Evidence of meeting #21 for Canadian Heritage in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was qualifications.
A recording is available from Parliament.
4:20 p.m.
Conservative
The Chair Conservative Gary Schellenberger
Thank you for that.
We're then going to move over to Mr. Abbott.
4:20 p.m.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
I'm interested in your comments this afternoon....
Thank you for coming. I'm sorry, I was a little rude there.
4:20 p.m.
Designated as member of the Canadian Radio-television and Telecommunications Commission (CRTC), As an Individual
That's all right.
4:20 p.m.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
Referring to the news bureau in Bathurst, New Brunswick, you say it was a one-person operation. For two and a half years you did it all, from dealing with satellite feeds to meeting the editorial demands, etc.
Again, we're looking at qualifications, and I think it's a bit of a challenge perhaps to some people. In considering your qualifications, people are saying, shouldn't he have some executive experience? On the other hand, you're actually taking credit for the fact that it was a small, one-person operation--that is, you see that as a qualification. I wonder if you could expand on that a bit.
4:20 p.m.
Designated as member of the Canadian Radio-television and Telecommunications Commission (CRTC), As an Individual
Mr. Chair, through you to the member, as you look at what I offer here, I think the one thing is perhaps the lack of a title. There's no “Patrone was the executive director of this; he was the VP of that”. There is none of that, and I've never had that kind of title. What I have had, however, is responsibility.
Mr. Chair, what was just raised is a reflection of the practical experience that I have brought to bear over the course of my experience in broadcasting. These are positions that demanded a lot of responsibility but perhaps didn't come with the massive salary and the corner office.
I hope that answers the member's question.
4:20 p.m.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
Let me just read this: “My duties were mostly technical in nature for the first seven years of my career. It was there that the CRTC, its rules and regulations, all became part of my daily working life. In master control, for instance, we had to stick to content and regulatory rules.”
I wanted to key on this: “Those were the early days of specialty television. City TV was breaking new ground by airing cutting-edge programs, which meant we had to be mindful of the CRTC's rules.”
Again, looking at your qualifications and as they might particularly apply to more cutting-edge ideas, could we presume that your thought process—not only because of your demographic, your age, but also just this background—would be not that of a revolutionary but of somebody who's going to be thinking outside the box?
4:20 p.m.
Designated as member of the Canadian Radio-television and Telecommunications Commission (CRTC), As an Individual
It was great. One of the things mentioned to me while I was at CTV was that, because of the relatively young staff, they thought of me as kind of the grizzled veteran on the staff. So it was particularly heartening for me to come to the CRTC. I was told that I was really appreciated for the youth I brought to the CRTC, which was really quite encouraging.
But yes, I think perhaps the particular era I grew up in, the time at which I entered broadcasting, was an exciting time, as it is now. So I would hope that early experience has equipped me, over time, with the skills to handle this new position.
4:20 p.m.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
Contrary to the position Mr. Regan took when he said we were trying to act as censors--quite on the contrary--we're trying to operate within the rules of the committee, and it says under subsection 111(2), “...shall examine qualifications and competence of the appointee or nominee to perform the duties of the post to which he or she has been appointed or nominated”.
Then I read that you say, “We must ensure that Canadian voices are heard and Canadian stories are told through our broadcasting system”.
Let's relate those two things. What do you bring to that?
4:20 p.m.
Designated as member of the Canadian Radio-television and Telecommunications Commission (CRTC), As an Individual
Mr. Chair, I was part of the machinery that produced local programming. Recently we have seen evidence that the gap between programs purchased from outside Canada, mainly the U.S., and the programming produced in Canada is growing. I believe it's now up to $107 million. That reflects the economics of broadcasting as it now stands. That can't help but be somewhat troubling, because of course what we want to do is narrow that gap so that more Canadian programs and more Canadian voices—there have been hearings about diversity and the diversity of voices in Canada—are heard over those public airwaves. So that's a source of concern.
But despite that, I'm not going to prejudge any issue that comes before the CRTC. Those matters are decided through extensive cooperation with staff and discourse with fellow commissioners.
4:25 p.m.
Conservative
The Chair Conservative Gary Schellenberger
With that, this hearing comes to a conclusion.
I thank you very much, Mr. Patrone.
4:25 p.m.
Liberal
4:25 p.m.
