Proceedings of the Standing Senate Committee on
Transport and
Communications
Issue 25 - Evidence
OTTAWA, Tuesday, April 27, 1999
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-55, respecting advertising services supplied by foreign periodical publishers, met this day at 6:18 p.m. to give consideration to the bill.
Senator Marie-P. Poulin (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this is the fourth meeting of the Standing Senate Committee on Transport and Communications as it continues its study on Bill C-55. Our witness today is Professor Patrick Monahan from Osgoode Hall Law School.
Please proceed, Professor Monahan.
Professor Patrick J. Monahan, Osgoode Hall Law School: Madam Chair, it is a great pleasure to once again have the opportunity to meet with senators and to discuss issues of public policy.
I have submitted a brief, which is a rather detailed memorandum. I apologize for not having been able to circulate it previously, but I only completed it earlier this morning. I realize it is very detailed, so I will simply touch on some of the main points. We can then elaborate on issues that may be of interest or concern in the discussion period.
As I indicate on page 1 of my memorandum, I have been retained by the Canadian Magazine Publishers Association to provide a legal opinion with respect to the freedom of expression issue in Bill C-55. I wanted to disclose that to senators.
As is my practice, I have worked independently. In fact, I have never spoken directly to anyone with the Canadian Magazine Publishers Association. I simply provided them with my analysis of the constitutional issue. I think it is important that senators be aware of that involvement.
I wish to focus on a specific constitutional issue, that is, whether Bill C-55 limits freedom of expression, which is guaranteed under section 2(b) of the Charter of Rights; and if it does, whether that limit or infringement can be justified under section 1 of the Charter.
I will not be speaking to, and have not considered, any other constitutional issues that might possibly be raised by the enforcement provisions of the proposed legislation. I have no view to express on those because I have not had an opportunity to consider them. Similarly, I will not be speaking to any of the trade issues that I know have been discussed extensively before the committee.
In terms of the freedom of expression issues, as you are aware, being familiar with them, the Charter analysis proceeds in two stages. The first stage of the analysis is the consideration of whether there is an infringement of a protected right or freedom. If the answer is in the affirmative, then one moves to the second stage to consider the justification under section 1.
In my view, it is likely that Bill C-55 does infringe the guarantee of freedom of expression under section 2(b) of the Charter. The main reason I have come to that conclusion is that clause 3 of the bill prohibits Canadian advertisers from purchasing advertising from a foreign publisher of a periodical where that advertising would be directed at the Canadian market. It says to Canadian advertisers that they are not allowed to use that method of advertising in a foreign periodical. In my view, that constitutes a limit on freedom of expression because our courts have held that commercial speech, including advertising, is a protected right. Therefore, this limit would be an infringement of that right of advertisers to communicate with consumers.
I also consider a second possible way in which Bill C-55 might infringe freedom of expression. The bill may also infringe the right of consumers to receive information from advertisers. If evidence could be led to establish that consumers were being limited in the information they could receive, that would also constitute a limit of freedom of expression. The courts have held that individuals have a right to receive information and that that is an aspect of the right of freedom of expression.
That conclusion is less certain because it is not clear to me, from the material that I have reviewed, that Bill C-55 does limit information provided to consumers in Canada. Based on the task force report in 1994, we have evidence to suggest that there is a very robust advertising market in Canada. In 1992, estimates indicated that approximately $8.3 billion was spent by Canadian advertisers to direct messages at Canadian consumers. The material that I have reviewed indicates that if Bill C-55 were not enacted, you would not have any growth or increase in the total advertising directed at the Canadian market. Rather, you would tend to see a reallocation of advertising in favour of magazines. That is to say, magazines would become a somewhat more attractive vehicle for advertising if split-run editions were made available. However, it is not clear that the message and content of advertisements would be any different, or that consumers would receive information that they do not now receive. On that basis, it is more difficult to establish that the bill limits consumers' rights to receive information. The bill clearly does limit the right of advertisers, and on that basis, I think the bill would violate freedom of expression.
