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—