Information & Ethics Committee on Oct. 25th, 2011

[Pierre Trudel, Professor, Public Law Research Centre, Université de Montréal, As an Individual]

Thank you, Madam Chair. I will read my statement to ensure I stay within my allotted time.

Thank you for inviting me and allowing me to appear before the committee.

I am here as a law professor who has spent over 30 years studying broadcasting law in Canada and abroad, as well as access to information and data protection law.

Over the years, I have done research work for a large number of government organizations and media companies, including the CBC, Quebecor, TQS and Télé-Québec. I recently prepared a legal opinion on the scope of the CBC's access to information guidelines, and that opinion is available on the CBC Web site.

However, my reasons for appearing before the committee today are purely personal. My sole objective is to provide information on the legal framework, as I understand it, governing the operations of broadcasting undertakings in Canada.

To determine the meaning and scope of the section 68.1 exemption, we have to put the provision in the context of the legal framework governing broadcasting activities because the CBC is, first and foremost, a broadcaster. And in that capacity, the CBC is protected, like any other Canadian media organization, by freedom of speech under the Constitution. And that freedom is not limited to journalistic activities but extends to all expressive activities undertaken by the CBC.

Furthermore, the CBC is a broadcaster with a mandate to deliver the national public broadcasting service provided for in the Broadcasting Act. Therefore, the CBC has a duty to account for the public resources it uses. It is this dual role that justifies the CBC's exemption under section 68.1 of the Access to Information Act. Whether we like it or not, reconciling contradictory laws is never easy or cheap. It is a difficult task, but that is the price of democracy.

As set out in section 2(b) of the Canadian Charter of Rights and Freedoms, freedom of expression—including freedom of the press and other media of communication—is understood in Canada to include editorial freedom for all Canadians and for public and private media. In other words, the charter includes the freedom to determine what is fit for broadcast. Therefore, editorial freedom is protected under section 2(b) of the charter. Editorial freedom cannot be restricted other than by law and to the extent that such restriction is reasonable and justifiable in a free and democratic society.

Canadian courts have long recognized that all broadcasters, private and public alike, have editorial freedom. Editorial freedom assumes freedom of principle in deciding how information is selected, assembled and broadcast. The counterpart to editorial freedom is accountability: those who hold editorial freedom are answerable to third parties for the information they broadcast, and no one—

[The Chair, NDP, Jean Crowder]

Mr. Trudel, could you slow down just a little? The interpreters are having a tough time keeping up because they don't have your text.

[Pierre Trudel]

Okay.

Thank you, Madam.

While it is commendable that they regulate use of the airwaves and other public resources used for broadcasting purposes, public authorities cannot take the place of licensees when it comes to deciding what is to be broadcast. Like their counterparts in the United States and Great Britain, Canadian courts have refused to express the view that broadcasters, the CBC included, carry out a government activity. In summary, the CBC enjoys a degree of editorial freedom similar to that of other broadcasters.

The Broadcasting Act expresses in four places the principle of editorial freedom and the journalistic, creative and programming independence enjoyed by broadcasting undertakings. These provisions of the Broadcasting Act establish an airtight barrier between government authorities and the CBC. For instance, section 46(5) prohibits the minister from requiring the CBC to provide information that could reasonably be expected to limit its ability to exercise its journalistic, creative or programming independence.

As far as its programming activities are concerned, the CBC must answer to the CRTC, not political decision makers. If the Broadcasting Act stipulates that even ministers do not have the right to information that could reasonably be expected to limit the CBC's independence, it is all the more reasonable to assume that persons invoking the Access to Information Act should not find themselves in a more advantageous position than ministers with regard to information.

In summary, the intent behind all of these provisions is to guarantee independence for broadcasters in general and for the national public broadcaster in particular. It is a question of ensuring that broadcasters have the conditions they require to meet their obligations under the Broadcasting Act.

The scope of the exclusion set out in section 68.1 must be interpreted in the overall context of legislation concerning broadcasting undertakings, which ensures that they enjoy independence in journalistic, creative and programming matters. But in the case of the CBC, management of the national broadcaster must be transparent to Canadian taxpayers since it is publicly funded. It was decided that an exclusion would be used, which is in keeping with international practice in such matters. Consequently, the Access to Information Act does not apply to information under the control of the CBC that relates to its journalistic, creative or programming activities.

