Were the consequences not so serious, Canada’s chaotic venture into the regulation of content on the Web might be consigned to the realm of thigh-slapping farce, writes Peter Menzies in Convivium. 

By Peter Menzies, March 18, 2021

Were the consequences not so serious, Canada’s chaotic venture into the regulation of content on the Web might be consigned to the realm of thigh-slapping farce.

The government’s goal, it was learned last week, will be to focus programming funding on the needs of ethnic, racial, language and sexual identities in a fashion so ill-defined it will likely be the end of the decade before any of them see a nickel in new revenue.

Members of Parliament on the Canadian Heritage Committee examining Bill C-10 - which expands the authority of the Canadian Radio-television and Telecommunications Commission (CRTC) to a breathtaking extent - were finally able to see the draft Order in Council expected to spell out how the regulator should go about managing the way it permits Canadians to use the Internet.

Remarkably, the document in question leaves the decisions on virtually everything, including the definition of Canadian content and the balance of funding between official languages, up to a panel of unelected party appointees - the six regional Commissioners, two vice-chairs and the chair of the CRTC. Parliament, in other words, will not decide who gets regulated on the Internet or how. All of that will ultimately be controlled by CRTC Chair Ian Scott who, by the way, has only 18 months left in his term.

There will be no publicly-accessible record of their internal debates, if any occur. No one will know who voted for what or why. And they can do pretty much whatever they want. The government plans to let the CRTC define its own scope, directing it to exempt only “services that do not have a material effect on Canada’s economy, national identity or cultural fabric.” (Yes, I’m aware that some of you are now saying “so I guess that lets the CBC off the hook.” Ha. Ha.)

Consumer needs and interests are noticeably, if not surprisingly, absent from consideration, but just about everybody else is listed as a necessary beneficiary of the money the CRTC is expected to extract from the likes of Netflix, Disney Plus and other popular streaming services.

When it comes to language, for instance, the CRTC will have to make sure it “ensures that an appropriate (emphasis mine) portion be directed to the creation of French-language programming” without mentioning what the government thinks that portion should be or what criteria should be used.

Traditionally, cultural funding in Canada has been allocated on a two-thirds English, one-third French basis that fairly reflected the nation’s linguistic balance in the 1970s when so many of these programs were developed. Now, however, only 22 per cent of Canadians speak French in the home. Given that the current government’s interest in this file stemmed from outrage in Montreal that then Heritage Minister Melanie Joly was not forcing Netflix to make a designated investment in francophone content, opening this door is a surprising development.

In terms of key priorities, whatever the CRTC cooks up must, according to the draft Order in Council, recognize “the systemic obstacles faced by Indigenous creators” and recognize “the importance of supporting racialized and ethno-cultural communities as a key priority.”

Further, it must ensure that “Canadian programming in English, French, and Indigenous languages is available, prominent, and easy to discover” and “supports and promotes opportunities for programming led by women, the LGBTQ2+ community, racialized and ethno-cultural communities, and other equity seeking groups or communities, recognizing the challenges faced by these groups in the broadcasting system.”

The CRTC will have to hold either the Mother of All Public Hearings or an extensive series of smaller ones to create a system seemingly aspiring to achieve no particular cultural goal other than to funnel money to listed segments of society. Not insignificantly, the CRTC also looks likely to be directed to hold something called “engagement sessions” with Indigenous broadcasters and creators prior to any hearings as well as with “racialized and ethno-cultural groups.”

Simply organizing and condensing those sessions - which appear to be prerequisite to any hearings - in a country the size of Canada with 630 First Nations and Heaven only knows how many ethno-cultural groups in a successfully inclusive fashion is a task capable of taking years on its own. Unless, of course, the CRTC stops doing anything else (little stuff like, for instance, trying to figure out what the blazes to do about Rogers’ $26 billion takeover of Shaw).

And then there’s this little matter: There is absolutely no sense in the draft Order in Council - which Cabinet signed off on last August - of what the problem might be that either the legislation or the powers granted to the CRTC are trying to solve. But if you are going to regulate the infinity of the Internet, you might actually explain why, right? While not at all funny, it’s actually hard not to giggle at the extent to which public policy ambition has descended into pure political parody of the old Yes, Minister variety.

The problem surely can’t be the prosperity of the Canadian film and television industry which, prior to COVID-19, was experiencing the most bountiful decade in its history. Companies such as Netflix and others were investing so heavily that those industries had grown by 80 per cent in the previous 10 years.

Three years ago, the federal government launched a review - long overdue - of Canada’s 30-year-old broadcasting and telecommunications legislation. At the time, it seemed like a wonderful opportunity to embrace change and innovation. Panels were struck. Reports were filed. Obviators obviated.

And from all that expenditure of intellectual capital to produce a plethora of ideas and recommendations, all we have come to is Heritage Minister Steven Guilbeault’s relentless, and vaguely politically menacing, mantra that he intends to “get money from web giants” whom he considers to be immoral for reasons that remain unclear.

And so what if he does get the money? This legislation and approach is so deeply flawed that it is impossible to discern who will benefit from this approach that hasn’t already been getting money directly from web giants instead of through Ottawa’s formidable bureaucracies.

Guilbeault, for all his powers, can’t create new money. He can only move around that which exists. All that is clear is that the government didn’t like the creative industry prospering in a free market environment and wanted to ensure that its appointees, not consumers, would decide what films and programs would be made for you to watch. And by whom.

We don’t know if this will result in more money going to creators than goes to them now. It’s entirely possible that the CRTC will decide that once streaming companies are forced to pay to make films which - how do I put this kindly? - struggle to grab the attention of Canadians, it will allow those cable and broadcasting companies currently contributing to that cause to pay less. In the end, there may be little benefit and indeed there is risk of real harm being done to an industry that,  while waiting for all this to play out, will have to deal with the very real risks of regulatory uncertainty.

All that is certain is that Guilbeault, an environmental activist thrust into a role for which his resume doesn’t particularly recommend him, is triggering a process that anyone remotely familiar with the workings of the CRTC knows will take the better part of the decade to resolve and for no particular net gain other than control.

I’ve stopped laughing.

Peter Menzies is a former editor-in-chief and publisher of the Calgary Herald, past vice-chair of the CRTC and a senior fellow with the Macdonald-Laurier Institute.

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