That takes us to the question of whether this limit or infringement can be justified under section 1 of the Charter. That process involves a consideration of the objective of the proposed legislation. The courts have said that in order to limit Charter rights, the objective being pursued must be pressing and substantial. If the bill meets that test, you then move to a proportionality test, in which you consider whether the means used to achieve the objective are proportional to that objective.
I discuss whether this is a pressing and substantial objective beginning at page 8 in the brief. I note that the objective, from the legislative history, including the previous decisions of the World Trade Organization panel and the appellate body that preceded Bill C-55, clearly indicates that the purpose is to ensure that Canadian periodicals have access to Canadian advertising directed at the Canadian market.
The reason is that periodicals and magazines are seen to play a very important role in Canadian cultural development.
In paragraph 6.2, for example, on page 8, I cite the O'Leary commission report of 1961, which suggests that magazines are "the thread which binds together the fibres of our nation." It also suggests that they "make democratic government possible and better government probable," on the theory that magazines do not simply report information, but also synthesize, expand and comment upon it, and in that sense, add an important dimension to Canadian cultural development.
It seems to me that the objective of this legislation, which is to preserve that industry and the advertising base that supports it, would be held to be a pressing and substantial objective by the courts. In paragraph 6.5 on page 9, I have listed for you certain other objectives that have been held in recent years to be sufficiently pressing and substantial that they would justify limits on the guarantee of freedom of expression. Some examples are the objective of protecting voters from misleading polling information, and of decreasing the consumption of tobacco products.
In light of those previous decisions, it is very likely that the courts would say that the objective of enhancing the national identity and cultural sovereignty of Canada through the promotion of a viable magazine industry is a pressing and substantial objective.
That then leads to the proportionality test under section 1, to which there are three elements. First, you must show a rational connection between the proposed legislation and the objective. In that regard, if you are restricting rights, you must show that the restriction serves its intended purpose. Here it would appear that there is evidence to suggest that Bill C-55 would in fact provide a viable base for the Canadian magazine industry. In that sense, the bill would logically further the objective underlying the proposed legislation.
I also note that the bill is not tied to the specific content of the publication. I discuss that in paragraph 7.5 on page 10, where I point out that the bill is focusing on whether the publication is published by a foreign publisher and not on its content.
I suggest on page 11, in paragraph 7.8, that if the government were able to tender evidence to suggest that there is a link between Canadian-owned magazines and Canadian content, the approach taken in Bill C-55 would satisfy the rational connection branch of the proportionality test.
The second part of the proportionality test is whether the legislation is a minimal impairment of rights. This involves a consideration of whether there are alternative measures that would accomplish the objectives without the same degree of infringement on Charter-protected rights. Here the courts will be mindful of the fact that Bill C-55 constitutes a relatively limited restriction on the access of Canadians to advertising and information.
I have already pointed out that it is difficult to see that consumers are being deprived of any information by the enactment of Bill C-55 that they would otherwise receive. In other words, courts would characterize this legislation as a limit on rights, not a total ban on freedom of expression.
In cases where they have characterized, or regarded, or examined proposed legislation that is a partial as opposed to a total limit on rights, the courts have tended to be very deferential to the approach that Parliament is taking.
I also discuss some of the alternatives that might be advanced in place of Bill C-55. For example, on page 12, in paragraph 8.7, I discuss the possibility of having, instead of a prohibition, a system of grants and/or refundable tax credits as a means of assisting the Canadian periodical industry. These alternatives would be less restrictive of Charter rights, but there would be real questions about their effectiveness in achieving the objectives of Bill C-55. The courts would be very reluctant to second-guess Parliament's judgment as to the importance of having a prohibition as opposed to using grants or tax credits. I note there on page 12 some of the uncertainties and complexities that would be associated with a system of grants or tax credits.
Finally, this analysis leads us to say, on the final branch of the Oakes test, that there is a proportionality between the deleterious or negative effects of the measure and its positive effects.
