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Senators grill heritage minister on Bill C-10

'Contrary to public policy' test not new: Verner

It’s a Senate committee that rarely receives a lot of attention. But on Apr 2, it was a packed house.

Heritage Minister Josée Verner was defending C-10, a bill that would give the minister the power to deny tax credits to controversial films.

Because the clause in question appears in the middle of hundreds of pages of income tax amendments, it was the Senate’s banking committee that called Verner to testify. It’s a committee that usually flies under the radar. This time, however, the gallery was packed and two extra rooms were opened with live video feed of the proceedings.

Verner arrived 10 minutes late and left before each senator could ask a question. Flanked by four senior bureaucrats, Verner’s voice shook slightly as she read from a prepared statement.

At issue is a 13-word clause that would give the minister the discretionary power to decide if “public financial support of the production would not be contrary to public policy.” If a production is deemed contrary to public policy, it will lose its Canadian Content tax credits.

Verner defended the bill as closing “a loophole” that theoretically would allow illegal material like hate speech and child porn to qualify for the credit.

“The policy rationale for the ‘contrary to public policy’ provision is quite simple,” she told the committee. “It would ensure that the government has the ability, in exceptional circumstances, to exclude from public support certain material — material that is potentially illegal under the Criminal Code, such as indecent material, hate propaganda and child pornography.”

During questioning, Liberal Senator Pierrette Ringuette pressed Verner about the vagueness of the provision. Canadian filmmakers have warned that if the tax credits are uncertain, financing for films could evaporate.

“Why not list the prohibited material in the bill, child pornography, hate propaganda?” she asked in French.

Artists oppose the bill because they argue it is tantamount to government censorship. Michael Harper, a longtime member of Vancouver’s arts community, is also concerned that the provision is too vague.

“I think exact wording is necessary,” says Harper, who opposes C-10. “It’s so difficult to talk about. There are so many different opinions about what is appropriate. That’s why it should be left up to individuals to decide what’s appropriate for them.”

In Vancouver’s gay and lesbian community, C-10 has touched off a storm of protest. Film and TV is a billion dollar industry in Vancouver, according to the city — representing about one-fifth of all film and TV revenue generated in Canada.

As well, thanks to Little Sister’s 20-plus year battle with Canada Customs (now the Canada Border Services Agency), the city has seen the effect of government censorship first hand.

Mark Macdonald is a former book buyer for Little Sister’s. “As we learned in Little Sister’s, it’s not violent pornography that gets censored,” says Macdonald. “It’s comic books, it’s women’s material that gets misinterpreted by government bureaucrats.”

It’s an issue that tends to strike a chord in the gay community nationally, agrees Harper.

“I think we’re more sensitive to issues of censorship because we’ve been censored since we’ve reached an age of knowing,” he says. “We’re used to surviving with it. Now we’re trying to move beyond it.”

During the Senate meeting, Verner repeatedly pointed out that the proposed ministerial power was first introduced under the Chrétien government in 2002. A similar provision has existed as policy — rather than law — since the Canadian Content tax law was first introduced.

“Despite what you may have read or heard,” Verner said, “the ‘contrary to public policy’ test is not a new concept. It has been part of the tax credit landscape since its inception in 1995 through income tax regulations.”

As a regulation, it’s been used twice in the last seven years, once in 2002 and once in 2007. Both were related to porn, which is already excluded from receiving the tax benefit. As legislation, it’s been introduced several times between 2002 and 2006, but each incarnation has died on the order paper.

For Macdonald, the two excuses generate a contradiction. He points out that the catalyst for the clause was a film about killer Paul Bernardo called Deadly.

“It’s disingenuous,” Macdonald says. “[Deadly] is not hate speech; it’s not child pornography. So whether that film should get a tax credit comes down to a matter of taste: good taste versus bad taste.”

With the guidelines of what constitutes “contrary to public policy” left up to the minister — and immune to oversight from Parliament — the bill threatens to result in “censorship by intimidation,” says Macdonald.

“If this is a rightwing Liberal bill, introduced by a Conservative government, to be administered by faceless bureaucrats and it’s not going to get discussed in the House of Commons, I’m just glad that the Senate is there,” says Macdonald.

The Senate appears to be taking its time with the bill. It has quietly scheduled at least two weeks of witness testimony on the film clause. On the list is actor and director Sarah Polley, who will appear before the committee Apr 10. Senators also floated the idea of asking the heritage minister back to testify further.

That means that the earliest clause by clause analysis of the bill — which is hundreds of pages long — could commence at the end of April. The opposition-dominated committee could postpone deliberations on the bill for months if it chooses.

If it recommends amendments, the bill will return to the House where MPs will have the opportunity to vote on it again.