I produce could possibly qualify as “Cancon”. The results were very conclusive in that Freezenet would not qualify. As a result, I would not qualify as being Canadian enough. What’s more, a vast majority of online Canadian creators would suffer from the same fate.
The system is, of course, further problematic in that it often takes months, if not, over a year, to put a piece of content through the system. For a vast majority of Canadian creators working online, this is an unacceptably long period of time. If you are producing a video talking about a video game on day one release, and you depend on that fresh content, waiting 8 months would mean everyone else around the world would have first dibs on analysis and content. By the time that certification comes around (assuming that person even qualifies which they likely won’t), audiences would be talking about several other more newer games, leaving the Canadian content creator with scraps.
Simply put, the system is not meant for a world of real time and on demand content. It is largely meant for pet projects funded by the cultural elite that don’t need to attract an audience in the first place.
Yet, the consequences of this mixed with the consequences of Bill C-11 provides the perfect storm of censorship for Canadian content creators working in this environment. Bill C-11 envisions that those that go through the CAVCO process would receive special treatment on social media. Those who know how to game this system would be the ones that automatically come out on top and be force fed to audiences. From there, simple mathematics take over. If there are only enough spaces for 10 recommendations, and Bill C-11 demands that 4 of those spaces get taken up by the government certified Canadian content, then this leaves everyone else fighting for the remaining 6 spaces. If your video would normally appear as a recommendation in the 8th position, you would get bumped out of those recommendations entirely.
By doing this, you ghettoize speech. Yes, your content is not outright removed, but rather, it is relegated to a corner of a platform that ensures that you likely won’t be heard. With your speech being relegated to the back of the line because the government has decided that their blessed content must be prioritize, then your speech is diminished. This rises to the threshold of government censorship and a violation of freedom of expression.
Recently, Michael Geist noted that the Canadian Senate should send the bill back to the House of Commons. This after the House of Commons rejected the critical Section 4.2 fix. Indeed, Canadian creators are really hoping at this point that the bill does get sent back to the House of Commons. Yes, the Canadian Senate is reluctant to send a bill back multiple times unless there is constitutional grounds to do so. Yes, there is a strong case that the bill is unconstitutional. The question is whether or not they will.
Already, in the main Senate, the idea of getting enough votes to reject the bill was already unlikely to happen. If Trudeau says jump, to some degree, the Senate asks, “How high?” There is the further problem that some Senators who were actively pushing the effort to fix Section 4.2 have already expressed reluctance to admit that the legislation violates the Canadian Charter of Rights and Freedoms. It’s a frustrating reality, but one that exists nevertheless. For those Senators, the belief is that if the bill doesn’t remove content outright, then it isn’t a violation of freedom of expression full stop. It’s not really a correct way of viewing it, but it is the view of multiple senators.
Correct or incorrect, it’s what enough Senators think. For some, they can’t make people like Oorbee Roy cry fast enough because, in their minds, they are not valid content creators to begin with and, therefore, deserve no say on matters. For others, there is concerns that innovative Canadian content creators would be significantly hurt by this bill as it currently stands now, but they don’t feel they have a leg to stand on to stop this bill any further. So, despite what one senator commented at one point, those senators will simply shrug and say, “oh well, we tried” and pass the bill in its current form. That doesn’t leave a lot of senators who are poised to do the right thing and vote against the bill.
The hope is, indeed, that the Senate will send the bill back. This is pretty much best case scenario for people’s constitutional rights. The likelihood of that happening, in our view, is very slim. In all likelihood, the Senate is going to throw digital content creators and the entire internet under the bus and back down in their duties to protect the Canadian Charter of Rights and Freedoms.
So, where does this leave us? Right at the beginning of this article: litigation. While the Senate may very well be a lost cause at this point, the Canadian legal community is anything but. Members of this community are selflessly starting to gear up and take this government to court and step in where the Senate did not at the last critical moment. As a result, Canada will get to see the spectacle of the internet on trial. Unless the Canadian courts end up with a wildly different interpretation of the Charter where our freedoms end where the internet begins, then Bill C-11’s Section 4.2 faces an incredibly uphill battle just trying to survive.
It’s not the outcome everyone was wanting, but it is looking increasingly likely that this is the outcome we are going to get. At least there is a silver lining in all of this.
Drew Wilson on Twitter: @icecube85 and Facebook.