As for who should have the authority to make the determination, at the appeal or second review stage, regarding whether a record falls under the Access to Information Act or not, that decision is in the hands of the Federal Court of Appeal. Now, I will throw out a few public policy options, which, I believe, come under the jurisdiction of the legislative branch. Given that the interpretation of the act comes under the judicial branch, I do not wish to express my opinion on the matter.

When it comes to public policy options, it is important to keep in mind that section 3(2) of the Broadcasting Act stipulates the following:

[...] that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.

To be specific, that authority is the CRTC. The importance of keeping regulations simple and easy to enforce is key, and that goes for all broadcasting undertakings. Making the CBC answer to a number of authorities complicates the accountability requirements that the public broadcaster must meet.

In that regard, it is not clear that the information commissioner is the best authority to oversee the CBC's decisions as to whether a record falls under the exclusion set out in the Access to Information Act or not.

The CRTC is the authority specializing in broadcasting matters and is most certainly in the best position to determine—in compliance with the editorial freedom requirements to which all broadcasters are subject—whether a requested record is related to journalistic, creative or programming activities.

The CRTC is indeed in a position to view the Canadian broadcasting system as a whole and the CBC as a part of that whole. For instance, the commission certainly has the necessary expertise to determine whether the disclosure of a record belonging to a broadcaster could jeopardize the broadcaster's journalistic, creative or programming activities, given the competitive nature of the environment.

In closing, Madam Chair, members of the committee, section 68.1 of the Access to Information Act theoretically excludes information relating to the CBC's journalistic, creative and programming activities from the access to information regime for public documents. The provision seeks to ensure that the CBC is in a position similar to that of other broadcasting undertakings while guaranteeing that it is accountable for the way it spends public funds. As a result, the only documents that can be accessed pursuant to the act relate to the general administration of the CBC and do not disclose information relating to the CBC's journalistic, programming or creative activities.

The question that should actually be asked—

[The Chair, NDP, Jean Crowder]

Please conclude.

[Pierre Trudel]

I’m wrapping up. If we want to identify the scope of section 68.1 for any broadcasting company, we must wonder what we would find legitimate to broadcast.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Trudel.

I need to be strict with the time because we have to make sure the members can ask their questions.

We'll begin the round of questions. The seven-minute limit includes the member's question and your response.

We'll start with Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Madam Chair, and my thanks to all of you for coming today.

It's been an interesting discussion about the role of Quebecor in the Quebec media landscape and across Canada. Quebecor, like all media empires, is not a natural construct. It's a decision by public regulators to allow massive amounts of media concentration. Each time one of these companies went before the CRTC to demand the right to gobble up competitors, they said they would give us diversity of voice.

I asked Mr. Péladeau what I thought was a fairly straightforward question about the lack of diversity of voice, in that every time a small-time newspaper is picked up, the local editorials seem to go out the window; the local point of view goes out the window. Now we see that marching orders have been given to attack the CBC. I pick it up in every small-town newspaper across the country now. So I asked Mr. Péladeau, not once but seven times, to explain whether this is a natural phenomenon—whether the journalists all across the country who work for him suddenly all hate the CBC or whether they get their orders from above. I had a difficult time getting a straight answer.

Mr. Bernier, you wrote an article entitled “Quebecor–A tarnished ethical and democratic track record”. You made statements in the article to the effect that journalists were ordered by Quebecor management to attack Radio-Canada/CBC. Is that correct?

[Marc-François Bernier]

In the CBC’s case, it’s more complicated. But we have evidence and public testimonies that say that there was a chain of command. This was particularly the case in the Journal de Montréal, which I’m more familiar with. Guidelines were handed down from one level in the chain to another ordering an attack on a journalist from a competing media outlet.

The testimonies heard at the conference of the Fédération professionnelle des journalistes du Québec in December 2010 were troubling. It was in that state of mind that I wrote the paper you are referring to. It was troubling because it was part of a larger system that I was able to document through previous quantitative research and in the qualitative research conducted with journalists who were asked to provide explanations, rather than simply tick off boxes.

Actually, Quebecor journalists share this feeling of towing a line. But it’s not the case for everyone, we need to be clear on that. Not all journalists do this. Some studies show this, as we've seen in journalism sociology. When it’s time to hire some journalists, some columnists, some freelancers, people who are going to tow that line are chosen.

