11 January 2019

The Broadcasting and Telecommunications Legislative Review Panel c/o Innovation, Science and Economic Development 235 Queen Street, 1st Floor Ottawa, K1A 0H5

Email: [email protected]

Dear Panel Members,

Submission to the Broadcasting and Telecommunications Review Panel

According to Section 3(1)(d)(i) of the Broadcasting Act:

“It is hereby declared as the broadcasting policy for Canada that the Canadian broadcasting system should serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada.”1

Following are proposed recommendations to be included in your final report to Government in the public interest.

1. Adopt legislation to better support community television stations, as advocated by the Canadian Association of Community Television Users and Stations (CACTUS).

2. Adopt legislation originally proposed by the Hon. Dan McTeague in 1998 for better governance at the Canadian Radio-television and Telecommunications Commission.2

3. Adopt three recommendations that Mr. McTeague and I made in our joint submission to the Liberal Caucus Group on the CRTC in 1999 for better governance at the Commission, including amending the Broadcasting Act to ensure that public interest groups are able to actively participate in the quasi-judicial regulatory process.

4. Acknowledge that evidence of malfeasance by the CRTC exists in relation to Canadian content regulation (Cancon), and adopt measures to restore good governance at the Commission, including measures to ensure that future Cancon regulation is effective, efficient, transparent, equitable and complies with the Broadcasting Act

5. Initiate an independent public review into existing evidence of regulatory capture and long-term systemic corruption at the CRTC. Additional information has been included in this submission, and a number of relevant documents attached as appendices, in order to support the above recommendations.

1 Broadcasting Act, S.C. 1991, s 3(1)(d)(i). 2 Bill C-381, 1st Session, 36th Parliament, 46-47 Elizabeth II, 1997-98, First reading 18 March 1998, The House of Commons of Canada.

1 1) Canadian Association of Community Television Users and Stations

I support the amendments being proposed to the Panel by the Canadian Association of Community Television Users and Stations (CACTUS).

It is a matter of record that I advocated for communities to hold licences for community channels, rather than cable television companies, more than two decades ago, and on the basis of its democratic merit.3

I was formerly employed in the Canadian broadcasting system for my specialist knowledge of the cable television industry and its regulation by the CRTC. There are important and fundamental public interest differences between the operation of community radio and television stations as compared to the operation of channels owned and operated by Broadcasting Distribution Undertakings. Canadian media is presently far too concentrated and under the control of a few politically influential families. Citizens would benefit greatly from the Government increasing the audience reach of cost-effective community media, including in provision of news and information.

Furthermore, my support for increasing community media is based on experience. Not only has the long-term failure of Canada’s mainstream media to effectively inform citizens about a highly unorthodox Cancon company subsidy scheme been costly to Canadians, and allowed federal regulators, corporate executives and politicians to evade accountability, it has also resulted in a high cost to me personally. It is a matter of public record that my independent campaign against the same scheme was listed by an alternative publication as one of the top stories ‘missed’ by Canada’s media in 1995.4

2) Bill C-381 While the Hon. Dan McTeague was a Liberal M.P., representing Pickering-Ajax-Uxbridge, he introduced a private member’s bill (Bill C-381) to address the compositional industry bias of the CRTC, its lack of transparency, and its disregard for cost-effectiveness and the rights of consumers in its decision-making process.

The purpose of this enactment is to amend the Canadian Radio-television and Telecommunications Act to provide for representation of Canadian consumers on the Commission, to require reports of Commission decisions to detail the way each commission member voted in respect of those decisions and to ensure that the Commission generally has regard to cost-effectiveness and the rights of Canadian consumers.5

Bill C-381 subsequently died on the Order Paper when Jean Chrétien called an early election in 2000. However, the proposed legislation is still warranted and should be adopted by the Government.

A copy of Bill C-381 is attached as Appendix A.

3 Transcript of Proceedings, CRTC Public Hearing, PN 1996-11, ‘The Regulation of Broadcasting Distribution Undertakings’, 15 October 1996, Hull, Quebec. 4 Scott Anderson, ‘Media miss list: Where the press went wrong in 95’, NOW, 28 December 1995, pp. 17-18. 5 Bill C-381, 1st Session, 36th Parliament, 46-47 Elizabeth II, 1997-98, First reading 18 March 1998, The House of Commons of Canada.

