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Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 10 - Evidence - May 29, 2003

OTTAWA, Thursday, May 29, 2003

The Standing Senate Committee on Transport and Communications met this day at 10:57 a.m. to examine the current state of Canadian media industries; emerging trends and developments in these industries; the media's role, rights, and responsibilities in Canadian society; and current and appropriate future policies relating thereto.

Senator Joan Fraser (Chairman) in the Chair.


The Chairman: I welcome everyone — senators, witnesses and members of the public, both present and with us through television — to this meeting of the Standing Senate Committee on Transport and Communications, which is examining the state of the Canadian news media.

The committee is examining the appropriate role of public policy in helping to ensure that the Canadian news media remain healthy, independent and diverse in light of the tremendous changes that have occurred in recent years — notably globalization, technological change, convergence, and increased concentration of ownership.

Today, we welcome first Professor Jamie Cameron from the Osgoode Hall Law School at York University. Professor Cameron, who is familiar with Senate committees and is well-known as a commentator in addition to being a professor, has also taught at various other academic institutions in Canada and abroad. She appeared before this committee several years ago on the issue of split-run magazines. Welcome back, Professor Cameron. I think you know the drill. You have some introductory remarks, and then we have a period for questions and comments.

Professor Jamie Cameron, Professor, Osgoode Hall Law School, York University, as an individual: I provided a brief biographical sketch in my notes, but I wanted to add a few details about myself.

I grew up in a small smelter town in British Columbia on the B.C. border. I remember my parents' first TV set. From that TV set, we only got three channels. They were ABC, CBS and NBC. As a small child, I pledged allegiance to the U.S. flag every day of the week, because that is what all the kids on Romper Room did. I also remember sitting at the kitchen table with my father and listening to world heavy weight boxing championships on the radio, because those were not on TV back then. I am dating myself a bit.

We did have a local daily newspaper was reliable, but I do not think it was much more than 15 pages long. Later on, when I got a bit older, we actually subscribed to one of the Vancouver newspapers. This is all by way of saying it is a long way from that world to this one here today.

I thank the committee for inviting me to appear as a witness. Unlike many of the witnesses who have appeared before me, I must confess that I have really no expertise in some of the regulatory issues you have been discussing. I want to talk about regulation too, but I want to address the issue from an academic perspective rather than a management perspective.

I wonder whether there is an unspoken assumption at work that regulation — and more and more and more regulation — will make the press more ``effective.'' I will refer to the press to include the broadcast media, because it is just easier for me.

Basically, I would like to challenge that assumption. I encourage members of the committee to think twice before assuming that regulation must be a good thing because regulation is, by definition, in the public interest.

My presentation is really quite simple. I would like to make four points. The first point addresses the role of the press. The second point explains the importance of freedom of the press. In the third point, I suggest that freedom of the press should be the rule, and regulation should be the exception. My fourth point is a time-permitting aspect of the presentation, and I may well leave that to questions, but if I do have time I will comment about the Charter of Rights and Freedoms.

First, on, in respect of the role of the press, everyone in this room knows that the press is a valuable institution and, indeed an indispensable institution of democratic governance. We also know that freedom of expression is cherished, prized and idealized in our political and legal tradition for several reasons. For one, it is an essential part of the democratic process and of the principle that our representative institutions are an exercise in self-government and are therefore accountable to the public. We also know that freedom of expression allows a free flow and exchange of ideas at all levels and on all issues. We know from experience that a process of uninhibited exchange promotes growth, choice and change in our social, political and cultural values.

If that is true at the collective or social level, it is also true for individuals. We know too then that freedom of expression allows us to realize our possibilities as human beings. I would just add, parenthetically, that the courts have reminded us in their decisions under the Charter of Rights and Freedoms that these are the central values of expressive freedom in our legal and political tradition. That is freedom of expression.

There is a significant component of value-added in the case of the press. The press plays a distinctive institutional role. ``Accountability'' is the mandate, the task and the challenge that faces the press. You have probably heard this before. Some have described the press as the ``watchdog'' or as having a ``watchdog'' kind of role or function. By that, it is meant that the press watches government institutions of all kinds and at all levels; and it does so on our behalf. The press tells us — members of the Canadian public — what those institutions are doing. It is through the press that the public comes by information and knows what our government is doing and is able to adopt a position to debate and evaluate the actions of our representative institutions.

It is through the press as a conduit that the public is able to hold those who exercise power over us — those institutions — accountable for their actions. Again, you sometimes see this watchdog role referred to as the ``checking function'' of the press in democratic systems of government.

That is a brief sketch of the role of the press, as I see it, in our legal and political tradition. We all understand those values and we do respect the institutional function that the press serves in our democracy. However, there is another aspect that can sometimes be forgotten or not given as much attention as it needs.

This brings me to my second point, which is to try to address, or explain, why the press can only fulfil this vital function if it is free from government regulation and interference. I will go out on a limb and say that I mean ``free'' in a strong and unconditional sense of the word. In doing that, I should be clear that I do not mean ``absolute freedom'' because that is a different thing. In my terms, ``unconditional'' means that, in principle, the press should be free to carry out its functions and institutional roles with no strings attached. I want to explain that by several examples.

Whether you agree with me or not is beside the point when I am exercising my expressive freedom. My proposition would be that my freedom to express myself is not contingent upon your approval or anyone else's approval, including the government's. That is the way I conceptualize freedom of expression. It turns out that I conceptualize freedom of the press in the same way. I would contend that the same principle applies to the press.

Most of us in this room — I am guessing — could probably identify press practices and characteristics that we simply do not like at all: such things as the undue commercialism of the press, the undue consumerism of the press, and the undue sensationalism of the press. Editorial policies have been talked about in recent years that are not seen as appropriate. There are concerns about the ownership structure. I think we would not have difficulty making up a list of press practices and characteristics for which we truly do not care.

By the same token, however, freedom of the press is not contingent upon whether you or I or the government happens to approve of those practices or those characteristics. In truth, it is the freedom that is protected, not the way in which it is exercised. That is the only way it can work.

We have a choice: Either the state can hold the press accountable to the government — which is what regulation attempts to do — or the press can hold the government accountable to the public by having the freedom to place public institutions under scrutiny. I do not think that it could be both ways. Once the press becomes accountable to the state by being placed under an umbrella of government regulation — which could be a big umbrella — it loses its independence. There is no avoiding that conclusion. When it loses that independence it loses its power to hold the government accountable and its ability to allow members of the public to hold the government accountable for the way in which it has been exercising its power.

I would say that independence and freedom from regulation are the conditions that the press requires to serve the principle of accountability and to discharge its institutional role. That is my second point that speaks to why freedom of the press is important to attach value to the freedom part of the press function.

This leads me to my third point, or my proposition, that I therefore conclude that freedom should be the rule and regulation should be the exception, and not the other way around. I would contend that a press that is not free is a press that is not effective, in light of those functions that we expect the press to fulfil.

