CRTC Overruling the Canadian Charter Has Some Bill C-11 Supporters Second Guessing Their Position

A recent CRTC decision that overruled the Canadian Charter for the Broadcasting Act has some Bill C-11 supporters second guessing their position.

The credibility of Bill C-11 has taken hit after hit after hit in recent months. First, the defence that Bill C-11 doesn’t regulate user generated content was completely annihilated when the CRTC chair confirmed that it does regulate user generated content. Secondly, the talking point that Bill C-11 doesn’t change algorithms went down in flames when the CRTC chair confirmed that the legislation does regulate the outcomes of those algorithms. Third, the talking point that Bill C-11 will “save” Canadian content by allocating $1 billion was shot down when government officials themselves admitted that the figure was “illustrative” – effectively acknowledging that the number was completely made up.

At this point, we are struggling to really think of any talking point that is left standing that defends Bill C-11. There is one other talking point that has always been dubious and weak at best. That talking point is that the legislation is constrained within the Canadian Charter of Rights and Freedoms. That talking point has been used to defend Bill C-11 so as to allay fears that this censorship bill will actually do what it says on the tin. This is basically backed by the totally sound reasoning of “just trust us dammit. We got nothing, but we pinky swear that we won’t take away your freedom of expression.”

In one example of this talking point being brought up, we note that Liberal MP, Anthony Housefather, decided to be a complete and total jerk by suggesting to a YouTuber that by being opposed to Bill C-11, that he somehow hates French people. No, that doesn’t make any sense other than an MP deciding to throw a temper tantrum at someone who had the audacity to question the Canadian government in any capacity. In the process, Housefather belittled the YouTuber, saying that the Canadian Charter would protect his freedom of expression before angrily yielding the floor and not giving the YouTuber a chance to respond.

Of course, simply saying that Bill C-11 is constrained by the Canadian Charter of Rights and Freedoms have always been a weak defence of the legislation in the first place. The Canadian government has a long history under both Conservative and Liberal rule of passing laws that were later to be found unconstitutional. An example would be the fact that the Supreme Court of Canada recently ruled that parts of mandatory minimum sentences are unconstitutional. That is far from the only example, but it is one such example of the Supreme Court striking down a law that they consider to be unconstitutional. Saying that Bill C-11 will never infringe on freedom of expression because of the existence of the Canadian Charter really isn’t that strong of an argument because the Charter doesn’t actually stop the government from passing obviously unconstitutional laws.

In a weird sort of way, a lot of critics know that it is, at least, questionable whether or not Bill C-11 is constitutional. We think it is unconstitutional because, by design, it suppresses the speech of Canadians. It is precisely why we think this legislation will inevitably get challenged in the court after.

Still, for the few remaining supporters of Bill C-11, all this logical thinking and analysis is little more than “misinformation“. People like us, sitting here with over a decade of experience debating and analyzing these issues, really don’t know what the heck we are talking about. Instead, these supporters simply chose to listen to those actively lobbying for these laws as well as government officials who insist on using obviously debunked talking points and assurances. Well, we are learning that these assurances that Bill C-11 doesn’t infringe on freedom of expression is getting challenged.

A recent CRTC ruling has basically stung a long time ally of Bill C-11, the CBC. Apparently, in a French language broadcast, a more than six minute segment featured a debate about a book with the N-word in the title. A Concordia professor who quoted from the book received controversy with some calling on that professor to be fired. Regardless, the segment featured the use of the N-word four times. This sparked a complaint from the public who took exception of the use of the word. A CBC Ombudsman responded by saying that the segment did not violate journalistic standards. This was appealed to the CRTC two years ago and the CRTC ruled against the CBC.

The CRTC basically said that the Broadcast Act rules set out policy objectives and that the CBC violated that when they aired that segment because of the use of the N-word. This despite clear freedom of expression references in the Canadian Charter of Rights and Freedoms. This apparently didn’t matter as much to the CRTC. Michael Geist noted noted the two dissenting members of the CRTC who raised concerns about what this would mean for freedom of expression:

The ruling features two dissents, which emphasize that the majority does not even consider the implications of the Charter. For example, Vice-Chair of Broadcasting Caroline Simard writes:

In my view, the majority decision departs from fundamental principles affirmed by the Supreme Court of Canada. Administrative decision-makers have a duty to consider the Canadian Charter when making their decisions. Once they have decided that an activity is protected, such as freedom of expression, they must consider the relevant legislative objectives and ask how best to protect the value(s) at stake enshrined in the Canadian Charter. However, the majority did not take into account freedom of expression as a value protected by the Canadian Charter and enshrined in the Act, nor did it assess this protection of freedom of expression in light of the full range of values and objectives enshrined in the Act and applicable to this case.

