In response to those who have expressed concerns about Bill C-11 – The Online Streaming Act – federal officials and Members of the government have assured Canadians that they can trust the CRTC – the ‘single, independent regulatory authority’ responsible for ensuring the Bill’s implementation. Yet the January 2020 report of the federal Broadcasting and Telecommunications Legislative Review Panel thought that:
…the communications regulator should have a greater focus on transparency — regarding its decision-making process, the goals it pursues, the evidence it takes into consideration, and who addresses which decision-makers and when. Canadians should expect that regulatory decisions are based on a record that is publicly available, not information provided through ex parte contacts.
(Section 1.3.4, “Transparency”)
Apart from the CRTC’s being transparent, Canadians might also expect the Commission to follow the law it is required to implement. It is therefore surprising that at least two answers from the CRTC to access-to-information requests show that it either has not followed the law, or does not know if it has done so. Specifically, section 25(1) of the 1991 Broadcasting Act states that when the Commission is satisfied that the CBC has breached any of its conditions of licence or the CRTC’s regulations, the Commission must (“shall”) report to the Minister:
Report of alleged contravention or non-compliance by Corporation
25 (1) Where the Commission is satisfied, after a public hearing on the matter, that the Corporation has contravened or failed to comply with any condition of a licence referred to in the schedule, any order made under subsection 12(2) or any regulation made under this Part, the Commission shall forward to the Minister a report setting out the circumstances of the alleged contravention or failure, the findings of the Commission and any observations or recommendations of the Commission in connection therewith.
After a public hearing in May 1999, the CRTC found that CBC’s Radio One network had breached its condition of licence for Canadian content: CBC had “CBC acknowledged that it was in breach of the condition for the week in question, and explained that safeguards had been put in place to ensure that it would not happen in the future” (Decision CRTC 2000-1, paragraph 92). When asked for a copy of the report to the Minister about this breach, the CRTC said on 21 June 2022 that it had none (A-2022-00001). Despite the breach, moreover, the CRTC renewed CBC’s licences for a full seven years (2000-1, para. 105).
Similarly, after a public hearing in November 2012, the CRTC found that CBC’s French-language television network had breached a condition of licence regarding the broadcasting of original children’s programming:
83. CBC French-language television was subject to a condition of licence requiring the broadcast of four hours of original children’s programming per week, averaged over the broadcast year, and the CBC has acknowledged non-compliance with this condition for certain years. The CBC argued that it could not comply with the condition of licence because of the restriction imposed on the broadcast of advertising during these programs and the difficulty it had in finding sufficient amounts of Canadian and original interstitial programs to air in the places reserved for advertising.(Broadcasting Decision CRTC 2013-263)
When asked for a copy of its report to the Minister about this breach, the CRTC said on 18 January 2021 that it had none (A-2020-00055). The CRTC renewed CBC’s licences for the full five years that CBC requested (2013-263, para. 368), despite the breach.
The CRTC identified a third regulatory breach of the CBC in 2001 when it renewed the licences of CBC stations affiliated to the CBC’s Radio Two network. Following a written proceeding it found (BDC 2001-530, para. 8) that CBC’s CBM-FM radio station had breached a condition of licence regarding the broadcast of Canadian musical selections. Asked – on the off-chance that the CRTC might have told the Minister responsible for the CBC about its breach – for any report to the Minister the CRTC said it had none (A-2022-00002). The CRTC renewed CBC’s licences for six years – one year short of the maximum seven years possible, so as “to enable the Commission to review the performance of the individual CBC stations and that of the Radio Two network together”.
In 2022 the Forum has written four commentaries, posted analysis showing how the section 3 ‘broadcasting policy for Canada’ gives nearly full discretion over the policy’s implementation to the CRTC, and has also made recommendations to the House of Commons Standing Committee on Canadian Heritage showing how to amend Bill C-11 to strengthen the accountability and transparency of the CRTC. The simple fact is that no matter how many times Canadians are told to trust the CRTC, the important objectives of Bill C-11 are unlikely to be achieved if the Bill does not enable Parliament to exercise proper oversight over the CRTC’s work, and the CRTC’s compliance with statutes such as the Broadcasting Act.