Bill C-11: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

Bill C-11: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

Tabled in the House of Commons, April 1, 2022

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-11 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Overview

Bill C-11 amends the Broadcasting Act (the Act). The Act sets out the broadcasting policy for Canada, the role and powers of the Canadian Radio-television and Telecommunications Commission (the Commission) in regulating and supervising the broadcasting system, and the mandate for the Canadian Broadcasting Corporation. The Act plays an important role in supporting Canada’s cultural industries and ensuring Canadian content is available and accessible.

The Commission, an independent administrative tribunal, is responsible for determining the regulatory requirements to be imposed on broadcasting undertakings with a view to implementing the policy established by the Act, and for enforcing those requirements. Regulatory decisions are generally made following processes that allow for input by interested parties and the public.

The Commission’s primary regulatory tools under the current Act consist of licensing broadcasting undertakings or exempting classes of undertakings from licensing, imposing conditions of licence or of exemption, and passing regulations. Traditional “over-the-air” broadcasters, that is, those that use radio frequencies to deliver audio and audio-visual content, are generally subject to licensing requirements. Currently, online undertakings that deliver audio and audio-visual content over the Internet are exempt from licensing and most other regulatory requirements.

New and updated regulatory requirements for broadcasting services

The Bill clarifies that the Act applies on the Internet. Clause 2 would add online undertakings as a distinct class of broadcasting undertaking subject to the Act. Online undertaking would be defined in the Act as an undertaking for the transmission or retransmission of programs over the Internet to the public by means of broadcasting receiving apparatus.

Clause 2 specifies that users of social media services who upload programs for sharing with other users, and who are not affiliated with the service provider (“unaffiliated users”), would not be subject to broadcasting regulation in that respect. Clause 4 stipulates that the Act would not apply in respect of programs uploaded to an online undertaking that provides a social media service by an unaffiliated user of the service, unless the programs are prescribed by regulation. In deciding to prescribe such programs, the Commission would be required to consider: a) the extent to which the program uploaded to social media generates revenue; b) whether the program has been broadcast by a licensed or registered broadcasting undertaking that is not a social media service; and c) whether the program has been assigned a unique identifier under an international standards system. Programs that consist only of visual images, and programs where neither the person who posts the program nor the owner or licensee of copyright in the program receives revenues, would not be subject to the Act.

The Bill would provide the Commission with new powers to regulate online services, and update the Commission’s regulatory powers as they relate to traditional broadcasters. Clause 9 would amend the Commission’s licencing powers and would exclude online undertakings from licencing. Clause 25 would specify that a person shall not carry on a broadcasting undertaking, other than an online undertaking, unless they do so in accordance with a licence or they are exempt from the requirement to hold a licence. Clause 10 would replace the Commission’s power to impose conditions on a licence with a power to make orders imposing conditions on the carrying on of broadcasting undertakings. This power would include conditions about the proportion of programs that must be Canadian.

Clause 11 would amend the Commission’s power to make regulations, including a new power to make regulations requiring broadcasting undertakings to register with the Commission, and specifying matters that the Commission must consider in making regulations prescribing what constitutes a Canadian program. Clause 13 would amend the Commission’s power to make regulations regarding fees to be paid by persons carrying on broadcasting undertakings. Clause 14 would give the Commission a new express regulation-making and order-making power to require persons carrying on broadcasting undertakings to make expenditures to support the Canadian broadcasting system.

Clause 12 would amend the Act by providing, for greater certainty, that the Commission must exercise its discretion to make orders and regulations in a manner that is consistent with the freedom of expression enjoyed by users of social media services that are provided by online undertakings.

The Act currently sets out penalties for persons carrying on broadcasting undertakings that do not comply with the regulatory requirements imposed on them. Clause 15 would amend the Commission’s powers to inquire into, hear and determine contraventions of regulatory requirements. Clauses 26 and 27 would amend the offence provisions by harmonizing the punishments for offences under Part II of the Act and by clarifying that a due diligence defence applies to the Act’s existing offences. Clause 28 would allow for the imposition of administrative monetary penalties for violations of certain provisions of the Act or of the Accessible Canada Act.

Right to freedom of expression (section 2(b) of the Charter)

As broadcasting is a medium of communication, the Bill’s regulatory requirements, which are backed by penalties for non-compliance, have the potential to engage section 2(b) of the Charter.

Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, and includes freedom of the press and other media of communication. Section 2(b) has been broadly interpreted as encompassing any activity or communication, aside from violence or threats of violence, which conveys or attempts to convey meaning. Freedom of expression protects speakers as well as listeners.

The following considerations support the consistency of the proposed regulatory requirements with section 2(b). The provisions aim to establish a fair competitive environment for online and traditional broadcasting services in Canada, in the context of changing market trends that have not been favourable to traditional broadcasters. Traditional broadcasters remain a key source of information and programming for Canadian consumers, including francophones and those living in rural and remote communities. By levelling the regulatory playing field, the provisions will help ensure that traditional broadcasting services remain viable and accessible to Canadians. Traditional broadcasters subject to licences often use radio frequencies that are a limited public resource. Licencing helps to manage this scarce public resource in the public interest. The proposed amendments will also advance the Act’s cultural objectives by helping to ensure that all broadcasting undertakings contribute equitably to the implementation of the objectives of the broadcasting policy for Canada, which may include support for the production of Canadian content. In so doing the Bill would further the values and principles that underlie freedom of expression. These values are promoting the search for truth, the opportunity for individual self-actualization through expression, and participation in social and political decision-making.