I am not saying that regulation is not permissible because that would be a difficult position to defend and I would not want to place myself in that position. It is obvious that some amount of regulation is necessary, desirable and unavoidable. However, I am trying to say that a case must be made each time a regulation is renewed or new regulations are added. The case for regulation — I believe because of the importance of freedom of the press — has to be set at a fairly high threshold. I would encourage the committee, every time a regulation is being considered, to take into account, explicitly, the consequences for freedom of the press and the institutional role of the press.

I was going to make several comments about the Charter, but I think I will stop now so that we have time for questions.

In summary, we should not be regulating the press because there are certain things we do not like about it or because we think we can improve it, because, first and foremost, the press requires freedom and independence to function effectively. That is, to a large extent, why freedom of the press is a value and a right protected by the Charter. Rather than launch into a lecture of the Charter of Rights and Freedoms, I will wait to see if anyone is interested in asking a question about that.

Senator Graham: What you have had to say is very interesting. Our terms of reference speak to the media's role, rights and responsibilities in Canadian society. I wonder if you could tell us what you think the responsibilities of the media would be to Canadian society.

Ms. Cameron: First and foremost, the media has a responsibility to fulfil its institutional role as watchdog on the government. That is the main institutional role and responsibility that I see the press as having in our political system. However, I would broaden it beyond government institutions to include other non-governmental institutions that have significant power in Canadian society.

I think the primary responsibility of the press is to address the accountability function and to discharge its responsibility to gather information for the public and then to make that information accessible to the public through print and electronic media. In that way, the public acquires the information that it needs to evaluate our various public institutions, to debate their policies and their actions, and to respond to those actions. That would be first and foremost what I see the press as being charged to do.

There is also a sense that — perhaps not in your question or in the terms of reference — the press often behaves in a way that is irresponsible or unseemly. What do we do about that and why can we not regulate that? I do not know if that is part of what you were getting at, but I want to address that because I think it is a concern.

We all know about concerns about the press and the negative or less noble aspects of the press — both in its structure and its operations. In terms of those responsibilities and whether the press has a responsibility to be ethical and professional and so forth, I do not see that as an area for government regulation. I know that self-regulation is imperfect. I know the press's capacity to regulate itself will always be imperfect.

I also accept that the public has a limited ability to hold the press accountable for excesses or inappropriate behaviour. At the same time, the dangers of government regulation and government interference with editorial policies and other aspects of the press operation are so great that I think the question of responsibility has to be hands-off on the part of the government. I do not know if I have responded.

Senator Graham: You are getting there. One of my pet themes is that I think the press has a responsibility in terms of education. We often hear — not necessarily before this committee — that there is a lack of balance in the press and that some editorials or positions taken by newspapers, print media, are driven by ownership.

You cannot regulate balance and have freedom of the press. I believe in freedom of the press. I made a speech about it in the Senate chamber several years ago on the occasion of the 250th anniversary of The Halifax Gazette.

We talked the other day about headline grabbers — the headline being sometimes misleading and not relevant to the body of the story. Have you encountered such instances as that?

Should there be a code of ethics? Is there a code of ethics? Or again, would we be infringing upon the freedom of the press?

Ms. Cameron: I am afraid my response will not be very satisfying to anyone. You take your chances with freedom — including freedom of the press. There will be good newspapers and bad newspapers, and good headlines and bad headlines. It is so problematic to start regulating in that area. I would be opposed to any kind of government regulation that is aimed at professionalism or ethics or those kinds of aspects of press governance.

I should not be saying this, because I am sitting here in a government building, but the biggest concentration of power and ownership is the government itself. The press is imperfect.

Senator Graham: I am not suggesting that anyone try to regulate balance. I was wondering if you would feel that the media in general should have some kind of an ethical responsibility in terms of providing not only coverage and accountability but, as well, balance, that they have to regulate themselves.

Ms. Cameron: I would agree with that. However, I would say that regulation cannot be directed by the government. I agree they have a responsibility, but that is a self-governance issue.

Senator Merchant: Thank you for your comments. They are very provocative.

You spoke about the watchdog function of the press. In this country, we have a press that is publicly funded, and we also have other press. There has been some talk in this committee of setting up a publicly funded newspaper. I am wondering how that would work. Given the watchdog power of the press, would their dependence for funding on the government per se, attach some strings to the way they behave? I think that there is a good and bad side to it.

Ms. Cameron: I agree with what you seem to be suggesting. A publicly funded newspaper — in my view, and others could disagree — would not have the degree of independence necessary for that newspaper to play that watchdog role. I see the two as inconsistent. You can have a publicly funded newspaper, but you cannot expect it to be completely independent. It just does not work that way.

Senator LaPierre: Why? The CBC is funded by the Canadian government. I have, in 40 years, seen only one instance where, during the Diefenbaker era, there were some problems with some editorials. We have had the CBC for decades and there has been no problem at all.

Why would a public newspaper operating under the same rules be any different? Is that a prejudice of yours, madam?

The Chairman: Senator LaPierre, do not impugn motives.

Ms. Cameron: I have prejudices, to which I will admit, however, I need to make a distinction. When I talk about independence in response to the question, there are two senses in which I mean independence. There is independence from government, and then there is independence from the public.

My point would not be that a publicly funded newspaper would not be independent from the government. I accept that the CBC is independent from the government; but because it is publicly funded, I do not believe that it is fully independent — it is accountable to the public because its funding comes from the public.

I think there are strings attached to the CBC in the way it functions by virtue of the fact that it is publicly funded. As was noted, there are good things about that — there are positive features about the fact that the CBC is publicly funded — but there are some negative aspects to it as well. That lack of complete independence is one of the negative things I see about publicly funded press institutions.

Senator Merchant: I am not saying that the CBC is bad. I am not saying they are anti-government, but sometimes they bend over backwards to assert their independence. They are trying too hard to be independent from the government or the public. On the other hand, because they depend for their funding on the government and public, sometimes they bend the other way. I think they are pulled from two sides.

Ms. Cameron: I would add to that, and perhaps finish off by saying we cannot pretend that the public funding is not an aspect of the CBC. You cannot pretend it is not part of how the CBC operates.

Senator Carney: I always enjoy correcting a professor of history. I wanted to establish on the record that what Senator LaPierre cited was not the only example of direct interference in the CBC. The outstanding example of interference in the CBC was when it was asked by the government and complied with the request, to announce the FLQ manifesto, with which you will be very familiar. I do not want to get into a debate on that.

Senator LaPierre: Madam, this is not a fair statement. If you want to go into that, I will do so with great pleasure and delight.

The Chairman: Our witness is not an expert on that.

Senator Carney: There are two issues I would like to raise with the witness. One deals with the Charter of Rights and Freedoms. It may be too lengthy to go into in a committee, but there is the question that has been raised in the committee that the Charter of Rights and Freedoms ``guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.''

Could you provide the committee with a list of such jurisprudence? It would be useful to know that. There must be a list of what is the jurisprudence that covers reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Could I ask for that, chair, rather than have her outline it all at this meeting?

