Canada
| Author | Robert Martin |
| Pages | 131-174 |
CANADA
BY
ROBERT
MARTIN
anada
is a
federal
state. This means that
the
jurisdiction
to
make laws
is
divided functionally between Parliament
— the
national legisla-
ture
— and the ten
provincial legislatures.
The
details
of the
division
of
lawmaking powers
are
found primarily
in
sections
91, 92,
92A,
and 93
of
the
Constitution Act,
18671
and in the
considerable body
of
case
law
interpreting these sections.
There
is, for the
purposes
of the
division
of
powers,
no
discrete con-
stitutional subject matter called "expression." That
is to
say, expression
as
a
subject
for
legislation does
not
belong exclusively
to
either Parliament
or the
provincial legislatures.
It
belongs
for
some purposes
to
Parliament
and for
others
to the
provincial legislatures.
To put it
another way, Parlia-
ment
may
make laws about certain aspects
of
expression
and the
prov-
inces
about others.
Parliament's primary authority
to
enact laws
affecting
expression
comes
from
its
exclusive jurisdiction
to
make criminal law.
As a
result
of
judicial decisions, Parliament also
has
jurisdiction with respect
to
purely
political expression, emergency powers,
and
broadcasting.
The
authority
of
the
provincial legislatures stems primarily
from
their jurisdiction over
"Property
and
Civil Rights
in the
Province." This
has
allowed
the
provin-
cial
legislatures
to
make laws with respect
to
defamation
and
privacy.2
(U.K.),
30
&
31
Viet.,
c.
3.
Recent
discussion
of
these issues
by the
Supreme Court
of
Canada
can be
found
in
Irwin
Toy
Ltd.
v.
Quebec
(A.G.),
and
RJR-MacDonald
Inc.
v. A. G.
Canada,
311.
131
INTRODUCTION
C
1.
2.
A.
OWNERSHIP
AND
REGULATION
OF
THE
MASS MEDIA
i)
Locally
Owned
Mass
Media
a)
Electronic
Media
Broadcasting,
while
not
mentioned
in any of our
constitutional texts,
has
been
determined
by
judicial decision
to be a
matter wholly within
federal
jurisdiction.3
The
current legislation states that
the
"Canadian broadcast-
ing
system"
has
three "elements":
the
"public,"
the
"private,"
and the
"community."4
This wording
is
misleading.
It is not
clear what
the
"com-
munity" element
is or
even
if it
exists.
The
"public" element
refers
to the
broadcasting
services
run by the
state
— the
English-language Canadian
Broadcasting
Corporation (CBC)
and the
French-language Radio-Canada.
State
ownership
of one
element
in the
broadcasting system does
not
appear
to
have
any
direct
effect
on
freedom
of
expression. While
the
"pub-
lic" element
is
established
by
statute
and
funded,
to a
degree,
by the
state,
its
institutional structure
as a
Crown corporation minimizes
the
possibility
of
direct interference
in its
internal operations.
On one
occasion
the CBC
did
apply
self-censorship
in
adhering
to the
government
of
Canada's posi-
tion concerning
the
crisis
of
October
1970.5
In
addition, years
of
reduced
state
funding
for the CBC
have
had an
indirect
effect
on the
content
of
broadcasting. Denied adequate public funding,
the CBC has
been
forced
to
rely more
and
more
on
advertising revenues, which
has led it to
produce
more
of the
programming that will gain
the
approval
of
advertisers
and
less
of
the
programming that many believe
its
mandate requires.
Private
broadcasting
is
very much recognized
in
Canada today.
In
many respects
the
history
of
Canadian broadcasting
is a
history
of the
steady
decline
of
state broadcasting
and the
concomitant rise
of
private
Reference
Re
Regulation
and
Control
of
Radio
Communications
in
Canada,
(P.C.).
Broadcasting
Act,
S.C. 1991,
c. 11, s.
3(l)(b).
G.
J.
Robinson, "The Politics
of
Information
and
Culture during
Canada's
October
Crisis"
in G. J.
Robinson
and D. F.
Theall, eds.,
Studies
in
Canadian Communications
(Montreal:
Programme
in
Communications, McGill University, 1975).
COUNTRY
REPORTS
132
3.
4.
5.
Canada
broadcasting.6
The
formal
story
of
state regulation
of
broadcasting begins
with
the
Aird
Report
of
1929.7
The
report recommended "public ownership,
operation
and
control"
of
broadcasting
in
Canada.
It
also recommended
that there
be no
private broadcasting. This last recommendation
was not
followed
when legislation
to
implement
the
Aird recommendations
was
enacted
in
1932. There
was to be
private
broadcasting,
but it was to be
sub-
ordinate
to the
public broadcasting service. Private broadcasting received
a
major
boost when
fresh
legislation
was
enacted
in
1958.
The CBC
lost
its
dual
role
of
regulator
and
provider
of
programming.
A new
independent
agency
was set up to
regulate both
the
public broadcaster
and
private broad-
casters.
The final
step came
in
1968 when
yet
another broadcasting statute
was
enacted. This legislation recognized
the
status
of the
"private element
of
the
Canadian broadcasting system"
as
equal
to
that
of the
public element.
No one may
operate
a
"broadcasting undertaking" without
a
licence
issued
by the
Canadian
Radio-Television
and
Telecommunications Com-
mission (CRTC).
To be
successful,
an
applicant
for a
licence must
fulfil
financial and
technical requirements,
as
well
as
meet certain conditions
with respect
to
what
it
plans
to
broadcast. Even
the CBC
requires
a
licence.
Broadcasting licences
are
normally
valid
for five
years
and may be
renewed. There
is no
evidence that
the
licensing process
has
been used
as
an
express means
of
restricting
the
sorts
of
information
or
opinions that
may
be
broadcast.
On the
other
hand,
applicants
planning
to air
material
that
is
consistent with current notions
of
orthodoxy
may find the
process
before
the
CRTC less than rigorous.
The
CRTC's regulatory powers
are
exercised primarily through
the
licensing
process.8
The
CRTC
may
revoke, suspend,
or
refuse
to
renew
a
licence. However,
the
CRTC
has
never revoked
a
licence
and
most suspen-
sions
or
refusals
to
renew have
had to do
with
financial and
technical mat-
ters,
not
program content. Indeed, suspensions relating
to
program con-
tent have ordinarily involved blatant breaches
of the
promise
of
performance,
which
is a
document
filed by an
applicant
for a
licence indi-
cating
the
kinds
of
programming
it
intends
to
broadcast.
The
document
Two
useful
sources
are
Margaret Prang, "The Origins
of
Public Broadcasting
in
Canada"
(1965)
46
Canadian
Historical
Review
1, and
Marc Raboy,
Missed
Opportunities:
The
Story
of
Canada's
Broadcasting
Policy
(Montreal:
McGill-Queen's
University
Press,
1990).
Royal
Commission
on
Radio
Broadcasting,
Report
(Ottawa: F.A. Acland, Printer
to the
King,
1929).
CKOYLtd.v.
The
Queen,
2.
133
6.
7.
8.
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