The Bill is carefully tailored to achieve these objectives. Unaffiliated users of social media who upload programs for sharing with other users will not be subject to regulation in that respect. Programs uploaded by unaffiliated users of social media would not be subject to the Act unless prescribed by regulation. In deciding to prescribe such programs, the Commission would be required to consider: the extent to which the program uploaded to social media generates revenue; whether the program has been broadcast by a licensed or registered broadcasting undertaking that is not a social media service; and whether the program has been assigned a unique identifier under an international standards system. The Bill maintains the Commission’s role and flexibility in determining what if any regulatory requirements to impose on broadcasting undertakings, taking into account the Act’s policy and regulatory objectives. The Commission is subject to the Charter, and must therefore exercise any discretionary powers it has in a manner that is consistent with the Charter. The Act provides that it must be interpreted and applied in a manner consistent with freedom of expression. In making regulatory decisions, the Commission must proportionately balance the objectives of the Act with the protection of freedom of expression in light of the facts and circumstances. The Commission’s decisions on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.

Information collection and disclosure powers (clauses 10, 22, 28 and 36)

The Bill would create a number of powers for the collection and disclosure of information analogous to those in other regulatory laws. Clause 10 would empower the Commission to make orders imposing conditions on persons carrying on broadcasting undertakings, including conditions with respect to the provision of information to the Commission. Clause 22 would enact three new provisions governing the disclosure of information by or under the direction of the Commission. Proposed section 25.1 would require the Commission, upon request, to provide information submitted to it in respect of a broadcast undertaking to the Minister or the Chief Statistician of Canada. Proposed section 25.2 would require the Commission to make available for public inspection any information submitted in the course of proceedings before it. Proposed section 25.3 would create a mechanism for persons who submit certain types of information to the Commission to designate it as confidential. Confidential information would be subject to a general prohibition on disclosure, subject to specific and limited exceptions. Disclosure of confidential information would be permitted where the Commission determines, after considering any representations from interested parties, that the disclosure is in the public interest. Confidential information could also be disclosed to the Commissioner of Competition, on the Commissioner’s request, where it is relevant to competition issues related to a matter for which the Commission is responsible. Clause 36 would amend Schedule II of the Access to Information Act to prohibit disclosure of any record the disclosure of which is restricted under proposed section 25.3. Finally, clause 28 would create an information requirement power in relation to the administrative monetary penalty regime. A person authorized to issue a notice of violation could require any person to provide information in their possession that is relevant to the determination of whether a violation has been committed.

Searches or seizures (section 8 of the Charter)

Section 8 of the Charter protects against “unreasonable” searches and seizures. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable in the sense of striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner. Because the requirement and disclosure powers have the potential to interfere with privacy interests they may engage section 8.

The following considerations support the consistency of these powers with the Charter. The information requirement and disclosure powers would not be available for penal purposes but would serve regulatory ends related to the administration of the Act in a context where privacy expectations are diminished. As such, the proposed powers are broadly analogous to powers that have been upheld in the regulatory context. The Bill would provide for the protection of confidential information, permitting disclosure of that information only in the specific circumstances described above.

Right to freedom of expression (section 2(b) of the Charter)

The prohibition on public disclosure of confidential information submitted to the Commission has the potential to engage section 2(b) of the Charter. Section 2(b) may provide a limited right of access to documents in the possession of government bodies. Such access is constitutionally protected only where, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. However, even where a case for public access is established, access may be declined based on countervailing considerations.

The following considerations support the consistency of the prohibition with section 2(b). The Bill would generally permit public access to any information submitted in the course of Commission proceedings. The prohibition would apply only to specific and limited types of information, such as trade secrets, that are customarily treated as confidential and the public disclosure of which could lead to harm for the person who provided it. The prohibition on disclosure would not be absolute. The Commission would have the discretion to provide access to confidential information if it determines that the disclosure is in the public interest.

Administrative monetary penalties (clause 28)

Clause 28 of the Bill would create an administrative monetary penalty regime for violations of certain provisions of the Act or of the Accessible Canada Act. Persons designated by the Commission for that purpose would be empowered to issue notices of violation where they have reasonable grounds to believe that a person has committed a violation. A notice of violation would include the act or omission giving rise to the violation, the amount of the penalty, and a summary of the person’s rights and obligations, including the right to make submissions to the Commission with respect to the violation or the penalty. The Commission would then determine, on a balance of probabilities, whether the person committed the violation. Proceeding with a notice of violation would preclude proceeding with criminal charges.