Conservative
The Chair Conservative Gary Schellenberger
It started at 3:30. We haven't got time for another round. We have had two rounds, so we are finished at 4:30.
So we will recess and get ready for our next order of business.
4:30 p.m.
Conservative
The Chair Conservative Gary Schellenberger
I call the meeting back to order, pursuant to the order of reference of Tuesday, October 16, 2007, Bill C-327, An Act to amend the Broadcasting Act (reduction of violence in television broadcasts).
I welcome here this afternoon our witness, Catherine Wong, from the B.C. Civil Liberties Association.
Welcome, Ms. Wong.
4:30 p.m.
Catherine Wong Articled Student, B.C. Civil Liberties Association
Good afternoon. My name is Catherine Wong, and I'm an articled student at the B.C. Civil Liberties Association.
The BCCLA was formed in 1963 and is Canada's most active advocate defending civil liberties and democratic freedoms. The association has a long history of providing input to government and the courts on matters of vital importance to civil liberties in Canada.
I would like to thank the committee for the opportunity to speak about the impact of Bill C-327. I'll begin my comments with some general propositions concerning the importance of freedom of expression in our society, and I'll continue with the association's main concern with the potential for violations of free expression by the delegation of regulation-making powers that proposed subsection 10.1(1) of the bill gives the commission, followed by some practical and philosophical considerations when considering the impact of Bill C-327.
The BCCLA has consistently championed the cause of expressive freedom and argued for its centrality to a democratic process. Freedom of expression has long been held to be a fundamental freedom necessary for a flourishing democracy. The Charter of Rights and Freedoms, along with a long line of case law, has consistently found that freedom of expression is critical to pursuit of truth, self-fulfillment, and the functioning of democracy.
Within the sphere of constitutionally protected freedoms is a free press. The substantive protection of expression is content neutral and includes speech, art, images, as well as violent content. Depictions of violence can also serve as forms of political and artistic expression. The justification for such broad protection is grounded in the recognition that humans are autonomous individuals who are capable of making decisions for themselves.
Empowering the CRTC to make regulations limiting content based on their perception of whether it is inappropriately violent in nature raises concerns of censorship, prior restraint, and gives rise to potential violations of expressive freedom.
The proposed bill would censor protected speech on public airwaves in Canada. Worse, it would do so without offering any effective remedy for Canadians.
Bill C-327 creates an architecture that allows for the limitation of expressive freedom. In the past we've seen that when such an architecture has been set up, unjustifiable censorship is sure to follow.
The BCCLA opposes the passing of Bill C-327 due to its inevitable violation of legally protected expression.
Proposed subsection 10.1(1) of the bill delegates to the commission the power to make regulations respecting the broadcasting of violent content, including that contained in programs intended for persons under the age of 12 years. The BCCLA has at least three specific concerns related to the vagueness of the proposed legislation.
First, the provision delegates a broad power to the commission and thereby advocates the responsibility of democratically elected legislators to fashion clear and understandable laws.
Second, the provision creates a structure that inevitably will infringe upon constitutionally protected expression. The commission is given a mandate to regulate violent content, and will presumably follow that vague mandate.
Third, the phrase “including those contained in programs intended for persons under the age of 12 years” suggests that the overall standard of adjudication in setting these regulations should be programming appropriate for children.
We submit that this threshold is inappropriate as it invites an overly restrictive interpretation and does not use the least restrictive means available to address whatever might be argued to be the “problem”.
Bill C-327 is directed towards the public, not towards children. The highlighting of the interests of children within the provision creates an increased likelihood of violations of free expression of all.
The analysis of this proposed legislation must start with the observation that violent content is not illegal expression. However, limiting such content is an infringement on the right to free expression. The effect of proposed subsection 10.1(1) is that the commission would be granted broad powers to become a supernanny of broadcast television for both children and adults alike. The cost of this kind of censorship would be high, both economically and socially.
The preamble of the bill purports to recognize creative freedom and that “censorship is not a solution”. Despite this recognition, the objective of regulating violent content and the lack of any type of standard or guideline for application means that there will assuredly be some violation of free expression.
As there is no confirmation process to vet the regulations created, the only remedy would be to litigate the commission's rulings. It is fair to say that this is a costly burden for both broadcasting companies and private individuals alike.
