THE FEDERAL CLAIM TO JURISDICTION OVER ONLINE STREAMING SERVICES

Abstract

Online streaming services are increasingly displacing domestic radio and television as the source of the audio and audio-visual programming consumed by Canadian audiences. The enactment of the Online Streaming Act in 2023 invests the federal broadcasting regulator, the CRTC, with authority to require these entities to contribute to the achievement of the objectives of Canadian broadcasting policy in a manner similar to traditional broadcasting media.

But did Parliament have the constitutional authority to enact the new legislation? The federal claim to jurisdiction over online streaming services appears to rest on the proposition that they are engaged in “broadcasting” and therefore fall under federal jurisdiction under either section 92(10)(a) of the Constitution Act, 1867, which gives Parliament authority over communications undertakings that connect the provinces; or, alternatively, section 91, which empowers Parliament to make laws for “the Peace, Order and good Government” of Canada where a matter qualifies as one of “national concern”. But analysis of the case law casts considerable doubt on whether either section 92(10)(a) or the national concern doctrine supports the federal claim to jurisdiction over online streaming services asserted in the new legislation.