CCA Bulletin 21/08

June 23, 2008

Bill C-10 – Could the Liberal Senator’s Amendments trigger an election?

Just the Facts

For months now, the Standing Senate Committee on Banking, Trade and Commerce has been hearing witnesses preoccupied with section 120, (3) of Bill C-10 .

While other sections of this mammoth omnibus Act have also raised concerned from various quarters, it is this short section of the 568 page document that has caused the most turmoil, as it pertains to give to the Minister of Heritage the authority to refuse to issue tax credit certificates to films or television programs deemed to be “contrary to public policy”. While many witnesses have pointed to the negative economic impact on film and television production this ex post facto discretionary power would have, many (including the CCA) have characterized it as a potentially serious threat to freedom of expression.

Liberal Senators Francis Fox and Wilfred Moore have now released amendments that they intend to introduce when the Senate proceeds to clause by clause examination by the Standing Senate Committee on Banking, Trade and Commerce.

According to these amendments,

The Minister of Heritage would no longer have the power to refuse a tax credit on the grounds of “public policy” or to issue guidelines about film content.
The Minister could only deny tax credits to film or TV productions that contravene the Criminal Code (for example, because they include child pornography or hate speech
The Minister of Heritage would be required to consult with the Minister of Justice before any tax credit could be revoked, and those producers that had their tax credits removed would be able to appeal the decision to the Federal Court.

The amendment under scrutiny was first introduced in 2003 by the previous Liberal government and contained the same provisions that are the source of concern in Bill C-10. Nonetheless, after many witnesses from all sides of the film industry, civil liberties organizations and the CCA appealed to Senators to remove the potential for interference in artistic freedom posed by C-10, Senators Fox and Moore have responded with the proposed amendments.

The changes proposed by the Senators would;

remove the power for the Minister of Canadian Heritage to refuse tax credits based on “public policy” or to issue guidelines about film content, while at the same time safeguarding the right to deny funds when the production itself is contrary to the Criminal Code;
Give producers an efficient judicial appeal mechanism if the Minister blocks or delays funding;
Continue to prevent government funding of pornography, child pornography and hate propaganda.

The amendments must survive a vote in the Senate on C-10, a development that is not expected to happen until sometime in the Fall session of Parliament. If the amendments are passed by the Senate, the proposed legislation must go back to the House of Commons where it will be reviewed again by the Standing Committee on Canadian Heritage.

The Government has characterized C-10 as confidence measure, meaning that if the legislation in its current form is not passed without amendments by the Senate, an election must be held. When he appeared in front of the Senate Committee, the Minister of Finance stated that since this is finance bill, it must be seen as a confidence vote in the government. Other procedural experts have questioned the validity of this interpretation of a bill that amends the Income Tax Act but is not a money bill as such. The government can call for a confidence vote on any bill it presents to Parliament, irrespective of the nature of the bill, and it has done so last winter after the new Throne Speech. However, to date, no formal designation of C-10 as a confidence vote has been made.

Tell Me More

As anyone who has waded through C-10 can tell you, the proposed legislation is complex and the part that deals with the film certification measures is a minor part of the bill. Nonetheless, the Senators have provided details of how their amendments would appear in C-10.