Ms. Cameron: For clarification, that would be a very long list. I am assuming you are asking about a list of cases that are specific to section 2. (b), which is freedom of expression in the press?

Senator Carney: Yes, it would be an addendum to your argument.

Ms. Cameron: I will make a note.

The Chairman: That would be very helpful to the committee.

Senator Carney: I thought so. In Senate hearings, you never have enough time to explain how you got to where you are in your thinking.

Ms. Cameron: I can give you a little list. I can also provide excerpts of some of the passages from Supreme Court jurisprudence that show the court's recognition of the function of the press. That recognition has taken place most prominently in cases dealing with the open court principle, access to court proceedings and so on. It is good general discussion.

Senator Carney: Thank you. That will help us, I think. My question is are we beating a dead horse on this issue? Today we have had witnesses point out that most young people gather just as much news as my generation did, but they do it on the Internet, which is an uncontrolled media source.

I would be interested in your view on how or what you regulate, or how you deal with the issues, when the news comes on the Internet. As one example, if you receive a picture of a battle and it is not clear that that photo was taken on, say, a warship by someone on the crew, and it is sent to the media but nobody knows the source, how does that fit into your legal framework?

In that context, the most compelling trend in media today is that the audience self-selects. They do not care what the editorial says, they do not care about the pages; they want access to a specific sports channel for a specific result or a specific report on what is happening here or there. They are not being given something they read and select from — they select from the media. In that kind of environment, what sort of jurisprudence applies?

Ms. Cameron: If I could try to reduce that down to a point question, what I understand you to be asking is, ``what is the point of regulation?'' There is so much out there that we can never control.

Senator Carney: Yes, but I am asking for something more specific than that.

If, in fact, there have to be reasonable limits prescribed by law, how do you apply that in an era when people are self- selecting their news from unidentified sources on the Internet, which is unregulated? I am asking you as an expert in your field, or is this something that we do not know and that should be researched?

Ms. Cameron: I do not know the answer to that. We might be talking about something that is impossible. Perhaps the next witness would be able to answer that question a little better, knowing more about the Internet; but certain forms of communication at present are not particularly amenable to regulation.

Senator Carney: They are the ones that increasingly are delivering information to the next generation. Are we beating a dead horse? Do we care about media ownership? Do we care about cross-ownership of material if people are getting information from a variety of sources, none of which are really recognized in the mainstream? That is my question.

Ms. Cameron: I would say that the committee would still have to think through what it can regulate, and what it would be desirable to regulate, even though there might be certain forms of communication that are problematic. The answers to the regulation issue have not emerged at this point. To put it more simply, you cannot throw your lands up because there are certain things about which you cannot do anything. You still have to address what you can do something about.

Senator Spivak: You have raised some very interesting questions. For example, how does reasonable limit — and the concept of freedom as well — come into the mix with Canadian content? Is that a reasonable limit on freedom?

In addition, there is the long-held tradition that freedom means freedom of any reporter or press person to write whatever they want, but that ownership should confine themselves to the editorial page. In your view, does that infringe on the freedom? I think I agree with you, to a certain degree, about government regulation of newspapers. However, what about the kind of professional regulation that exists in every sphere, such those for judges, lawyers and doctors? They all have infringements on their freedom in the name of community values and the public interest.

Apart from the fact that freedom should be unconditional, as you put it, what about the specific elements that exist? Ownership is also a factor because we now have great concentration. Does your concept of freedom hold merit when the owners impose their values, such as in the case of the newspapers in Canada and in the U.S. It is almost like propaganda from governments that control what is said in their countries' media. I am interested in the nuances.

Ms. Cameron: You have raised a great deal so I will start with a point that you made somewhere in the middle. I understood you to say that if we regulate doctors, lawyers, dentists and accountants, why should there be a special immunity for the press?

Senator Spivak: I spoke in terms of professional standards.

Ms. Cameron: The quick answer is that, unfortunately, lawyers, doctors, dentists, et cetera are not constitutionally guaranteed but the press is. The fact is that there is a Constitutional guarantee that privileges the press. That is where we start. We only had that as of 1982 but even so, the special position of the press was acknowledged in Anglo- Canadian tradition.

Senator Spivak: What about reasonable limits?

Ms. Cameron: My first point was that there is a difference between the press and the other professions that I am claiming should be unconditionally protected, but only as a matter of principle.

On the point about reasonable limits, the Charter demands a two-step process. The first step is to determine whether there has been an infringement of a Charter right, such as freedom of the press. Even though a government regulation might infringe on freedom of the press, it does not means that it is unconstitutional because section 1 allows reasonable limits on Charter rights to be upheld as justifiable in a free and democratic society.

Senator Spivak: Such as Canadian content.

Ms. Cameron: The Canadian content rules pre-dated the Charter and they are an infringement of freedom of the press. They are an infringement because they interfere with the editorial choice or, for example, the prerogative of the radio station to choose its music. They are an infringement of the Charter guarantee.

I am not aware that the Canadian content regulations have been put to the test in Charter litigation but there may be differences of opinion about whether those regs are a reasonable limit under section 1. If you had to ask me to guess, I would say they would stand a good chance of being upheld. Nonetheless, they are derogation from freedom of the press.

That is why I tried to be careful to say that, as a matter of principle, we need to think of the press as being unconditionally free. However, the fact of the matter is that there is no absolute freedom and that limits on the freedom of the press are permissible. For limits on freedom of the press to be permissible, they have to be ``justified'' so there has to be a rationale — a convincing reason — why Canadian content regulations or any other interference with freedom of the press are acceptable.

The form of the regulation also has to be constitutionally permissible in the sense that it needs to be drafted to impair the freedom as little as possible. Therefore, limits on freedom of the press are definitely permissible under the Charter and they have to be reasonable. There is a bit of a burden placed on government to take some care in drafting the regulations. That is part of how the freedom is protected. The Charter contemplates what I always call ``an equilibrium,'' or a balance between the enjoyments of the rights on the one hand and the reasonable limits that represent democratic values on the other hand.

That balance works out on a case-to-case basis. It depends on the nature of the interference; on how serious the interference is; on how strong the government's reason for the interference is; and how carefully the government crafted its regulation to keep a balance between protecting the right and achieving government objectives.

You did ask about the ownership issue. I do not have a good answer to that because I do not like what I see in many cases with heavy-handed owners imposing values and decreeing editorial policy, and so on. I do not care for that very much. At the same time — and I think I said this before — even though that is a problem, it has to be worked out in the field and cannot be the subject of heavy-handed government interference. That would be too dangerous. That is the best I can do in response to that issue.

Senator LaPierre: Where did you get the idea that the press is the watchdog of the government? I thought that we have a democracy and that the people are responsible for ``watch-dogging'' the government are the elected members. The Canadian people, generally, are the watchdogs.