It is also fair to say that many, if not most, companies are unwilling to engage in the arduous legal process of judicially reviewing a ruling and following up the potential appeals. Instead, the most likely result is a chill effect on speech, whereby broadcasters will curtail the programming with the aim of complying with the regulations. The social cost will be less intelligent and less thought-provoking programming, and overall less diversity and social expression.
The association would like to direct your attention to a litigation that culminated in the Little Sister's Book and Art Emporium v. Canada case in 2002 at the Supreme Court of Canada. Little Sister's is a business located in Vancouver that sells books and magazines, most of which are written by and for the gay and lesbian community. Most of the books and magazines sold by Little Sister's are published in the United States and imported into Canada by Little Sister's. The BCCLA was a co-plaintive in this case.
In the Little Sister's case the government, via the customs tariff and the Customs Act, delegated the power to regulate the import of obscene materials to customs agents. The delegation of this broad power, which lacked any standards for application, and the lack of training provided to the officials empowered to make such determinations resulted in an overbroad application of the laws, which essentially censored protected speech.
From approximately 1985 until the trial in 1994, hundreds of books and magazines that Little Sister's imported and purchased were detained, prohibited, as well as destroyed by customs officials because they were deemed to be obscene. Over the course of the trial and its subsequent appeals, it was revealed that customs officers made arbitrary decisions, procedures were haphazardly applied, and there was no proper training or adequate time given to such decisions. There was no formal procedure for placing evidence of artistic or literary merit before the classifying officers. Most importantly, most publications were prohibited entry into Canada that would not have been found to be obscene if full evidence was considered by officers properly trained to weigh and evaluate those materials.
The result of these shortcomings was a disturbingly high amount of homosexual art and literature that was not obscene but was prohibited. The delegation of power to customs officers resulted in customs officers being arbiters and guardians of a paternalistic scheme that denied access to protected expression.
As we saw with the Little Sister's case, the delegation of broad powers affecting free speech and communication created a structure that, while holding the appearance to some of being innocent and benign, inevitably led to charter infringement. If the agency assigned to apply the law is not sufficiently cautious--in this case, the CRTC--fundamental freedoms can be encroached upon unnecessarily.
Along with the legal considerations I've outlined, I will look to turn the committee's attention to the practicality of Bill C-327.
As evidenced in the preamble, the bill presupposes a relationship between violence on television and violence in society. Whether there is a clear causal link between violence on television and violence in society remains very much in dispute. The BCCLA does not believe that turning the commission into a supernanny is a solution to decreasing societal violence.
At a practical level, there are everyday realities that we as a society must face, one being that we live in a society that unfortunately experiences violence. Thus, programs such as news broadcasts and documentaries, while possibly disturbing to watch, serve as important instruments for public safety, intelligent discourse, democratic accountability, dissemination of important information, and public decision-making.
The potential effect of this bill is the creation of regulations that will call for a sugar-coating of our daily news broadcasts. They will obscure the current realities of society and the challenges that we face.
At an operational level, the BCCLA questions the effectiveness of the bill. With modern technology such as satellite television, digital cable, and the Internet, individuals are able to access channels from across Canada, the United States, and all over the world, the content of which can be even more graphic and violent than that found in Canadian programming.
To bring a west coast perspective, we know this complicates the 9 p.m. threshold argument, as it is not only possible but also increasingly common for Vancouverites to be watching eastern broadcasting, which broadcasts at local times. Therefore, while it may be 7 p.m. in Vancouver, we're watching 10 p.m. broadcasts being aired for a Toronto audience. As a result, regulations predicated on time zones and broadcast restrictions are increasingly losing their effectiveness. Moreover, more and more individuals are accessing their television programming from the Internet.
If the aim of Bill C-327 is to enable the CRTC to protect Canadians from violent content, regulation through time and place will become increasingly difficult, if not impossible, short of regulating the Internet.
My last point is philosophical in nature. The BCCLA has long argued for freedom of expression and the right of an individual to make his or her own choices. This is based on the belief that individuals are autonomous beings. We have a faculty of reason. We are capable of making our own decisions, and indeed the exercise of this faculty plays a significant role in a flourishing and democratic society. Consequently, the limiting of choice and free expression hinders not only the self-fulfillment of the individual but also the well-being of society.
