By Doug Barrett, an Adjunct Professor in the Arts, Media and Entertainment MBA Program at the Schulich School of Business
On June 3, Culture Minister Marc Miller announced an investment of $600 million per year in “immediate support to strengthen Canadian culture and ensure Canadian content remain affordable.”
Notwithstanding this financial commitment, the underlying substance of the release was that the CRTC would be directed to review its recent decision to regulate online streamers. To guide that review, the government will be issuing a new policy direction to the CRTC, presumably replacing the existing direction that had governed the work of the CRTC following the passage of the Online Streaming Act in April 2023.
On June 15, Cartt published a piece of mine titled, Own Goal on Canadian Cultural Sovereignty Scored by the Minister Responsible for Protecting It. In it I argued that the announcement was effectively a pre-emptive surrender to the demands of foreign online undertakings and American trade interests.
That same day, CRTC Chair Vicky Eatrides made a keynote presentation at the Banff World Media Festival that many observers viewed as a recitation of Canada’s regulatory history, but that I viewed as a major statement on the role and independence of the CRTC itself.
“Until those policy directions are issued, it is difficult to know precisely how they will affect our work,” Eatrides said. “Parliament gave us the mandate to modernize Canada’s broadcasting framework. That means implementing the Online Streaming Act and accompanying policy direction, which required the CRTC to ensure that online undertakings contribute in an equitable manner to Canadian and indigenous content. The scale of that mandate is significant.
“To put it in perspective, when the CRTC was created in 1968, we had 13 policy objectives. Today, we have 73 – nearly six times as many. And that is before accounting for the 52 directives contained in the 2023 policy direction.”
Eatrides continued: “So, how are we approaching that task? As a quasi-judicial tribunal, we begin by listening. We consult broadly. We gather evidence. And we hear directly from Canadians and those who work across the broadcasting system. The level of engagement has been extraordinary. Through our consultations – including four public hearings – we received more than 1,700 interventions representing a wide range of views and experiences. We heard from broadcasters, artists, producers, public interest organizations, accessibility groups, equity-deserving communities, Indigenous peoples, and individual Canadians. Those perspectives have been invaluable, and they have helped shape the decisions we are making.
“As we have implemented the modernized Act, we have remained focused on three broad outcomes: supporting high-quality Canadian content, fostering a sustainable and more equitable broadcasting system, and providing greater clarity for all participants.”
To paraphrase her comments: Parliament gave us the job of modernization, and we have done that job deliberately, carefully and intensively. So, be careful if you want to throw out all that work and start again. She also said: “Our work continues. We remain focused on supporting a modern, sustainable broadcasting system that serves Canadians.”
Sounds to me like the story is not over!
So, I have been mulling over what happens if Cabinet issues a policy direction that, while theoretically of “general application,” is actually designed to force a specific, pre-determined result on an independent tribunal. What, for example, is the upshot if the intent of the direction is to implement a deal that has been directly reached between the government and the foreign streamers?
Section 7 of the Broadcasting Act gives Cabinet the authority to issue directions of general application on broad policy matters respecting the objectives of the broadcasting policy (s. 3(1)) or the objectives of the regulatory policy (s. 5(2)). Together, as Eatrides pointed out, this amounts to 73 policy objectives. Notably, not one of those many objectives touches on matters of affordability or international trade concerns.
A court could strike a policy direction down if it is inconsistent with the Act or with the CRTC’s independent decision-making authority. If a direction were challenged, the question to be adjudicated would be whether it is properly of general application or is an instance of the Cabinet substituting its judgment for that of the CRTC in a particular proceeding.
The Broadcasting Act explicitly gives the CRTC the task of determining what the appropriate financial and non-financial contributions of the streamers should be, and the CRTC has done just that in its recent decision.
Cabinet clearly doesn’t like the outcome and proposes to issue a new direction that is potentially intended to achieve indirectly what it could not do directly. This leaves the unanswered question: Who is the real regulator here, and does this action leave the CRTC with enough meaningful independence to satisfy the requirements of the Act? Put differently, will the real purpose of the new direction be to avoid political conflict with the US or rather to satisfy the policy objectives of the Act?
When drafting the new direction, great care will surely be taken to position it as being of general application. Given the clear provisions of the Act and all of the minister’s rather candid public statements to date, this will be no easy feat. At some point a court may be asked to consider how specific the new policy framework can become before it ceases to be a framework and becomes an actual decision.
(Editor’s note: The Federal Court of Appeal, through a challenge to the CRTC’s wholesale fibre internet access policy, is already reviewing whether there is a conflict between its 2023 Cabinet direction, which mandates that access, and the Telecommunications Act, whose language appears to restrict that influence to “broad policy matters.”)
If the new direction ends up being challenged and struck down, the only recourse for the government may well be to ask Parliament to amend the Online Steaming Act itself to make explicit the surrender that, to date, has merely been implicit.
As always, we live in interesting times.
