Evidence of meeting #8 for Access to Information, Privacy and Ethics in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cbc.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Konrad W. von Finckenstein  Chairman, Canadian Radio-television and Telecommunications Commission
Graham Sheppard  Senior Annual Returns Auditor, Canadian Radio-television and Telecommunications Commission
Christianne Laizner  General Counsel , Telecommunications, Canadian Radio-television and Telecommunications Commission
Gregory Thomas  Federal and Ontario Director, Canadian Taxpayers Federation

9:15 a.m.

Conservative

The Vice-Chair Conservative Patricia Davidson

Thank you.

We'll now go to Mr. Butt for seven minutes, please.

9:15 a.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

Thank you, Madam Chair.

Welcome. Thank you very much for being here. This is my first time meeting you folks. I really appreciate your being here.

To start with the CBC, I hear a couple of different terms, including “public broadcaster” and “state broadcaster”. How would you define the CBC using either one of those terms? And what is the definition, or is there a difference between being a public broadcaster or a state broadcaster?

How do you see the CBC?

9:15 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

I think the terms are basically synonymous. A public broadcaster is usually owned by the state. You could have a public broadcaster that is not owned by the state; that's why there is the slight distinction. But in this country we use the terms synonymously. I think “public broadcaster” is a better term, because “state broadcaster” has the connotation that you are pumping out the message of the state, as is done in some non-democratic countries. So let's call it a “public broadcaster”.

9:20 a.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

Does the CRTC look at the CBC or treat the CBC differently, as one of its clients or entities, from how it treats privately owned broadcasters? Is there a higher level or a different level of accountability or oversight that you would have for a public broadcaster versus a private broadcaster?

9:20 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

First of all, the Broadcasting Act has a specific section devoted to the CBC, and we obviously have nothing to do with the CBC's financing or CBC programming. But there are certain objectives that are set out for the CBC in the act, and there are all sorts of public interest groups that appear before us, saying, “Make the CBC do that.”

A perfect example is that the CBC has a responsibility for official languages throughout the country, and they are specifically responsible for official minority languages. CTV doesn't have that responsibility, and TVA doesn't have it, etc. CBC has it, and that's why we have an English and French CBC, etc., and also have French CBC in Alberta, for instance—which probably is not a financial success, in the same way that the English CBC in Chibougamau is probably not. It's available; that's part of the mandate.

There are all sorts of special obligations that the CBC has, and we make sure that they live up to them.

9:20 a.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

Have you experienced difficulties with the CBC when you have requested information from them, when you've requested compliance from them on certain issues, and when there have been rulings at the CRTC that perhaps the CBC didn't like and perhaps was avoiding implementing within its organization? Or have you generally had a cooperative, helpful relationship with the CBC?

9:20 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

I'd say our relationship with the CBC is like that with all other licensees: essentially they go along. Obviously, they challenge you when you take a position they disagree with. They try to convince us of the error of our ways. Sometimes we have issues in terms of compliance, when we think they should be doing this and they are doing it slightly differently, and we have to call them to account. But I would not say the CBC is any way different from any—

October 18th, 2011 / 9:20 a.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

So they don't take you to court and refuse to disclose information that you've asked for? They cooperate with you when you ask for things?

9:20 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

9:20 a.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

The issue that we're dealing with on this committee is predominantly the CBC's argument that section 68.1 of the Access to Information Act allows them not to disclose certain information to the Information Commissioner.

Under section 68.1, the definition of that information is that which relates to it “journalistic, creative or programming activities”. Given your background, sir, and your immense knowledge in this area, can you give me examples of areas that could be considered journalist programming and creative activities that might lead the CBC to make an argument that they should not release information to the Information Commissioner?

9:20 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

As you know, I used to be a judge on the Federal Court, so I look at this through that judicial focus. I read the judgment, and it is a disagreement between the CBC and the access commissioner on how to interpret that section, especially on whether she is entitled to look at documentation in order to determine whether they properly claimed the exemption or not.

The court said she is and it's now under appeal. The court also said it was very poorly drafted and not a model of clarity. There is clearly a dispute here, and the easiest way to fix it is to establish by legislation that either yes, she can look at those documents, or no, she can't. There is a legitimate judicial dispute here. I am not taking any position here. I can just see that parties can differ on that interpretation, and that's what we have courts for: to resolve it.

9:20 a.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

But you would agree with me that it would be fair that the Information Commissioner should be making that determination herself. I'm sure you would agree, as an independent body, that you should have the right to look at documents and make a determination as to what you would disclose publicly and what you would not disclose publicly, what you would investigate or what you wouldn't investigate. Why would we not have the same faith in the Information Commissioner to do the exact same thing?

9:25 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

Mr. Butt, that's for you as a legislator to decide. You can say, “The act does not apply, period,” in which case it doesn't apply; or you can say, “The act applies, but this information can be withheld, provided A, B, C, etc.” It's one way or another.

Unfortunately, the section in dispute here has been drafted in such a way that you have a double exemption. The act does not apply, except it does apply, and that's given rise to the dispute in the interpretation. It's really a question of which approach you want to do. We have some areas where we clearly say that access to information does not apply, and then the commissioner can say...and there are others where it's the other way around, and there's exemption, but you have to justify it.

It's your choice to decide which way you want to go.

9:25 a.m.

Conservative

The Vice-Chair Conservative Patricia Davidson

Thanks very much, Mr. Butt.

That finishes our first round. We will now enter the second round, for five minutes.

We'll go to Mr. Boulerice, please.

9:25 a.m.

NDP

Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC

Thank you, Madam Chair. I want to thank our witnesses for joining us this morning.

Good morning, Mr. von Finckenstein. You may not recall, but we have met many times at CRTC hearings. I was lucky to be in attendance for the presentation of Canadian Union of Public Employees' briefs.

