After a long journey filled with twists and turns, a controversial bill to overhaul Canada’s online streaming services is now law. The Online Streaming Act passed its final hurdle at the end of April.
It has been a complex and arduous process, but things are only getting started because it is now time to flesh out exactly how the legislation will be implemented. Those details will be largely determined by the CRTC, Canada’s telecommunications and broadcasting regulator, which has regulated broadcasting since 1968. The CRTC must now determine how Canadian content (Cancon) should be defined in the platform age. It will also set rules about how Canadian programming will be “discoverable” on platforms. These are complex issues.
It is for these reasons that a deeper engagement with the public – where regular citizens are not only consulted but also participate in the regulatory process – is warranted as the CRTC moves into the implementation phase of the act. What could this look like? One idea that would both bolster legitimacy and appeal to those calling for more agile regulation is a citizens’ assembly (CA).
A CA is a randomly selected, representative body of citizens that debates policy issues on either an ad hoc or permanent basis. Consensus and legitimacy are achieved through discussion. They exist and function alongside other democratic processes and institutions, not replace them.
This would be a new way of operating for the CRTC. While the regulator holds public hearings and has begun this work on the act, a citizens’ assembly would go further. It would add an additional layer to the commission’s regular consultation with the public and industry, and would enhance the expertise and independence of the commissioners.
A citizens’ assembly would also help respond to critiques – including those from politicians and academics – that the regulator is out of touch and inefficient. Core to any CA’s operation is the involvement of diverse voices that are not normally present in regulatory processes.
CAs are not new in Canada. B.C. in 2004 and Ontario in 2006 used them in discussions on electoral reform. More recent assemblies convened by an Ottawa-based NGO have examined a range of issues relating to digital technologies and democracy. In Ireland, CA deliberation resulted in the legalization of abortion in 2018 – one of the biggest policy changes in that nation’s recent history. They are used in many parts of the world to debate complex issues of public policy such as climate change.
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The implementation of the act is not as complicated as tackling climate change, to be sure. But it does represent a major turning point in Canada’s cultural policy. A citizens’ assembly could debate issues such as how Cancon should be defined; how online streamers, such as Netflix, should contribute to funding Cancon; and how broadcasting regulation can represent the needs and interests of underrepresented and marginalized groups.
Citizens’ assemblies are normally run by legislatures, often working together with an NGO or other civic groups. In the case of a regulator, the CRTC could work directly with an independent third party, which would be overseen by Parliament.
To convene the assembly, a large number of citizens would be initially invited by mail. From this, interested individuals are narrowed down based on demographics – such as age, location, race/ethnicity, language, socioeconomic status and gender – to ensure an assembly makeup that looks like a mini-Canada. The end result is a group that is demographically representative while also being random.
The first phase would be the learning phase, which would involve hearing from a range of experts. Experts are chosen with the help of the civic group/NGO, and may include industry professionals, academics and others. By their very nature, assemblies will include people who have little or no previous knowledge or interest in the policy issue, and some who will likely have followed parts of the debate so far. But even the most knowledgeable aren’t going to be familiar with the in-depth technical aspects of regulation. Learning can also involve an examination of how other jurisdictions approach these issues.
The second phase is deliberation, where citizens would debate and discuss the options. Deliberation can augment mutual understanding and allow for an in-depth exploration of issues. The final phase is decision-making. Decisions made in the CA would then help inform the CRTC’s work.
Citizens’ assemblies are not perfect. They are labour-intensive. There are practical challenges, especially in a country as vast as Canada. An assembly would not magically provide answers to what are complex issues of implementation. But done well, CAs can lead to innovative ideas, greater understanding and more robust governance. They increase the democratic quality of regulation by augmenting participation, representation and transparency, and as a result, public value. It would improve the responsiveness of regulation and add different voices to the CRTC’s regulatory toolkit.