When Stephen Harper’s government passed unconstitutional laws, it was by design.
Harper was a populist, who governed largely on the premise that what the majority wants is good law. Of course, this is hugely problematic in a constitutional democracy in which the Charter of Rights and Freedoms trumps all else.
It is also problematic in a political system that allows for a party to attain majority status with the support of significantly less than the majority of the populace.
In his effort to unmake the Canada his liberal predecessors had built, Harper sought to undermine the Supreme Court, discredit the Senate and delegitimize the mainstream media.
To do so, he rammed unconstitutional laws through Parliament by means of massive omnibus bills, censuring debate and iron-fisted control over his own caucus.
At least, though, Harper was transparent.
The same cannot be said for the current government’s Online Streaming Act (Bill C-11), which the Liberals and NDP hastily pushed through despite problems that will almost certainly be deemed unconstitutional.
At the highest level, the bill amends Canada’s Broadcasting Act (1991).
Make no mistake, that legislation, which predates the internet-driven world we currently inhabit, needed to be updated. When it was implemented three decades ago, there was no Netflix, no Amazon Prime, no YouTube, no TikTok.
The law gives the Canadian Radio-television and Telecommunications Commission (CRTC) regulatory authority to enforce Canadian Content (CanCon) requirements formerly restricted to traditional broadcast media.
The problem is, the legislation also gives the CRTC regulatory control over user-generated content (UGC). This has been admitted by Ian Scott, CRTC chair, and has been the subject of considerable expert criticism and growing concern from independent content creators.
It earned the bill the colloquial moniker of the “online censorship bill.”
Prime Minister Justin Trudeau and his cabinet, however, have been taking the “move along, nothing to see here” approach to the criticism.
I’m not a fan of slippery slope arguments. Chances are the CRTC will have much bigger fish to fry than Aunt Mabel’s how to bake the best chocolate chip cookies video on YouTube. And I doubt there is some nefarious plot to actually curtail free speech.
Nevertheless, there could be all kinds of unforeseen consequences that effectively do what the CRTC and government have said they have no intention of doing considering implementation of the regulatory framework will be based on algorithms.
If there is no intention to regulate UGC or censure free speech, why doesn’t the law just exempt it? The government had the opportunity to fix the bill but refused to do so.
Instead, they are likely going to have to defend it in court.