Bill C-10 (An Act to amend the Income Tax Act...) sailed through the House of Commons, and is now awaiting third reading in the Senate. But buried deep within the 500 plus pages of technical tax code is a provision that has generated significant concerns of governmental censorship.
In addition to several press accounts (Globe & Mail, Canadian Press, CBC, CNW) and editorials in the Star and Xtra, the measure is receiving widespread criticism for both its content and the manner in which it sailed through the House of Commons and almost through the Senate.
The Globe and Mail reported Friday that “[t]he proposed changes to the Income Tax Act would allow the Heritage Minister to deny tax credits to projects deemed offensive, effectively killing the productions. Representatives from Heritage and the Department of Justice will determine which shows or films pass the test.” Apparently, the denial of tax credits could occur retroactively, even after the project has been approved for tax credits under the existing program.
Just what do these proposed changes provide?
Bill C-10 was passed by the House of Commons on October 27, 2007. (It’s a 568 page document so it might take some time to load.)
Section 120.(3) of the bill (page 346) seems rather innocuous on its face.
(3) The definition “Canadian film or video production certificate” in subsection 125.4(1) of the Act is replaced by the following:
Canadian film or video production certificate” means a certificate issued in respect of a production by the Minister of Canadian Heritage certifying that the production is a Canadian film or video production in respect of which that Minister is satisfied that
(a) except where the production is a treaty co-production (as defined by regulation), an acceptable share of revenues from the exploitation of the production in non-Canadian markets is, under the terms of any agreement, retained by
(i) a qualified corporation that owns or owned an interest in, or for civil law a right in, the production,
(ii) a prescribed taxable Canadian corporation related to the qualified corporation, or
(iii) any combination of corporations described in subparagraph (i) or (ii); and
(b) public financial support of the production would not be contrary to public policy.
Currently, the definition of Canadian film or video production certificate in section 125.4(1) of the Income Tax Act simply provides that:
“Canadian film or video production certificate” means a certificate issued in respect of a production by the Minister of Canadian Heritage
(a) certifying that the production is a Canadian film or video production, and
(b) estimating amounts relevant for the purpose of determining the amount deemed under subsection 125.4(3) to have been paid in respect of the production.
The addition of clause (a) and subclauses (i)-(iii) thereunder are technical changes to the certificate requirement, presumably to clarify which entities are entitled to the credit. The problem is new clause (b), specifying that for certification, the Minister must be satisfied that public financial support of the production would not be contrary to public policy.
Just what does that mean?
And what guidelines will the Minister use to make this determination?
Section 120.(12) of Bill C-10 (on pp. 350-51) provides:
(12) Section 125.4 of the Act is amended by adding the following after subsection (6):
(7) The Minister of Canadian Heritage shall issue guidelines respecting the circumstances under which the conditions in paragraphs (a) and (b) of the definition of “Canadian film or video production certificate” in subsection (1) are satisfied. For greater certainty, these guidelines are not statutory instruments as defined in the Statutory Instruments Act.
Not only is Parliament delegating this task to the Minister, but apparently these guidelines will not even be subject to the requirements of the Statutory Instruments Act .
In a CBC Report, David Cronenberg, (the Canadian director of Eastern Promises) is quoted as saying that “the proposal does not belong in Canada”, and that “Canadians have a reputation for making edgy dark movies that go places other filmmakers wouldn't venture.” Cronenberg’s concern that this new level of review could quash that sort of creativity is shared by others, including an executive at Toronto’s Serendipity Point Films and Maximum Film Distribution, Mark Mussleman, who told the Globe and Mail that if “certification is denied, the producer would be on the hook to repay organizations such as Telefilm , which invests only in Canadian-certified productions. . . and that “[t]his review panel totally fetters the discretion of Telefilm.” Mussleman in concerned that “the whole financing system, could crumble.”