Why do we have this principle of ``the watchdog'' of the government from which arises all of the other contentious statements that you have made about freedom of the press? Is the basis of your argument that by adopting a watchdog role, you can do whatever you like with the freedom of the press?

Ms. Cameron: Not quite. I will go back to the underlying values of freedom of expression that were not, per se, based on the watchdog role that you have asked me about. The broader reasons that freedom of expression is valued in our tradition also work to the benefit of the press. That is over, above and apart from any kind of watchdog role.

As to the watchdog role, it is my view that democracies depend on a mechanism in place whereby the actions of the representative institutions can come under debate and scrutiny so that the public — who elects their representatives to government — can evaluate those actions. Members of the public do not have a great deal of immediate access to government and representative institutions on a day-to-day basis, except through the information that is provided by the press. The press, from that point of view, has a special responsibility to serve the public by engaging in a news gathering function that looks across the spectrum of government functions.

They should consider not only the people who sit in the parliamentary buildings, but the police and all the servants of the public. The press has an obligation to the public to gather information about those institutions and the public servants and then to inform the public and to comment to the public about how those institutions and individuals are performing their function. It is not limited to government institutions, but is broad enough to capture non-government institutions that have very high degree of power and authority and very public functions. For example, the matter of the Red Cross and blood supply issues.

That is what I mean by the watchdog functions. I did not make it up. It is entrenched in the constitutional jurisprudence — not only after but before the Charter as well. The watchdog word was not used, but the accountability principle is well understood nonetheless.

Senator LaPierre: When I was in bible school, I was taught that the margin of my freedom ended exactly where it infringed upon the freedom of another student in the bible school. From that I gathered the principle that any granted freedom in a democratic society ends exactly where it infringes upon the freedom of another person.

If one accepts the thesis that the freedom of the press is unlimited, except what is limited by the Criminal Code and laws of libel, the end result would be that my right to the freedom of my opinion — which includes the freedom to free and varied information — might be infringed upon by the press. Therefore, it is the responsibility of the state through a democratic process to establish rules and regulations to preserve my right to freedom of opinion. Therefore, the balance must be restabilized. If the balance is to be restabilized, the only agency in the democracy capable of doing this is the state through its elected officials.

Is that an absurd thesis?

Ms. Cameron: No it is not. It is one with which I do not agree. I have said that I meant unconditional freedom at the level of principle because restrictions are permissible. Attention should be paid to the consequences of freedom of the press any time a proposal for renewing or adding regulation is being considered.

The only other comment I would make is that as a constitutional scholar and an academic I am uncomfortable with any sort of proposition that the government has a legitimate role to play in controlling the content of expression — whether it be by an individual or a member of the press. In the case of the press, I am also uncomfortable with the general proposition that it is appropriate for the government to control or manage the structure of the press. That is my opinion.

Senator Corbin: Senator LaPierre got on the line that I wish to explore with the witness. Are you saying there can be no democracy without the press as we know it today?

Ms. Cameron: I would perhaps have a little bracket around as ``we know it today'' and stick with the first part of what you said.

Senator Corbin: It does evolve.

Ms. Cameron: We cannot have a vital healthy functioning democracy without a vital functioning free press. A free press actually improves the quality of democratic governance. It is not a subtraction from democratic governance, but an institution that improves the level of debate, the quantity of the debate, and the responsiveness of the democratic system.

Senator Corbin: I was a journalist and I was at one time a member of the House of Commons. I do not think that I needed the press to tell me what was wrong with government policies and programs. It usually hit me in the neck days and weeks before anything got in the press. In that sense, people are quite capable of assessing and making their own judgments of what is wrong with government administration now.

Having said that, I will concede that I take great pleasure in reading well-written, well-researched investigative reporting on government action. The press plays a very useful role for the public generally.

I grew up in a town where there was a CPR line. The line is not there any more, but the old rusting bridge is still standing. About a locomotive's length before the train enters the bridge, there is a post with a crossbar from which hang metal strips. It is a gauge that tells the engineer, before he enters the bridge, that the load he is hauling do not touch those strings. Do we have a gauge for the press?

Ms. Cameron: Do you mean in the sense that there are certain taboos things that the press should not touch?

Senator Corbin: No, what is the safeguard for the decent conduct of the press in terms of the public it purports to serve? Some newspaper banners have sayings such as, ``All the news that is fit to print.''

I do not believe that generally the press has any gauge or high level of standard. It pretty well does what it wants. If it wants to launch a personal campaign against any individual, company or institution, it will go ahead and do it. What is the gauge?

Ms. Cameron: You are asking, in my view, who controls the press?

Senator Corbin: No, is there self-policing within the press? Policing is totalitarian nomenclature. I hate to use it. I do not like the word ``regulations.'' As a former journalist, I do not think that the government should regulate the press.

However, what does, in fact, regulate the press in terms of common decency and giving the public correct information. What stops ``la presse jaune'' — or ``yellow journalism''?

Ms. Cameron: The law itself is a check on the press. With respect to decency and so forth, there are laws of defamation, et cetera, that do place limits on the excesses of the press. We have not mentioned that here today. Those laws are in existence and they protect private individuals from various forms of excess on the part of the press. There are also press councils and those avenues of complaint.

The public can show its disapproval by not buying the newspaper or by not watching the channel or by not following the advertising, et cetera. It has been known to happen that papers go under because they are not very good or people disapprove of their policies or people think they are offensive. Those things do happen.

This is not a satisfying answer, but, as I said earlier, if you value the freedom and you believe there is a compelling reason for the freedom, then you have to take your chances with it. You will have good newspapers and bad newspapers. There will be an ebb and flow, because there is a culture to the press. After Watergate, a certain culture surrounded the press in the United States. Maybe that is wearing off now. It is not a static thing. It is in a constant state of evolution.

To a certain extent, you either have to place your faith in the freedom and the reasons for the freedom, or you go the other route, which is government regulation. I think you have to be careful about assuming too quickly that the press will be more effective or will be better in some way just because it is regulated.

The Chairman: Following along the question raised by Senator LaPierre and Senator Spivak, concerning where freedoms conflict, your presentation has stressed strongly the classic view that freedom of the press consists first and foremost of freedom from the government. That has been an article of faith for me for as long as I can remember. The concept was invented to define a situation in which ``the government'' would not be able to prevent ordinary people from publishing a newspaper, saying, ``Here is something you did not know is happening, and here is what I think about it and what I hope you will think about it.''

At the time when those classic principles were being laid down, the government was, as you suggested, the centre of power. There were no other interests that could remotely approach the power of the state. I question whether perhaps we live now in a slightly changed environment where there are now other entities of the degree of power that was not envisaged when the classical theory was being elaborated.

Let me take a pure hypothetical to illustrate that, an extreme. If we did away with all the foreign ownership rules, Bill Gates — should it interest him — could probably buy every newspaper, television station and radio station in Canada tomorrow. I expect that large numbers of people would say that that would be too great a concentration of power in the hands of one individual. To avoid that, we would have to reinstitute some form of rules.

