Our Democratic Deficit

Much is made of Canada’s storied democratic heritage, and on this front, there is much to celebrate. But there is also a dark side that has, from time to time—and these days, more frequently—reared its ugly head: the spectre of a parliamentary process that does not encourage either the participation or the deliberation at the heart of most deliberative democratic accounts. The debility of our legislative process began some time ago. One could blame growing PMO control; omnibus bills, dilatory behaviour, or party whipping.  But now, more than ever, the shenanigans around Bill C-11 are an example of the democratic deficit that appears to characterize at least some aspects of Canadian law-making. One example is just one example, but it raises important questions about the process under which this Bill was adopted.

Bill C-11, on one hand, is a wonky bill giving power to the CRTC to regulate and promote “Cancon.” Given all that is happening in the world, one would be forgiven for forgetting that it is a live legislative proposal. Yet it continues to snake its way through our parliamentary process, and it is significant.

I have criticized the substance of the Bill before, suggesting that it vests the CRTC with unprecedented powers of internet regulation, without proper safeguards on the exercise of that power, especially over individual users. The Bill may permit the CRTC to apply ever-changing Cancon requirements on individual users, such that certain content that meets these standards will be prioritized over content that does not. Since the CRTC has the power to adopt these regulations, one might guess that it will be under pressure to impose ever-more protective Cancon measures that require algorithmic regulation. In this sense, it is true that the CRTC is likely attempting to solve a problem that does not exist; more precisely, it may be giving itself the power to create and solve problems that do not exist at some time in the future.

To be clear, the Bill gives the CRTC the power to regulate individual user content on the Internet—content uploaded to TikTok, Youtube, and the like. The scope of the Bill is potentially vast. The CRTC, as an administrative institution, is under intense scrutiny because of allegations of bias. At a time when valuable democratic institutions should be strengthened and renewed, the CRTC is asking for more power when its institutional credibility is questionable. 

 The substantive point is one on which people can agree or disagree. But ideally, the democratic process that accompanies a Bill of this kind should be robust. Instead, the Government’s conduct assures us that this Bill is so pressing that it justifies any number of shortcuts to cut debate, and rush through unexamined amendments.  An important amendment to clarify that any future regulations should not apply to user content was not considered as a result. This amendment would have curtailed the vast discretion conferred on the CRTC. And yet it fell by the wayside, and the Bill passed the House in June.

The Senate process is unfolding now, but it too has been rocky. “Serious charges of witness intimidation and bullying” have emerged in relation to the Senate Bill C-11 hearings. Liberal MP and Heritage Parliamentary Secretary Chris Bittle (in a letter co-signed by another Liberal MP) asked the Lobbying Commissioner to launch an investigation into Digital First Canada, an organization that was scheduled to testify before the Senate committee. The request was based on an allegation that the organization, which advocated for users, received funding from Youtube. Of course, any technical violation of lobbying rules should be taken seriously, though Digital First maintains that it has received assurances that it followed the rules. But coming from government MPs, and in absence of any other investigations about funding sources of any other witnesses, the timing and specific targeting of this organization is highly suspect. 

More importantly, the targeting of this witness sets an unfortunate precedent. Independent Officers of Parliament are designed to be separated from the government of the day, to support Parliament’s role in the constitutional order. The Officers of Parliament are sometimes called to investigate sensitive matters. But it is incumbent on a government member to conduct themselves with a bit of honour. And weaponizing an officer of Parliament to investigate a particular witness only cheapens the parliamentary process, potentially chilling criticism of the Bill’s wideranging consequences.

It’s trite to say that our legislative practice does not meet some idealized standard. C’est la vie. But where the gap is particularly striking, as here, it raises important questions about what Parliament is doing when it passes bills like C-11 under these conditions. Is it really scrutinizing the Bill and its amendments and producing reasoned debate on them? The House hearings were mostly partisan nonsense, to put it lightly.  If groups worry about being investigated if they testify, how representative is the parliamentary committee process?

At the end, I suppose I have no other point than to lament. None of this is to attack the role of Parliament. In our system, Parliament is sovereign subject to constitutional limits, and statutes adopted by Parliament are law, no matter how imperfect the hearing process. But to the extent that the government can control the hearing process, especially on a bill of this sort, it should do so in a manner that permits examination. 150 amendments, one of which could have solved the legal problem that plagues the Bill, were simply left on the table. That is deeply regrettable.

The result is that Bill C-11, with its power gift to the CRTC, will likely become law, even if the Senate process provides to be an improvement. Cultural protectionism aside, the government’s conduct in the parliamentary process has only shielded the Bill from the sort of scrutiny that might better represent the considered views of parliamentarians and those affected by the law. A law adopted under such conditions is likely to be more readily accepted by the public. In the absence of this adequate deliberation, we are left with a skeletal bill, one that will likely affect user content in service of a vaguely defined Cancon goal. Users should rightly be concerned–and so should lawyers.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

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