 |
Office for Victims of Crime
Brief to the Standing Committee on Canadian Heritage
Study on The State of The Canadian Broadcasting System
May 23, 2021
1. Introduction
The Office for Victims of Crime (OVC) was created by the Ontario government in June 1998 with a mandate to assist victims of crime and to provide advice to government to prevent further victimization. This dual mandate was confirmed when the OVC became a permanent Advisory Agency to the Ontario government three years later.
This approach of proactive analysis to prevent persons from becoming victims of crime has traditionally involved review of criminal justice legislation and policies as their success, or failure, clearly is directly linked to crime itself. In many ways, this crime prevention approach is an "after the fact" or reactive analysis in as much as the crime has already occurred and the focus is on the system that deals with the offender. Over the past decades, crime prevention has legitimately expanded to consider the predicate causes of crime although this is obviously a more subjective and less precise area of analysis. Nonetheless, it is undeniable that measures that lead to reduced crime, either by altered attitude or opportunity, are welcome indeed.
It is in this spirit that the OVC has approached the entire issue of media, entertainment and broadcast content that promotes violence in Canadian society. We profess no special expertise in the subject area beyond a growing and disturbing knowledge of the proliferation of increasingly violent and sexually explicit broadcast content available in Canada today. Further, our Office has been alerted to what appears to be a clear, compelling and uncontradicted compendium of research that suggests increased violence, especially among young persons exposed to such content, is an empirical consequence.
Finally, our Office does have experience in analyzing the effectiveness of regulatory schemes and matching their performance with their purported mandate. Given the terms of reference of review of the Committee, it is our hope that this submission may be of assistance in determining whether the current regulatory system is meeting the statutory intent and obligations provided by Parliament.
2. Empirical Data in Relation to Broadcast Content
If it is assumed that the content of broadcast material publicly available has the capacity to exert positive societal influence, then, logically the converse would seem to be true. This simple truth is supported by the relevant legislation and regulations, all of which contain seemingly specific prohibitions against particular kinds of broadcast material. These sections are referenced below in relation to the current legislative or regulatory framework created by Parliament.
Although the OVC asserts no special expertise in this area we are aware of the seemingly massive professional conclusion that graphically violent broadcast content produces identifiable anti-social manifestations especially in young people. We have been provided with a copy of Valerie Smith’s Brief to the Committee on this subject and we urge the Committee to carefully review the significant material referenced therein. Should the Committee have any doubt whatsoever about the clear conclusions of this material, then rather than view the issue as "unclear", we suggest the Committee call the requisite witnesses on either side of the issue and reach a definitive conclusion. Absent that, the need for appropriate regulatory authority, including industry independent capacity to ensure enforcement of that authority, is nothing more than an academic debate.
From our review, the following extract from Ms Smith’s earlier brief listing various studies and studies or reports merit your consideration:
Research on the Effects of Media Violence
In a 1999 position paper, Children and the Media, the Canadian Paediatric Society stated: "The influence of the media on the psychosocial development of children is profound."
In the United States, which has been at the forefront of research into the influence of media violence, the American Medical Association, American Psychiatric Association, American Academy of Paediatrics, American Academy of Child & Adolescent Psychiatry, American Psychological Association, National Institute of Mental Health, American Academy of Mental Health, American Academy of Family Physicians, American College of Physicians-American Society of Internal Medicine, American Nurses Association, American Psychiatric Association, American Public Health Association, U.S. Department of Health and Human Services, and the U.S. Surgeon General, have all made definitive statements over the years about the relationship between childhood exposure to visual violent images and later manifestation of real-world aggression and violence.
The American Academy of Paediatrics Policy Statement on media violence states:
"The [Academy] recognizes exposure to violence in media, including television, movies, music, and video games, as a significant risk to the health of children and adolescents. Extensive research evidence indicates that media violence can contribute to aggressive behaviour, desensitization to violence, nightmares, and fear of being harmed.
More than 3,500 research studies have examined the association between media violence and violent behaviour; all but 18 have shown a positive relationship. Consistent and strong associations between media exposure and increases in aggression have been found in population-based epidemiologic investigations of violence in American society, cross-cultural studies, experimental and "natural" laboratory research, and longitudinal studies that show that aggressive behaviour associated with media exposure persists for decades. The strength of the correlation between media violence and aggressive behaviour found on meta-analysis is greater than that of calcium intake and bone mass, lead ingestion and lower IQ, condom non use and sexually acquired human immunodeficiency virus infection, or environmental tobacco smoke and lung cancer - associations clinicians accept and on which preventive medicine is based without question.