In conclusion, it is my view that it is likely that any infringement of rights -- and I think there would be infringement of section 2(b) rights -- would be justifiable as a reasonable limit on rights under section 1 of the Charter.
Senator Beaudoin: Professor Monahan, obviously the main question is whether it is against the freedom of expression. Under division of powers, I do not see any initial problem because we are concerned with international trade. It encroaches on local trade, but not to the extent that I see something against the division of powers in this bill.
My questions are on section 2(b) of the Charter. Freedom of expression has been very generously interpreted by the Supreme Court of Canada these past five years.
My first reaction is that the bill does restrict the freedom of expression and you say the same thing. I understand that, for you, the debate is on section 1. Is that restriction justifiable in a free and democratic society? You say yes.
There is one comparison that we may make with the RJR-MacDonald case on tobacco. If I am not mistaken, the bill was declared ultra vires, or invalid, by the Supreme Court because the ban was total. If the ban is total, such a restriction of the freedom of expression cannot be sustained by the court under section 1.
If we read the bill quickly, the ban is serious and important. I have no problem with the objective of the bill. I have no objection to preserving Canadian identity and culture, et cetera. That is not the problem for me. The only place where I may have some hesitation is on the ban itself.
You say it is not total, but it is in certain areas. Can you say something about that?
Mr. Monahan: Thank you, senator, for that question. The RJR-Macdonald case is a very useful example to focus on in explaining why this bill in my view does not constitute a total ban. That proposed legislation said that it was unlawful to advertise a tobacco product. One could not even provide, as Madam Justice McLachlin said, purely informational advertising that, for example, would point out to consumers that certain tobacco products might have lower tar and nicotine levels than others. Even that information could not be provided to consumers. That is not the case here.
This case says nothing about any advertiser who wishes to advertise his product. It simply says, "You may advertise your product freely, but you may not do so in this particular magazine or kind of magazine." In other words, if we compared it to the RJR-Macdonald situation, it would be as if we had said to the tobacco manufacturers, "You may not advertise in newspapers, but you may advertise in magazines," or vice versa. That would not be a total ban because it would have permitted the cigarette manufacturers to advertise and to reach consumers. They were not allowed to do so in that case, whereas here, as I say, there is no evidence that advertisers are unable to reach Canadian consumers. Indeed, there is evidence to suggest that upwards of $10 billion a year is being spent by advertisers to reach consumers.
Senator Beaudoin: There is a ban somewhere.
Mr. Monahan: There is a limit. If we say that any limit is a total ban, then there is no distinction between a total ban and a limit, because any time we tell someone he cannot advertise in this particular way or in this particular publication, we could say that constitutes a total ban. However, that cannot be right because then there is no distinction between a limit and a total ban.
Here, there is no manufacturer or advertiser being prevented from communicating with consumers, either through Canadian-owned periodicals or, of course, through other available vehicles such as television, radio, newspapers, outdoor advertising, and so on. There is thus no basis for claiming that a manufacturer or advertiser cannot communicate with their intended consumer.
Senator Beaudoin: You may have a total ban in a particular area, but your argument is that, if it is not a total ban as in the tobacco bill case, we cannot conclude that it is indeed a total ban.
Mr. Monahan: Let me give you another example. Another case where the court recently said there was a total ban involved proposed federal legislation prohibiting the publication of polls in the 72 hours prior to an election. That was a total ban because you could not communicate at all with Canadians during that time.
There was an earlier case involving a limit on dental advertising, this time a provincial limit. The province authorized a dental association to say that dentists could not advertise at all with their consumers -- again, a total ban preventing a speaker from communicating with the intended consumers of those services. Those are different cases, I suggest, from this one, where the limit is on a particular method of advertising. I would characterize this as a limit on the time, place or manner of advertising rather than as a total ban on all advertising.
Senator Beaudoin: Which it was in the case where the court declared it could be justified. Your argument is that, since it is not a total ban, it is justified in a free and democratic country like Canada because we have to save our own identity and so on.
