RE: Canada Bill C-60 and Canadian Broadcasting Corporation

May 22, 2013

Brian MacLeod Rogers

Ian Morrison
Friends of Canadian Broadcasting
200/238  131 Bloor Street West
Toronto, Ontario
M5S 1R8

Dear Mr. Morrison:

You have asked me to review proposed amendments set out in Bill C-60, currently before the House of Commons of Canada, that affect the Canadian Broadcasting Corporation, in light of its role as public broadcaster within the Canadian broadcasting system under the Broadcasting Act.

Under sections 228 and 229 of Bill C-60, certain new provisions of the Financial Administration Act (the "FAA") are specifically made applicable to the Canadian Broadcasting Corporation ("CBC").  These will give the federal Cabinet the right to direct that Treasury Board must approve the CBC's "negotiating mandate" for any collective agreement and may impose "any requirement" on that mandate.  Further, a Treasury Board employee may be required to attend and observe the collective bargaining process.  No collective agreement can be entered into by the CBC without Treasury Board's approval.  Similar provisions apply to the CBC's dealings with non-unionized employees. 

Apart from some generic statutory requirements in the FAA, the financial provisions relating to the CBC are set out as part of the Broadcasting Act.  These provisions (sections 52 to 70) were among amendments made in 1991 and reflected a decision by Parliament at the time to treat the CBC distinctly from other Crown agencies subject to the FAA.  In particular, the FAA's "direction and control" provisions were not made applicable to the CBC following recommendations by the Standing Committee on Communications and Culture (Fourth Report, February 1, 1987) and the federal Government's own policy paper, Canadian Voices: Canadian Choices: A New Broadcasting Policy for Canada (June 23, 1988).  In the Committee's report, the following concern was expressed:

The CBC should remain exempt from the power of direction provisions which are applicable to other crown corporations under the Financial Administration Act, and from any other provisions which would compromise the "arm's-length" relationship of the CBC with the government.

As a result, the following provisions were included in Part III of the Broadcasting Act, which sets out the CBC's legislative mandate within the Canadian broadcasting system:

s. 35(2) This Part shall be interpreted and applied so as to protect and enhance the freedom of expression and the journalistic, creative and programming independence enjoyed by the Corporation in the pursuit of its objects and in the exercise of its powers.

s. 52(1) Nothing in sections 53 to 70 shall be interpreted or applied so as to limit the freedom of expression or the journalistic, creative or programming independence enjoyed by the Corporation in the pursuit of its objects and in the exercise of its powers.

(2) Without limiting the generality of ss. (1) and notwithstanding sections 53 to 70 or any regulation made under any of those sections, the Corporation is not required to:
(a) submit to the Treasury Board or to the Minister or  the Minister of Finance any information the provision of which could reasonably be expected to compromise or constrain the journalistic, creative or programming independence of the Corporation; or

(b) include in any corporate plan or summary thereof provided to the Minister pursuant to s. 54 or 55 any information the provision of which could reasonably be expected to limit the ability of the Corporation to exercise its journalistic, creative or programming independence.

The proposed amendments under Bill C-60 are within the FAA, which does not contain these provisions, nor  do the amendments even refer to these statutory protections.  The unique role of the CBC as public broadcaster within the Canadian broadcasting system is carefully delineated under the Broadcasting Act, but not the FAA.  In particular, concerns that the CBC must maintain an arm's-length distance from the government and be protected from possible governmental interference - as well as that the public should perceive the CBC as independent - are not reflected in the proposed amendments. 

As a result, there appears to be a clear conflict between the carefully protected special status of the CBC under the Broadcasting Act and these new proposed provisions of the FAA that seek to impose direct control by the Treasury Board on all aspects of the CBC's employment relations, both unionized and non-unionized. There is a risk that the CBC will be seen as an arm of government, rather than at arm's length from it. After all, it is all too possible that government's levers of power, particularly its exercise of financial control, could be used in future to shape, diminish or even threaten the CBC's role as public broadcaster. Certainly, that perception by the public may be difficult to avoid, and CBC management and employees may find themselves affected in myriad and subtle ways in order to curry the government's favour or avoid its displeasure.

How can these very different visions be resolved as to how the CBC is to be treated, and its singular place be protected? It seems inescapable that resort will have to be made to the courts for a judicial determination to reconcile the apparent conflict.

If the government wished to avoid this outcome, it should remove the CBC from section 228(3) of  Bill C-60. At a minimum, some of the potential issues could be addressed by making the proposed  FAA clauses referencing the CBC explicitly subject to the protection afforded by sections 35(2) and 52 of the Broadcasting Act.

Yours very truly

Brian MacLeod Rogers

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Related Documents:

May 23, 2013 — News Release: CBC's independence at risk if Bill C-60 passes as is
Many of Canada's leading authorities and practitioners of journalism are calling for changes to Bill C-60 so that the government's Omnibus Budget legislation does not do irreparable harm to the editorial independence of the CBC.

May 23, 2013 — Letter: Letter to Prime Minister Harper regarding Bill C-60
A letter to Prime Minister Stephen Harper signed by sixteen eminent Canadians from the worlds of journalism and academia expresses deep concern that “Bill C-60 would undermine the arms-length relationship between the CBC, our national public broadcaster, and the federal government.”

May 23, 2013 — Policy Brief: Presentation to the House of Commons Standing Committee on Finance regarding Bill C-60
FRIENDS spokesperson tells parliamentarians that the CBC must retain its arms-length relationship to the government.