The delegation of regulation-making power poses two concerns. First, individuals are unable to access constitutionally protected expression and are consequently unable to determine for themselves what they view or to formulate thoughts on it. Second, parents and guardians are unable to determine what is appropriate for their children to view. This is one step too far for the state to be venturing into the private sphere. If the parents want to censor what their children have access to on television, they can do so by a variety of means, including V-chips or other types of technology. As parents decide the appropriateness of books, music, and hobbies, they should also be able to determine what their children watch. Indeed, those households with satellite television or digital cable are already doing so.
In conclusion, the BCCLA submits that the proposed bill creates a structure that will violate free expression. Considering the costs, the practical effects of Bill C-327, and the philosophical underpinnings, the proposed structure is inadequate to provide safeguards against violations of free speech. Bill C-327 should not be passed into law.
Thank you for your time and attention.
4:45 p.m.
Liberal
Andy Scott Liberal Fredericton, NB
Thank you.
Ms. Wong, you mentioned, in reference to a specific proposed section of the bill, that it wasn't the least restrictive way of dealing with what it was trying to deal with. At the very end, you mentioned V-chips and a couple of things.
Could you elaborate on what less restrictive things might be acceptable, in your mind?
4:45 p.m.
Articled Student, B.C. Civil Liberties Association
The association's position on this, Mr. Scott, is that we don't believe it should be the role of the state to regulate what is available for individuals to watch. It should be up to individuals to decide whether they want access to something, whether it's through payment or self-regulation by means of a V-chip. Delegating this regulatory power to non-elected officials actually has great impact on free expression.
As for the concept of “least restrictive means”, if there were a proven link, which we dispute, between violent society and violent content on television, then the next step would be to seek out how to limit the violence by the least restrictive means, the means least apt to compromise the civil liberties of individuals. That's not the case here. There is a presumption in the bill that there is a causal link. That's not proven.
4:45 p.m.
Liberal
Andy Scott Liberal Fredericton, NB
The research you've done would reach that conclusion. Have you also done research that would speak to the approaches that might be taken? Part of the debate we've had to date has had to do with whether the objective is to bring more balance to what's available. Maybe it isn't a question of restriction; maybe it's a question of better balance in terms of what's available.
I'm not sure, but I'm trying to figure out whether the best approach would be a restrictive one or something proactive, educational, and promotional. I don't think you can limit. In today's world, there is stuff coming from everywhere. Perhaps it would be better to make sure there's lots of stuff that's healthy and good and positive.
Have you any comment?
4:45 p.m.
Articled Student, B.C. Civil Liberties Association
If the goals are to bring a better balance, then there should be guidelines along with this bill stating that the purpose of this is a better balance and availability of programming. That's not the case. It's a general, broad, vague law that just says they shall have the power to make these regulations, which is very dangerous.
In terms of having more programming that's healthy and good, that's a very subjective decision to make. Who's going to make that decision in terms of what is healthy and good broadcasting? Actually, according to the principles of freedom of expression and advocates for it, we need to have a wide range of exposure to different thoughts. The free marketplace of ideas is the cornerstone of what makes a flourishing democratic society.
4:50 p.m.
Liberal
Andy Scott Liberal Fredericton, NB
You perhaps said it better than I did, but that's my point. It wasn't that I was taking judgment as to what would be good and bad; it was that more be available, simply more content, more choices.
4:50 p.m.
Liberal
Andy Scott Liberal Fredericton, NB
You also mentioned the issue of the exercise of judgment. I'm sure there's a question, when you're talking about very young children, about their capacity to exercise that judgment. I think you spoke about parents and responsibilities there. But interestingly, one of the witnesses last Thursday spoke of the fact that to some extent a certain amount of restriction affects discernment, affects the development of critical thinking on the part of young children.
I wonder if you've given any thought to that.
4:50 p.m.
Articled Student, B.C. Civil Liberties Association
I completely agree with you that restriction does affect discernment in terms of exposure and development of faculties in children. That being said, I think parents have a prerogative to do so. Much as I might want to deny it sometimes, we are all products of our parents, our families, our upbringings, and the societies in which we are raised and what's available to us. Depending on how restrictive and what the social values of different parents are, that will affect the upbringing of children, but it should still be the determination of parents and not a paternalistic regime where government regulators are able to decide this.
4:50 p.m.
Liberal
Andy Scott Liberal Fredericton, NB
If I might just say, it's generally my parents who deny that I'm a product of their upbringing, just for what it's worth.
