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Monday, August 11, 2008

My take on Bill C-10

I write a column in The Lawyers Weekly, which (I guess) is not accessible to non lawyers. So here is a column I published on May 23rd, 2008 regarding Bill C-10 (this is the draft I submiited, so the actual column may differ slightly than this):


The current government has proposed amendments to the Income Tax Act in Bill C-10, which would allow the Heritage Minister to deny tax-credits to Canadian movies that contain materials that he would deem offensive or contrary to public policy. Needless to say, this has caused an outcry of censorship from usual suspects on the left. Once the amendments are enacted into law, undoubtedly there will be constitutional challenges alleging that they unreasonably infringe the free speech rights of film-makers.

At first glance, while social conservatives loath the use of public funds for the purpose of producing immorally themed films, one would have thought that the Conservative response would be to remove all subsidies for films. After all, the notion that the state is needed to ensure that the Canadian film industry survives is a ridiculous proposition. It is premised on a flawed notion that Canadian culture somehow cannot survive without state involvement. This proposition is as ludicrous as the idea that we would not be “Canadian” without a universal healthcare system that prohibits the existence of private insurance. Hence, if the Harper government wanted to pursue a true conservative agenda, it should have abolished all film subsidies just as it abolished funding for the court-challenges program. The federal government has no business picking winners in the film industry just as it has no business dictating how provinces should run their health-care systems.

This latest tussle between the left and the right reveals the hypocrisy that plagues both sides of the political debate when it comes to the proper role of the federal government. For years, conservatives lamented the intrusive nature of federal regulations in provincial areas such as education and healthcare under the guise of the federal government’ spending power. The federal government has been using conditional grants to impose uniform standards across the nation, something that is anathema to those who believe in the distinct role of the federal and provincial governments and the idea of competitive federalism. The Canada Health Act is the most notorious of these programs, whereby the federal government imposes one standard for the delivery of and the payment for medical services across Canada, even though healthcare is squarely within provincial jurisdiction. While the division of powers may not be as sexy a constitutional topic as the Charter of Rights and Freedoms, the federalist nature of our country was enshrined in our Constitution long before the Charter and is of equal importance, constitutionally speaking, as the Charter. Nonetheless, the left is not bothered by such constitutional niceties as long as their social agenda is in play.

So here we are with the federal government now also reaching beyond its jurisdiction, but not bothered by this as long as its socially conservative agenda can be advanced. The Tories are finally cluing into the fact that the spending power is the trump card that allows the federal government to do through the backdoor what it cannot do directly. The Supreme Court has even given its blessings for such backdoor schemes. Re Canada Assistance Plan, [1991] 2 S.C.R. 525.

The Tory government is also sacrificing another principle that it claims to believe in, namely free speech. Just a few years ago, Stephen Harper unsuccessfully sought to challenge the constitutional validity of campaign spending limits on the grounds that limiting spending amounted to a restriction on speech. Harper v. Canada, [2004] 1 S.C.R. 827. Jason Kenney, the minister responsible for multiculturalism, just recently implored activists at the government-funded Canadian Race Relations Foundation (CRRF) to respect free speech rights when pursuing their agendas! Despite the claims of the left of government censorship, it seems that the government has been regulating how much speech political parties can engage in, and the government has always been picking winners and endorsing certain types speech (here race relations) to the detriment of others. Those who wish to advance unpopular agendas in the public sphere are left to their own devices, or those who wish to advance their agenda beyond what the state allows them (as in the case of the Tories allegedly exceeding the campaign spending limits) are simply out of luck. The left is, therefore, not bothered by the assault on free speech through the tax code, but rather the attack on their preferred speech.

A similar reversal of roles took place two years ago in the United States. Many private law schools had prohibited military recruiters from recruiting on their campuses, because of the Pentagon’s discriminatory policy towards gays and lesbians. Congress responded by passing the Solomon amendment, which stated that any educational institutions that prohibited military recruiters would lose certain funding they received from the federal government. A coalition of law schools sued the government claiming that the Solomon Amendment amounted to an unconstitutional restriction on the law schools’ free speech rights. The United States Supreme Court unanimously disagreed and upheld the amendment. FAIR v. Rumsfeld, 547 U.S. 47 (2006). American conservatives, who long complained about their federal government’s intrusions into states’ affairs, finally found a way to use their federal government’s spending power to advance their social agendas, without concern for their constitutional principles. Our so-called conservatives have also finally figured this out. It is a shame, however, that political expediency, once again, has triumphed over legal principles.

Posted by Moin A Yahya on August 11, 2008 in Current Affairs | Permalink


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I don't see why funding for arts and culture is outside federal competence, or exclusively provincial. Do you have some basis for that? The art market and the film and television industry both look to me like interprovincial and international trade and commerce. And for that reason, I don't think it's hypocritical for a conservative governmnet to fund what is after all a form of industrial development, while taking steps to ensure that it isn't hijacked for political use by the government's enemies.

Though of course I'd be happier to see all such funding simply eliminated.

Posted by: ebt | 2008-08-12 11:29:33 AM

Here's a list of some of the blockbusters that the Alberta Film Development Program funded. Do they run these shows on Alberta TV several times a day, a week? Just wondering. If I lived in Alberta I'd want my money back.

1. Holiday in Handcuffs (2007) (TV)
2. The Ron Clark Story (2006) (TV)
3. Waking Up Wally: The Walter Gretzky Story (2005)
4. Family Sins (2004) (TV)
5. Ginger Snaps Back: The Beginning (2004)
6. Picking Up & Dropping Off (2003) (TV)
7. Agent of Influence (2002) (TV)
8. Fubar (2002)
9. "Filmography" (2001)

Posted by: The Stig | 2008-08-12 11:56:01 AM


The case law as it stands might support your argument, but the original understanding would probably not. Just because it crosses boundaries doesn't make it interprovincial. An expansionist view of the role of the feds took hold in the United States with the result that everything there is under federal law. So my advice when it comes to the federal jurisidction is to proceed with extreme caution; otherwise we will be ruled by the east in every aspect of our lives!

Posted by: Moin Yahya | 2008-08-12 6:17:39 PM


Posted by: Grant Brown | 2008-08-13 2:55:28 AM

That's not an adequate answer, Mr. Yaha. Show me something that says the arts are exclusively provincial, or concede that federal spending on the arts is constitutionally legitimate.

Posted by: ebt | 2008-08-13 4:03:57 PM

As a member of the film community I find all of your arguments quite sad and tasteless. If you know nothing of the industry it self than I suggest that you stop making fools of ecach other and keep your uneducated opinions to yourselfs.

Posted by: Greg | 2008-09-04 9:51:05 AM

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