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Alan Borovoy, Canada’s great civil rights lawyer, used to say we should censure, not censor, those who spew hate speech.

He and I worked together on a committee many years ago. I would frequently give him a ride home afterwards which gave us opportunities to chat. His views continue to influence my perspectives on Bill C-63, Canada’s Online Harms Act. An editorial in the Toronto Star (written to mark his passing in 2015) should be mandatory reading for parliamentarians reviewing the Bill.

Alan was the long time general cousel of the Canadian Civil Liberties Association. The CCLA has called for “substantial amendments” to the Act.

Our preliminary read raises several serious concerns. While the CCLA endorses the declared purposes of upholding public safety, protecting children, and supporting marginalized communities, our initial assessment reveals that the bill includes overbroad violations of expressive freedom, privacy, protest rights, and liberty. These must be rectified before the bill is passed into law.

I referenced The Star’s tribute a couple years ago, writing about early proposals for the Online Harms Act. It is worth another look. As The Star notes, Borovoy’s view, that even the most offensive speech deserved protection, would lead him into “clashes with others on the left.”

I have frequently cited Aaron Sorkin’s version of that perspective from the film The American President: “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”

There are a number of recent articles highly critical of portions of the proposed Online Harms Act, especially as related to Part 2, amendments to the Criminal Code and the Canadian Human Rights Act. Michael Geist writes about why those provisions should be removes from the Act. Christine Van Geyn writes in the National Post that the proposed process creates financial incentives for filing complaints. Individuals face no costs in bringing a complaint — not even the costs of a lawyer — and could receive a $20,000 civil award if successful. “The process becomes the punishment even if the case does not proceed past an investigation.”

Last week, Andrew Coyne wrote “Canada’s Online Harms Act is revealing itself to be staggeringly reckless”, saying, “the more closely it was examined, the worse it appeared.”

There is, first, the proposal to increase the maximum penalty for promoting genocide from its current five years to life imprisonment. Say that again: life in prison, not for any act you or others might have committed, not even for incitement of it, but for such abstractions as “advocacy” or “promotion.”

The most remarkable part of this is the timing. At the very moment when everyone and his dog is accusing someone else of genocide, or of promoting it – as Israel’s defenders say of Hamas’s supporters, as the Palestinians’ say of Israel’s, as Ukraine’s say of Russia’s – the government proposes that the penalty for being on the losing side of such controversies should be life in prison? I have my views on these questions, and you have yours, but I would not throw you in jail for your opinions, and I hope you would not do the same to me – not for five years, and certainly not for life.

Earlier this week, writing in the Toronto Star, Rosie DiManno says “Bill C-63 is a mess of a bill, a fatally flawed piece of overreaching legislation that has drawn scorn from, and made weird allies of, Margaret Atwood and Elon Musk. So maladroit that it can’t possibly be fixed — apart from the obvious correction of severing the child protection part from everything else”.

Finally, a commentary by David Thomas, former chief of the Canadian Human Rights Tribunal, says Bill C-63 is “terrible law that will unduly impose restrictions on Canadians’ sacred Charter right to freedom of expression”.

I have also said that there are limits to our speech freedoms. As the (oft misattributed) expression says, “one’s right to swing their fist ends precisely where the other one’s nose begins.” As CIJA said in its statement on March 6, “We cannot allow mob-driven demonstrations to obstruct our right to participate fully in society.”

There are lines that may not be crossed. Intimidation, threats of physical harm, go beyond the bounds of protected speech. But, we should be able to find a better balance than what has been proposed in Bill C-63.

As Alan Borovoy espoused, censure, not censor.

Many of us have come to expect constant connectivity.

I don’t mean we necessarily want to be online 24/7, with a screen in front of our face around-the-clock. But, we want to be able to be connected whenever we want, wherever we happen to be.

Constant connectivity.

Most of us have phones that are effectively able to serve as mobile offices, equipped with word processing and other business apps. Personally, I find spreadsheets painful to navigate on my 5-inch screen, but I frequently edit blog posts and documents from waiting rooms or restaurants. We have tablets, computers, smart TVs, smart speakers, thermostats all connected to our home internet. As I write this, my home router reports 33 devices are connected. (I don’t have many of the “smart home” devices that are increasingly commonplace).

On our mobile networks, in addition to our smartphones, we have metering and other forms of telemetry. With home security and health applications, we increase the need for reliability, often using wireless backup for wireline connections. There are many working groups talking about connected autonomous vehicles.

This state of constant connectivity carries with it a variety of implications.

