By Len St-Aubin, pictured above, an independent internet and telecoms consultant whose clients have included streamers, carriers, government, and not-for-profits. Formerly he was director general of telecommunications policy at Industry Canada and a member of the policy teams that developed both the 1991 Broadcasting Act and the 1993 Telecommunications Act. The opinions expressed in the following are his alone.
On February 14, Quebec’s National Assembly unanimously passed a motion demanding 11th hour amendments to bill C-11, the federal government’s proposed update of the Broadcasting Act, called the Online Streaming Act. Yet in May 2021, the assembly had unanimously passed a motion supporting C-11’s predecessor, C-10.
What the Quebec government wants now may not be an easy fix. So the flip-flop may have repercussions for C-11’s final passage in the minority House of Commons. And the government has just begun to deal with proposed amendments from the Senate that it considers problematic.
So this latest game of brinkmanship between Quebec and Ottawa has the potential to make political pawns of Quebec’s cultural constituency, which has strongly supported the bill.
Quebec’s latest demands boil down to two things: a right, entrenched in the Act, to be consulted on government policy directions to the CRTC; and some kind of acknowledgement, in the Act, of Quebec’s linguistic and cultural specificity and related laws. That almost ensures endorsement from the sovereigntist Bloc Québécois, which has so far supported the bill.
Ironically, until now, C-11’s strongest support has come from Quebec, including its cultural constituency, media, provincial government, and federal MPs — notably the Bloc. Two Quebec-based federal Heritage ministers, first Steven Guilbeault and now Pablo Rodriguez, have championed the bill. Outside Quebec, the cultural community strongly supports C-11.
But it has also been widely criticized. First, as outdated protectionism for yesterday’s regulated and subsidized broadcasting/CanCon industry. Second, for undermining Canada’s digital-first creators who are finding success online without government intervention. And also as an attack on freedom of expression.
So why Quebec’s change of heart?
The Quebec government’s support of C-10 and C-11 has been a conundrum from the get-go. There are solid arguments that C-11 exceeds federal jurisdiction over broadcasting, and therefore encroaches on provincial authority. As University of Ottawa law professor Michael Geist noted in a recent column, former Justice lawyer Philip Palmer made the case before the House committee studying the bill. In follow-up questioning, even professor Pierre Trudel, who supports C-11, acknowledged that the Supreme Court may ultimately have to rule on the matter.
What’s interesting is that the National Assembly’s motion does not directly address jurisdiction (full copy of the motion here). Its “demands” fall short of Quebec’s longstanding constitutional “revendications” in the field of communications and culture. On the other hand, an acknowledgment in federal broadcasting law of its language and culture specificity and related laws might allow Quebec to pry out of these amendments more than first meets the eye.
For the federal government, the proposed amendments could need more than back-of-the-envelope drafting.
Consultation is an easy fix. If Quebec can be satisfied with that there is already language in S. 13 of the Telecommunications Act that provides for consultation with all provinces on either proposed policy directions or disposition of appeals of CRTC decisions. In practice, it has proven to be mostly perfunctory.
But if that is all Quebec wants, why wait until now to ask for it? Quebec, or the Bloc could have proposed that off-the-self language when C-11 was in the House committee.
The implications of enshrining in the Act a requirement that the CRTC acknowledge, reflect or somehow take into account Quebec’s laws related to language and culture would be more complex. Potential Charter conflicts are easy to foresee. More pragmatically, the CRTC’s ability to override provincial authority when it comes to allowing broadcasters and carriers to access provincial and municipal rights-of-way is a long-festering federal/provincial issue. So any amendment to address this demand could take time to consider, and Conservatives are already asking for committee study.
As for Quebec, having waited so long to intervene, it seems to have realized that it must now weigh the bill’s massive support from its cultural constituency against its own interests and demands. That appears to have made raising the constitutional issue a non-starter. Instead, its pragmatic approach appears to be: let the feds do the heavy lifting trying to regulate global streamers; extract, at least, a last-minute “droit de regard” on policy directions; and then wait for someone else — preferably a large foreign streamer — to launch a legal challenge in which Quebec will have no alternative but to intervene. This motion lays the groundwork for that.
In Canada, broadcasting jurisdiction has a long history of being determined by the courts.
But this is a risky game. The federal government can play politics too. But without Bloc support, much depends on where the NDP will land on this issue. If the government can still count on NDP support, it can argue that Quebec is delaying passage of C-11 for political gain at the expense of Quebec artists, and take the risk of plowing ahead.
On the other hand, if the Liberals or the NDP are getting cold feet, the government can delay the bill indefinitely and lay the blame entirely on the Quebec National Assembly. Outside that province, C-11’s many detractors would be happy to see it sidelined.
Interesting times.
Cartt accepts commentary from informed observers of the telecommunications and broadcasting industry. The views reflected in these pieces do not necessarily reflect the views of Cartt. Pieces for consideration should be sent to editorial@cartt.ca.