Are we now at a point where we have to rethink the framework in which we set up our society's understanding of how we can ensure that fundamental diversity of information and voice? Alternatively, do you think the old rules are basically what we need?

Ms. Cameron: I am reluctant to let the old rules go.

The Chairman: I am not talking about letting them go.

Ms. Cameron: I also understand the problems of the new world to which you refer. I have no expertise on the ownership structure issue, and I understand it very imperfectly.

I would have to be well convinced that there is the threat to diversity and that it is a real threat before I would see it as being justifiable and permissible for the government to step in and start regulating ownership in a big way because, again, for many reasons, I think that is quite dangerous. I do not really know that I am persuaded by what I see around me that the threat to diversity is really as serious as some would say. That is in part why I started out with my little story about smelter town B.C. I did not grow up with a whole lot of diverse opinions coming my way. I look around today, and even though there is a problem with ownership concentration, I still have access to a whole lot more diverse opinions and a whole lot of options that never existed 50 years ago.

My first point in answer would be that I think I would want to take a careful look at what exactly the threat to diversity is and how strong that threat is. In my view, it would have to be at a high alert level before, it would be justifiable for the government to start picking and choosing who can own various components of the media.

The Chairman: As you can see, we could go on forever, but we do have another witness. Thank you very much, Professor Cameron. It has been extremely interesting, and we will look forward to that material.


Our next witness if Professor Pierre Trudel. Welcome to the Senate.

Mr. Pierre Trudel, Professor, L.R. Wilson Chair, Information Technologies and Electronic Commerce Law, Public Law Research Centre, University of Montreal, as an individual: Thank you for giving me the opportunity to discuss these fascinating issues with you. What I will say is contained in a document.

The Chairman: Professor Trudel has given us a very long and interesting paper.


We are having it translated, because he wrote it in his language.


Francophones will be able to read it immediately.


Those who do not speak French will find it very interesting and we will get it to you as soon as we can.


Mr. Trudel: The statements I will share with you are the result of work done at the Centre de recherche en droit public over several years. The centre was created in 1962 and since then, a team of which I am a member has been studying these issues which deal with the relationship between information and basic rights, and general legal problems which the free circulation of information in various societies have given rise to.

The first thing I want to say is that the idea of ``freedom of the press'' means different things in different countries today. So, depending on which school of thought you belong to, you may have a different perception of what constitutes reasonable or acceptable freedom of the press. Indeed, it seems to be a characteristic of modern democratic societies that there are very diverse views afoot as to what constitutes freedom of the press, or even freedom.

We have to see this as an asset and a mark of wealth. You cannot impose a single and unique conception of freedom, because in so doing, you would be straying from democratic principles.

There are two schools of thought as far as freedom of the press is concerned. The classic conception of freedom of the press held that the freedom to express oneself was the freedom to use one's property rights to express one's views. But other, more modern, schools of thought have emerged since World War II, based on the key role freedom of the press plays in democracy.

In Canada, as in other democracies, these schools of thought coexist and have evolved in the cultural fabric of our country, and their views have shifted depending on what at any given time may have been deemed acceptable or not.

Attitudes have changed, and have been greatly influenced by advances in technology which have affected the way information is disseminated in society.

The Supreme Court of Canada has recognized the importance of freedom of the press. But in some passages, the Court recognized what some people refer to as ``the positive aspect of freedom of the press'', an aspect which gives government the right, in the name of democracy and diversity, to take measures in the interest of maintaining a certain degree of balance.

This principle underlies many provisions contained in basic Canadian media law. The Broadcasting Act, historically and in its modern conception, is based on the fact that throughout Canadian history, beginning with the start of the 20th century, it was important for us to ensure that information flowed freely and reflected the diversity of Canadian points of view, as opposed to the classic approach, which gives media owners more freedom to express their views. The Canadian broadcasting system as we know it today would probably not exist if we had allowed the marketplace to regulate ownership rights.

Huge chunks of Canada's electronic media industry used to belong, to foreign or American interests. The ownership of cable distribution undertakings and other such organizations was subject to legislation several years ago and, as a result, reverted to Canadian hands.

In most countries, particularly small countries, or countries such as Canada, which lies beside an elephant, people have found ways to ensure that their national and regional voices be heard by way of the media.

This is why, in Canada, the positive conception of freedom of the press is given more weight. It is sometimes referred to as ``the public's right to know.''

The contemporary context of the media in today's world, in terms of technological evolution, increased concentration and convergence, has forced us to examine more closely the idea of freedom of the press. This is where ``editorial freedom'' comes into play. The question is: How far should this freedom go? This freedom exists. If you feel that editorial freedom means not representing a diversity of views, and only that of the owner, whether it is a public or private entity, then you must also recognize that it would be difficult to claim that the media would then have an interest in representing many points of view. Further, you would have to admit that the media's editorial freedom would overlap with the freedom of media owners. If there are few media owners, and if you believe that freedom of expression is nothing more than the freedom of the media owner, then chances are that there will not be a great diversity of views.

Over the years, people have tried to define the concept of editorial freedom. A couple of years ago, people said that editorial freedom belonged to the shareholders. But public broadcasters already felt that this approach was untenable. Why? Because the government — which is the sole owner of our largest broadcaster, namely the Canadian Broadcasting Corporation, could not possibly claim it had the freedom to dictate what should be broadcast on the CBC. Tradition and the courts, including most members of the legal community, have always viewed freedom of expression and the public's right to know as being antithetical to the government's right to control the public airwaves. Even the courts, when ruling on such matters, have expressed that opinion. The courts have said that despite the fact that the public broadcaster belongs to the government, the government does not have the right to choose and organise the information that reaches the public.

This problem has cropped up more recently in the private sector, and the waves of increased ownership concentration have called upon us to rethink the concept of editorial freedom.

We are trying to better define the relationship between the owner's right to manage his businesses and the idea of editorial freedom based on professional standards and principles which emphasize, and give priority to, the public's right to a diversity of points of view.

This explains why, over the years, the CRTC and other entities have tried to ensure a degree of independence for newsrooms.

Media concentration is an existing phenomenon which cannot easily be undone, so we have to accept it and realize that media ownership concentration is happening in all developed countries. Our challenge is to find a way of organizing the media to ensure that newsrooms can still make independent choices.

In this area again, the CRTC has proposed innovative solutions. The courts have also ruled on these matters and authors have written on the subject. They believe it is possible to reorganize the media's status without jeopardizing their editorial freedom, while at the same time granting newsrooms a certain degree of independence through structural or other means. For instance, the CRTC, in awarding a licence, may impose certain conditions in the interest of preserving a degree of independence to news editors.

The issue of how editorial choices are made has not yet been resolved. In absolute terms, you could say that the editorial ``mega-choice'' is made when resources are allocated. In a rhetorical discussion, you could claim that Parliament, if it so desired, could reduce the Canadian Broadcasting Corporation's budget down to $3, which would radically affect the editorial independence of the public broadcaster.