[Charlie Angus, NDP, Timmins—James Bay, ON]

You talk about it as a general feeling, but you also mention that the guidelines came down from management.

Did the guidelines come down in the forms of e-mail missives to journalists telling them they were not following the line?

[Marc-François Bernier]

Last year, when this public testimony was taking place, I tried to obtain concrete evidence of this. I did find an email showing the order that was passed, from one level to another, to have a journalist write about another journalist that was being called a “bitch”, “big dirty disgusting”, and a “stupid imbecile”.

So that’s one example. This is the case I have here. I don’t have any others, but there might be more. It’s not up to me to conduct this investigation. What I want to say is that…

[Charlie Angus, NDP, Timmins—James Bay, ON]

Given orders to do what?

[Marc-François Bernier]

People were asked to talk about her in the newspaper the next day and call her those names to see how she reacted. The email indicated that people would not know it was her. Smear her, with many photos of the bitch… So we’re talking about a journalist whose reputation was unfortunately to be tarnished in the newspaper the next day.

I’m not saying that this is systematic or that it happens everywhere, but it’s worrisome. When we see this, as a journalist—I was a journalist—it’s very worrisome. In the days preceding the order, this journalist had spoken about Quebecor Media. It’s troubling to see this kind of response from a company of journalists who are doing their work, respectably or not, in other media.

[Charlie Angus, NDP, Timmins—James Bay, ON]

With regard to this journalist who challenged Quebecor, in this management e-mail she was referred to as “a bitch”, and they were told they were going to target her?

[Marc-François Bernier]

This is what a journalist was asked to do. Someone said that this task was going to be assigned to a young journalist. After that, the email was sent to the young journalist in question.

[Charlie Angus, NDP, Timmins—James Bay, ON]

And the journalist was told what to write.

[Marc-François Bernier]

Yes, but to my knowledge, he didn’t do it. He managed to resist. Because there are still people in organizations who put up some resistance.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I think this is very important. Again, when you allow one person to control so much of the media landscape of Canada, there has to be an issue of accountability, not just a corporate bottom line.

I asked Mr. Péladeau if there were orders coming down the chain. He said, “I didn't get your question.” I asked him if journalists were ordered to write specific kinds of articles. He said, “I don't know where [this is coming] from.”

I asked him, “Where is the level of interference within the newsrooms...? Who sends that message?” He said, “This is not a party. This is a business....”

I then asked, “Do you mean managing the newsroom? Journalists tell us they were ordered to write....” He said, “We have our accountability and a responsibility to our shareholders....”

Number 5, I asked him, “Are your journalists ordered to follow the party line?” He said, “I have nothing to answer to this.” I said, “Should the newsroom be separate from your other vertically integrated operations?” He said, “This is not a party. This is a business....”

And number 7, I asked if he had a firewall to protect his journalists from the corporate interests of Quebecor, and he said, “Our reporters...have their jobs to do, and no one will tell them what to write.”

Is Mr. Péladeau correct in saying there is a firewall protecting his journalists, or, as he said earlier, do they manage their business as a business and the journalists don't get to have a say?

[Marc-François Bernier]

Listen, we don’t have an in-depth investigation going on, but in light of the results I got from my investigation, we can confirm that the firewall is not as thick as it should be, in principle.

Basically, there are these kinds of guidelines, dogma or doctrines with journalists wanting a wall to separate the business part from the journalistic part.

The reality is that the freedom of the press also corresponds to the freedom of journalists on the ground to tell the public what is happening.

[The Chair, NDP, Jean Crowder]

You've got five seconds, Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

You said that Quebecor has “a tarnished ethical and democratic track record”. What do you mean by that?

[The Chair, NDP, Jean Crowder]

A brief response.

[Marc-François Bernier]

Okay.

In principle, the media should ensure the quality and integrity of the information. When orders like that arrive, it attacks the credibility and ethics of a newspaper business.

[The Chair, NDP, Jean Crowder]

Thank you, Monsieur Bernier.

Mr. Butt, for seven minutes.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you very much, Madam Chair.

I'll divert us from the sideshow on the other side to the issue at hand. We're talking about access to information requests with respect to the CBC, and I think we owe the public, the people who voted for us, the responsibility to get back on track.

I apologize for that sideshow, gentlemen. Thank you very much for being here.

[Charlie Angus, NDP, Timmins—James Bay, ON]

A point of order.