Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce
Issue 20 - Evidence - Meeting of May 28, 2008
OTTAWA, Wednesday, May 28, 2008
The Standing Senate Committee on Banking, Trade and Commerce, to which was referred Bill C-10, An Act to amend the Income Tax Act, including amendments in relation to foreign investment entities and non-resident trusts, and to provide for the bijural expression of the provisions of that act, met this day at 4:15 p.m. to give consideration to the bill.
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Good afternoon. This is a session of the Standing Senate Committee on Banking, Trade and Commerce.
[Translation]
Today, we are continuing our study of Bill C-10, An Act to amend the Income Tax Act, including amendments in relation to foreign investment entities and non-resident trusts, and to provide for the bijural expression of the provisions of that Act.
[English]
We have been holding hearings on this bill since it was sent to us in November of 2007.
I am Senator Angus from Montreal, and I am chair of this committee. To my right is Senator Goldstein, also from Montreal, and the vice-chair of the committee. On the right side of the room, we have Senator Fox from Montreal, Senator Banks from Alberta, Senator Massicotte from Quebec, Senator Meighen from Toronto and Senator Tkachuk from Saskatchewan. To my left, we have Senator Harb from the Ottawa region and Senator Moore from Halifax.
There may be other senators arriving during the course of our session, but we do not want to delay any longer. I know our witnesses have been here since at least quarter to four, and I want to welcome them both.
As we continue our study today, we have two groups of witnesses. Our initial group are two folks here from the Desjardins Group in Quebec.
[Translation]
We will be hearing from Brigitte Goulard, Vice-President, Cooperative Partnerships, and from Louis Rabeau, Notary and Legal Counsel, with Desjardins Group.
[English]
Later we will have a second witness representing another part of the bill, the well-known Mr. Paul Gross.
[Translation]
Brigitte Goulard, Vice President, Cooperative Partnerships, Desjardins Group: Mr. Chairman, I wish to thank you for the opportunity to appear before you to share the concerns of Desjardins Group, which are also shared by organizations like the Canadian Bankers Association and the Investment Funds Institute of Canada.
Naturally, we have concerns with respect to Bill C-10, an Act to amend the Income Tax Act. But before Mr. Rabeau addresses these concerns, I would like to introduce to you briefly the Desjardins Group.
Desjardins Group is the largest cooperative financial group in Quebec and the sixth largest in Canada, with over 6 million members and clients and more than $144 billion in assets. It is comprised of a network of credit unions and business financial centres and has 20 affiliated entities operating across Canada.
Supported by its 42,000 employees and over 7,000 elected officials, Desjardins has more service points in Quebec than all of the banks combined.
The Chair: Like Senator Moore, I think everyone finds the figure of six million members enormous. Can you explain to us what you mean by members? Perhaps you could enlighten us further.
Ms. Goulard: Desjardins Group is a cooperative financial institution, which means that when a person becomes a Desjardins client, he or she also becomes a member.
Each client is a Desjardins shareholder, having paid five dollars to become a member. Desjardins Group has major operations in Quebec and a large proportion of Quebecers do business with Desjardins and its affiliates. People are always surprised by this rather impressive figure. We also have 42,000 employees, an equally impressive number. Desjardins is a very large institution.
The Chair: That is rather extraordinary. Thank you very much, Madam.
[English]
Senator Moore: Is the fee to join or is that an annual fee?
Ms. Goulard: It is per member. It is not a fee. You get that money back when you leave the institution. It is a deposit.
Senator Moore: It is a one-time payment.
Ms. Goulard: That is correct. It is exactly like a credit. Caisse populaire is the French translation of "credit union."
Senator Massicotte: So you can be a member, Senator Moore, if you want to, for five dollars.
Ms. Goulard: It has been $5 for over 100 years.
[Translation]
Louis Rabeau, Notary and Legal Counsel, Desjardins Group: Mr. Chairman, Desjardins Group would like to apprise you of its concerns with regard to the proposed amendments to paragraph 248(3) of the Income Tax Act.
The proposed amendment would abolish the presumed trust for tax purposes from which a multitude of investment products and plans sold by trust companies doing business in Quebec benefit. We have provided the clerk of the committee with a copy of our in-depth analysis of the impact of these proposed changes.
Desjardins Trust is the issuer of nearly two million RRSPs, RIFFS and other similar products, making it the largest issuer of these instruments in Quebec. The proposed amendment in clause 44 of Bill C-10 specifically targets instruments sold as RRSP trusts or RIFF trusts and has the effect of requiring trust companies doing business in Quebec to put in place, as of 2010, real trusts within the meaning of the Civil Code of Quebec.
The main effects identified will be as follows: individuals will no longer be able to withdraw amounts from their RRSPs. Let me explain what I mean. In order to create a trust under the Civil Code of Quebec, the annuitant must transfer his or her contributions to a separate patrimony, namely the RRSP trust. In 2004, the Supreme Court of Canada, in Thibeault, ruled on the validity of an RRSP as a trust within the meaning of the Civil Code. The Supreme Court concluded that there is no transfer of goods to a separate patrimony when annuitants have the right to make withdrawals from their RRSPs. Consequently, trust companies operating in Quebec will no longer be able to allow withdrawals, if they are to comply with the Civil Code as well as with the Income Tax Act.
Doing away with the right to withdraw RRSP funds will have a significant impact on individuals as they frequently withdraw funds from their RRSPS for a variety of reasons. According to Statistics Canada, between 1993 and 2001, approximately 39 per cent of RRSPs were subject to withdrawals.
It would also become difficult for us to administer popular plans such as the HBP and the LLP where persons withdraw a certain amount from their RRSPs.
Also as a result of the proposed amendments, annuitants would no longer be able to originate mortgage loans on their RRSPs. As mentioned earlier, in order to create a trust within the meaning of the Civil Code, the annuitant must transfer his or her contributions to a separate patrimony. Pursuant to the Income Tax Act, the annuitant of an RRSP issued by a trust company may use his or her RRSP for a mortgage loan. If RRSPs issued by Quebec trust companies become separate patrimonies, then annuitants will no longer be able to use their RRSPs for a mortgage loan. Consequently, sections 146 (7) and 146 (10) of the Income Tax Act which pertain to the use of an RRSP as a security will no longer apply in Quebec, and only in Quebec.
Furthermore, the proposed amendment will also bring about the end of the pan-Canadian RRSP and RRIF trusts.
Trust companies doing business in Quebec will be required to maintain two types of systems: those intended for Quebec and those intended for Canada's other provinces. From a practical standpoint, the introduction of a trust regime within the meaning of the Quebec Civil Code will have significant system and cost implications for Desjardins. In addition, Desjardins will have to administer concurrently systems with different characteristics.
Finally, it should be noted that some uncertainty will prevail with regard to the cohabitation of rules applicable to the locked-in retirement account and the life-income fund of each of the provinces and the civil law trust. LIRAs and LIFs have their very own operating rules, as defined in law. To try and make these particular rules operate along with the Civil Code trust rules is, to all intents and purposes, an impossible task.
The proposed amendments to paragraph 248(3) of the Income Tax Act also affect a multitude of investment products and plans that currently benefit from deemed trusts. Mutual funds and the new Tax Free Savings Account are examples of this. The characteristics of these various investment products and plans are generally irreconcilable with the civil law trust and poorly adapted for use in a commercial context.
Given the legal interpretation and application problems that will result from the coming into force of the proposed amendments to paragraph 248(3) of the Income Tax Act and the substantial costs that will be incurred by the modification of contracts and the necessary adaptation of trust company systems, Desjardins recommends maintaining the status quo, that is deemed trusts.
The Chair: Thank you very much, Mr. Rabeau. Several senators have some questions they would like to ask you. However, I have one for you first. Because your proposal is so very clear, can you tell me whether you had any discussions with officials from the federal Department of Finance in the years leading up to Bill C-10?
Mr. Rabeau: Not as such.
Ms. Goulard: Since the tabling of the bill, we have discussed its impact on Quebec. Both the departments of Finance and Justice acknowledge some problems that they had not anticipated when the bill was first drafted. We are trying to work with them to come up with solutions to these problems.
The Chair: Did you raise these problems before the bill was referred to the Senate or when it was tabled in the House of Commons?