But beyond these truisms, it is also true that there are certain lines which must not be crossed. Decision-makers cannot cross these lines, otherwise the courts may deem that editorial freedom is threatened.

The question we must ask ourselves with regard to private owners is: How do you organize editorial freedom?

The CRTC has proposed a certain number of solutions. But if you wanted to go further and define even more precisely what editorial freedom means, you would need to bring together federal and provincial authorities, since convergence has created an even tighter interrelationship between broadcasting and print media.

Many areas of print media fall under provincial jurisdiction, whereas broadcasting falls under federal jurisdiction. These two levels of government will have to work together to ensure that convergence does not threaten editorial freedom, nor the professional independence of journalists who choose which information to make public based on professional guidelines.

We need to develop innovative regulations and follow-up mechanisms. In this area, cut-and-dried regulations are often extremely inefficient and particularly dangerous. This area calls for maintaining a delicate balance, since perception is extremely important for the media.

As a result, any action the government takes must be carefully calibrated and must avoid throwing out the baby with the bath water. When it comes to regulating a freedom as fragile and basic as freedom of the press, we must shy away from measures which see the world in black and white. Unfortunately — or should I say fortunately — it is not that simple.

We need to develop measures which strike a harmonious balance between self-regulation by industry players, and the strong involvement of civil society and of government organizations. We must be careful not to impose regulations which may work in areas other than the media.


Senator Carney: That was such a fascinating issue. It is hard to put it in simple words and take 20 years' of your knowledge and give it to the Senate committee.

However, since we get so much information from the U.S., are there basic differences between freedom of the press under the Charter of Rights and the freedom of the press under the U.S. Constitution? We are aware of the cases that involve the courts and the naming of witnesses.

Could you crystallize the basic differences in the approach of freedom of the press in those two countries?


Mr. Trudel: Indeed, there are differences. Canadians view freedom of the press differently than do Americans. Our approach is closer to the European one, which is reflected in the rulings of the European Court of Justice and other European entities which have studied these issues.

Despite the strong American influence on Canada's legal community, the fact remains that Canadians are much more open to government intervention or legislation. Some people do not like this.

It is true that, generally speaking, the courts feel that freedom of the press is a necessary evil in Canada, and a classic ruling would reflect this point of view. Our approach is the opposite of the American one. American courts have a strong bias against the validity of any government measure which may infringe on freedom of the press, that is, the freedom to disseminate content. Canadians generally feel that if government intervention is demonstrated to be reasonable, it is acceptable.

Most major measures and laws were upheld by the courts, which felt they represented reasonable limits to freedom of expression.

Some people may not like this, especially since judges tend to feel that the courts are the main safeguard. In the United States, freedom of the press is perceived as being a fundamental freedom. That is where the main differences lie.

As for the rest, several observers have noted a trend on the part of the courts, including the Supreme Court of Canada, to soften the criteria defining what is reasonable and justifiable. Therefore, some people feel that the test a piece of legislation must meet is easier than one might think.


Senator Carney: In that context, what are your views on the CRTC, which is the only agency that we have that actually regulates the media? Has it outlived its usefulness or should it be focusing on other areas? Again, this is a huge issue, but based on your experience, what is your candid view?


Mr. Trudel: On the one hand, the CRTC has a very tough job. The Broadcasting Act, especially the one from 1991, contains many more principles than previous and there is a tendency to blame radio and television for many of our society's ills. This does not make the CRTC's job any easier.

If you compare the CRTC with other regulatory bodies elsewhere in the world, you would be surprised by how well it compares.

The CRTC has managed to maintain a balance between freedom of the press and other values Canadians hold dear. The CRTC has managed this while respecting editorial freedom.

The CRTC has recognized, perhaps not enough for some people, that media concentration could have adverse consequences on the quality and diversity of information. It has taken measures which some people feel are too timid, but which have also been perceived as being fairly audacious. These measures have sought to find innovative solutions to maintain a balance without infringing on creative freedom.

If you look at the various issues the CRTC has had to address, you will conclude that it has maintained this balance, a balance between Canadian content and increased, reasonable access to foreign programming. Canadians probably have the greatest access to foreign programming by way of cable retransmission or other means. But we also have access to a great deal of Canadian programming.

This is a striking success. Perhaps only a wealthy society can afford to be this open. You will not find this situation in many other countries, including advanced countries. Apart from news, there are many Canadian programs and foreign programs in other media areas. This is because the CRTC has developed flexible and nuanced regulations.

I have often criticized the CRTC, as have other Canadians. But generally speaking, it does extremely well.


Senator Graham: The witness has provided some very interesting thoughts to consider. I think you asked the question: How much editorial freedom should there be? That surprised me because I do not think you can measure editorial freedom by percentages or degrees.

You then moved on to jurisdictions and suggested that in some cases, we may have to consult with the provinces. You made the point that broadcasting is regulated by the CRTC and that newspapers are controlled by the private sector.

If there are provincial dimensions, what are they? Are there possible jurisdictional disputes over freedom of the press?


Mr. Trudel: The provinces have jurisdiction over the media's civil responsibilities, that is the civil consequences due to liable or defamatory liable. The provinces also have jurisdiction over media-labour relations. Newsroom independence involves various aspects of labour relations. Often, it has to do with journalistic ethics. These issues are closely linked to civil responsibility and the ability to determine whether a reporter has erred. That falls under provincial jurisdiction.

Any Canadian media regulation must take into account the fact that provincial governments are also involved in both sectors.

The Chairman: Therefore, you are really talking about going further in certain cases.

I was thinking more specifically about La Presse and Le Soleil which are covered by provincial legislation stipulating that ownership of these newspapers cannot be transferred without the approval of the National Assembly. That is going quite far.

Mr. Trudel: Indeed, legislation relating to La Presse was passed in the 1960s, authorizing the sale of the newspaper. More recently, federal labour law officials deemed that those employed by the Canadian press were not governed by federal labour law but rather by provincial labour law.

As a result, provincial legislation is widely applied, at least in the case of the written press. On the issue of convergence, this requires greater cooperation.


Senator Graham: You have made a good point, of which I was not aware. I thank you for that supplementary — whether it was a question or a statement. It is more, I believe, an administrative problem and is not necessarily related directly to freedom of the press, per se.

I would like to come back to the CRTC. Are you concerned with cross-ownership and the possible effect on diversity of information of an amalgamation of newsrooms for both newspapers and broadcasters? Would the CRTC, if it decided to, be infringing on freedom of the press if it demanded that newsrooms of a newspaper and a broadcaster be separated?


Mr. Trudel: The CRTC has already moved in this direction. The CRTC concluded that this could lead to difficulties. The CRTC did in fact take this approach, for example, when Quebecor took over other media groups in Quebec. The commission required that a specific number of safeguards be put in place to ensure that the various newsrooms remained distinct from one another.