Fair trial rights (section 11 of the Charter)

Section 11 of the Charter guarantees certain procedural rights to persons who have been charged with an offence. Its protections apply to proceedings that are “penal in nature” or that may lead to “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is out of proportion to the amount required to achieve regulatory purposes. Section 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

The regime enacted by clause 28 would give rise to the possibility of substantial monetary penalties and therefore has the potential to impact section 11 rights. The following considerations support the consistency of clause 28 with the Charter. The proceedings leading to the imposition of a monetary penalty would be administrative in nature. The purpose of these penalties would be to promote compliance with the Broadcasting Act and Accessible Canada Act, not to “punish” as that concept is defined for the purpose of section 11 of the Charter. The penalties would not be subject to any prescribed minimums and would be determined on the basis of the compliance-related factors listed in the Bill. The Bill properly construed and applied would not authorize the imposition of a penalty that could give rise to “true penal consequences”. Finally, penalties would be subject to civil enforcement in the Federal Court but could not result in imprisonment for non-payment.

Other provisions (clauses 3, 5 and 10)

The Bill would amend the Act to take greater account of Indigenous cultures and languages and of Canada’s diversity. Clause 3 would update the broadcasting policy for Canada by specifying that the Canadian broadcasting system should provide opportunities for Indigenous persons to produce programming and carry on broadcasting undertakings, and should provide programming that reflects Indigenous cultures and programming that is in Indigenous languages. It would also add that through its programming and employment opportunities, the Canadian broadcasting system should serve the needs and interests of all Canadians including Canadians from racialized communities and of diverse ethnocultural backgrounds. Clause 5 would update the regulatory policy by adding that the broadcasting system should be regulated and supervised in a manner that takes into account Indigenous language broadcasting and programming and the specific needs and interests of Indigenous peoples, and facilitates the provision of Canadian programs created and produced in Indigenous languages.

The Bill would also amend the Act to promote greater accessibility for persons with disabilities. Clause 5 would update the regulatory policy by adding that the broadcasting system should be regulated and supervised in a manner that facilitates the provision of programs that are accessible without barriers to persons with disabilities. The Commission’s power to make orders in clause 10 would include orders imposing conditions respecting access by persons with disabilities to programming, including the identification, prevention and removal of barriers to such access.

Equality rights (section 15 of the Charter)

The proposed amendments in clauses 3, 5 and 10 promote the values that underlie equality rights protected by section 15 of the Charter. Subsection 15(1) provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of race and ethnic origin, and on the basis of mental or physical disability. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration.

Encouraging programming that reflects the viewpoints of Indigenous persons and of Canadians from diverse ethnocultural backgrounds and racialized communities furthers substantive equality. Promoting broadcasting by Indigenous peoples and programming that reflects Indigenous cultures and that is in Indigenous languages is also consistent with substantive equality and the core values that underpin section 15. These amendments also promote the values that underlie freedom of expression. Freedom of expression in section 2(b) of the Charter includes the right to use the language of one’s choice. Language is a means by which a people may express its cultural identity. Language is also a means by which individuals express their personal identity. Regulation that takes greater account of Indigenous language broadcasting and programming is consistent with these values.

A central aim of equality in relation to persons with disabilities is to ensure reasonable accommodation by modifying the provision of services in order to remove and prevent barriers to their equal participation in society. Regulation that promotes access to programming by persons with disabilities without barriers furthers substantive equality and is consistent with the core values that underlie section 15.

Advancement of the equality of both official languages (clauses 2, 3, 5, 6 and 10)

The Bill includes various provisions that promote a progression towardsthe equality of status and use of English and French. For example, Clauses 2 and 3 would amend the Act to enhance the vitality of English and French linguistic minority communities in Canada and foster the full recognition and use of English and French in Canadian society, including by supporting the production and broadcasting of original programs in both languages. Clause 3 would update the broadcasting policy to indicate that programming provided by the Canadian broadcasting system should reflect and support Canada’s linguistic duality by placing significant importance on the creation, production and broadcasting of French language original programs, including those from French linguistic minority communities.

Clause 5 would specify that the Commission must regulate and supervise the Canadian broadcasting system in a manner that takes into account the different characteristics of English and French broadcasting and the different conditions under which broadcasting undertakings that provide English and French programming operate. It would add that the Canadian broadcasting system must be regulated and supervised in a way that facilitates the provision of Canadian programs in both official languages, including those created and produced by English and French linguistic minority communities. Clause 6 would require the Commission, in exercising its powers under the Act, to enhance the vitality of English and French linguistic minority communities and support their development. The Commission would be required to consult with English and French linguistic minority communities when making decisions that could adversely affect those communities. Under clause 10, the Commission’s power to make orders would include imposing conditions on the carrying on of broadcasting undertakings with respect to the proportion of original French language programs and the discoverability of original French language programs.

Official languages of Canada (section 16 of the Charter)

These provisions promote the values underlying section 16 of the Charter. Section 16(1) of the Charter provides that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. Section 16(3) of the Charter states that nothing in the Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

In addition, these amendments would further the values that underlie freedom of expression. As noted in the earlier discussion of section 15 of the Charter, freedom of expression in section 2(b) of the Charter includes the right to use the language of one’s choice. Language is a means of expressing cultural and personal identity. Regulation that promotes broadcasting and programming in Canada’s official languages is consistent with these values.