Ms. Goulard: We voiced our concerns when the bill was tabled in the House and we were assured that they were aware of the problems. We decided at the time not to testify before the House committee so as not to delay passage of the bill. However, we decided that we should appear before the Senate committee to voice our concerns. But the departments of Finance and Justice are aware of the potential problems.
The Chair: Thank you very much. We are very pleased that you decided to share your concerns with this committee.
Senator Massicotte: My questions are along similar lines. Are the departments of Finance and Justice aware of the problems, but not taking any action to rectify them?
Ms. Goulard: Finance and Justice are aware of the problem. We sent them a copy of the technical brief that we tabled with the clerk today. They are in the process of reviewing the situation and some discussions have taken place with other organizations that are encountering similar problems, such as the Canadian Bankers Association and the Investment Funds Institute of Canada. The Department of Justice has initiated a series of discussions.
Senator Massicotte: Do they agree with your interpretation of this provision?
Mr. Rabeau: I have discussed the matter with a lawyer at Justice and I have sent her a copy of my submission. She was aware of certain problems that had initially not been apparent to other legal advisers at the department who had suggested these provisions. Based on my discussions with this individual, I do believe she realizes that these provisions could potentially cause some major problems and that potentially we could end up with two parallel systems in Canada, which would be a less than ideal situation.
Senator Massicotte: I am not the minister, but I am fairly confident that this was not the intention of the Department of Finance. This has been part of the main system since the beginning. If both interpretations are really the same, then there is a mistake here that needs to be corrected and I think the minister would agree completely to rectifying the error.
Mr. Rabeau: The confusion stems from the fact that all financial institutions, in particular trust companies and insurers, have been concerned about the ruling in Thibeault which focussed on whether RRSP funds, or fixed-term annuities, are exempt from seizure in Quebec.
In Thibeault, the parties argued the case in two parts before the court, initially maintaining that if the plan was not an annuity, then it could be characterized as a trust. The Supreme Court addressed both arguments. And although the Supreme Court may have found it unusual for the parties to argue that the plan was in fact a trust, that is what they did. This led to the department wanting to settle the issue of whether these funds are exempt from seizure.
Ultimately, that would not solve the problem because such vehicles are not as unseizable as one might think and there is rather widespread agreement on this matter. Lawmakers in Quebec resolved this issue in the case of past and future plans when they brought in Bill 136 in December 2005. So then, Quebec no longer has any problems on that score.
Senator Massicotte: That is true, as far as Quebec institutions are concerned. However, how do you think the technical problems can be resolved?
Mr. Rabeau: I propose that the status quo be maintained, that no new provisions be brought in and that paragraph 248(3) as it is currently worded be deleted.
Senator Massicotte: Another impact of the proposed provision is that annuitants would no longer be able to borrow against their RRSP for a mortgage. Again, the minister is saying that this consequence was purely accidental. Correct?
Mr. Rabeau: I am not certain that they looked into this. Only trust companies allow annuitants to borrow against their RRSP for a mortgage. Banks cannot do that. Banks are depositors, financially speaking. Only RRSPs issued by trust companies can be used to take out a mortgage. The two sections of the Income Tax Act to which I alluded provide the recipe for doing this, from a financial standpoint.
I am not certain that they caught this when they worked on the legislation, because if you have a separate patrimony within the meaning of the Quebec Civil Code, then you cannot draw out funds from that vehicle for a mortgage.
Senator Massicotte: A number of bills with the same objective have been approved. They provide that a federal annuitant cannot use the funds in his or her RRSP. Basically, the aim was the same.
Mr. Rabeau: However, it is fairly common to see RRSP funds used in specific cases for mortgages. It happens often in the case of people who start up a business and want to put up their RRSP as a security during the start-up phase. Not just anyone does this. However, it is a useful option for people in business.
Senator Massicotte: I have a practical question for you. Does Desjardins provide mortgages to annuitants who borrow against their RRSP? Is this common in the case of individual annuitants?
Mr. Rabeau: I checked with head office and I was told that on average, Desjardins grants 500 and 600 mortgages a year to individuals who are borrowing against their RRSP.
Senator Massicotte: Out of how many mortgage applications in total?
Mr. Rabeau: I really could not say.
Senator Goldstein: Who advised you not to make any representations when the bill was before the House of Commons? Do you recall?
Ms. Goulard: No one advised us per se. We discussed whether or not Finance Canada officials were aware of the situation and we were told that they were. It was our decision not to testify. No one from the Department of Finance advised me not to appear. I do not want to give you the wrong impression. We wanted some assurance that the problem had been flagged. We had planned to appear before the finance committee to voice our concerns, but both the Department of Finance and the Department of Justice claimed that they were aware of the situation.
Senator Goldstein: So then, you saw no point in testifying.
Ms. Goulard: Exactly.
Senator Goldstein: Are other financial institutions facing a similar situation?
Ms. Goulard: The problem is the same for any financial institutions that issues RRSPs in Quebec.
Mr. Rabeau: It is a problem for trust companies. Banks have their own trust companies and often, RRSPs issued by trust companies will be self-directed vehicles arranged through brokers, for example. A significant number of plans fall into that category.
Senator Goldstein: Why did the other institutions impacted by the proposed amendments not join forces with you to oppose the bill?
Ms. Goulard: I believe the Investment Funds Institute of Canada will be sending a letter supporting our position. The Canadian Bankers Association also supports us. It was important for us to speak out because we are the largest trust company in Quebec. However, we do have the support of other institutions.
Senator Goldstein: We would very much like to see those letters. Could you possibly get them to us as soon as possible? I have one last question for you.
Do you know the reason why the Department of Finance is moving forward with this amendment? From a taxation standpoint, I fail to see what purpose this would serve. What problems are they trying to avoid by proposing to do away with deemed trusts?
Mr. Rabeau: My feeling is that it all goes back to the Thibeault case and the unseizability issue. I do not recall the names of the individuals who worked on this bill at the Department of Justice.
The Chair: The individuals responsible for drafting the legislation?
Mr. Rabeau: Yes. This was one of the concerns often mentioned, namely the whole unseizability issue. Personally, I think that the drafters of the bill likely did not have an overall picture of the implications for RRSPs. Perhaps they were not looking at this issue from a practical standpoint.
Senator Goldstein: The issue of whether or not RRSPs are exempt from seizure goes back a long way in Canada, and especially in Quebec. The Court of Appeal handed down a number of rulings even before the Thibeault case was heard. As you mentioned, the Thibeault case focused on one particular question, and the Supreme Court seized the opportunity to rule on other matters of consequence.
What reason would the Department of Finance have for getting involved in the question of whether or not RRSPs are exempt from seizure? Since provincial policies on this matter are already in place, should this not be a matter of provincial policy?
Mr. Rabeau: We discussed this with the Department of Finance. However, I really do not know why they were interested in the unseizability of RRSPs. I cannot speak for the department.
Senator Goldstein: It has nothing to do with finances, but more with civil law matters in each province.
Ms. Goulard: I had some discussions with Justice Department officials after we first learned about Bill C-10. Initially they resolved one problem, but in doing so, they created another one. As Mr. Rabeau explained, it really was due to a lack of general knowledge of what happens in Quebec and of the workings of the Civil Code.
We had to supply them with the correct information so that they could see exactly what kind of problem they had created by attempting to resolve another one.
Senator Goldstein: When funds in a trust RRSP are transferred, do they not then immediately become taxable?
Mr. Rabeau: In Quebec, two types of trust RRSPs were set up within the meaning of the Civil Code. The Barreau du Québec, which was a client of the Desjardins Group at the time, set up a trust RRSP within the meaning of the Civil Code. The vehicle met all of the criteria for registration with the Department of Finance.
They followed the rules when setting up this type of RRSP. However, the vehicle did not sell well. But it did meet the criteria.
The Chair: You said that there were two types of trusts in Quebec, one being associated with the Barreau du Québec. Correct?
Mr. Rabeau: Yes. Another kind was set up for Desjardins, although there was no assurance that the product would sell. By working on similar products, we realized that the creation of a separate patrimony in the system would require investments of several million dollars. The administrative costs would be enormous and for that reason, the product did not meet the criteria.
Senator Meighen: I believe Senators Massicotte and Goldstein have asked most of the questions I had in mind. This discussion reminds me of when I was admitted to the Quebec Bar. Back then, there were almost no trusts. The concept of a trust within the meaning of the common law was very foreign to the Civil Code. Ultimately, the concept was introduced into the Civil Code and we have been trying to work with it.
