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Book cover of a Canadian Copyright: A Citizen's Guide

 

Canadian Copyright: A Citizen's Guide

 
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Laura Murray is an Associate Professor in the English Department of Queen's University in Kingston, Ontario, and creator of the website www.faircopyright.ca.

 

Samuel Trosow is an Associate Professor at the University of Western Ontario in London, Ontario. He is jointly appointed in the Faculty of Law and the Faculty of Information and Media Studies.

Recent Decisions


Opposition Motion on Bill C-10 Voted Down PDF Print E-mail
Thursday, 06 March 2008

A motion that would have helped to counter Bill C-10 failed in the House of Commons yesterday by a vote of 74-206

 

The motion . . .  

 

That, in the opinion of the House, the government should introduce, as soon as possible, an amendment to Bill C-10 . . . in order to remove the reference to public policy that is added by this bill to subsection 125.4(1) of the Income Tax Act, because this new provision opens the door to unacceptable government censorship of film and video production.

 

 . . . was introduced by Maria Mourani (Ahuntsic, BQ), supported by the Bloc and the NDP, and was opposed by the Liberals and Conservatives, apparently though for different reasons.

 

 

The full text of the entire debate is at Hansard No. 60 and is well worth reading  as it provides  more insight into the position of the parties then one can get during a Question Period exchange. 

 

Maria Mourani argued that the government

 

"...is still using the back door to impose its far-right values. The Minister of Canadian Heritage is accusing us of blowing this out of proportion, and is saying that the film industry is panicking for nothing. If that is the case, the Conservatives should reassure us and simply amend the bill. We will have been wrong, we will have blown things out of proportion, and they will have fixed this little problem.

 

to which Jim Abbott (Parliamentary Secretary for Canadian Heritage, CPC) pointed to similar language in the  CAVCO regulations....

 

". . . under the Canadian Audio-Visual Certification Office, which presently governs taxpayer funds that are made available to film producers, the so-called offending clause is contained in its regulations. Let me read it, and it is on its website. It is clause 5, section l, which says, “production for which public financial support would, in the opinion of the Minister of Canadian Heritage, be contrary to public policy” would not eligible for the tax credit program. Those are the words in the bill that the member condemns. It simply brings CAVCO regulations into effect on tax exemption. 

 

     Maybe then if she does understand that it is already in the regulations, she could tell us one single solitary example in the history of CAVCO where there has been so-called censorship. I defy her because she knows full well that she cannot name one time. She is making an absolute mountain out of a molehill and she is feeding the lack of information, the ignorance of the fact that this clause already exists in public policy."

 

The claim that the provision is currently in the regulations was questioned by Mauril Bélanger (Ottawa-Vanier, Lib):

 

 I have a question for the House and anyone watching us today. Earlier, reference was made to the Canadian Audio-Visual Certification Office guidelines. The hon. member for Kootenay—Columbia said that clause 5 states:

 

  production for which public financial support would, in the opinion of the Minister of Canadian Heritage, be contrary to public policy

 

Note that was in February 2004. 

 

Now, if I refer to the regulations, which have more authority under the political and legal conventions of our country and our Parliament, we do not find that in the regulations of 2005. They huff and puff that this is a Liberal initiative, but it must also be recognized that in 2005, under a Liberal government, the regulations excluded this item from the conditions making a film or television production ineligible.
 
What is this really about? This needs to be cleared up. The Senate, or the committee in question, will give a voice to all those who want to speak up. It could call witnesses. That brings us to the heart of the matter. I hope the Senate will call and listen to Mr. McVety.

 

Mr. Abbott responded . . .

 

 I would also like to assure him that the document to which I referred was printed off on March 4, 2008. It is on the bottom of my page. Indeed, the document does contain “production for which financial support would, in the opinion of the Minister of Canadian Heritage, be contrary to public policy”. I do not know which website he went to, but this is a current document, currently contained on the Canadian Audio-Visual Certification Office website.

 

 . . . to which Mr. Bélanger replied:

 

 He is referring to guidelines. Guidelines are third in the hierarchy of judicial instruments. First, there is the law and currently in the law there is no such mention of discretion by the minister. There might have been in proposals, but they never were introduced in the House, that I know of, by the previous government.

 

Bill Siksay (Burnaby—Douglas, NDP) also spoke to the difference between a "guideline" and  a "regulation". . .

 In the provisions of this legislation it says that the minister would have to be “satisfied” that “the public financial support of the production would not be contrary to public policy”. Earlier when the minister was asked to define what it meant to be contrary to public policy, there was no answer forthcoming. 

 

 Another important provision in Bill C-10, with regard to the film and video tax credit, is it also removes development of these guidelines from the usual statutory requirements, leaving the process solely with the Minister of Canadian Heritage. It removes it from the Statutory Instruments Act to allow the minister to short-circuit the usual process, to short-circuit the usual legal import of guidelines and regulations and to develop those regulations on her own. Even though the minister said that there would be some kind of public process around this, the final decision still rests with the minister. That is another serious concern about the legislation.

 

Mr. Siskay is referring to the language in Section 120.(12) of Bill C-10 that says:

 

(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.

 
The point made by both Mr. Siskay and Mr. Bélanger is an important one. There is a difference between a "guideline" and a "regulation." A regulation must go through a  process which is set forth in the Statutory Instruments Act. But by expressly delegating the power to the Minister to issue "guidelines" that are specifically NOT subject to the transparency requirements of the SIA, Bill C-10 is indeed doing something very new. 

 

Herein lies a fundamental flaw in Bill C-10, one that certainly needs to be corrected in the Senate. The argument that the discretionary provision is already contained in current measures is being used by the government as a counter. But it is not a point well taken.  The current Act does NOT expressly delegate the authority to the Minister to make guidelines outside of the requirements of the SIA, that could result in a project losing its funding.  Bill C-10 DOES.

 

While I think it is unfortunate that the Liberals did not join with the Bloc and NDP in supporting Ms. Mourani's motion, as it would have made an important statement, I believe that Mr. Bélanger is quite correct in his assertion that the government may well just have ignored the motion in any event. He is also quite right that the matter is now in the hands of the Senate and that is where we should now turn our attention.

 

 


Tags:  Bill C-10 censorship
 

UGC Report

I am an Associate Professor at the University of Western Ontario jointly appointed to the Faculty of Law and the Faculty of Information and Media Studies (FIMS).

 

Before coming to Western, I was a law librarian at the Boalt Hall Law Library at the University of California at Berkeley and before that I was in private law practice in California. My doctoral work in the Department of Information Studies at UCLA focused on information policy issues.

 

I am currently a Network Investigator and Theme Leader with the GRAND NCE and also serve on the Librarians Committee of the  Canadian Association of University Teachers.



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