Peter Menzies: Undermining institutional independence to own Big Tech

The government's desperate bid to salvage C-18 is leading to some 'less than first world' chicanery.

By: Peter Menzies

There was a time when politicians steered very carefully around saying anything that could be construed as an attempt to influence a decision by one of Canada’s independent agencies.

Honest, there was.

There was also a time when, should a politician so much as nod or wink publicly to indicate a preferred outcome by, say, the office of the Commissioner for Competition, the nation’s leading media organizations would see this as a big story. Sixteen dollar orange juice big. Heads would roll.

Seriously, there was.

The reasons people like Francois-Phillipe Champagne, Minister of Innovation, Science and Economic Development are supposed to keep their yaps shut are pretty straightforward. Businesses, citizens, consumers, and investors need to know the processes at law enforcement agencies and regulators — such as the Competition Bureau and the CRTC respectively — are independent of the sordid manipulations of partisanship. They need to be able to trust that the rules are clear, their application is consistent and that they can have faith that the institution involved views matters before it in an objective fashion.

It’s Rule of Law 101 stuff and messing with it makes Canada look like something less than a first world country. It makes us look like some cheap, politically petty little kleptocracy run by a collection of self-serving narcissists.

Shortly after the CBC, the Canadian Association of Broadcasters and News Media Canada filed a complaint with the Competition Bureau over Meta’s decision to no longer carry news in Canada, Champagne seized the opportunity to show Big Tech who their daddy is.

“I am determined to use every tool at our disposal to ensure that Canadians can have access to reliable news - across all platforms,” Champagne posted on X (the platform formerly known as Twitter). “I fully support the complaint made to the Competition Bureau by Cnd media groups against Meta in their effort to promote a free & independent press.”

I don’t expect that many readers have hung around with cabinet appointees. But I have, and I’ve been one. And I can tell you that most of them — particularly the ones whose conditions of appointment mean they serve “at pleasure” as Competition Commissioner Matthew Boswell does — pay attention when the minister through whom their agency reports to Parliament, says anything, let alone things like that.

The bit about using “every tool at our disposal” would resonate most loudly, particularly if, like Boswell, you have a little over six months left in your five-year term and — assuming you are enjoying the gig and its $350,000 salary range — are interested in being re-appointed. To be clear, the power to appoint or re-appoint rests entirely with Champagne and his cabinet colleagues. Boswell, of course, knows that. So do his deputy commissioners, his assistant, and everyone else at the Competition Bureau, the coalition that made the application and the lawyers at Meta.

Everyone will now watch very carefully to see if Boswell’s agency acts in a fashion that pleases the politicians who hold his career in their hands or if the bureau goes in a direction that doesn’t give the PMO — which is desperately trying to salvage something from the catastrophe of its Online News Act — pleasure.

I don’t know Boswell, but it’s fair to assume he hates this. Any professional person in his position would. Going forward — and this file is likely to be every bit as high profile as the Shaw-Rogers merger he fought with all his might — his actions will be viewed through the lens of whether he is Champagne’s water boy, or the head of a proudly independent institution.

Little wonder veteran chiefs of PMO staff like Norman Spector, who remembers concepts such as ministerial accountability, wondered aloud on X if Champagne had just committed a firing offense.

Or that Duff Conacher, a co-founder of Democracy Watch would tell the Globe and Mail (the only news outlet with the integrity to find the minister’s outrageous comments newsworthy) that Champagne was out of line. “Ministers should be staying away from any decisions they (the Competition Bureau) would make because that undermines their independence even more,” he told the Globe’s Marie Woolf.

Mario Dion, the former ethics commissioner, re-posted my own comment, my X comment, stating “Exactly right - blind spot [his predecessor] Mary Dawson was talking about.”

The Online News Act, aka Bill C-18, was designed to force Meta and Google to pay money to news organizations. The premise of the bill rests on the claim that web giants profit unfairly by publishing links to journalistic content. This, and the fact that the legislation exposes Meta and Google to uncapped liability, have pushed both companies to indicate their only option in response to C-18 is to get out of the business of doing the very thing they stand accused of unfairly profiting by; namely, to stop providing access to the news. If the bill were based in sound reasoning and good faith, the newspapers would be cheering this as a victory. Instead, Meta’s withdrawal will cost the news industry tens of millions of dollars.

This disastrous outcome, for anyone with the most fundamental understanding of how the grownup world works, was entirely predictable. Yet it caught Champagne and his cabinet colleagues completely by surprise.

The coalition’s application is likely to catch the bureau’s eye. It could even — now that Champagne has bullied it — put the matter before the Competition Tribunal, where it could sit for months, if not years. As an aside, not one of the lawyers or retired senior public servants I asked about the application thought there was any chance at all of it succeeding.

“Hail Mary,” “a desperate shot in the dark” and “publicity stunt” were among the phrases used to describe the coalition’s application.

Needlessly, Champagne has undermined public trust in yet another institution and its office holders. Almost all of the media we would normally count on to hold him to account lack the courage to do so and stop him.

So he and his colleagues will continue to run the country beyond the boundaries necessary to maintain confidence in Canada as a trustworthy nation.

Because they can.

Peter Menzies is a senior fellow with the Macdonald-Laurier Institute, past vice-chair of the CRTC and a former newspaper publisher.

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