2 3) A View to Democratizing the CRTC In addition to assisting Mr. McTeague with Bill C-381, the Member of Parliament also commissioned me to research how to democratically reform the Commission, resulting in our joint submission in 1999 to the Liberal Caucus Group on the CRTC. A copy of ‘A View to Democratizing the CRTC’ is attached as Appendix B. The three following recommendations that we made two decades ago still remain relevant today and should be implemented by Government. i. Initiate a thorough and comprehensive public review of the CRTC, its regulations, its mandate, and its conduct. ii. Adopt legislation to raise adequate funds from CRTC licensees in order to create an independent public interest organization with a mandate to organize and assist individuals and public interest groups to fully participate in the regulatory process. iii. Adopt legislation to introduce a bi-partite administrative tribunal model, with equal representation of both public and private interests on the CRTC; eliminate secrecy in voting by Commissioners; and entrench the concept of consumer rights into the Broadcasting Act. Furthermore, it is totally unacceptable that the Public Interest Advocacy Centre (PIAC) is presently at risk of closure due to actions taken by the CRTC that have served to undermine its funding and existence.6 PIAC is essential to advocate for the interests of Canadians in the complex regulatory process and its closure is definitely not in the public interest.

As addressed below, the CRTC requires far more scrutiny, not less. Consequently, the Government should ensure that PIAC has significant funding to do its important work on behalf of millions of ordinary Canadian citizens.

4) Canadians exploited by CRTC and Canadian content regulation

The CRTC has not regulated Canadian content (Cancon) in a manner that effectively or efficiently safeguards, enriches and strengthens the cultural, political, social and economic fabric of Canada. To the contrary, Cancon regulation has been designed by officials at the CRTC to benefit corporate interests while exploiting citizens. Professors Steven Globerman, Hudson Janisch and William Stanbury note that Cancon regulation is based upon citizenship and economics, not culture.

“Canadian” programs are those produced by Canadian citizens in the sense that certain positions must be held by Canadians, and 75 percent of the total remuneration for postproduction work must go to Canadians. In other words, “Cancon” is not – legally speaking – about thematic content at all. It is about the citizenship of the persons who made the program. Anything produced by a group of Canadians is “Cancon” regardless of its substance.7

6 Erica Johnson, ‘Consumer group that battles the big telcos blames CRTC for its dire financial troubles’, CBC News, 17 December 2018: https://www.cbc.ca/news/business/public-interest-advocacy-centre-at-risk-of-shutting-down-1.4946597 7 Steven Globerman, Hudson N. Janisch and W.T. Stanbury, Convergence, ‘Competition and Canadian Content’, Chapter 12 in Perspectives on the New Economics and Regulation of Telecommunications, (edited by W.T. Stanbury), The Institute for Research on Public Policy, Montreal, 1996, p. 240.

3 Additional information by Professors Globerman, Janisch and Stanbury has been included as Appendix C, material which clearly illustrates that Cancon regulation has not been designed to effectively protect Canadian culture.

Furthermore, these same Cancon experts state that “most economists think of Cancon regulations as ‘boiling down’ to yet another case of a small, well-organized group using the power of the state to redistribute income to themselves”8 and that the methods used to regulate Cancon serve to hide its cost.9

Journalist Etan Vlessing recently addressed in The Hollywood Reporter that I object to a specific Cancon company subsidy scheme that has required ordinary Canadians – without their knowledge – to subsidize private media companies.

"Canadians have been required, without their knowledge, to subsidize private companies to produce television programming, including television programs without any cultural benefit to Canada that have competed unfairly against American companies in the U.S. and international markets," Mahar argued in an Aug. 30 letter sent to U.S. Trade Representative Robert Lighthizer and obtained by THR.10 A copy of my letter to the U.S. Trade Representative, which is referenced in The Hollywood Reporter article, is attached as Appendix D. Information provided in that letter chronicles the history of the Cancon company subsidy scheme, from its introduction with the Cable Production Fund in 1994 to the present Canada Media Fund, and explains how the scheme has exploited millions of Canadians, while simultaneously violating the spirit of the cultural industries exemption in NAFTA. As addressed in that same letter, I previously submitted evidence of long-term systemic corruption at the CRTC in relation to this scheme to the attention of Prime Minister Justin Trudeau (Appendix E), with no response from either the politician or his office to date. Additional information respecting the highly unorthodox scheme is available in ‘Profiteering in the Name of Culture’, a submission that I filed to the CRTC in 2007 11 (Appendix F). More detailed information about the scheme is available in ‘One Media Law’, a case study addressing regulatory capture and systemic corruption at the CRTC, which I completed in 2015 (Appendix G). ‘One Media Law’ documents exactly how the cost of the Cancon scheme was hidden from ratepayers; CRTC officials permitted cable television companies to collect fees under false pretence from millions of Canadians, starting on January 1st, 1995. ‘One Media Law’ also documents that the Cancon scheme has been protected by the inaction of successive prime ministers and assorted cabinet ministers over the years.