Mr. Monahan: I am saying this is a relatively limited restriction on freedom of expression and that the courts will defer to Parliament's judgment unless there is a clearly superior alternative. I am also saying that there are clear benefits to be derived, in the form of a viable Canadian magazine industry, which the courts will also say in fact further the values of freedom of expression having to do with promoting individual and collective self-development and self-government. In that sense, Bill C-55 is compatible with the underlying values that justify the freedom of expression guarantee in the first place.
Senator Spivak: Professor Monahan, obviously you are talking about the right of Canadian consumers to receive information. Is that right total? For example, could it not be argued in the RJR-Macdonald case that, because of the danger to consumers, there was really no right to receive that information? Is that right always total, or unimpeded or unamended?
Mr. Monahan: No, it is not total, but certainly in the RJR-Macdonald case, and in others, the courts have said that consumers have a right to receive information unless there is a justifiable reason, in accordance with this test that they have developed, for limiting that right. In other words, if government wishes to prevent Canadians from receiving information, they have to justify that under the Charter. I do not think there is really any information here that Canadians are being deprived of; that is my point. It is not clear to me in this case, unlike RJR-Macdonald.
Senator Spivak: I understand your point. I am questioning whether that right is always untrammelled. Suppose it was the right to advertise homemade bombs or something like that. Can it be argued that you cannot have a total ban on that sort of information?
Mr. Monahan: No, not at all. In fact the courts have suggested that you can limit the provision of information. It is certainly not an untrammelled right. In that case, we would say it is justified to say you cannot publish plans to build nuclear devices or some such thing.
Senator Spivak: So there are levels of rights. In other words, the right to a Canadian identity is not the same as in the case of something dangerous, in which case we could limit the right of consumers to access that information.
Mr. Monahan: If we look at the objective of promoting Canadian identity and cultural sovereignty, we see not only Bill C-55, but a variety of other federal statutes that have the same purpose. I think the courts generally will be receptive to limiting the free market, which would in fact allow for American domination of our cultural marketplace, in the interests of ultimately protecting our collective sense of identity and the ability to communicate among ourselves.
Senator Rompkey: This is a little off the topic of your brief, but I would like to get some evidence from you on the international situation. Are you aware of other countries that have passed similar legislation? Is there any country that you can think of that is in the same situation as Canada and has brought in similar legislation to deal with the problem?
Mr. Monahan: I am not aware of any analogies, senator.
Senator Rompkey: With regard to alternatives, you have alluded to tax breaks. We have had testimony from other witnesses that perhaps this might be a reasonable alternative, and in fact a better way of dealing with this problem than legislation.
However, this bill is revenue neutral, whereas the question in our minds is what would be the appetite of the Canadian people for giving tax breaks to Canadian magazines? If they do not have an appetite for giving tax breaks to Canadian hockey teams, it is unlikely they will have an appetite for giving them to magazines. Do you wish to comment on that? Is the bill a better solution than a monetary alternative, in your opinion?
Mr. Monahan: Let me say that I do not know whether the bill in the absolute is a better alternative than tax breaks. I can tell you it is very unlikely that the courts will want to substitute their opinion on that issue for the judgment of Parliament.
I will offer you some comments on that, because I discussed it on page 12 of the brief. If we look at the experience with refundable tax credits in other areas, we see that if the credit is set at a very high level, let us say, for example, 100 per cent of your investment in a particular area, it can be credited against the payment of taxes. We have seen instances where that has been the case.
I shall first say that that has a very high cost to the treasury, which I think you are saying is something the Canadian people may not wish to countenance. Second, it results in windfalls for certain investors. It is very difficult to target that. If you wish to support the industry, presumably you must do so on open-ended basis. Therefore, you must allow people to receive as much of a break or investment credit as they would like to obtain.
It would seem very difficult to structure a tax credit system that would achieve the objectives that Bill C-55 is trying to achieve. It would not be impossible to do it, but it would be very costly and it would be subject to this skewing of investor decisions in ways that the government might regard as inappropriate.