Did any other financial institutions make representations to the House of Commons?
Ms. Goulard: No, not on this bill. By the time we realized that the proposed amendment presented a problem, Bill C- 10 had already been sent to a House of Commons committee. We then contacted the Department of Finance as well as some other financial institutions.
Senator Meighen: Senator Goldstein is more knowledgeable than I am about these matters. I did not quite understand the department's rationale for this amendment. Does it come down to money? Are substantial sums of money vanishing? Is it that it wants to place common law and civil code trusts on an equal footing?
Mr. Rabeau: I think that is true, to some extent. Trusts are a vehicle now in use in Quebec. Then why not use this vehicle? Perhaps their reason is valid, but on looking at the provisions in the Civil Code respecting trusts, it is clear that this is not the ideal commercial vehicle, because the trustee is the sole administrator of the trust.
A trust cannot be amended without involving the courts. Nor can a trust be terminated for just any reason. Strict rules are in place. A trust is not an appropriate vehicle for a common product such as an RRSP into which persons deposit money or from which they withdraw funds when they have financial problems.
Not just anyone has an RRSP valued at $200,000 or $300,000. Some individuals may, in addition to their pension plan, have between $4,000 and $12,000 in RRSP funds. We are talking about relatively small sums of money.
A trust created within the meaning of the Civil Code is not the ideal vehicle for managing these types of assets. The same goes for instruments such as mutual fund trusts, LIRAs, LIFs and registered education savings plans, or RESPs.
In the case of registered education savings plans, or RESPs, the subscriber makes contributions to the plan and names a beneficiary. The government grant portion is administered differently. If there is a glitch and the subscriber opts out of the plan, the grant portion is returned to the government. The Government of Quebec passed legislation pursuant to which it will award its own grant. To give you an example, subscribers to an RESP will receive a provincial grant as well as a federal grant. The two grants are, however, administered differently.
Revenues and contributions are also administered a certain way. I would rather not think about integrating all of this into a separate patrimony system.
Senator Meighen: You stated in your submission that if the proposed paragraph 248 were adopted, there would be significant cost implications.
Mr. Rabeau: Correct.
Senator Meighen: Could you elaborate on that statement?
Mr. Rabeau: For example, in the case of the trust RRSP created for the Barreau du Québec, as well as the one created for Desjardins, when the time came to look into how these could be administered, we were told that just to modify the systems, it would cost Desjardins in the neighbourhood of $2 to $3 million.
Senator Meighen: And that is excluding the cost to other financial institutions?
Mr. Rabeau: Excluding the other products that would be affected. We are talking here strictly about RRSPs, not about RESPs, LIRAs or LIFs.
The Chair: If you go to pages 454, 455 and 456 of the bill, can you show us exactly where to find the proposed amendments to paragraph 248(3)?
Ms. Goulard: Just to be clear, we were referring to section 248 of the Income Tax Act. However, clause 44 on page 206 of the bill amends the relevant provisions of the Income Tax Act.
The Chair: It is important for us to have a clear understanding of the situation.
Ms. Goulard: I made the same mistake the first time around.
The Chair: So then, we are on page 206, clause 44.
[English]
The Chair: Can you walk us through it?
[Translation]
Ms. Goulard: It is at the bottom of page 208.
[English]
The Chair: The margin note "certain arrangements under the civil law" indicates the changes made to subsection 248(3) of the act.
[Translation]
Senator Fox: I want to thank our witnesses from Desjardins Group for joining us today. I do not have a lot of questions because I thought your submission was clear and straightforward and contained some very specific recommendations. Nevertheless, I do have two questions.
Off the top, you stated that representatives of the Canadian Bankers Association shared your concerns. Did this association hold the same kind of discussions with the Department of Finance as your group did?
Ms. Goulard: Yes.
Senator Fox: Did they submit a brief on this specific point?
Ms. Goulard: I am not aware that they tabled a brief or sent a letter, but I did discuss my appearance here today with them earlier in the week. They informed me that they had recently spoken to Finance department officials who had informed them, — and this is just hearsay — that they were aware of the problem.
Senator Fox: Did they arrive at the same conclusions and make the same recommendation?
Ms. Goulard: Yes.
Senator Fox: You have done an impact study. I assume that if the proposed change goes through, it would affect the amount of money going into the various RRSPs in Quebec, compared to other parts of Canada. Would the entire system in Quebec be put at risk?
Mr. Rabeau: Trust companies run the risk of losing a lot of clients because the change applies strictly to them. Banks as such are not affected.
Senator Fox: Why do the banks support your position?
Mr. Rabeau: Because banks have their own trust companies.
Senator Fox: Clearly, a financial institution selling RRSPs in a province where holders can borrow against their plan for a mortgage or withdraw funds from their plan would have a staggering advantage over an institution like Desjardins Group which would only be allowed to operate one way. Would you agree with me?
Mr. Rabeau: Absolutely. Given the way in which Desjardins Group is structured, each credit union, the group owners, cannot be permitted to have their own RRSPs. Not that they could not, but the result would be 600 different RRSPs in Quebec. It would make no sense. The issuers of these instruments on behalf of all credit unions are Desjardins Trust and Desjardins Securities.
Senator Fox: Far be it for me to put words in your mouth, but during peak RRSP sales season, there would not be a level playing field in Quebec. Chartered banks would have a clear advantage over other institutions. I cannot believe — and no one else believes — that this is what the Department of Finance intended to happen. However, because the proposed change would adversely affect your operations, the Department should be open to reversing its position.
Mr. Rabeau: Hopefully, that will happen.
Senator Harb: Thank you very much for your excellent presentation. It was exceedingly clear. One of my colleagues asked why this provision was inserted into the bill. Could it possibly have something to do with the Supreme Court decision? Normally, that is what happens when the Supreme Court hands down a ruling and Parliament is more or less compelled to bring in legislation to conform to the decision.
Mr. Rabeau: As I understand it, that would be the reason.
Senator Harb: Obviously, it was not the intention of the Supreme Court to create problems for you. These are indirect consequences of its decision. If the Department of Justice were to request a clarification from the Supreme Court, could the court possibly respond that this was a specific ruling, and not one that applied across the board? If that were the case, would Parliament not be obliged to introduce legislation?
Ms. Goulard: I am not convinced that further to the Thibeault decision, a provision of this nature was necessary. The Thibeault decision may have been the compelling reason for the proposed amendment, but the provision could have been worded differently to neutralize the impact on trust RRSPs. I do not know if there is any need to seek a clarification from the Supreme Court in order to do away with this clause. I think some other way can be found to apply the Thibeault decision.
Senator Harb: Did you attempt to come up with amendments that satisfied the Supreme Court and at the same time, the needs of credit unions? Did someone at Desjardins try to draft a specific amendment?
Mr. Rabeau: Not to my knowledge.
Senator Harb: Could that possibly be done?
Mr. Rabeau: I am sorry, but I cannot answer that question.
Senator Harb: You mentioned that 39 per cent of plan owners withdraw funds from their RRSPs to invest in real estate. What does this mean in dollar terms for Quebec?
Mr. Rabeau: That is difficult to say. However, if I am not mistaken, the total value of RRSPs is pegged at $26 billion. Anywhere from $26 billion to $29 billion are invested with Desjardins in RRSPs. If you look at those programs, such as the extremely popular HBP, or the LLP, that allow plan owners to withdraw funds from these RRSPs, then we are probably looking at a substantial sum of money. I do not have any exact figures, but certainly significant sums are involved.
Senator Harb: So then, in your opinion, we now have two federal laws, one that allows people to withdraw funds from their RRSPs to invest in real estate and another that does not. As a citizen, could I take the government to court and initiate a court challenge?
We cannot have two opposing pieces of legislation. The other issue is credit unions and having them classified like banks in Canada in order to benefit from the same opportunities. Could Desjardins possibly request the same classification as a bank?
Ms. Goulard: You are referring to credit unions in Western Canada that are seeking a cooperative bank charter. We are aware of their wanting to become cooperative banks. Desjardins has not yet decided whether or not to pursue this course of action. We are very well served by our Quebec legislation and by the Quebec government and we are participating in the review of the federal legislation. However, we have not yet made our position on this initiative known.
