By Doug Barrett
WHEN BILL C-10 WAS TABLED last November, it didn’t take long to notice that the first section in the Broadcasting Policy for Canada (“the Canadian broadcasting system shall be effectively owned and controlled by Canadians”) had been deleted.
Not modified or amended, but completely deleted.
Since that time, the bill has been debated in Parliament and wended its way through the Standing Committee on Canadian Heritage – which has now heard comments from lobby groups, sages, elders, and experts and will soon be considering its own amendments. Many of those appearing before the Committee (including independent broadcasters, producers, associations, and a wide array of creator groups), and many articles here and elsewhere, have pointed to the removal of the ownership clause as a weakness that could potentially result in the sale of Canadian broadcasters and cable companies to foreign interests.
In reply, the officials in the Department of Heritage, the head of the expert panel whose report led to the bill, and Minister Guilbeault himself, have repeatedly pointed to the 1997 policy direction to the CRTC on the ineligibility of non-Canadians to hold broadcasting licences as giving comfort that this cannot and will not happen. If that’s intended to be comfort, it’s pretty damn cold!
Any government can unilaterally change the policy
As Greg O’Brien has previously pointed out, there is nothing to prevent either this government, or any future government, from amending or revoking the current direction “on a whim.” The power to issue direction is the sole prerogative of the Governor-in-Council of the day i.e.: federal Cabinet. It is essentially an executive order.
While it must be “laid” before Parliament there is no requirement to seek its approval and after 40 days it automatically becomes law. Under the explicit language in the current Act, it would be difficult to revoke the 1997 direction, but in Bill C-10 there remains no trace or evidence in the proposed legislation that Canadian ownership remains a principle or priority. While one doubts the Trudeau government would repeal it, what about Erin O’Toole’s Conservatives? Given the institutional destruction he has proposed for the CBC/SRC, who would doubt that a government led by him could give serious consideration to opening the foreign ownership doors?
The politicians and officials don’t sound convinced by their own statements
Every time this issue comes up, it seems everything gets real vague real quick. At a key panel during the CMPA Prime Time event Hélène Messier, the president and CEO of the AQPM, politely and directly asked the Minister whether he thought the bill needed some statement of principle on the issue, even one re-crafted to reflect the new realities and the remaining provisions of the bill.
I thought the Minister’s answer was clearly dissembling. What’s interesting is that we all know this Minister can speak plainly and effectively when he wants to. Given that, why all the dodging and weaving on this particular matter?
A direction can only advance the policies in the Act
This is the one that really has me worried. Section 7 of the Act states:
“…The Governor in Council may, by order, issue to the Commission directions of general application on broad policy matters with respect to
(a) any of the objectives of the broadcasting policy set out in subsection 3(1); or
(b) any of the objectives of the regulatory policy set out in subsection 5(2).”
That’s it. Nothing else. In Bill C-10, this section remains un-amended.
So, the power to issue directions, now and going forward, is limited to the specific list of policies in the two sections and in Bill C-10 none of those include anything about Canadian ownership.
So, let’s ask two questions:
1. If the direction did not already exist, would the Governor-in-Council have the authority to issue it under the proposed provisions of Bill C-10? I would say not. Since there is no longer any underlying policy statement on ownership to plug into there is therefore no legal basis to issue the direction.
And now the more dangerous question:
2. Given that the direction does exist, would the removal of the ownership policy in C-10, permit an affected party to then mount a legal challenge? Could it be argued for example that when Bill C-10 becomes law the CRTC will lose its right to review and deny a sale of a licensed Canadian broadcaster to a non-Canadian?
That scenario would mean the direction would continue to symbolically exist “on the books” all the while simply waiting until an issue arises where a party has the interest and resources to challenge it. This is a plausible and genuinely worrisome scenario and no aspect of Bill C-10 does anything to discourage it.
It is plain to me for the current Canadian ownership regime to continue there must be some reference to it in the Act. The suggestion of the Independent Broadcasters Group, as reported by Mr. O’Brien, that “the Canadian broadcasting system should support Canadian ownership and control of broadcasting undertakings, including independent ownership, offering all manner of services and reflecting a diversity of voices,” seems like a healthy and productive place to start the conversation.
The fact that the government, and the Minister and his officials, stubbornly resist making this or a similarly effective amendment makes me believe as the old saying goes that there is something rotten in the state of Denmark.
I just can’t figure out what it is.
Doug Barrett is a veteran of over 30 years in the Canadian media and entertainment industries and since 2008 a professor in Media Management Schulich School of Business of York University. He is also the Principal of Barcode SDG, a strategic advisory firm. He was also president and CEO of PS Production Services from 2006 to 2013 and prior to that spent 20 years as one of Canada’s most successful entertainment lawyers, serving as senior partner at McMillan LLP. From 2004 to 2008, he served as chair of the board of directors of the Canadian Television Fund and has also served on several additional industry boards.
Original illustration by Paul Lachine, Chatham, Ont.