I am here to offer a constitutional view. I am quite confident that the courts will not wish to interfere in this kind of issue. They will not say, "You should use tax credits or grants rather than a prohibition." I do not think the courts will regard that as something that they are competent to pass judgment on. I am also not competent on this subject; I am simply here to tell you what I think the courts will do.
Senator Kinsella: Professor Monahan, your analysis is very helpful. I am almost satisfied with your opinion that perhaps there is no Charter problem here, and therefore I would be prepared to go into clause-by-clause review in the short term, Madam Chairman.
However, that being said, where in the bill do you find the pressing and substantial objective that must be clearly identified in the Oakes analysis?
Mr. Monahan: I do not see a purpose clause in the text of the bill. It is not uncommon these days to have a purpose clause, but many statutes do not have them. Certainly, many statutes that were enacted some years ago that are still on the books do not have purpose clauses.
In the absence of a purpose clause, the courts will examine the legislative history of the bill, and determine what the purpose is based on that. There must be a purpose to the bill. It may or may not be a pressing and substantial purpose, but there certainly is a purpose to any bill.
The first principle of statutory interpretation is that you analyze the purpose of the bill, and that means, the mischief that the bill is intended to remedy.
Clearly, given the history of Bill C-55 and the events that preceded it, namely the World Trade Organization rulings striking down previous measures, it seems clear to me that the purpose is to preserve the advertising market for Canadian periodicals so that they remain economically viable. I do not think the courts would have a great deal of difficulty in ascertaining that as the purpose. I also think that the courts would not have much difficulty in finding that that is a pressing and substantial purpose.
If there is a question, it is to do with the issue of a rational connection. Is there a rational connection between that purpose and/or a minimal impairment. Is there a minimal impairment of rights. My view is that it is rationally connected and there is minimal impairment; however, that is where the debate would be joined.
Senator Kinsella: When you get to the minimum impairment assessment and a reading of the RJR-MacDonald case, and looking at the way the majority of the court went, could you see that as a judgment call? Of course, by definition, what the courts do is make judgments. However, one could argue the other way.
Your opinion is that if the court is making this assessment, you think, on the balance of probabilities, it will come down in support of proposed section 1?
Mr. Monahan: Yes. Senator, I do not wish to rehash the discussion that I had earlier with Senator Beaudoin. However, there are clear distinctions between this case, this proposed legislation, and what was before the Supreme Court in the RJR-MacDonald case.
In that case, the court focussed on the fact that there were some alternatives that could have been pursued -- for example, a limited ban that allowed the provision of informational advertising to consumers. In fact, there has been at least one study by government on the relative effectiveness of a more limited ban that would permit informational advertising. The government refused to table that study before the Supreme Court.
Therefore, the court said there was an alternative that seemed to accomplish the objective. They had no evidence as to why the government did not choose that alternative, and therefore they had no choice but to say that the legislation was overly broad and strike it down.
While there are some alternatives, there are also clear difficulties and difficult judgments that would have to be made before you said that any of them was preferable to what we have in the bill. That is why I regard this as quite a different case from the one we had there.
Senator Kinsella: Professor Monahan, is there Charter jurisprudence that speaks to the issue of the right to expression and the means that one may use to exercise that right?
Mr. Monahan: Yes, there is. In the Ford case dealing with the language of signs in Quebec, the Supreme Court said that the guarantee of freedom of expression did not merely guarantee what was said, but also applied to some extent to the way in which you said it. Being able to say something in the English language was an important part of freedom of expression in that case. There is support for that.
I am not sure, however, that you can draw a straight line between the Ford case and what we have here. There is essentially very little difference between an advertisement placed in a Canadian periodical as opposed to the same or similar advertisement in an American one. It is not clear that there is any difference between those two advertisements in the same way that there was in the Ford case, where the medium -- the language -- did make a difference. It was meaningful.
I think that would be an argument in favour of the view that there is a limit on freedom of expression. I have already concluded that the courts would likely come down in that way.