[English]
Senator Harb: Desjardins is a famous, amazing story, and each of us should read the background on this wonderful institution.
The Chair: It is time I tell the witnesses that when we began hearings on this bill, we asked the Department of Finance Canada if there was anything controversial or any problems, and officials assured us that there were not and that the stakeholders were all aware of the changes.
You have outlined for us a practical problem with the law. You tell us that you have had poor communication with the officials from both the Department of Justice Canada the Department of Finance. We are dealing here with what has become known in the trade as an omnibus bill. As you could see, we were having trouble finding the area in which you are having the problem.
We have an obligation to give sober second thought to the law and to hear your problems and then find a way forward on your behalf. We need to be on the same playing field.
Have you received assurances? Many of the dispositions in this act are little items from other times over the years that are being fixed. These items have received assurances, either by way of letters of undertaking, or a wink and a nod, and the bad things that these are now fixing have not been enforced against various taxpayers. Have you received any assurances of that nature during the passage of this bill through the system?
Ms. Goulard: We have had discussions with both of the departments. They have said they are aware of the problem and they understand and hope to be able to solve the problem. When those departments comes here and say there are no big issues or confrontational issues, perhaps they already know how they will solve this problem, so perhaps they do not see it as one of the big issues. It is only a quarter of a page in a large book. However, for us, it means millions of dollars, and it is a significant competitive issue. I rely on the opinion of the Department of Finance when they say they will solve this problem, but we felt it was important for us to come here today and explain the problem, to put it down on paper and to continue working with the Department of Finance Canada to resolve it.
For us, the easiest way to solve this problem is to eliminate this particular section. For us, it is easy to eliminate a section in the law. I have no doubt that Finance Canada wants to solve that problem, so I do not want to make any further comment on that department.
The Chair: I can assure you that we will be calling them here, because we have had to do it concerning six other issues. It is good that you came. We are interested in your problem and in helping you to solve it. We will tell the Department of Finance, unless you tell us that you do not want us to, that you have raised a legitimate issue arising out of the bill.
[Translation]
Therefore, if the bill is adopted, there will be a negative point in the legislation. You understand what I am saying.
Ms. Goulard: I agree with you. As we have stressed today, this is very important to us. I trust that the Department of Finance will resolve the problem. It was important for us to come here because once the bill is adopted, it is too late to raise our hand and point out that we have a little problem.
[English]
The Chair: Have you not had assurances that another law will be brought in to take that out?
Ms. Goulard: No.
[Translation]
Senator Massicotte: We have some financial experts here with us. Does Desjardins provide any financing to the film industry?
Mr. Rabeau: I really have no idea.
Senator Massicotte: So then, you are not aware of or bothered in any way by another provision on pages 208 and 209 of the bill?
Ms. Goulard: No, but we can look into this and get back to you.
Senator Massicotte: We would be interested in getting your opinion, particularly if Desjardins is involved in funding films.
Ms. Goulard: I would be surprised if we were not involved to some degree. Desjardins is the largest institution in Quebec and surely the Quebec film industry must look to Desjardins Group. However, I am not aware of the particulars.
The Chair: We will wait to receive the letters of support that you mentioned, because we still have a number of questions.
[English]
Thank you, Ms. Goulard and Mr. Rabeau.
We are honoured to welcome Mr. Paul Gross as our next witness. Certainly, we are interested in hearing what you have to say. Bill C-10 contains a large series of provisions to amend the Income Tax Act. One such provision that has stirred up a great deal of interest in the country has to do with the tax credits for the film and video industry. It proposes to lay down some legal background to enable the government to determine what is or is not public policy in terms of films and movies that should be financed. We have heard from numerous witnesses on the subject. If you would like to make an opening statement, we will follow with questions.
Paul Gross, Actor, Producer, and Director, as an individual: Thank you. I have a few things to say. I thank you very much for having me here today. I appear before you as an actor, writer, producer, director and a Canadian nationalist. I know that many people have spoken before me, some in greater detail about the implications of Bill C-10 and the section relating to film and television tax credits. I am sure that much of what I am about to say will be a repetition of that, for which I apologize in advance.
Bill C-10 represents a threat to film and television production in Canada for a number of reasons. To begin with, the proposed amendment may well destroy an already precarious and insanely complex system of film financing. Making a movie in Canada is a fantastically complicated undertaking. Producers must align a bewildering number of elements and if one of those elements is out of alignment, the entire enterprise collapses.
One of the very few things in our system that has some degree of predictability has been the tax credit. At the moment, the process for calculating tax credits is largely mechanical and the monies that a production can expect are therefore reliable. It is their very reliability that has made tax credits central to financing any film in the country. For example, I am nearing completion of a film called Passchendaele. We calculated tax credits based on our budget of approximately $1.5 million, which became a foundation to our financing. Our bank advanced us monies against this calculation, which allowed us to begin pre-production.
The government has argued that such tax credits would not be in jeopardy for any legitimate production. In the proposed amendment, however, that decision is subjective. The problem with this is that no bank will advance monies against tax credits if there is even the remote possibility that they will be denied at some future date for subjective reasons. This is something I believe other people have testified to, including representatives from the banking community.
It is possible that we would not have secured an advance from the bank, been unable to begin pre-production, been unable to finance Passchendaele, and a film that pays honour to the Canadian sacrifice in the Great War of 1914 to 1918 simply could not have been made.
Unless, of course, it was an American production. One of the more perverse features of the proposed amendment is that it does not extend to include U.S. productions that shoot in Canada. They are still entitled to public support through the tax credit system, regardless of content. It is as if the government is saying that particular vigilance is required to control the rampant depravity of Canadian filmmakers and that their efforts, if left unchecked, would undermine the very fabric of Canadian society. I have no interest in undermining society but I wish I lived in a nation where the arts had that kind of clout, but I live in Canada and at any given time, English Canadian films occupy less than 2 per cent of our screens, and our television is not much better. There is no tsunami of questionable movies. We are lucky if we are even noticed, let alone undermine anything. The bulk of what we view in Canada comes from the United States and U.S. productions will continue to enjoy unfettered public support, while Canadian producers will face another hurdle in the mountain of challenges we already face in our attempt to make movies about our country. I am at a loss to understand how this could conform to national public policy of any description.
I would completely support any government's desire to be responsible with the public's money and the public's interest, but I fail to see how this amendment would accomplish anything in that direction that is not already accounted for in the existing system. Anything of potential harm to the citizenry is already filtered out by a number of agents. The first and often overlooked is the artist himself. I have worked in this business for three decades and have yet to meet a single filmmaker intent on making a pornographic film or a film filled with hate. The second is the Criminal Code. Anything damaging to society's interests is already amply covered by the provisions in the Code. The last and most important filter is the public. The public's voice in the artistic output of our nation is clear, direct and final. If they object to a particular movie, they will not buy a ticket, and that movie will die. If they object to a television show they will not watch it, and that show will die. Nothing could be simpler. The public through the market place decides. The proposed amendment assumes that the public is too stupid, too ignorant and too benighted to make decisions for themselves. For their own good, the state will decide for them through the agency of a committee of judgment.
Who will sit on this committee that will make these decisions? From what pool of society will be draw such infallible moralists? What possible metric could we provide them with? What is acceptable in one community may be offensive in another. What enrages a man in St. John's may amuse a woman in Victoria. We are a nation with a multitude of voices, and the idea that they can be corralled into one comprehensive and quantitative system seems to me preposterous.
The metric that is proposed would seem to be that films might be denied tax credits if they were deemed to be "contrary to public policy." This phrase, "contrary to public policy" is the heart of the problem. It is vague and because it is vague, it is subjective, and because it is subjective, the door is open to censorship.
I have heard and read various statements from defenders of the amendment who claim this is not censorship. They can call it anything they want; they can call it "wankel rotary engine" if they like but it is still censorship and censorship comes in many forms. This one is particularly insidious because it is dressed up in the costume of fiscal responsibility and who could argue against responsibility? However, this amendment would take away the means for a filmmaker to make a film. If you take away a man's tongue, that man cannot speak. If you threaten to take away that man's tongue, he will hesitate to speak. This bill's affect would be no different than the stifling of thought that extreme political correctness exacts. The simple threat will be sufficient to cast a pall over our creative community and, over time, one can imagine a scenario where the only television that Canada can offer to the world will be C-SPAN. Some may argue that C-SPAN is contrary to public policy.