I just want to ask you some questions about your recent statements. According to you, it is acceptable for a private broadcaster, to whom an access to information request has been submitted, to turn to the Federal Court in order to prevent the disclosure of certain information that may be seen as strategic and competition-promoting. If that's good for private broadcasters, do you think that CBC's position is reasonable? We are talking about the same resources, same exemptions and same authorities. CBC is trying to protect itself against disgruntled requesters who are also its direct competitors.

9:25 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

Let's imagine that we had information on CBC, and the corporation told us that the information was confidential. We could be talking about information on advertisement, for instance. That's an area where CBC is in competition with the private sector. If someone requests that information, we consult CBC. If the corporation asks us not to disclose that information because it would affect its competitiveness, we refuse to disclose it because CBC considers that information to be confidential. If the requester takes the matter to the courts, we would follow the procedure I just laid out for you. We would provide the requested documents to the court under seal, and the court would decide.

9:25 a.m.

NDP

Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC

I would like to take matters further. Section 68.1 of the Access to Information Act, which allows for the exclusion of information disclosure and required responses, focuses especially on matters related to information, and creative and programming activities. Information basically means journalistic activities. You have often heard from journalists' associations that talked about their professional issues at various hearings you have held. We do not know what the requests are and what objections CBC has.

If we're talking about journalistic activities, that is, notes taken by a journalist, recordings or full interviews, do you not feel that would be a strong enough reason for CBC not to disclose information related to journalistic activities of another entity or, even more so, of a competitor?

9:25 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

That's obvious, as that is CBC's position. However, as you know, there is an exception to the exception. That's the problem. You have read Judge Baudoin's decision. He stated his reasons. We will see what the court of appeal has to say about that. The principle is clear: the problem is due to the fact that there is an exception to the exception.

9:25 a.m.

NDP

Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC

Thank you, Mr. von Finckenstein.

I want to discuss another element of your report. I'm talking about the Local Programming Improvement Fund. A little earlier, there was a lot of talk about public and private broadcasters. Last Sunday, Denise Robert, who works in the film industry, appeared on the French talk show Tout le monde en parle and said that there would be no Quebecker or Canadian cinema without public funding. We feel that Canadian television would not exist either without public funding. I think that public funding, along with other kinds of funding and tax credits, proves that the so-called private broadcasters are not all that private after all.

I also want to bring to your attention the study on independent production by UQAM's Professor Naciri. After his study was published, he told us that independent or private producers cover only 3% of the total cost of the production they then sell to a broadcaster. To what extent do you think private Canadian broadcasters are quasi-public?

9:30 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

You are asking for a political opinion. Clearly, most of Canadian television production has public support, be it through our tax or subsidies system, funding, or other. However, I think that saying that we don't have any private productions or broadcasting is an exaggeration. We are talking about profit-based companies. They take advantage of the existing rules, but they are indeed private companies. I think that there's no doubt about that.

As for the Local Programming Improvement Fund, we have not made the distinction between a public broadcaster and a private broadcaster because, for Canadians, that makes no difference. They want to have local information. They have the right to that information, and we want them to get it, through either a public or a private broadcaster. It makes no difference. That is why both types of broadcasters have access to that funding.

9:30 a.m.

Conservative

The Vice-Chair Conservative Patricia Davidson

Thank you very much.

We'll now go to Mr. Carmichael for five minutes, please.

9:30 a.m.

Conservative

John Carmichael Conservative Don Valley West, ON

Thank you, Madam Chair.

And thank you to our witnesses as well. The early start seems to be working okay for everybody so far.

Mr. von Finckenstein, I'd like to follow up on the earlier questions by my colleague, Mr. Butt, regarding Judge Boivin's ruling that the Information Commissioner, not the CBC, should decide whether or not a request under section 68.1 should be completed.

As we're trying to find our way through this whole milieu, could you offer us some advice or your thoughts on how to create a better set of standards? You've talked about legislation. You've talked about a double exemption. I particularly like your philosophy of when in doubt, disclose. I just wonder if you could offer us some advice and direction on how we could go forward, from your perspective, to ensure that the Information Commissioner has the authority to do what she is there to do and not leave it to the judgment of, say, the CBC or others.

9:30 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

That's a value judgment. You've read Judge Boivin's decision. It's now under appeal. If you wanted to ensure...all you'd have to do is to change that very provision and say the CBC may claim exemption for journalistic...and leave out the last tail, except for the exemption to the exemption. In that case it would be clear that this is at the discretion of the CBC, but the commissioner would have to satisfy herself that it had been properly enacted.

In the wording of the statute right now, it says that the act does not apply, except for.... So that something applies and something doesn't. That's what's creating the problem here and that's why the judge made his decision and the CBC said no, if it doesn't apply, it doesn't apply, and nobody should have the chance to look over our shoulder. Both are perfectly legitimate positions.

We now have a ruling and we'll see whether the ruling stands or is reversed.

The problem is in the awkward drafting. These are not my words. Judge Boivin himself said it's very awkwardly drafted, and that's why you have the problem you do. Either it doesn't apply or it applies. That's one system. The other is to create an exemption, and when it's an exemption, the commissioner will have the power each time to see whether the exemption has been properly exercised or not.

9:30 a.m.

Conservative

John Carmichael Conservative Don Valley West, ON

You would agree, though, that the commissioner should have her authority in this case to get the information she requires?

9:30 a.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

If that's your wish to do it that way, that's fine. You, as the legislature, makes a value judgment. If you say, yes, that you feel more comfortable with that, then you do it. If you say that you are prepared to rely on the judgment of the broadcasters to decide what is journalistic, that it's something that's so sacred it shouldn't be touched, then you say it doesn't apply to anything that is beyond....