Canadian Heritage Committee on March 11th, 2008

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

I protest, Mr. Chairman.

[The Chair, Conservative, Gary Schellenberger]

All right. I rule.

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

I want to thank you, Ms. Wong, for appearing today and for bringing this very helpful brief. The clarity of it, and the way it addresses the legislation before us directly, is very helpful. I think it raises some very important questions that we need to answer before we proceed with this legislation.

I'm particularly interested in your point about the broadness of the definition of the concern. You say that it's directed towards the public and not explicitly towards children, although children under the age of 12 years are mentioned explicitly in the law. I do appreciate your concern about that, now that I reread it in light of your comments that there is a particular reference to children but the actual intent is much broader than that.

I looked at what the B.C. Civil Liberties Association has written in the past about violence on television.... You're nodding, because you know that back in 1995 a position paper was drawn up talking specifically about how the Civil Liberties Association could support regulations around dealing with violence on television that was specifically available to children under 12. They made an argument that this would be possible, and they outlined some concerns.

I wonder if you could talk a little bit about it, just so that we understand the more nuanced position, perhaps, of the association. Or maybe the association has changed its mind since that particular brief.

[Catherine Wong]

The position paper that Mr. Siksay is referring to is one that we had drafted in 1995, I think specifically relating to violent programming directed towards children, and specifically with regard to the technology of the V-chip, which at the time was coming into prominence.

The association now views that position paper to be outdated, seeing that it's 13 years later and technology has changed so much. With television, the Internet, and all these new technologies, as you mentioned earlier, broadcasting now faces new challenges. We're very cognizant of that as well.

Our current position is the one that I've submitted to you today. We spent the past few weeks, in preparing for today's submission, re-evaluating our position, particularly with this provision, proposed subsection 10.1(1). It's a very different position in nature and it's also a very different provision, because it is inclusive. It's not just directed towards children. The previous position paper was directed towards content for children.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Right, and I appreciate that. I appreciate that the position could have developed over the years and that it was dealing with specifically a different context.

I think what was helpful for me, in looking at that, was that even when specific legislation around what children were able to view was contemplated, there were some key exceptions being considered, and one of those was news programming. The association took a very strong position that children shouldn't be denied access to news programming even if it did contain violent content. There's nothing in the current legislation that's before us that would exempt news programming, for instance, from the concern raised.

[Catherine Wong]

Our concern, I think, is that it doesn't prohibit the prohibition of news content. It doesn't state the value of free speech in political, creative, artistic expression, and I think that's very problematic.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I'm glad, too, that you raised the Little Sister's case. I do think it has a fairly direct application here, given the power that was delegated to enforce the act, in that case, around what's determined to be obscene material and to prevent its importation. I think you're right to point out the concern that we may be duplicating that arrangement here and delegating again to a different body specific powers to develop the regulations and then enforce them as well. So I do think that is an important reminder to us.

Is there anything further you wanted to say about the Little Sister's case and its application to this situation?

[Catherine Wong]

The association played a big role in the Little Sister's case. We were a co-plaintive. We fund-raised on behalf of the owners of Little Sister's to be able to litigate it. Sadly, it's still ongoing, despite the 2000 ruling from the Supreme Court of Canada.

What we can learn from Little Sister's is that when architecture for censorship is created, despite the benign nature of it, we can expect to see censorship happening, unnecessary censorship. It's not justified censorship.

In the case of Little Sister's, the customs officers who were given these broad powers were not trained. They did not have the skills and qualifications to make that determination. Our fear is that we will see this happening the same way again with this particular situation.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. Chong.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you.

I thank the witness for coming to present to us today.

I have two broad questions. The first question concerns whether or not the B.C. Civil Liberties Association believes there should be more restrictions on free expression with respect to publicly owned airwaves, like radio or television, compared with private media like films or books.

Let me expand on that a bit. We live in a liberal democratic society where we have expansive interpretations of free expression. But there are also limits on that free expression. The Supreme Court has said those limits are based on the harm principle, that is, making sure that the free expression we have doesn't harm others in society. That's an evolution of the restriction on free expression. Previously in questions regarding public decency and public morality, we used the community standards test.

So that's where it stands today. But this applies only to private media. In other words, that's the expansive interpretation of free expression when it comes to privately owned media, privately produced media like books or film.

When it comes to television, though, we're talking about a media that is publicly owned and publicly regulated. In other words, what may be lawful in the private domain when it comes to free expression is not necessarily what we allow on the publicly owned airwaves. For example, we now have the 9 p.m. rule, under which material presented before or after 9 p.m. can vary in its nature.

Does the B.C. Civil Liberties Association agree that it is reasonable to have greater restrictions on publicly owned media, like television and radio, compared with media in the private domain?

[Catherine Wong]

I think we would disagree with that. This is something I would have to take to my board for a more definitive answer. But we generally take a principled approach to free expression. This is an almost non-negotiable point with us. Whether it's government regulated or privately regulated, I believe the point is individual choice and the ability to regulate access to expression yourself. The state should not be an arbiter.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

So the voluntary code, which is a bit of a misnomer, because it's in fact compulsory—

[Catherine Wong]

Yes.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

—this voluntary code that's presently in place, you would do away with. You would allow free expression on television, as long as it met the harm test.

[Catherine Wong]

I would need to become more familiar with that code before I could answer.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Okay.

The second question I have concerns the harm test and empirically based evidence or studies that show a link between violence and harm to citizens in our society. Would you be able to point the committee to any studies that you know of, or any research that's been done, that would link violence to harm done to others in society?

[Catherine Wong]

Could you be a bit more specific?

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

The bill we have in front of us concerns restrictions on programming if it's violent in nature. If one sees the harm test as the arbiter of what should be allowed and what should not be allowed, obviously you need to have evidence that violence on TV is correlated to violence in society or correlated to harm to citizens, whether they be children or otherwise.

Are you aware of any studies that have been done making the causal link between the two?

[Catherine Wong]

We're not the ones purporting that there's a link. We think that's in great dispute, that there is a relationship between violent content on television and violence in society.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

You don't know of any studies, then?

[The Chair, Conservative, Gary Schellenberger]

Mr. Chong, we've gone over the time here.

Okay, one comment, please.

[Catherine Wong]

I can speak to this. Some studies have recently been done about actually bringing that into question and actually disreputing this relationship. I would have to look through my file to find the exact notation. That is in dispute.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you for that.

I think we have bells at 5:15. I'd like to have one more short round of questioning, but I have to have the unanimous consent that if the bells ring we can do a wee bit more business.

Do we want one very short round?

Yes, Mr. Chong.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Mr. Chair, I'd like not to have another round, but I would also like to bring up a topical item for the committee to study after we're through with Bill C-327, if I could.