The problem with censorship is that it does not work. Western society has a long and often bloody history of struggle between the state's desire to control thought and the thinker's desire to express thought. In the end, the state has always failed. It can lock up as many Galileo's as it likes, it can burn as many books by James Joyce as it likes but, in the end, those ideas will surface.
Finally, and only relatively recently did our own state realize this was a losing struggle and we handed the power to the people where it more properly resides. This amendment would seek to revive that losing struggle and is, I would argue, utterly contrary to democratic public policy.
Even if the government rejects this idea and continues to believe such control is required, why do they not put it forward in a stand-alone bill that could be argued by our elected representatives in the House of Commons? This amendment contained in Bill C-10 came as a complete surprise to everyone I know in this industry. It has been abundantly clear from the volume of speakers that have appeared and will continue to appear before you that it is a matter of great concern and that concern runs deep.
This is not merely a housekeeping issue to do with arcane tax reform nor is this issue restricted to partisan political ideology. I have no particular political ideology but I am committed to our democracy. This issue strikes at one of the foundation pillars of our democracy: our freedom of speech. Surely a matter of such gravity and weight is deserving of its own bill and a public debate in the full light of day. Proponents can argue their side, detractors can argue theirs and whoever wins, wins; so be it. To bury it inside a thick bill concerned the tax reform appears to be legislation by stealth. If that is not contrary to public policy, it ought to be.
In closing, I would like to return to the battlefields of Western Europe and the movie I am in the process of finishing. It is called Passchendaele after the 1917 battle of that name. It has taken me almost 10 years to bring this story to the screen and that is a good indication of how formidably difficult it is to make any movie in this country. If this amendment were law, such a movie might not be possible. It is conceivable that a member of the committee or even the Minister of Canadian Heritage herself might have found within its something objectionable. Thus, a film concerned with a formative period in our nation's history and the incalculable sacrifice of our forbearers would never have been made.
My grandfather fought in that war. It was my grandfather who made me wand to tell this story. I can assure you he did not sustain his three wounds in the Western Front in the defence of censorship. He sustained those wounds in the defence of freedom. There is a straight line from the men and boys of the Canadian Expeditionary Force of 1914 to 1918 to the men and women in the modern Canadian Forces serving in the sands of Afghanistan today. For the government to stand by this bill, they do a great disservice to their sacrifice, they dishonour the memory of our forefathers and they bring disrepute to a legacy for which so many have given their lives.
The Chair: Mr. Gross, our high expectations were in no way misguided. That was an inspiring presentation and, speaking for all the senators, a tremendous dissertation.
Senator Tkachuk: Thank you, Mr. Gross. I was intrigued by your comments on freedom of speech. It is a stretch to draw Bill C-10 to the battlefields of the First World War and Afghanistan. Nonetheless, is it possible to have freedom of speech without a subsidy and a film credit?
Mr. Gross: That question might be better phrased: Is it possible to have an artistic culture in a nation without government support? I think that is highly unlikely.
The history of art and culture has been one has been a long history of a combination of private sector and government, whether the Roman Catholic Church and the nobility, the monarchy and merchants or whether today it is elected government and the private sector. They have always gone hand in hand, particularly in the film business, which is a shorter history. There are only two film industries in the world that do not function with enormous government support. That is Hollywood and Bollywood, in India. Therefore, no, you cannot have a film business in the modern world without government support. That support is really seed money. The Canadian government did not pay for all of the film of Passchendaele, but the seed money brought in the other money. It is a foundation without which it is hard if not impossible to make films of any consequence in Canada.
Senator Tkachuk: The government is and has been operating since the previous administration as if this particular part of the bill was in fact. Previous to that, since 1995, the government has been operating as if the regulations on public policy — the question of public policy — had been in effect.
Yet, today, we have shows like Webdreams, which are adult shows, which receive government subsidies of all kinds — film or video production tax credits, the Quebec tax credit program and Canadian cable industry money. There has not been any censorship. The film industry has not crashed.
Letters have been written to your industry since 2001 and there has been a consultation process. Yet this never picked up anybody's interest until today. I kind of agree with Senator Fox: That was then and this is now.
Nonetheless, "what was then and this is now" is important because the argument is that somehow, automatically, this would all change. However, there is no evidence that it will change. Its puts into effect what the government has been operating under on the basis of what the government has been operating today.
Mr. Gross: It does change. I know this particular part of this amendment has been in existence for some time, but it has never come to the foreground. To be honest with you, I knew that something had happened with Sheila Copps in response to a show to do with Bernardo but that did not go anywhere.
I do not spend my day thinking, "I wonder where that particular bill went." When this came to our attention and we began to examine its implications, it was alarming. I want to be clear. I did not, when I first read it, honestly think, "It is the government's intention to begin censoring what we make in television and film.` That seemed ludicrous. It has been the government's response to some of the opposition presented to it that has caused alarm. They have dug their heels in on a subject that seems goofy to me. I do not have any particular problem with saying, "We have to put some restrictions on how we will allocate or approve tax credits." However, it would seem to me that the backstop is the Criminal Code.
I know nothing about writing tax law. However, it seems you could put something that says, "If this steps out of line with the Criminal Code, it will no longer be eligible for tax credits." The problem with this is that it does not say that. It says "contrary to public policy` and I have no idea who makes that up.
Senator Tkachuk: I am a government member. None of the government members I know of have any interest in hurting the film industry. In fact, we want to be supporters of the film industry. As far as the business of film is concerned, we want to find every possible means to ensure that the business of the film industry continues.
This clause was clear. I know what you are saying about it coming up under Sheila Copps. Letters were sent to the industry starting in 2001 and 2002. Surely, it would have triggered a larger impact considering the statement you made about what a terrible thing it was. We are looking for a way to solve the problem. The hyperbole we hear about it is what makes people such as me hesitant about why this is such a big issue when it was never a big deal previously. The government has been administrating the act as if it already exists and has been administrating it since 1995 as if the regulation exists.
All we are trying to do is to find a way out of this that would satisfy all clients and, of course, at the same time preserve the public interest, as the public interest is important to us. We are looking for solutions to the problem. We do not want to get into an argument about freedom of speech because there is no one on the committee who does not believe in freedom of speech and no one who wants to prevent it either.
Mr. Gross: Senator, first, I appreciate that the government is devoted to helping the film business. That would be great. I would love to see them actually do so. However, I am not sure that this helps us at all. It creates another terrible impediment. I can only apologize for myself and everyone else in the film and television business for being slow to understand the implications of this bill. I am not sure why we did not see it, but we did not.
You may well be right; maybe people were functioning as though this was already in place. Actually, we were functioning on an older system. I do not think anyone knew this was here. There has been much conversation about how we come to define public policy and what is in contravention of public policy. Once that starts to become an issue, then I think we start to run into trouble.
I think a door has been opened, and it is not entirely hyperbole to talk about freedom of speech. If there is someone sitting on that committee who does not like the notion of gay cowboys in a movie, that movie will not be made in Canada. It forces the banks that we rely upon pull out of this business because the banks determine it is too controversial and therefore do not feel they can guarantee the movie. The people in the industry stop coming forward with projects. It will happen inside the minds of filmmakers, writers and people who think of good ideas for shows, but this may fall afoul of regulations so fuzzy that we do not understand them. It is too vague.
My suggestion is to replace this with something specific, something that actually has to do with t the government's definition of public policy. However, we do not know what that policy is. It will have a big impact on how everyone approaches making shows.
I cannot imagine there is anything objectionable in Passchendaele, but if I were starting out on this film and wondering whether it would fall afoul of someone's whimsical definition of public policy, I might have started to change the writing of a script that I think has made a pretty darn good film. It is only four words right now, but I do not know the substance of those words. That is what worries us.
Senator Tkachuk: Fair enough.
The Chair: I cannot resist saying that since I think you are still the chair of the John Diefenbaker Society and a great supporter of the old chief, this witness played John Diefenbaker in Prairie Giant: The Tommy Douglas Story.
Senator Tkachuk: Considering what is in the market today, Mr. Gross, I do not think you will have or would have had any problem with Passchendaele whatsoever.
Senator Johnson: For clarification, there was an implication that this particular act had been administered. It has never been administered formally in the funding of films by the government. You implied it had been, and it never has and I want that clarified.