I am somewhat puzzled. It goes without saying that it is not always possible to document the negative impact of increased media concentration. This also depends on the spread of the concentration. There might be greater concentration in one particular type of media, but there are other types of media that have since come to the fore, for example, Internet-based media. As a result, there might not be such a huge loss of diversity as initially feared.

Where governments or regulating bodies conclude that levels of concentration in a particular industry are a cause of concern, what can legal experts do about that? This is a major challenge. When advocating greater concentration, there have to be benefits and disadvantages. One must also consider the disadvantages posed by concentration. When disadvantages are found, it is necessary to identify steps that must be taken to restore the balance.

Knowing exactly when this danger arises will always be the subject of debate. The written press industry is no different from other industries in our society. There comes a time when decisions have to be made and it has to be determined whether the conditions governing the public information industry are the right ones or not. There also comes a time when it is appropriate to develop safeguards or measures to restore a balance.

The major challenge is developing effective measures which will not undermine press freedom. This is the major challenge facing us over the next few years, because we are already faced with concentration as a phenomenon. Once the ball has been set rolling, it is quite difficult to go back.

The major challenge of the next few years is to guarantee editorial freedom against the background, at least for the foreseeable future, of greater ownership concentration.


Senator Graham: Did the intervention by the CRTC in the situation in Quebec cause you concern?


Mr. Trudel: Indeed, this was quite foreseeable.


Senator Graham: Was it a fair intervention?


Mr. Trudel: In order not to mislead the members of the committee, I think it is important to mention that Quebecor used me as a consultant. As such, I drafted a report, which was tabled to the CRTC. In this report, Quebecor put forward recommendations on the issue of editorial privacy. The applicant was prepared to implement measures to guarantee independence. It was feared that the newsrooms of newspapers and television stations acquired by Quebecor would be merged. As a result, there was some concern from various quarters over information diversity. In light of this, Quebecor put forward measures that were, to all intents and purposes, endorsed by the CRTC.

Given the fact that I was a consultant for Quebecor, I am not really in a position to give you an expert opinion. However, I believe, as a consultant and an ordinary citizen, that these measures were reasonable.


The Chairman: I may not have expressed myself clearly a moment ago, but the law about the newspaper La Presse, to which I referred, is not administrative. You cannot sell that newspaper — it cannot change owners — without the approval of the National Assembly of Quebec.

This is something that is not widely realized, and I do not know if there are any other similar cases anywhere. Clearly, that step was taken because of the enormous importance of that newspaper to that society. It is a hugely important institution for French Quebec. It is something to bear in mind as we survey the legal landscape.


Senator Corbin: You were given the task of developing a free press in west Africa. What is the impact of economic development on press freedom, from both a theoretical and a practical point of view?

I do not know to what extent you are familiar with recent changes in press ownership in New Brunswick. Recently, a major press conglomerate acquired a whole range of dailies in the St. John River valley. These were all English- language newspapers, with the exception of one French-language daily founded over 90 years ago. In New Brunswick, unlike Quebec, we do not have legislation prohibiting this type of takeover.

This example really illustrates my first question. Either we support freedom of the press using economic resources or we promote the control of the written press by powerful conglomerates. I would like to know what you would have to say about that issue.

Mr. Trudel: Undoubtedly, there is a link between how wealthy a society is and press diversity. Information and the press are not free.

Your question dealt with my experience in west Africa. Within the framework of a CIDA initiative, I was indeed involved in a program to train journalists and to promote press freedom. In some areas of Canada, it is necessary to reconcile the often very difficult economic situations of some media groups with the imperatives of public information and press freedom. In terms of this issue, we have successfully come up with solutions geared to reconciling these challenges. There was great interest in Africa in our solutions.

I am not totally up to speed with the current situation in New Brunswick. However, in terms of the provinces, the federal government or the CRTC, and dealing with problems of information diversity, we have always, to date, managed to provide safeguards for freedom of information. We have managed to safeguard the ability of information workers, that is, journalists, to do their job of informing Canadians. We have been successful in creating conditions whereby journalists are forced to provide information based on their professional judgment. This is the bottom line.

Both trust and professional judgment are the bottom line, and, we must do everything in our power to keep it that way. In order to do this, we can do several things. However, very often the only way of safeguarding media bodies is really to merge them into a larger enterprise. It really comes down to integrating the smaller companies into one larger corporation with the necessary resources to keep it afloat.

We have to ensure that media companies can really survive. However, this often means that these groups have to ensure their own credibility. Entrepreneurs base their operations on specific management strategies, which in my opinion, are often incomplete and tend to brush over the fact that the major value of a newspaper or a media group is its own credibility. Where steps are taken to develop a strategy to safeguard media credibility, the particular entity can be merged into a larger body, while at the same time preserving editorial freedom.

Managers of press groups are the first to recognize the importance of credibility as a long-term capital asset of their particular enterprise. To the extent that steps are successfully developed to safeguard this credibility, it may be easier to build consensus than might have initially been thought.


Senator Graham: I thank Senator Corbin for raising the question. I would be interested in knowing what countries you worked in in Western Africa. I have had some experience in election observing in that part of the world, and there are media outlets that are owned and controlled by governments.

I remember an experience in Namibia, in the first free election they had in November 1989. A group of us were asked by the UN to go and assess the electoral law six months prior to the election. One of the things we found was — I use this in the kindest way — the ignorance of the people in trying to understand what a democracy was about and what their rights and responsibilities were in a democracy. They had no access to any kind of media.

The media that was there was the SWABC, which was owned and controlled by the South African administrators. We had a difficult time persuading the SWABC and the owners to provide equal time to all of the parties contesting the election. It was also difficult to convince them to use the facility for educational purposes in terms of teaching the people in the far-flung areas of Namibia about their rights and responsibilities in a democracy — even how to get to a polling station and how to vote. Do you care to comment on that?

Incidentally, may I say that 75 per cent of our recommendations to change were accepted. They finally did come around to providing equal time to the other parties.


Mr. Trudel: We worked in west Africa, more specifically in Benin, Mali and in Guinea-Conakry. We were also involved in initiatives in Ghana.

The relationship between state-controlled media outlets and good news standards were all questions that we had to address. These standards are mainly based on providing both time and space to cover all political trends.

In that sense, they are often interested in Canadian solutions that allow for the preservation of the media's autonomy, while ensuring its diversity at the same time.

Take the example of equal time. This is a more equitable approach. We try to treat each point of view fairly. This is a less predictable approach. It appeals to editorial judgment in the media, which allows the media to play an educational role, the awareness-role building that we expect of them.

This as opposed to simply being a conduit that allows a quarter page in the newspaper or 15 minutes to each political group regardless of the importance that they may have within our society.

I found this experience most interesting. Often, when we reflect on our experiences, we appreciate the value of what we have in Canada in terms of news media. It is perhaps unfair to do so, because these countries are amongst the poorest on the planet, but we can readily see the breadth of the difference, and also the role that the media plays in democracy.

This can really be seen through observing the role that media plays in the newly emerging democracies of these African countries. We can see how important the role of the press is in democratic life. We have a tendency to forget that here, because we take it for granted. It is a bit like an old friend.