Along similar lines, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) has issued a release stating that "[t]he government is overstepping its bounds and interfering in an arms-length process. Withholding public funding for film and television productions it deems offensive is a dangerous direction for this government that smacks of censorship,"
ACRTA’s release also noted that "[o]nly two days after a federal budget that offered nothing for artists, this is really a slap in the face. First, we have no new funding for culture. Now we face censorship of what's left. We strongly condemn these actions."
As the Canadian Conference for the Arts (press release, letter to Minister) points out, the “Criminal Code already contains provisions that deal with pornography, child pornography, the promotion of hate, slander, libel, advocating crime and sundry other elements which have proved adequate in the past to deal with these offences.”
CCA adds that “the Supreme Court of Canada has issued rulings clarifying some of these activities such as pornography (Butler decision), child pornography (Robin Mitchell Sharp decision) , hate crimes (Zundel decision), etc. These decisions are steeped in rigorous research and prove how difficult it is to rush to judgment based on mere idiosyncratic and personal opinions.”
While the measure passed three readings in the House of Commons without opposition, NDP Canadian Heritage Critic Bill Siksay (Burnaby-Douglas) pointed out that the provision was buried in Bill C-10, which was primarily about closing tax loopholes and which enjoyed all party support.
His statement last Friday expressed concerns about the measure:
“New Democrats believe that there is no appropriate role for the Minister of Canadian Heritage or the government in making subjective judgments about what is appropriate film or video content. In a country as diverse as Canada we must rigorously protect artistic freedom. Enshrining guidelines that seek to define what is “offensive”, “odious” or “objectionable” are inappropriate. Controversy is often crucial to the creative process. Conservatives may yet again be trying to address a problem that just does not exist, or that is already appropriately addressed by established programme parameters and criminal law.”
Siskay also argued that “. . . such guidelines may have a chilling effect on film and television production in Canada and may significantly hinder the telling of Canadian stories and Canadian artistic expression.”
According to Siskay's release, the Standing Committee of Heritage
calls the measure a “backdoor censorship gambit” that “follows an increasingly long line of procedural changes initiated by the Tory government…”
Bowness charges that the “…government is at war with Canadian culture. There was virtually no mention of the arts sector in the last budget; no mention of the $49 million repeatedly requested by Ontario's big cultural institutions; nothing coming close to the previous Liberal government's support, matched by Queens Park, to the tune of $200 million.”
The Star editorial of March 2nd summarizes the reasons for all of the concerns well:
“This broadening of the government's power to deny tax credits to films and TV shows it deems offensive is troubling. What some people find offensive, others consider art. Barring a criminal act, it is not for the state to draw that line, especially where a supposedly neutral tax credit is concerned.
Any attempt to do so has the potential to stifle creativity and artistic innovation. That possibility is particularly acute in Canada, where the economics of our small market mean few productions can be made without government support.”
All of this criticism amounts to a strong indictment of the way that the current government conducts its cultural policy. Film censorship is a highly sensitive matter for any government to engage in. It creates a chill on creative activities, threatens an important Canadian industry, and raises significant Charter concerns. Government measures that threaten intellectual freedom need to be carefully considered, substantial problems need to be identified that justify additional measures, and the measures adopted need to be narrowly tailored to satisfy these objectives in a manner that is as least restrictive as possible of free expresson values. By burying such a controverisal and obtrusive measure deep inside a 500 page tax measure, the government has violated basic principles of transparency and accountability. What's worse, this sort of tactic only threatens to destroy opportunities for non-partisan cooperation where legislation might warrant all-party support. This little time-bomb was inserted in a bill relating to taxation, not cultural policy and certainly not censorship.
While this ploy succeded in the House (where the bill passed three readings), and almost in the Senate (where it has now passed two), it is not too late for the Senate to pull the offending provisions and return the bill to the House of Commons.
That this measure has come from the same government that talks about the need to promote creativty and the arts with respect to copyright policy is an irony that I hope will not go unnoticed.
Tags: Bill C-10 censorship