The Chair: Thank you for that clarification.
Mr. Gross: I am not insane.
Senator Johnson: No, you are not.
Senator Tkachuk: You are wrong, Senator Johnson.
Senator Johnson: No, I am not. I have been working on this issue.
The Chair: We have our own superstars from the artistic community in the Senate, and I am always proud to announce the next questioner, from your province of Alberta, Senator Tommy Banks.
Senator Banks: Mr. Gross, thank you for taking the time out of your busy career to be here today. I have to say that you have gained your bona fides as a writer today. You will never be out of work, and I would never be able to afford it; but if I ever could and you ever were, you could be my speechwriter any day; you nailed it.
I presume that your argument with respect to the difference between the application of this kind of tax credit to U.S. or other foreign produced films in Canada, and Canadian ones on the other hand, is not an argument that we should apply this set of criteria to American films.
Mr. Gross: No, I do not think we should apply this particular set of criteria to any film, but if we are to apply it to Canadian films, let us apply it at least to the American films as well. It seems bizarre we could disadvantage Canadian producers and leave American producers free and clear to do what they have been doing.
I am assuming it was not extended to cover American tax credits because that is the only thing that keeps American production coming to Canada now. With the dollar at par, they have disappeared. This business is in big trouble. The union of NABET, one of the crew unions in Toronto, has dropped its membership almost by half in the last six months. The tax credit is extremely important, and any uncertainty with it would absolutely keep American production away. I would think that would kill our infrastructure.
Senator Banks: We are, as all Canadians, very familiar with the kind of work you do. It is clear to everyone here that you do not "do" shows; you do not write shows, you do not produce shows, you do not direct shows or movies that would fall afoul of a reasonable interpretation of the wording that is contained in the amendment in question.
Aside from the uncertainty, why are you so concerned about this? You would not make a film that has hate in it. You would not make a film that was unduly violent or in which the violence — I am sure there will be violence in Passchendaele — would be gratuitous, to use that phrase.
Why are you concerned about this? You will not have any trouble raising this money, will you?
Mr. Gross: It is fantastically difficult to raise any money for a movie. This one took a long time to finance. It would have been, as I say, more difficult to do that if this current amendment were enacted. I am not at all sure we would have been able to do it. I suppose that at some level people will try to figure something out, but the one thing this business that I work in does not need is any more difficulty.
It concerns me because there are enough elements in the problems of putting together a film that is open to subjective interpretation that the whole process is very difficult. If you are before Telefilm Canada, they are very concerned about a variety of these things, including what one might roughly call public policy. That is a factor in their decision making about how they allocate monies. If I have to be worried about yet another body in those terms, it makes the entire undertaking unspeakably difficult.
You cannot predict what someone will find objectionable. A quick fact about Passchendaele is that we have to go through the ratings review board, which used to be the Ontario Censor Board. Wisely, it now only assigns ratings, and that is supposedly helpful to everyone in terms of whether or not their children should see it.
In the first meeting we had with the woman from the ratings board, she wanted to give this film an 18A, meaning no one under 18 years of age could attend unaccompanied. That is a big problem for us because one of the major planks of this film is to bring kids in; we have a huge educational initiative to get high school students interested in our history. Three things determined the rating, and they were all elements of penetration. Not what you might think, senator. But it does actually —
Senator Tkachuk: Why do you look at me?
Mr. Gross: I think you are the one most worried about it.
There are three pieces of penetration: One is a hand going into a damaged head in the course of a battle; one is a bayonet going into a boy's forehead in the course of a battle; and one is a self-administered needle of morphine going into a woman's leg. I can understand the violence part of it because we are sort of used to that and we could tone that down a bit, but this warfare and it was not pleasant. She did let it slip that they had given a 14A rating to Saving Private Ryan, which is as violent as my film so I thought we could argue that case, but it was the penetration of the needle in the thigh that completely flummoxed me. I asked why. She said it would be okay if you see the needle going down and then cut away to her face and she relaxes with the affects of the drug. The audience are not morons. They will be able to put two and two together. They will not be thinking, "I wonder why she feels so relaxed?" They will think, "It has something do with that needle." She said, "The reason for this is we do not want to teach our children how to take drugs." I could not have predicted this in a million years. I use that as an example to say that I cannot predict what some committee, the composition of which I do not know, may find to be contrary to public policy. I really have no idea how, in God's name, you actually set that out.
In the long run, I would love to see our business more slightly tied to the marketplace in terms of decisions because I think they are pretty smart. When they do not like something, they just do not go to it.
Senator Banks: We need to show that woman the training films shown to young children with diabetes on how to inject themselves with insulin.
Mr. Gross: They will be banned.
Senator Banks: That is a perfectly good example of the subjective nature to which films and the question of their eligibility for tax credits could be subjected if this amendment were to be made part of law.
You mentioned the tax credit for Passchendaele, which, I presume, is a multi-million dollar film.
Mr. Gross: About $20 million.
Senator Banks: That $1.5 million give or take a nickel, is 7.5 per cent of it. Having raised in the order of $18.5 million from other sources, would you have had difficulty going that last mile for the $1.5 million if you did not have the tax credit?
Mr. Gross: Yes, but it is the first monies that you depend upon. Telefilm's money comes very late. We have a limited partnership company with private investment and that actually does not close until very late. We did not have our financing when we had to start pre-production. We had this. We take it to a bank and the bank gives me money to hire people to get going. If I do not have that money to begin with, then we cannot do anything.
Senator Meighen: Welcome, Mr. Gross. Thank you for your frank and very sensible testimony. I presume that excellent brief that you presented was the reason I did not see you at the opening of Stratford on Monday night.
Mr. Gross: That is right.
Senator Meighen: I was struck when you said that you cannot explain why no one noticed. Frankly, that is something that has flummoxed all of us. Here is an industry that has difficulty raising money, so I thought that the slightest ill wind or perceived ill wind would get everyone up on their high horse. I do not want to flog it unmercifully and unnecessarily, but I want to take you now to the provincial realm.
You mentioned that Passchendaele is $1.5 million in tax credits. What proportion would be provincial, if any?
Mr. Gross: I am really a theoretical producer, so I cannot tell you the actual percentages. I think the federal tax credit in the case of Passchendaele accounts for about $1 million, but we shot the film in Alberta, which does not have provincial tax credits. In addition, Ralph gave me an enormous amount of money so that we did not really need the tax credit.
Senator Meighen: We will figure out which "Uncle Ralph."
You have British Columbia, Nova Scotia, Newfoundland and Prince Edward Island all with this clause we are concerned about, namely, "contrary to public policy." There it sits, and it has not seemed to have caused a problem. We then go to Quebec, where I would have thought the film industry might be the most militant in every sense of the word and the phrase there is that they will not give you a tax credit if you are making a film that is against government policy. Excuse me? Against government policy? Give me a break. If that is not a red flag to a bull, I do not know what is. Yet, no one has raised a peep.
The proposal, as I understand it, is to make this into a statute law rather than a federal regulation. In the provinces, I am informed that "contrary to public policy" is regulation. If whoever decided said, "We will forget about making it at that level but we will keep it in the regulations at the federal level," then it would all be on the same level playing field. It may not be an acceptable level playing field but it would be a level playing field.
What is your reaction to that, given the lack of reaction in the provinces?
Mr. Gross: I am not sure; I would have to think about that. I repeat that it is odd that we did not notice it, but it also seems particularly odd that no one else in the opposition side of the House noticed it. This is a thick book; I did not realize that. It is a fairly short phrase. It was kind of slipped in there.
Senator Tkachuk: It is a tax law.
Senator Meighen: There are a couple of other things in here that have caused concern.
Mr. Gross: I am not sure what mechanism would have this make sense. I would like to see the vagueness, the subjectivity and the fact that it can be open to interpretation removed from whatever mechanism is employed. Those three elements can open this door to a censorship that we cannot yet see but could easily come and I think we must be very careful and guard against that. Empowering anyone as yet unknown with the possibility of exerting that kind of control over our cultural output seems wrong to me.
Senator Meighen: I do not say this as a fact at all, but it was mentioned at one time that much of this started off by a fear that there would be a film — and you alluded to this — made about Bernardo. As a film producer and an actor, et cetera, do you think such a film that might have been as offensive as many people feared could have and would have been made in this country, given what you said about the financing?