Commissioner Joanne T. Levy warns of journalistic chill, silencing discussion, and censorship. She echoes the Charter concerns, stating “the majority Decision errs by ignoring the fundamental right and freedom enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) and protected by the provisions of the Broadcasting Act.”

The issue is a hard one, but the fact that a majority of CRTC commissioners on the panel did not even consider the implications of the Charter and freedom of expression is shocking. Had they done so, it is possible they might still have arrived at the same conclusion. But failing to acknowledge the expression implications undermines assurances the CRTC can be trusted to safeguard fundamental freedoms. Indeed, the decision provides a roadmap for how similar analysis could be used in combination with Bill C-11 to exert significant regulatory power over Internet content.

Indeed, this raises very serious concerns about the implications of Bill C-11. when the seemingly only viable defence is that Bill C-11 is in compliance with the Canadian Charter of Rights and Freedoms and that the CRTC can be trusted to safeguard that, the regulators credibility completely decimated that assurance through this recent ruling.

The ruling has put the few remaining supporters of Bill C-11 in a very awkward position. On the one hand, they are saying that the CRTC can be trusted to safeguard freedom of expression, while at the same time, they are furious that the CRTC is not safeguarding freedom of expression:

University of Montreal professor @pierretrudel in May: “we can’t really take these fears of alleged censorship seriously”
Trudel is now warning about restrictions on freedom of expression after CRTC ruling on Radio-Canada.

Bloc MP’s are also apparently having a tough time keeping their position consistent as well:

Bloc MP @martchampoux consistently supported Bill C-11. Now he’s warning CRTC has sabotaged freedom of expression ideals and says it can’t be trusted. How do you say CRTC can’t be trusted but vote to trust it on Internet speech?

Concerns about Bill C-11 and CRTC regulation of Internet content were ignored for months by some groups. Then the CRTC issued a speech regulation ruling involving Radio-Canada. Now suddenly censorship and free speech are an issue.

As a result, Geist commented that the ruling is a wakeup call:

Supporters of Bill C-11 who dismissed the freedom of expression concerns are suddenly now concerned the CRTC could become “the censorship police.” Trudel signed onto a public letter warning that the decision sets a dangerous precedent that could be applied to other media. Bloc MP Martin Champoux has called on Minister Rodriguez to order the CRTC to revoke the decision which he said sabotages freedom of expression, while Quebec’s culture minister Nathalie Roy called the ruling “a serious attack on freedom of expression.” For his part, Rodriguez tried to both-sides the issue and said it would not comment further until the deadline for an appeal has concluded.

The case – which the CRTC sat on for months and only released days after Bill C-11 passed in the House – is a wake up call that simply trusting the CRTC to safeguard freedom of expression is not good enough, particularly given government plans to hand it power over the content found on Internet platforms. The best way to ensure user Internet expression is properly protected is to recognize that it does not belong in the Broadcasting Act and for the Senate to remove any regulatory powers over it from Bill C-11.

What’s admittedly amusing in all of this is the fact that some people are realizing that some of us non-partisans, experts, and those in the field actually knew what the blank we were talking about all along. At every stage, we were dismissed as spreaders of “misinformation” or simply didn’t know what we were talking about. As that was happening, our points have consistently been proven correct every single time. Looking through all the talking points that were knocked down, it’s very hard to think of anything left standing. Meanwhile, the points raised by opponents have consistently withstood scrutiny.

Saying that the CRTC can be trusted to safeguard free speech, while at the same time condemning the CRTC for not safeguarding free speech, wound up making a lot of supporters look like idiots.

Indeed, there is hope that the Canadian Senate will, after the Summer break, finally remove user generated content from the bill, there is also reason to believe that this moment will become conveniently forgotten by the time we reach September. The Canadian Senate does have at least 54 Liberal party leaning senators out of 105 seats. So, it’s hard to really see anything other than eventual passage of the legislation no matter how strong the arguments against the legislation are. Still, there is effort to push this Hail Mary campaign to get the Senate to remove some of the worst provisions. We all hope that this will work out, but know that the odds are pretty steep at this point.

One thing is, however, clear: there is just no defending Bill C-11 in any logical way at this point. Every talking point used to defend the legislation has been shot down, gone down in flames, or have been otherwise completely destroyed at this point. Because of the latest decision by the CRTC, Bill C-11 supporters are now left scrambling to figure out how the heck they are still going to find a way of defending the legislation in the first place. From our perspective, that is going to be a really tall order at this point.

Drew Wilson on Twitter: @icecube85 and Facebook.

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