Senator Kinsella: They would have to focus on dealing with the limitation on where that right is expressed.
Mr. Monahan: That is right.
Senator Callbeck: Mr. Monahan, my question is about Canadian culture. In your opening comments, you talked about magazines playing an important role in cultural development. In fact, you said magazines bind together the fibres of our nation and add an important element to cultural development in Canada. I agree with those comments.
Without Bill C-55, the U.S. publishers could come into Canada with their split-run editions and put Canadian publishers out of business. We would then not have access to Canadian magazines that contain articles about concerns and issues in which Canadians are interested.
Critics of Bill C-55 say that this issue has nothing to do with culture, no matter whether this proposed legislation is passed or not. I take it from your comments that you disagree with these critics.
Mr. Monahan: There are various aspects to this bill, but clearly one of the major ones is the cultural importance of magazines. If we look at the task force report of 1994 that examined the magazine industry, it spoke extensively about the importance of magazines to Canadian cultural development.
There is also an economic aspect to this issue because we are talking about an industry providing a base of advertising services to that market. However, I would agree with you that for constitutional purposes, at least, the courts will see this bill as serving an important cultural purpose in Canada.
Senator Lynch-Staunton: I am one of those who has yet to be convinced that this bill will foster Canadian identity and culture.
I do not want to extract a statement from a context that may justify it in a different way than I am interpreting it, but you say in paragraph 7.5 of your brief that:
...advertising in periodicals produced by Canadian publishers is permitted even if the publication contains no content specific to Canada.
I think that confirms what we heard from other witnesses, that Canadian content, as defined, may not have anything Canadian as a result. It could originate here, be written here by a foreigner on a foreign subject, and yet because of its origin and its domicile, it is considered Canadian content. That came as a surprise to me. I thought Canadian content meant that, for the reader, it had something to do with Canada, but it turns out that it does not. I do not see how this bill changes that.
Mr. Dennis Browne, who was a witness last week, said quite bluntly that it has nothing to do with culture, but everything to do with protecting the Canadian magazine industry and giving it a full monopoly on Canadian magazine advertising dollars. Is that a fair summary of what this bill, if passed, will do? It is not meant so much to foster Canadian culture and identity, as well as Canadian content as I would define it; rather, it is meant to preserve for the Canadian magazine industry, as defined, all available magazine advertising dollars.
Mr. Monahan: Senator, you have hit on a very important point because it is a point that would be of concern to the courts -- the fact that the proposed legislation is not tied to the subject matter of the magazines, but rather the nationality of the publisher.
I think it would have been open to the government to structure this measure based on the content of the magazines. That would have been a possibility. However, that measure arguably would be a greater infringement of charter rights, in the sense that it would require an assessment, by a court or some official, of the publication to determine whether it qualified as "Canadian content."
Senator, this approach, which is content neutral, does not have any official or court looking at the contents of a magazine and deciding whether the contents are sufficiently Canadian or not. In that sense, it is probably easier to justify on Charter grounds, subject to one caveat. The courts would expect the government to show that there is a link between the nationality of the publisher and the content of the publication. They would want the government to show that Canadian magazines do contain a significant Canadian content. If the government could not establish that in court, it would have a lot of difficulty showing that there is a rational connection between the objective, which I think is a cultural one, and the proposed legislation.
I have not obtained or seen any such evidence, but I think the government would have to marshal that evidence in court.
Anecdotally, senator, that would seem to be true. When one looks at Canadian periodicals, one sees significant Canadian content. That does not mean they only contain articles about Canada or written by Canadians. When you look at those magazines, anecdotally, if you want to read about Canada in the magazine periodicals, you will buy Canadian magazines because that is where you will find it.
I agree with you, senator. If you could not establish that link, you would have a problem. However, I expect that the government will be able, if this matter goes to court, to tender evidence to show that there is that link between Canadian publishers of periodicals and significant Canadian content.
Senator Lynch-Staunton: The bill does not make any reference to culture whatsoever. The word does not even appear in the summary inside the front cover and certainly not in the text. How can that link be made?
