CCA Bulletin 12/08
April 10, 2008
Bill C-10: The CCA warns the Senate Banking Committee about the serious dangers to freedom of expression
Just the Facts
The CCA questions the need for the proposed amendment to the Income Tax Act included in Bill C-10 concerning tax credits supporting the production of television programs and movies and warns the Committee members of the real dangers for freedom of expression if the amendment is adopted as it stands.
The Canadian Conference of the Arts (CCA) appeared yesterday in front of the Senate Committee on Banking Trade, and Commerce’s hearings into the controversial bill C-10. In its intervention, the CCA stated that the cultural sector is not paranoid when it talks about the fear of a chill, of arbitrary and after the fact value judgments, and most importantly, the danger of self-censorship, when it comes to public funding of cultural expression. The CCA reminded Senators that when, in 1993, the Government introduced and passed with almost record speed child pornography legislation which many feared would erode artistic freedom and cause a chill in the cultural sector, the Deputy Prime Minister of the day, the Hon. Don Mazankowski, assured the cultural sector that the legislation would never be used against artists. Yet, the first person charged under this legislation was Eli Langer, a Toronto artist, who was eventually vindicated of any offense.
The CCA objects to the use of guidelines to be interpreted by bureaucrats after the fact, in order to “harmonize” the Income Tax Act and the Criminal Code with regards to the federal film and video tax certification provisions. The CCA is not reassured at all by the claim that provisions exist in several provincial programs similar to the proposed amendment to the Canadian Film and Video Certification Program. Quite frankly, C-10 may have inadvertently broadened the debate to the provincial level where artists and producers may be encouraged to take up the challenge with their respective governments to prohibit certification to any film or video production that is “contrary to government policy”.
The CCA suggests that a simple reference to existing provisions of the Criminal Code may suffice to reach the objectives of the government in this matter.
Tell me more
As the CCA reported in a previous bulletin, this huge piece of legislation is intended to deal with a variety of issues related to the Income Tax Act.
Trough Subsection 125.4(1), the legislation also addresses the federal film and video tax certification provisions and would prohibit certification to any film or video production that is “contrary to government policy”. The government would proceed with the development of guidelines to interpret these provisions once the legislation is passed by the Senate and given Royal Assent.
The Committee received the Minister of Canadian Heritage and several of her officials on April 2, 2008. In her opening statement, the Minister asserted that the measure was not intended to be censorious but merely an extension of the government’s determination to ensure the prudent use of public funds. She also cited four other instances at the provincial level where similar provisions are embodied in the income tax acts of British Columbia, Newfoundland and Labrador, Quebec and Manitoba.
The Minister acknowledged that despite intensive consultations with the film and video industry, serious misgivings continue to exist within the cultural community. In an attempt to further assuage these concerns, the Minister told the Committee that she would not move to implement the controversial provision for one year following Royal Assent. During this time she and her officials would continue to consult with the industry and concerned organizations to develop the guidelines for eventual implementation.
While the CCA appreciates the willingness of the Minister and her officials to continue consultations with the cultural sector on this matter, several critical concerns remain. For example, the Canadian Library Association (CLA) has sent a letter on C-10 to the Chair and Vice-Chair of the Senate Committee on Banking, Trade and Commerce. In the letter the Association makes the following point:
“The CLA has serious doubts that the proposed provisions would withstand Charter scrutiny. Section 120(3)(b) amends the definition of “Canadian film and video certificate” in subsection 125.4(1) of the Act to add the requirement that the Minister is satisfied that “ public financial support of the production would not be contrary to public policy.” Subsection 120(12) further provides that the Minister shall issue guidelines respecting this condition and that such guidelines are not statutory instruments, as defined in the Statutory Instruments Act (SIA). The difference between a “guideline” and a “regulation is important because the latter must go through the process set forth in SIA while the former need not.
By delegating the power to the Minister to issue “guidelines “ that are not subject to the transparency requirements of the SIA, Bill C-10 in effect vests the Minister with the broad authority to censor films under the authority of guidelines that do not have to broadly vetted by the public, as would a regulation.”
It is unclear how a regulation based approach to the subsection in question would resolve the perception of censorship; nonetheless the additional transparency of a regulation is a marginal improvement to the proposed legislation.
It is also important to note that subsection 125.4(1) in C-10 is a revision to legislation that may be interpreted differently by a new Minister or government. While the goodwill of the Minister and her officials is greatly appreciated, there is no guarantee that this would be the case under a different administration.
Read the Blues of the April 8, 2008 Meeting (PDF) (CCA intervention starts on page 33)
What Can I do?
You can communicate your concerns to your MP and you can write either by mail or email (banking_banques@sen.parl.gc.ca) to the Chair of the Senate Committee:
Senator W. David Angus, Chair
Senator Yoine Goldstein, Vice-Chair
Senate Committee on Banking, Trade and Commerce
The Senate of Canada
Ottawa, Ontario K1A 0A4
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