Many applications can be designed to tolerate hiccups in their connections. For example, by their very nature, email messages are transmitted on a ‘store and forward’ basis. A delay measured in tens of seconds or even minutes or hours is somewhat meaningless for most messages. It is silly to be concerned about a sub-second delay for emails or most text messaging. Most streaming video applications are designed to buffer the signal, storing multiple seconds of content on your device in anticipation of possible interruptions. But, what about voice and two way video calling? Delays (latency) of more than a few hundred milliseconds can be challenging for many who are used to virtually instantaneous responses in a normal conversation. We can witness the uncomfortable user experience when foreign news correspondents are having on-air communications with anchors using satellite connections.

What about performance issues with applications requiring non-stop high performance connectivity, such as remote surgery?

Connected vehicles is a category that enables us to understand a wide range of performance requirements, just in connecting a car. What kind of network performance should be anticipated by developers of connected car applications? The performance characteristics will vary based on whether the connectivity is used for navigation, entertainment, diagnostics, accident avoidance, or telemetry for vehicle maintenance (among other applications).

For many applications, constant connectivity may not have to be quite so constant.

Over the past few years, I have frequently referred to the tension between quality, coverage and price in architecting networks. Increases in coverage, or improvements in performance are always possible, but there is a cost associated with each. That cost ultimately would need to be recovered.

Do regulation and policy recognize that not all bits need to be treated the same?

How should variances in technical requirements receive consideration when examining network resilience from a regulatory perspective?

How do we ensure that appropriate incentives are in place to encourage continued investment in networks for improved reach, robust network resilience, increased capacity and more advanced capabilities?

Regulators regulate. It is just what they do.

Consider it to be a corollary to Maslow’s Hammer: “If the only tool you have is a hammer, it is tempting to treat everything as if it were a nail.”

Why does Canada’s current government seem to believe that regulation should be the primary approach for achieving its communications policy objectives? Indeed, it might help if the government could clearly state what those objectives are and how they are being measured.

A week ago, I wrote about regulating misinformation. Digging way back into the archives, I found this excerpt that appeared as well in a National Post OpEd [ pdf, 330KB] in 2005.

In Canada, as in most countries around the world, we have a regulator that oversees the market for telecom. But what sets the CRTC apart from regulators in nations that are also some of our most important trading partners is the Commission’s presumption that new technologies and services should be regulated. It isn’t surprising. Regulators regulate. It is just what they do.

That article (from more than 18 years ago) spoke of “major changes” in Canada’s communications industry being at hand, as phone services based on internet protocol technology began to move into the mainstream, offering more service capabilities, lower prices and a wider variety of choices for consumers. I identified potential roadblocks, “perhaps the biggest is the possibility of unnecessary regulatory intervention.”

We understand why the CRTC would want to ensure that basic consumer safeguards – including access to emergency safeguards, general protections related to privacy and service level disclosure – are guaranteed. We also recognize that this will likely entail a degree of regulation that, by necessity, should apply equally to all companies offering communications services.

But to go beyond that – to deny certain companies the freedom to offer innovative new services, new capabilities and lower prices without first receiving approval from the Commission – goes too far.

Unfortunately, empowered by recent legislation, the CRTC is extending its regulatory reach beyond the communications facilities and into the content carried over those facilities. In the old broadcast world, this was understandable. Radio waves – spectrum – is a limited resource, so there was only space for a limited number of voices to be carried over the public airwaves. No such limit exists in an internet world. Consumers have the ability to access every program offered anywhere.

That means our ears and eyeballs are no longer fixated on legacy media: newspapers, radio, television. In the case of radio and television, these are regulated by the CRTC under the Broadcasting Act. New media, whether it is streaming alternatives for TV, such as Netflix or Amazon Prime or Apple Plus or other subsciption services, or podcasts and other audio services, or short form content such as TikTok or YouTube, have typically been unregulated, subject only to the terms of service of the platforms.

There were two ways the government could have gone in order to provide regulatory parity for legacy media and new media: relax the regulations on the traditional services; or, regulate the new services. In Canada, the government has chosen to impose regulatory obligations on new media.

It is a consistent approach for Canada. As I wrote earlier this year, “Canada’s policy framework for net neutrality is among the most prescriptive and restrictive.”

Regulators regulate.

Intellectually, I understand the underlying motivation behind the approach that imposes regulation on all content providers. Unfortunately, the legislation has not benefited from meaningful committee review, with the government putting egos and partisanship ahead of genuine improvements to flawed sections of the various Online Acts. We were told that the CRTC will take care of concerns as it works through the details and regulations.

The first details emerged late in the day on the last Friday of September, setting out registration requirements in an 85-page Broadcasting Policy and Order [ pdf, 521KB]. While the CRTC is targeting platforms with more than $10M in Canadian revenue, there are real concerns that smaller content creators will be caught by indirect regulation – the CRTC imposing conditions on a platform, leading the platform to control hosted content produced by smaller independent creators.