Mr. Monahan: That link would be made by analyzing the Canadian periodicals that are currently published and the extent to which they contain content about Canada or a Canadian perspective on international affairs. I do not see why we would say that it has to be only about events in Canada. It may be a Canadian perspective on the events in Colorado last week. That is part of what is sought here, not just an American discussion of those events, but a Canadian discussion. What do they mean to Canadians? That is just one example of what we could have in our Canadian magazines that we might not find in U.S. publications.
I am not bothered by the fact that the word "culture" does not appear in the bill, or that it is content neutral and does not involve an official analysis, a reading through magazines asking if there is enough Canadian content. That has proven problematic in some other areas of regulation where judgments like that must be made and the judgments are often criticized. Anomalies may result because certain recordings or other types of cultural products are said not to be or to be Canadian, as the case may be. Those decisions are criticized from time it time. That is avoided here because of the content-neutral structure of clause 3.
Senator Lynch-Staunton: Would you accept the argument that this bill, if passed, will not foster Canadian content as you and I seem to understand it?
Mr. Monahan: No, I do not see why you would say that. If it will foster a Canadian magazine publishing industry, and if that industry will publish, in the way I think it does, material either about Canada or having a Canadian perspective on these other world events, that does foster a sense of cultural identity, a sense of communication as Canadians.
I do not know what more we could ask from a legal or constitutional point of view. As philosophers, I suppose we could have a discussion about culture and what it means anyway. Do people read magazines? Do they reflect on them? As a lawyer, I cannot see that courts will want to concern themselves with those questions, frankly.
Senator Lynch-Staunton: A foreign publication as defined by this bill may have a higher Canadian content, as you and I understand it, than a domestic one. This bill would not change that.
Mr. Monahan: That is right, and you would not be allowed to advertise in the foreign publication.
Senator Lynch-Staunton: That is the strange anomaly in this whole exercise.
Mr. Monahan: The reality, senator, is that we must ask to what degree that is a practical possibility. If we replaced the existing Canadian periodicals with foreign ones that had Canadian editions, although theoretically they might run a lot of Canadian content, in the real world that is unlikely to happen because there is just no economic rationale for it. Why would they bother to spend money on this Canadian content when the magazine will be purchased anyway? That has been the experience, such as it is, with the split-run editions in Canada.
As a practical matter, there will not be a large investment in Canadian content in these foreign periodicals. Theoretically, yes, even if they wanted to devote all this energy to producing this Canadian publication, you still could not advertise there. It seems to me that, practically speaking, that is not a likely possibility. The courts would not then regard this approach of focussing on whether it is a Canadian advertiser or a Canadian publisher as opposed to a foreign publisher as irrational.
Senator Lynch-Staunton: If the Canadian ownership of Maclean's, or of its owner, Rogers, dropped below 75 per cent, according to the clause that touches on ownership, Maclean's would be considered a foreign publication.
Mr. Monahan: That is correct. That would be the case also under the Income Tax Act. Section 19 of the Income Tax Act has exactly the same definition.
Senator Lynch-Staunton: This is straying from your main interest of constitutionality, but do you not think 75 per cent is a bit harsh as a definition of foreign versus Canadian ownership?
Mr. Monahan: It is the definition used in the Income Tax Act. I do not have a view as to what the level should be.
Senator Lynch-Staunton: I am not able to accept a link between this bill and the protection and fostering of what we call Canadian culture, despite our differing definitions. We all have our own definitions but with the same objective. How will this bill help that goal? I have yet to be convinced. We are protecting a very important industry with this bill, but how many other industries must be protected in the name of Canadian culture? There must be a lot of them.
Mr. Monahan: I am not here to convince you of the wisdom of the bill. I am here as a constitutional lawyer to tell you whether the bill would be ruled unconstitutional. There are political views about the wisdom of legislation. The courts are not there to pass their judgment on the wisdom of legislation. They are there to deal with the constitutionality. You may have a view about the wisdom of the bill. I do not think the courts will say this proposed legislation is unconstitutional.
