Minister on the spot: Pascale St.Onge’s C-11 Policy Direction

October 24, 2023

The broadcasting community is still waiting for Heritage Minister Pascale St.Onge to finalize the terms of the federal cabinet’s Policy Direction to the CRTC on implementing the Online Streaming Act, Bill C-11.

Cabinet Policy Directives, authorized by the statute, provide an opportunity for the government of the day to send veiled hints to the CRTC in the guise of broad policy statements on the action points emerging from the new legislation.

St.Onge’s predecessor in the Heritage portfolio, Pablo Rodriguez, floated his draft Policy Direction on June 10th in the Canada Gazette and we are well beyond the minimum thirty day consultation period. With 1400 public submissions on record, it’s a safe bet that St.Onge has heard from all and sundry on what the final version of the Directive ought to say. The CRTC public hearings begin November 20th, so the final Policy Direction is likely to be issued before then.

In the Parliamentary session prior to the October 2021 election, before St.Onge was elected as a rookie MP from Brome-Missisquoi in a razor-thin win over the Bloc Québécois, she appeared before the Commons Heritage Committee. As the Chair of the Fédération nationale des communications et de la culture (FNCC-CSN), she was there to comment on then-Heritage Minister Steven Guilbeault’s draft Policy Direction on Bill C-10, the first version of the Online Streaming Act that died on the order table when Justin Trudeau called a federal election in August 2021.

The yet-to-be-MP St.Onge represented journalists and media workers in Quebec. In fact her job was similar to my own at Unifor —mostly for English Canada—- and we appeared before the Heritage Committee on the same day, March 22, 2021.

Guilbeault’s draft Policy Direction (download below) had been circulated ten days earlier and St.Onge, myself and a long list of participants had gone over it in detail in case it offered clues to where the government might, or might not, go with amendments to the First Reading version of Bill C-10. 

We were on the same wavelength, as her opening comments revealed:

First, the appeal of deregulation and a race to the bottom to help integrate the digital giants is an illusion. In reality, our media and audiovisual ecosystem has been able to thrive because we’ve protected it from the hegemony of Hollywood and other wealthier and more powerful foreign competitors.

If we want to continue to stand out, not only for our Canadian productions but also for our social fabric, values and diversity, we must ensure that the modernization of our legislation will continue to protect our cultural sovereignty and enable our content to shine.

Nobody on the “Canadian content” side of the debate was very happy with Guilbeault’s first effort. The draft Directive was chock full of buzzwords such as “flexible,” “incentivize,” “dynamic marketplace,” and “streamlining.” It seemed like the Minister’s semaphore to the CRTC was signalling a light regulatory touch on Canadian content. St.Onge had the same criticism, and said so.

She also pointed out a raft of major issues in C-10 that were in fact addressed by amendments a month later. The issues concerned Canadian ownership, the exclusion of YouTube’s user generated content from regulations on the visibility of French language music, and the lack of emphasis on funding for original French language programming. With the exception of the Liberals’ change of heart on YouTube content, most of the amendments dealing with those issues came from Bloc MP Martin Champoux.

St.Onge also called out as “unacceptable” the Liberals’ gutting section 3(1)(f) of the Act. That section is the legal foundation for the 40-year definition of a Canadian “program” based on a headcount of Canadian producers, directors, writers, actors and other key roles. Amendments a month later from the NDP and the Bloc partly rehabilitated 3(1)(f) and they were confirmed when Bill C-11 was passed two years after that.

Now St.Onge-as-Minister has the opportunity to fine-tune her predecessor’s Policy Direction.

Pablo Rodriguez’s Policy Direction on C-11 is not identical to Guilbeault’s previous effort on C-10. For one, the resplendent use of deregulatory vocabulary is mostly gone. For two, Rodriguez signalled to the CRTC that the headcount approach to defining a Canadian program is still public policy and that broadcasters must continue to “maximize” the employment of Canadian creative leads. That appears to apply to both Canadian and Hollywood-made “Canadian” programs and would be a long way from where the Liberals started with their first draft of Bill C-10 in November 2020.

A hot potato that St.Onge-the-Minister might dare to grab is the issue of user generated programs. That could happen in a couple of different ways.

The first would be rethinking her predecessor’s surprisingly narrow ambit for regulating user uploaded videos and music. Rodriguez did the expected in asking the CRTC to exempt YouTuber videos from regulation, but he also limited regulation to the uploads posted by licensed broadcasters and streamers. In the gap between YouTuber videos and “rebroadcasting on YouTube,” copyrighted music remains unregulated. [Update: Heritage Canada has clarified that so long as a song has been previously distributed by any regulated streamer, it will be regulated if uploaded by any user to YouTube]. The French language music industry is extremely unhappy about this since Québécois music is disproportionately under promoted and under consumed on YouTube and other music streaming platforms.

We will see what the new Minister thinks about that.

The second issue she might grapple with is “online discoverability” of Canadian programs ——not just French language music—- on all streaming platforms, not just YouTube. 

In 2021, the yet-to-be-politician St.Onge made a point of telling MPs considering Bill C-10 that effective efforts at discoverability of Canadian programs meant taking on the sensitive issue of the streamers’ algorithm-driven recommendations of content:

It’s a big problem, because the bill does not include specific instructions for improving content discoverability… People often say that content will be discovered if it’s good. However, we know that things don’t work that way on the platforms, since content is displayed based on algorithms that are not transparent and over which we have no control. So, to improve content discoverability, the policy direction or the act itself would need to specify obligations on content discoverability and accountability, and currently there are none.

When the Liberals returned from the 2021 election to table Bill C-11, there was stronger language on discoverability because of the Bloc amendments to C-10. But C-11 also included a new provision that restrained the CRTC from ordering a “specific” change to a recommendation algorithm. The political fury that ensued over any regulation of algorithms was so intense that Minister Rodriguez went out of his way in his draft Policy Direction to ask the CRTC to prioritize discoverability “outcomes” over instructions and to “minimize” any possibility of ordering an underperforming streamer to tweak its algorithm.

Again, the very considerable lack of visibility and availability of French language music on YouTube and Spotify can probably only be addressed by algorithm changes.

The new Minister is on the spot.

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