(Version française disponible ici.)
Bill C-11, which seeks to amend the Broadcasting Act, raises a fundamental question: Who should regulate Canadian broadcasting?
The federal government seems to want to take control of broadcasting regulation at the expense of the independence of the Canadian Radio-television and Telecommunications Commission (CRTC). This is the gist of an amendment to Section 7 of the Broadcasting Act regarding the directions that the cabinet can give to the commission. Far from expanding the powers of the regulatory agency, this amendment reduces the autonomy of the CRTC in favour of the cabinet, a highly political move.
Also known as the Online Streaming Act, Bill C-11 builds on the last version of Bill C-10 which died on the order paper when the 2021 federal election was called. Bill C-11 was in turn amended following the Report of the Standing Committee on Canadian Heritage and adopted after third reading in the House of Commons on June 21st, 2022. It is currently before the Senate.
Broadcasting is a shared responsibility
Responsibility for broadcasting policy is shared between Canadian Heritage and the CRTC. Canadian Heritage ensures all Canadian broadcasters participate in achieving the government’s objectives and foster the creation and distribution of high quality Canadian audiovisual content.
However, through the Broadcasting Act, the federal government has delegated very broad powers to the CRTC. The CRTC thus plays a fundamental role in the design and implementation of broadcasting policies through its authority to issue, renew, amend and revoke broadcasting licences. That said, the federal cabinet has significant oversight powers regarding the CRTC. Among other things, the cabinet can issue general policy directives to the CRTC that the commission is obliged to follow, and it has the ability, by order-in-council, to set aside decisions of the CRTC, or to refer them back for reconsideration and rehearing.
In 1986, the Report of the Task Force on Broadcasting Policy (Caplin-Sauvageau) recommended that the government retain one or the other of these supervisory functions – either the power to issue directions or the power to set aside or refer a CRTC decision back to the Commission for reconsideration – but not both. In enacting the 1991 Broadcasting Act, the Mulroney government did not follow this advice. Section 7(1) of the current Act allows the cabinet to issue directions to the CRTC, by order, in respect of any matter of broad policy, that is, questions of general application on broad policy matters with respect to any of the objectives of broadcasting policy, or of the Act’s regulatory policy.
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From overall principles to micromanagement
Bill C-11 introduces an important amendment to Section 7 that would allow the government to direct the CRTC’s policies in detail. While the current Act limits the power of the cabinet to broad policy matters, subsection 7(7) of Bill C-11 expands this power to encompass a wide range of very specific CRTC activities. These include new powers to impose conditions on the operations of broadcasting undertakings, such as:
- the proportion of programs to be broadcast that are Canadian programs and the proportion of time devoted to the broadcasting of Canadian programs;
- the proportion of Canadian programs to be broadcast that are original French language programs, including first-run programs;
- the proportion of programs to be broadcast that are original French language programs;
- the proportion of programs to be broadcast that are devoted to specific genres, in order to ensure the diversity of programming;
- the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French language programs.
These are only five examples of some 16 new conditions. Section 7(7) also allows the cabinet to issue directives related to regulations including:
- prescribing what constitutes a Canadian program for the purposes of this Act;
- respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1).
- respecting the character of advertising and the amount of broadcasting time that may be devoted to advertising;
- respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that time on an equitable basis to political parties and candidates.
That is not all. Subsection 7(7) allows the government to specify the expenses to be incurred by operations of broadcasting undertakings, including:
- developing, financing, producing or promoting Canadian audio or audio-visual programs, including independent productions, for broadcasting by broadcasting undertakings;
- supporting, promoting or training Canadian creators of audio or audio-visual programs for broadcasting by broadcasting undertakings; or
- supporting participation by persons, groups of persons or organizations representing the public interest in proceedings before the commission under this
All of these very specific grounds for intervention represent a potential violation of the CRTC’s autonomy and are absent from Section 7 of the Broadcasting Act in its current form. This expansion of the powers of the cabinet opens the door to a politicization of broadcasting regulation in this country, which the establishment of the CRTC sought to avoid.
No one agrees with every decision made by the CRTC. However, its independence from political authority remains fundamental to “the freedom of expression and the journalistic, creative and programming independence enjoyed by broadcasting undertakings” (Section 2(3) of the Act). As expressed by Justices Abella and Karakatsanis in a Supreme Court decision, Bell v. Canada (Attorney General) in 2019.
“As an archetype of an expert administrative body, the CRTC’s specialized expertise is well-settled. Extensive statutory powers have been granted to this regulatory body, and an exceptionally specialized mandate requires the CRTC to consider and balance complex public interest considerations in regulating an entire industry.”
It would be unfortunate if the Canadian government deviated from the current state of affairs and interfered with the CRTC’s prerogatives, a situation that could be avoided by deleting subsection 7(7) from Bill C-11, as well as subsections 10(1.2) and 34.995 that seek to accomplish the same end. As the ministry responsible for advising the government on broadcasting, Canadian Heritage will otherwise play a critical role in determining the minute details of Canadian broadcasting policy. The cabinet and Canadian Heritage should avoid micromanaging the Canadian broadcasting sector and intervene only in broad policy matters.