Senator Joyal: You said that if this bill was linked to a significant proportion of Canadian content -- let us say 75 per cent to make a parallel with the tax act -- it would be a greater infringement of the Charter. Could you come back to that? If we make it a condition that a foreign publication that wants access to the advertising services industry in Canada must have a certain measure of Canadian content, then in your opinion, we would cause a significant additional infringement to the other nationality. Is that your reasoning?
Mr. Monahan: I do not want to say that it would be impossible to structure a content-based restriction that could survive Charter analysis. I am not saying that, but I am saying it would be more difficult to design that kind of a measure.
What is your definition of Canadian content? Who will exercise that judgment? Someone will have to sit and look at a magazine and decide if the magazine has the necessary Canadian content. That requires the exercise of discretion by someone. That might be more difficult to justify because it is then looking at what people were writing. People might be induced to write and publish their magazine in a certain way to fall within this content restriction. That is a greater potential intrusion into freedom of expression than what we have here.
I do not mean to say it could not be done, but it would be difficult to design a measure that would not involve the exercise of discretion by officials. That might have a negative effect on the decisions of publishers as to what they should and should not publish. This bill is not telling anyone that they cannot publish anything. Anyone is free to publish anything they want. It is simply saying that you cannot sell advertising in certain kinds of periodicals to Canadian advertisers, but no one will tell you what to publish. No one will prevent anyone from bringing magazines into this country.
Senator Joyal: Would you equate content provision to censorship?
Mr. Monahan: No. I would not agree that it is censorship, but it certainly involves someone reviewing what someone has written, reading it and looking at it to see whether it qualifies under some definition of Canadian content. That exercise of discretion does raise additional difficulties beyond what we have here.
I believe that this measure is less restrictive than the one we are talking about would be.
Senator Joyal: It is less restrictive in a way because the sole criterion is the nationality of the publisher, which is, to a point, an objective criterion.
Mr. Monahan: That is right, and the tests are objective. Seventy-five per cent of the share capital, three-quarters of the boards of directors, and so on, are all objective criteria, and the publishers can know in advance what they need to do in order to satisfy those requirements so people can structure their businesses accordingly.
Senator Joyal: Are you aware of any other cases that have been decided that apply the discretionary evaluation of content?
Mr. Monahan: We do have content restrictions in other federal laws dealing with the cultural industries, and those provisions have not been successfully challenged. They have been in place for many years. In fact, in some other statutes, such as the Broadcasting Act or the Telecommunications Act, some of the provisions are more restrictive than what we see here in Bill C-55. However, those restrictions have been permitted by the courts.
Senator Joyal: Do you have any specific cases that you wish to bring to our attention?
Mr. Monahan: I am sorry, I do not have any specific cases off the top of my head to which I can refer you on those particular issues.
Senator Fitzpatrick: I hope that most of us agree with the principal objective of the bill. Obviously you have examined it very carefully. My concern is that we do it right. You have expressed the opinion that this bill is drafted well enough to withstand a successful challenge under the infringement of freedom of expression. Are there any flaws that you see in this bill, or any other aspects that we should be addressing?
Mr. Monahan: I do not know whether I would say there are no flaws in the bill. I do not know whether there are any flaws in the bill. I can tell you that I think it unlikely that the courts would want to interfere with it. Contrary to criticism that you hear from time to time, the courts in fact do not see themselves as supposedly replacing the judgment that you around this table bring to these bills. I think they are looking for some infringement of rights, and I do not see in this bill such an infringement. You are now taking me down a road to discuss whether there are any flaws in the bill. That is a bit like Senator Lynch-Staunton, who was getting into a discussion of the wisdom of this bill, which is really beyond my mandate, unfortunately.
Senator Lynch-Staunton: Perhaps you will be coming back with a new mandate.
The Chairman: Thank you, Professor Monahan. We appreciate your presentation and your answers.
The committee adjourned.