8 Steven Globerman, Hudson N. Janisch and W.T. Stanbury, Convergence, ‘Competition and Canadian Content’, Chapter 12 in Perspectives on the New Economics and Regulation of Telecommunications, (edited by W.T. Stanbury), The Institute for Research on Public Policy, Montreal, 1996, p. 217 9 Ibid., p. 235. 10 Etan Vlessing, ‘Canada Won’t Deal on Media in NAFTA Talks, Says Justin Trudeau’, The Hollywood Reporter, 9 September 2018: https://www.hollywoodreporter.com/news/canada-won-t-deal-media-nafta-talks-says-justin-trudeau- 1140118 11 This report and all of its appendices are available on the CRTC public file by using the following hyperlink: https://services.crtc.gc.ca/pub/ListeInterventionList/Documents.aspx?ID=58182&Lang=e

4 For example, in 1995 PIAC urged the Hon. Michel Dupuy, then Minister of Canadian Heritage, for the Government to “swiftly take steps to initiate an independent review” of the Cancon scheme12 (Appendix H). No such review has ever been undertaken. It is a matter of record that I originally addressed the Cancon scheme in 1995, including by initiating a precedent-setting legal proceeding (Mahar v Rogers Cablesystems Ltd.), followed by a complaint of unlawful activities to the CRTC itself. In response, the CRTC conducted a process behind closed doors, without providing Canadians any opportunity to represent their own interests in the quasi-judicial process. Unidentified CRTC officials ruled that Parliament had granted the Commission the legal right under the Broadcasting Act to introduce the Cancon scheme, while also ruling that the millions of Canadians paying for the scheme had no legal right to notice from their cable television companies than they were being required to pay for the scheme, or its monthly cost. The unidentified CRTC officials also ruled that the CRTC and cable television companies were innocent of any unlawful activities, and determined that no changes were warranted in the public notification process used by the Commission. Copies of Mahar v. Rogers Cablesystems Ltd., the Cable Watch complaint to the CRTC in 1995, a comprehensive submission by Cable Watch to the CRTC in 1996, and the resulting CRTC decision of 25 June 1996 are attached as Appendices I, J, K and L, respectively. The Canadians who were denied their statutory right to represent their interests by the CRTC due to its closed door process were also denied the opportunity to appeal the Commission’s undemocratic legal rulings, as its 25 June 1996 decision was never made public. The unpublished decision in which the Commission ruled on the legal rights of millions of citizens, corporations and itself was stored in CRTC file 1000-121. A quarter of a century after the highly unorthodox Cancon company subsidy scheme was originally hatched, current CRTC officials still appear determined to hide the issue from public scrutiny. During the 2006 federal election, my lawyer Paul Armarego submitted information to Stephen Harper and three other politicians, addressing my allegations of long-term systemic corruption at the CRTC, and specifically identified the existence of the unpublished decision and CRTC file 1000-121 in connection with my allegations of corruption (Appendix M). On 27 March 2006, CRTC file 1000-121 and all of the documents stored in the file were destroyed, including the CRTC’s own copies of the documents attached to this submission as Appendices J, K and L. Since 2007, I have repeatedly requested that the CRTC disclose why exactly file 1000-121 was destroyed on 27 March 2006, and for the CRTC to identify who authorized the destruction of this specific file and the documents related to my allegations of corruption. Instead of providing me with an explanation as to why CRTC file 1000-121 and its documents were destroyed on that particular day, CRTC officials have repeatedly ignored my specific question, stating that the CRTC had the right to destroy the file and its contents on 27 March 2006.

12 Letter from Michael Janigan, Executive Director and General Counsel at the Public Interest Advocacy Centre, to the Hon. Michel Dupuy, Minister of Canadian Heritage, 30 November 1995.

5 Similarly, CRTC officials have repeatedly opted to not identify the individual/s who authorized the destruction of CRTC file 1000-121 on 27 March 2006. The standard line by the bureaucrats is that “the Commission authorized the destruction of File 1000-121.” According to CRTC officials, past and present, there is no individual who is ultimately responsible for the destruction of those documents on 27 March 2006, despite the fact that the act may well have been motivated by a deliberate attempt to destroy evidence of corruption at the Commission. A copy of my recent correspondence to CRTC Chairman Ian Scott and the response by CRTC Senior Legal Counsel Shari M. Fisher is attached as Appendix N. In addition to the documents being provided to the Panel as appendices, there are a number of other documents directly related to the Cancon company subsidy scheme and corruption at the CRTC that are available online from the document archive on www.onemedialaw.com.

5) Independent public review of the CRTC and the Cancon scheme

As substantiated in the documents attached to this submission, the CRTC has been captured by corporate interests, has repeatedly breached Section 3(1)(d)(i) of the Broadcasting Act, and has violated the legal, economic and democratic rights of Canadians for more than two decades; all in the name of protecting Canadian culture. The Government has a duty to initiate a thorough and comprehensive independent public review of the CRTC, its regulations, its mandate, and its conduct; as originally advocated to the Liberal Caucus Group on the CRTC by the Hon. Dan McTeague and me while Jean Chrétien was .

Canadian citizens are entitled to nothing less.

Finally, I respectfully request the opportunity to participate in person in the Panel’s future consultation process, in order to provide additional information and documents in the public interest for consideration.

Sincerely, Keith Mahar

Email: [email protected] Website: onemedialaw.com

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