Mr. Gross: Do I think it could have been made or should have been made?
Senator Meighen: I do not mean physically. You mentioned the difficulty in getting financing. Do you see a lot of people lining up to finance a film about Bernardo and what he did?
Mr. Gross: It depends on what kind of movie someone would have chosen to make about that incident. If it were exploitive, then you never know. There are many odd balls. No one in this country would put equity money into something like that, no. I would be surprised if Telefilm would want to put money into something like that. I do not know if they were planning to do so or did.
It is an interesting case, though, on Bernardo. When I heard about someone planning to do something with that, I recall thinking that we do not need this; it is disgusting. However, we make movies about a lot of different things and many of them are not particularly pleasant subjects. Jack the Ripper is not a particularly nice guy but we have made movies about him. It is at the point now, in the onslaught of American pictures, that serial murder pictures are now its own genre. Things shift around. For example, there is the Hannibal Lecter series, Silence of the Lambs. These things are part and parcel of the stuff we discuss.
The problem with the Paul Bernardo subject that I eventually had when thinking about it was that this subject is legitimate. It is a thing that has happened in our society. Do I want to make a film about that? No. Do I want to go and see a film about that? Not particularly. However, if someone has a persuasive argument for making such a movie, I do not think a committee that we do not know about which is run by guidelines that are too ephemeral, should prejudge it.
Senator Massicotte: You answered the question about the "could" — do not think so, maybe not — but let us say someone did produce it. The relevant question is should it get credits anyway? Let us say it was produced. Should be it eligible for Canadian taxpayer money, should it get the tax credit?
Mr. Gross: If it does not fall afoul of the Criminal Code, if it is not pornographic, if it is not filled with hate and it does not contravene the law, yes. Unfortunately, yes. I would rather we did not make those movies, but we cannot devise a system where we stop that type of movie while stopping many other things by accident.
Senator Fox: If it is produced by an American, it is okay.
Mr. Gross: Yes, then that is what we would do. We would find an American producer, run him up here and he can get his tax credits.
Senator Meighen: I wanted to recommend to Mr. Gross, since he is a Canadian nationalist, as I think I am, that it is better to watch CPAC than C-SPAN. C-SPAN is the American production.
Mr. Gross: I mentioned the wrong one. There is the influence of American culture.
The Chair: Having participated in and watched these proceedings, how about a movie called "Sober Second Thought" — that is a terrific idea.
Senator Massicotte: That is CPAC.
Senator Goldstein: Adult supervision and only over 18 for that movie.
Thank you, Mr. Gross, for taking time from a very significant career and coming to help us deal with these issues.
Many of your colleagues have suggested that the manner of dealing with this issue would be to limit the judgment to be made by the minister to, and only to, subject matter that contravenes the Criminal Code. Would you agree with that suggestion?
Mr. Gross: I would, yes. I think it is the only sensible way to proceed that at least can take out of it the uncertainty and the subjectivity that is so troublesome.
Senator Goldstein: We had some testimony some months ago that the industry was not unanimous in its concern about this issue. We have not heard from anyone who is not concerned about it within the industry. Are you aware of anyone in the industry who is not concerned about this issue?
Mr. Gross: No, I am aware of no one in the industry who is not hugely concerned with this issue. May I ask whom it was that gave that testimony?
Senator Goldstein: It was a minister.
Mr. Gross: Well, no, sorry. Everyone I know in this business is concerned; and it is constantly moving in emails and letters and things being forwarded and moved around — what do we do? This could be really a big problem for us.
Senator Eyton: Mr. Gross, we are talking about four little words.
Mr. Gross: Yes.
Senator Eyton: I was thinking about it as we went on today; those four little words have engendered a debate that I am sure is 10 million words and growing. I think I know the issues and I can understand the issues, and what we should be looking for now is some sort of resolution.
You mentioned filters in your remarks, and the first filter you mentioned was the producers and artists themselves. You suggested that we could trust them; in your experience, they were trustworthy and they would act as a rational and natural filter of first instance. The second filter you mentioned was the Criminal Code and essentially, you said at least that is a fixed standard and it is one everyone can understand. Your concern was really about vagueness. The third filter you mentioned was the marketplace; but in a sense, we have to leave that aside because the marketplace is something that is down the road and after the fact. We have to come back to the first two filters, the producers and artists whom you trust and a Criminal Code that is not vague, but is a precise standard.
It seems to me it is at least possible that there is some other standard that would not be vague and that would support your requirement, speaking for yourself and your community, that it was not vague but precise. The Heritage Minister appeared here some weeks ago — perhaps months ago now it seems that we have gone on and on — and she suggested, to try to resolve this impasse and end the debate, that she would be prepared with respect to this provision to, in effect, have a 12-month holiday. Just put it aside, carry on as they have been and, in the interim, she would meet with representatives of the industry and work out some different standard. I am not sure if it was higher or lower or better, but some standard that was not necessarily only the Criminal Code. I think the thought behind it was the Criminal Code standard is necessarily a fairly low standard.
The question is, is it possible to define something that is not vague, that was precise and that set a standard that was different from the Criminal Code? Do you think that kind of exercise would be worthwhile, and might it result in some precise standard meeting your requirement that would be agreeable to the industry?
Mr. Gross: I am not sure how to answer that question. I suppose, theoretically, there is some kind of standard that one could arrive at and write down that might be okay, but I cannot imagine what that is and I do not know who composes it. It would certainly be better than enacting this bill, but I would prefer us to not have that, and to use the Criminal Code as the backstop. It served us pretty well.
We have made, in the course of many years and hours of television and film production, very few things that I would think would drive most people running from a room in horror. Most of it is fine. I am assuming it is this one film out of the Toronto Film Festival, at least it seems to be, of last year that has created this impetus to push something through on this — "Young People blanking."
I can tell you I am sure those guys thought it was a clever title and felt oh good, someone will notice this movie. I do not think they realized they practically brought the industry to its knees. You are feeling a little odd today.
The Chair: It is another penetrating comment.
Mr. Gross: It is kind of dirty in here, hey guys?
I gather a screening has been arranged here, or you have watched it. I have not seen the film, but I am told it is relatively benign in comparison to most of what is out there. The issue really becomes who is doing this?
The crazy thing is we are having this conversation and yet my children can turn on the Internet and see anything. There is nothing anyone in any government anywhere in the world can do about that. So where do these standards emerge from and who is going to write this down?
I find it very hard to figure out where we are going to pluck the wisdom to write down a metric for it. I guess it is not entirely outside the bounds of possibility that such guidelines could be enacted that would be acceptable, but it would seem extraordinarily difficult for me to imagine what they might be.
Senator Eyton: I would have thought, in 12 months and with the right people, you could do almost anything.
Mr. Gross: It is the right people part.
Senator Eyton: The offer was to the industry generally.
Senator Moore: Thank you, Mr. Gross, for being here and for what you are doing for Canadian filmmaking.
Someone earlier was talking about the then and the now. I do not understand why this is such a big issue. There was one little paragraph here I will read to you and I will ask for your comment on it.
This is clause 120(12) of this bill, found on page 350. This has not been touched on here today but it is very important. You do not have to write it down; I will read it to you slowly.
It says:
The Minister of Canadian Heritage shall issue guidelines respecting the circumstances under which the conditions in paragraphs (a) and (b) of the definition of "Canadian film or video production certificate" in subsection (1) are satisfied.
This is the key part here.
For greater certainty, these guidelines are not statutory instruments as defined in the Statutory Instruments Act.
That means they are not reviewable by the Standing Joint Committee for the Scrutiny of Regulations, not reviewable by the House of Commons, and not reviewable by the Senate of Canada. They can be changed and they can be deleted without your knowledge.
How do you feel about that?
Mr. Gross: That is another thing I did not know about; I think that is terrible. That is alarming. That should not be there.
Senator Moore: Thank you.
Mr. Gross: There is something that struck me as being amazing given the nature of this conversation going back and forth. There was a comment in opposition to a similar problem. These could be words about Bill C-10 and the problems we have with it.
This is from a person who objected to the Arab Broadcast Forum in Abu Dhabi where they tried to put together a media charter to control television.
...the wording is too vague, giving governments permission to shut down programs at will because certain clauses allow for that if a transmission threatens damage to social harmony, national unity or traditional values.