Regulators regulate. I get that.

How do we avoid regulatory over-reach to avoid disincentives for Canadians to benefit from investment in content, infrastructure, and leadership in a next generation economy?

Can connectivity play a role in fighting climate change digitally, contributing to Canada’s sustainability goals?

That is the theme of a new report from Accenture, released earlier this week by Canadian Telecommunications Association. “Canada’s next sustainability frontier: Powering digital transformation with connectivity” [ pdf, 12.4MB] explores the environmental impact of connected technology and industrial reinvention.

The new report expands on Accelerating 5G in Canada: The Role of 5G in the Fight Against Climate Change discussed a few months ago in “Broadband’s broader benefits”.

Digital transformation includes the deployment of industrial Internet of Things technology, artificial intelligence, cloud computing, and other technologies to drive increased productivity. Technology enables re-engineered processes and automated operations, powered by data and analytics. “By leveraging technology to produce the same or increased outputs with fewer inputs and waste, this improved productivity, in turn, reduces resource and energy consumption and greenhouse gas emissions. With access to better data on their operations, businesses can further improve their processes over time, driving continuous improvement in both efficiency and sustainability.”

The report examines three specific use cases in key Canadian sectors: oil and gas, mining, and agriculture. Accenture says predictive maintenance of oil rig equipment can significantly reduce downtime and energy consumption, leading to 20% reductions in wasted fuel. Connectivity improves management of mining tailing ponds, leading to a 90% reduction in incidents, and improved worker safety. Precision agriculture, with connected sensors and drones, reduce water and fertilizer use by 20-40%. Each of these sectors are described in greater detail in the report.

Most sustainability initiatives focus on renewables and alternative energy. Digital transformation of key industrial sectors can play a significant role in Canada’s sustainable future. “Canada’s next sustainability frontier” makes the case for digital transformation as part of the solution space.

How do we get there?

The report identifies levers for Canada’s sustainability acceleration.

1. Expansion of the Next Generation of Network. CSPs need to continue to deploy and upgrade wireless and wireline network infrastructure so businesses have the connectivity they need to transform and power use cases
2. Use Case and Device Availability. Solution providers need to build and provide market-ready, proven use cases for businesses that can allow them to digitally transform and meet their industrial needs, accelerating adoption & benefits
3. Industry Verticals Transformation. Businesses need to undergo total enterprise reinvention by investing in their infrastructure and enterprise architecture, use cases and solutions, and talent & services to support digital integration
4. Incentives, Programs, and Impact Measurement. Government programs & incentives need to include digital transformation, supported by a strong end-to-end sustainability measurement strategy to measure and verify emissions more precisely, and drive continuous improvement

Continued investment in advanced telecommunications infrastructure is a key enabler for reimagined business processes. Connectivity, driving digital transformation, work together as important catalyts for fighting climate change digitally.

Canada’s future depends on connectivity.

The following opinion piece, by Canadian Telecommunications Association President and CEO Robert Ghiz, first appeared on July 14 in Wire Report, as “OPINION: Declining prices and record levels of investment show competition is increasing in Canada’s telecom market”.

With the dust having settled on Rogers Communications’ acquisition of Shaw Communications and Quebecor’s related acquisition of Freedom Mobile, now is a good time to take an early look at the impact the acquisitions have had on Canada’s telecommunications market.

When the transactions were first announced, some questioned whether it would result in a lessening of competition in Canada’s telecommunications market and if Canadians would end up paying more. Based on what Canadians have seen so far, the answer to both questions is a resounding “no”.

Just weeks after these transactions closed, prices for entry-level 5G wireless plans offered by Canada’s three largest wireless providers dropped by as much as 35 per cent and the price per gigabyte (GB) of data fell by as much as 50 per cent.

Other brands introduced new plans that offer more data at lower prices than their previous plans. Under its new ownership, Freedom introduced its first truly national wireless plan – with data that can be used in both Canada and the United States.

Simply put, since the Rogers-Shaw-Quebecor transactions were completed, Canadian mobile wireless users are getting more for less.

These recent price reductions are just the latest in a multi-year trend of declining prices in Canada’s wireless market. In fact, while Statistics Canada’s All-items Price Index has increased by 15 per cent during the last four years, its Cellular Services Price Index declined by over 36 per cent during the same period. And according to the government’s own price study, Canadians pay less per month for wireless services than customers in the United States.

