CCA Bul­letin 12/08

April 10, 2008

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 (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