It is weird to me that we are having a similar conversation here that they are having in an area of the world not spectacularly well-known for its embrace of freedom of speech.
When we open up any of these things, they become problematic. If they are opened up to subjectivity, they are problematic. If they are opened up to the whimsy of a terrible cabinet appointment, well, that is crazy of me.
We ended up with a system like this because we experienced a lot of ridiculous things in terms of trying to control and implement what would have been called the equivalent of "contrary to public policy" in the past. We ended up with all sorts of crazy things. I think that is why society eventually dropped it saying we will let the public decide as long as it is not a material harm to the body politic, we will let the public make up their minds about this.
Senator Fox: Thank you Mr. Gross for being with us. Your testimony was very compelling.
First, there are some things we are not talking about. We are not talking about pornography because it is already excluded under the tax credit regulations. Therefore, let us put that aside for the time being.
Senator Tkachuk and I are not quite on the same wavelength on this issue. I am more in the school of thought of Senator Johnson. This is the first time that this legislation has ever come become before a parliamentary committee of any kind. It is not something that exists at the moment. It is new law and that is why we are here today. If were not new, we would not be talking about it. Therefore, take it for granted, this is indeed new law.
In the past, the tax credit system has always been based on objective criteria. You are Canadian; your scripts writers are Canadian; you are not a reality show; you are not a game show. You are a fiction film, et cetera.
What concerns me is when the minister comes before us and tells us there are films that are not pornographic and that do not offend the Criminal Code that should not receive the tax credit. The Criminal Code is an objective standard to my mind. It is there and you know what is in it. Judges are used to interpreting it.
I am not sure how you reacted. I would like to hear your thoughts on that.
Mr. Gross: I think the problem comes back to by what metric is this judgment to be made and who is to make this.
Senator Fox: Senator Moore outlined it. It will be made by guidelines issued by the minister and interpreted by a group of people put together by the minister.
Mr. Gross: As I said in my remarks, where do we draw these people from? Where do they come from that they know what public policy is so profoundly?
Senator Eyton: The whole exercise is to look at what is proposed and determine what change can be made.
Senator Fox: We live in a free and democratic society. Normally, you do not impinge on the rights of individuals by introducing legislation that you do not know how it will work. You withdraw your legislation and put it out for comment.
Mr. Gross: That would be my preference. As I said in my remarks, let us not do this right now. If the government is interested in this kind of control over the dispensation of the Queen's purse, draw up a bill and let everyone argue it. If they win, fine. If they do not win, we will figure out what to do about it. However, this is not a good way to proceed over something so fundamentally important.
Senator Massicotte: You obviously know the industry very well compared with many of us. Is there any country in the world whereby tax credits are tied into some qualitative measure regarding the type of film or something of that nature?
Mr. Gross: Possibly Myanmar or China. I do not know. I am making that up. I honestly do not know the answer to that question.
Senator Massicotte: I want to add to Senator Banks' comments. Your choice of words and presentation is very good. You should be in the movies.
The Chair: Instead, he is only narrating over hockey.
Senator Johnson: I agree with all my colleagues, Mr. Gross made a terrific presentation. He hit on almost every point we have been discussing over last number of weeks.
I, too, come back to the phrase "contrary to public policy." I do not work in the industry as an actor. I have produced a film festival for eight years. I have been privy to all the films, shorts, documentaries, et cetera that have come out in Canada. Therefore, I am very concerned about this phrase.
I know how hard people struggle to get financing. In my own province, they have raised the tax credits for American productions. They recently brought in a new budget raising them. Now it can apply to all productions. However, if you are Canadian, you have to go through the other jigs and reels, including Telefilm. We work with Telefilm in our film festival and they are very strict.
The Chair: Senator, I said you had an open field, but you cannot testify. You may ask as many questions as you want.
Senator Johnson: I am with 12 angry men and have to keep reminding you all the time.
I am very upset about the fact that my colleague and dear friend who is sponsoring the bill raised the issue about the minister saying we will give you a year and you can consult. I know the minister wants to do the right thing. However, how do you propose to pass a bill and still consult on this particular aspect of it? That is impossible. I think Mr. Gross' ideal would be for a new piece of legislation that people could talk about on this issue. Is that correct?
Mr. Gross: I think if the government feels strongly enough that some sort of controls have to be implemented on the allocation of public money; they should create a bill about that and not do it in this way because of the importance of the subject.
It is four little words, but they are obviously creating an enormous storm. I would say let us pull back, return with what we think it is and fight it out in a more public forum.
Senator Johnson: Mr. Chair, I want to say that I feel that we in Parliament have a duty here. This is where the Senate has a huge role. We have picked this up when the other half of Parliament did not.
It is another window on the arts world. It is showing the country that we can actually do something about the arts in Canada. I feel we have to keep plugging ahead.
You have people like Mr. Gross making film. Is not the objective to create the best industry we can?
No industry will survive without government money in our country or countries like ours. Do you think it can?
Mr. Gross: No, it cannot and it does not anywhere else in the world.
Senator Johnson: What would happen without Telefilm Canada and government funding?
Mr. Gross: You need the government money to be able to get the private sector interested. I should also say, by the way, the private sector is almost never involved in Canadian film to any great extent.
This is a new thing I am trying to do. We managed to get the private sector back into the film game with this one movie Passchendaele.
There is something in the order of $8 million or $9 million from the corporate and private sector. However, there is no way they would have come along if I could not have sat down with them and said I have the involvement of both levels of government.
The seed money in it is fantastic. For Ralph Klein in Alberta, it was $5.5 million to match what we imagined the federal input to be, and we spent almost $16 million in the province.
There are very few things that a government can put money into that will generate as many jobs and at such a high pay and high skill level as the film and television business.
Senator Harb: And taxes.
Mr. Gross: We actually need this stuff. Sometimes I think we start to question whether we really need to have this; we have lots of programming on television. However, it is not our stuff. As this world becomes increasingly borderless, I do not know where we turn to for the definition of who we are. At some point we are defined by this stuff.
If you are sitting in a bar in Zagreb and someone says, "Tell me about Canada," you do not say, "We have a fantastic new trade arrangement we are organizing with Colombia." We say that we have Margaret Atwood, et cetera.
We have to be careful that we protect it. It is very fragile now. I wish I were talking to you about something that was moving us forward, but we have actually been hammered down for the last few years and things are in quite bad shape. This is just another thing that makes it that much more difficult.
Again, I do not dispute any government's right or its own responsibility to put some kind of control on these things, to bring it forward in a larger public debate. I am happy to go out on the road and say this is a bad idea, and they say it is a good idea, and we will settle it in a normal democratic process. This is peculiar. This slipped in. We may be slow, and I am sorry we did not pick it up sooner, but we finally have, and we are saying we should not be doing it like this.
Senator Fox: This notion of a larger public debate on the philosophical issue is interesting. We have been talking about the film industry this evening, but if allocation of funds by government in the film industry entails the government having a right — outside of pornographic films and offences against the Criminal Code — to look at the content of the film to decide whether it is okay, does that not mean that with regard to allocations of funds going to the Canada Council for the Arts, the government should have the right to look at the content being made by creators across this country? Does the principle itself not concern you?
Mr. Gross: Yes, I think the entire principle of support for a variety of different things comes into question. That, it seems to me, is very important. I am glad you brought that up. One of the reasons this particular issue would be better debated in a more public forum is that it has huge ramifications. It has broad implications for how we view our contribution to the general pool of revenue through our taxes. I am not sick and I am not in a hospital, but I am happy to pay for those services. I do not drive on roads in the Yukon, but I am happy to keep them in repair.
We do not want to start saying it is a buffet that you can pick and choose from. Supporting culture is as central to the health and fabric of any country as any other aspect of that country. It is not something for which a section of society says, "I do not happen to like that stuff` and get out of it, in the same way that I say, "I do not happen to drive in the Yukon."
The Chair: Senators, have you exhausted your questions?
Mr. Gross yours was a very thoughtful presentation. It is clear that you feel passionately about what you have told us and that you did not just come here off the top of your head. We respect that very much. I hope you will find that our own attention to the issue is not frivolous.
Mr. Gross: It was great. Thank you very much.
The Chair: Many thanks for coming, on behalf of everyone.
Mr. Gross: Thank you all.
The committee adjourned.