Price declines of this magnitude are a clear sign of the vigorous competition that is occurring in Canada’s wireless market. And it should come as no surprise. According to Bank of America, the Canadian wireless market has long been one of the least concentrated in the world. With Videotron’s acquisition of Freedom, Canada now has four national service providers, along with strong regional providers that have brought additional competition to the regions they serve.

But assessing the performance of a telecom market is not one-dimensional. While price is usually top-of-mind, quality and coverage are also important factors. Canada’s mobile wireless networks cover more than 99 per cent of the population, and, according to PwC, are the best-quality networks of all G20 countries. This is truly remarkable when you consider the distances that our networks must cover compared to those in other countries.

This level of performance and coverage extends beyond the mobile wireless market. Canada also has among the best performing and farthest reaching high-speed fixed internet networks in the world with median download speeds that are more than 60 per cent faster than the G20 average, according to Ookla’s Speedtest Global Index.

Canadian networks provide access to speeds of one gigabit per second to a greater percentage of households than those in countries like Australia, the U.K., Italy, France, and Germany, based on a comparison of Australia’s Broadband Performance report, the CRTC’s Communications Market Report, and the European Commission broadband coverage report.

Meanwhile, internet service prices have remained relatively flat, defying the overall inflationary pressures that have resulted in significant increases in the price of most other goods and services.

These positive outcomes did not happen by chance. They occurred only because successive federal governments and the CRTC, have long recognized that facilities-based competition – or competition among network operators – is the preferred form of competition, as it determines Canada’s network quality, coverage, and reliability.

In its 2019 study of competition in Canada’s broadband industry, the Competition Bureau observed that while wholesale-based (or resellers) and facilities-based competitors compete against each other every day, “facilities-based competitors engage in a dynamic form of competition to successfully introduce better networks over time through investments in new technologies.”

The Competition Bureau further described the benefits of facilities-based competition as follows:

This type of dynamic competition benefits competition in at least two ways. First, it is logical that better networks provide better results for consumers: faster, less congested connections that grow and change more or less in tune with consumer demand. Second, once the investment in new networking equipment and physical lines has been made, companies have a strong incentive to compete hard and win customers in order to generate revenues sufficient to recoup those investments.

This race to provide the most robust networks is an important source of dynamic competition. It results in consumers having access to the fastest speeds and best connections while, at the same time, driving substantial investment in the Canadian economy. And, at least over the past 20 years, it has been a self-sustaining form of competition, as both telephone and cable companies jockey to establish themselves as market leaders.

In recent years, Canada’s national and regional facilities-based providers have combined to invest an average of more than $9.2 billion per year in capital expenditures to expand and enhance wireline broadband networks in Canada. Facilities-based providers have also invested close to $3 billion per year over the same period in wireless infrastructure, and more than $12 billion in acquiring additional spectrum licenses.

The benefits of facilities-based competition cannot be matched by mandated service-based competition, which relies on providing reseller companies with access to the networks built by facilities-based network operators at mandated wholesale rates. Because they do not invest in building their own networks, resellers do not contribute to Canada’s network quality, coverage, and reliability. They do not contribute to closing the rural/urban digital divide, nor do they help Canada keep pace with the technical advances that are crucial to Canadian businesses remaining competitive with their international peers.

It is within this context that the CRTC is currently reviewing its wholesale framework that provides resellers with mandated wholesale access to high-speed internet services. The potential negative impact of wholesale regulation on investment is well-established. As the Competition Bureau stated in its 2019 broadband study:

…wholesale access regulation diminishes the expected profits of the investment, as some of the profits from the investments are instead earned by wholesale-based competitors using that network to serve consumers.

In other words, mandated wholesale access can lessen a network operator’s incentive and capacity to invest in expanding and enhancing its network facilities. Without such incentives and investment capacity, Canada risks falling short of the investments necessary to bridge the digital divide, stimulate research and innovation, maintain network security and resiliency, and provide the connectivity needed for Canada to remain competitive in an increasingly digital economy.

As the evidence shows, following the Rogers-Shaw and Freedom-Quebecor transactions, facilities-based competition is not only continuing to deliver ever-improving quality, coverage, and resiliency, it is also delivering lower prices and more value for money. To the extent the CRTC keeps mandated wholesale internet access as part of its telecom policy framework, it is crucial that it balances its wholesale objectives with the need to maintain the benefits of facilities-based competition and the incentives for private sector investment in high quality and resilient infrastructure and innovative services. Specifically, wholesale prices must be set at levels that ensure that investment incentives are maintained.

As I wrote last week, “Canadian carriers have spent billions of dollars investing in telecom infrastructure, but the job is not yet complete. This is not the right time for regulation to discourage carriers from investing in telecom infrastructure.”

Is there ever a right time?