Senator Merchant: I am sorry that I missed some of your presentation. Perhaps you touched on this, but I would like to ask my question.

There was some talk about the CRTC. In this country, one party seems to govern for long periods of time. We have been in government for 10 years, and, if we go by the polls, we may be governing for some time to come.

Do you think that some of the broadcasters may view the CRTC with a bit of a jaundiced eye? Is there a little bit of cynicism or skepticism that the CRTC might be composed of friends of the government or people who are sympathetic to the government of the day because they are appointed? Do you think that blurs the function of the CRTC? Is that a perception out there?


Mr. Trudel: It is certainly the role of all governments to protect the credibility of their regulatory agencies.

Generally speaking, if we look at the history of the CRTC, we certainly do not see a generalized practice of appointing people with publicly stated political preferences. All Canadian governments wish, perhaps not always but generally speaking, to avoid appointing people who have such a high-profile political past that it could undermine their credibility in positions of this nature. That is the tradition.

Some countries have an equivalent to the Broadcasting Act, which clearly states where the members come from, and pratically give out their initials. In Canada it is a government decision. The government is not bound by any written rules. The independance of the CRTC is clearly an important custom of the regulatory system. Even if it is an unwritten rule, it makes all the difference. It is not that someone with a political past, regardless of what it is, would be a bad regulator; everyone has a past. Many judges have been politically active, which does not prevent them from being excellent judges and from being rigorous and completely objective in making their decisions. In and of itself, it is not a problem.

In these matters, perception plays an important role. We must not forget that in our regulatory system there is the constant concern, which has been historically demonstrated, that we must ensure the appointment of people who are probably not enemies of the government in power. But there has been, it seems, a concern to preserve the credibility of the organization. This has everything to do with the quality of the regulation. Even more so because this is not the kind of thing that is easily decreed. It is a mindset, an attitude that has to be watched over daily, in part through vigilant public opinion. When the day comes that this is no longer a natural tendency for governments, we will have to think along the lines of mechanisms of parliamentary control of nominations, which is not a better approach. Often we expose people's pasts and drag them through the mud before they have even had a chance to take on the job. This is one of the basic aspects of a regulatory system.


Senator Merchant: I have known quite a few cases where, as members from the CRTC leave, they find employment with some form of media. I wonder if subconsciously, knowing that down the road they want to look for employment with these very people — and because we are all human — if there is an element there that, perhaps, clouds their decisions a bit.


Mr. Trudel: Then again, there is the classic phenomenon of influence over regulators.

The regulators live in the same milieu and play at the same golf courses, and see their futures in the industry that they are responsible for regulating. There will always be the possibility of some influence being exerted over their decisions. It is true that there have been cases where people who were members of the CRTC were hired later. From the analyses that I am familiar with, there does not seem to be a constant model. There have been cases like this, but I do not think one could say it is widespread. There is a balance that must be maintained.

In some pieces of legislation, there are provisions forbidding members of these regulatory agencies from accepting positions with the businesses they have had to regulate, for a certain period of time. It is a further guarantee to minimize this phenomenon of influence over people.

In order to have regulators who are credible in the eyes of the industry, they must be people who know the business. One has to expect that people with experience in the industry will be appointed to the CRTC, because if not we would find ourselves in a situation that is no better, that is to say that the industry would not take the regulators seriously because they would not believe them to be competent to judge what they are doing. One approach that is often recommended is precisely to stipulate a period during which a member of an organization such as the CRTC would not be able to accept a senior position or be an employee of a business that he or she has had to regulate.

The Chairman: Is there such a rule in the case of the CRTC?

Mr. Trudel: Not to my knowledge.

The Chairman: It would be easy to check.

Mr. Trudel: I do not think there is. I deal with this legislation daily, but not having it before me I do not want to be too categorical. I would be quite surprised if there was something in the act on this subject.

The Chairman: Your experience and your expertise are quite broad. We hear a lot about convergence and concentration of ownership. I do not want to ask questions regarding what is ``desirable'' or ``undesirable'' about these two phenomena. Some people say that in both cases, these things are both necessary and even inevitable. Do you have an opinion on this necessity or inevitability?

Mr. Trudel: When one is in university, one has a tendency to look at things with a scientific eye. In the world of human decisions, nothing is inevitable or inescapable. What I understand in the talk about the inevitable character of convergence and of concentration, is that there is a certain yielding to international trends. It is true that in most industries, and particularly in the media, we are very susceptible to fads. Remember what happened when AOL merged with Time Warner. Almost from one day to the next, everyone in all of the media industries started saying that convergence would ensure universal wealth and happiness; it was what had to be done.

Subsequent events showed that it was not that easy. There are no phenomena that are so inevitable and so simple. There is often much debate around these issues. In the history of Canadian media, people have often spoken about inevitability. I see it as discussions whose usefulness is to draw our attention to the major trends that will necessarily affect us. We cannot deny it. Not that they are inevitable, but, quite simply, we recognize their existence and their effect. When the major American players have strategies, this obviously has an effect on Canada. That is how I understand the talk about the inevitability of convergence and of concentration. It does not mean that nothing can be done. We have a tendency to think that because something is inevitable, nothing can be done, and that we just have to sit down and wait for the end.

That is not governing. If Canada had proceeded that way, we would not have our broadcasting system and no Canadian media organization would have survived. If we had taken that approach at the beginning of the 20th century, we would probably not have a public broadcaster today. It is always tricky to go back in history. There would not have been a great degree of Canadian presence in the media. But we did not go that route. We were innovative and coped with major trends.

There is no point denying these trends or simply rejecting them out of hand; you have to acknowledge them and think of ways to deal with them.

A problem that often arises is that there are no other models to turn to. Few countries as developed as Canada have had to face this kind of challenge within the media universe. Because of our situation, we are one of several countries that have had to innovate and design new regulations. Regulations are a means but not an end. You do not regulate just for the fun of it; you do so because you have problems to solve and challenges to face.

Canada is often forced to find innovative solutions because we are the first ones affected. We were the first ones affected by direct satellite broadcasting, by cable distribution and by the heavy presence of the American media, for whom it was easy to enter our market. But we found innovative solutions for which there were not many precedents.

Few countries face these types of challenges. Because English Canada shares the same language as the United States, many Canadians cannot distinguish between the American edition of Time and its Canadian edition. These are some of the issues we have to deal with. Because we are confronted with sometimes unavoidable situations, we have to tackle them straight on and not be afraid to innovate.

Innovation must occur in the area of regulation. There is no reason why there should be innovation in every other field, and not in that one. That is the challenge.

The Chairman: Thank you very much. If you have any recommendations to make with regard to innovation, please do not hesitate to send them to us. What you had to say was fascinating.

Mr. Trudel: I have here a document from the German Constitutional Court on freedom of expression. I have quoted from this document in my paper and I will leave a copy with you.

The committee adjourned.