Children are influenced by media - they learn by observing, imitating, and making behaviours their own. Aggressive attitudes and behaviours are learned by imitating observed models. Research has shown that the strongest single correlate with violent behaviour is previous exposure to violence. Because children younger than 8 years cannot discriminate between fantasy and reality, they are uniquely vulnerable to learning and adopting as reality the circumstances, attitudes, and behaviours portrayed by entertainment media." (Paediatrics, November 2001)
In a Joint Statement on the Impact of Entertainment Violence on Children made by the American Academy of Paediatrics, American Psychological Association, American Academy of Child & Adolescent Psychiatry and the American Medical Association at a Congressional Public Health Summit on entertainment violence states that "… the conclusion of the public health community, based on over 30 years of research, is that viewing entertainment violence can lead to increases in aggressive attitudes, values and behaviour, particularly in children. Its effects are measurable and long-lasting." (July 26, 2021)
Put simply, there is ample information detailing the harmful effect of violent broadcast material on the public, especially children so as to justify legislative or regulatory action. What is required is an assessment of the effectiveness of what’s in place and, should that be found wanting, creation of alternative mechanisms to prevent the public harm in question.
3. Review of the Current Legislative and Regulatory Framework
The intent of Parliament to prohibit the broadcast of "harmful" material, in various forms, is crystal clear as the various excerpts listed below illustrate:
Pay Television Regulations
3. (2) No licensee shall distribute programming
(a) that contains anything in contravention of the law;
(a) that contains any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability;
Specialty Services Regulations
3. No licensee shall distribute programming that contains
(a) anything in contravention of the law;
(b) any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability;
(c) any obscene or profane language or obscene or profane pictorial representation
Broadcasting Regulations
5. (1) A licensee shall not broadcast
(a) anything in contravention of the law;
(b) any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability;
(c) any obscene or profane language or pictorial representation;
Were this not the case, the C.R.T.C. would be a simple administrative licensing body in an "anything goes" airwaves environment without need of subjective decision making or regulatory authority. As Parliament has also made clear, broadcasters have a responsibility, as a licensee, to abide by the conditions of their license and the Act and regulations thereto.
Broadcast Act
3. (1) It is hereby declared as the broadcasting policy for Canada that…
(h) all persons who are licensed to carry on broadcasting undertakings have a responsibility for the programs they broadcast …
9. (1) Subject to this Part, the Commission may, in furtherance of its objects…
(e) suspend or revoke any licence;
12. (1) Where it appears to the Commission that
(a) any person has failed to do any act or thing that the person is required to do pursuant to this Part or to any regulation, licence, decision or order made or issued by the Commission under this Part, or has done or is doing any act or thing in contravention of this Part or of any such regulation, licence, decision or order, or
(b) the circumstances may require the Commission to make any decision or order or to give any approval that it is authorized to make or give under this Part or under any regulation or order made under this Part, the Commission may inquire into, hear and determine the matter.
It is not enough to state that a licensee is obliged to follow the terms of their license. Obviously, effective legislation must include the mechanisms by which such enforcement is assured including the authority and obligations of the designated regulatory body and, to the extent applicable, what role members of the public may have in a complaint or license review process.
As a result of our Office being alerted to the improper broadcasting practises of Bell ExpressVu in 2001, we became aware of at least some of those procedural provisions to the Broadcast Act. They include:
Broadcast Act
16. The Commission has, in respect of any hearing under this Part, with regard to the attendance, swearing and examination of witnesses at the hearing, the production and inspection of documents, the enforcement of its orders, the entry and inspection of property and other matters necessary or proper in relation to the hearing, all such powers, rights and privileges as are vested in a superior court of record.
17. The Commission has authority to determine questions of fact or law in relation to any matter within its jurisdiction under this Act.
18. (1) Except where otherwise provided, the Commission shall hold a public hearing in connection with…
(b) the suspension or revocation of a licence;…
(3) The Commission may hold a public hearing, make a report, issue any decision and give any approval in connection with any complaint or representation made to the Commission or in connection with any other matter within its jurisdiction under this Act if it is satisfied that it would be in the public interest to do so.
24. (1) No licence shall be suspended or revoked under this Part unless the licensee applies for or consents to the suspension or revocation or, in any other case, unless, after a public hearing in accordance with section 18, the Commission is satisfied that
(c) the licensee has contravened or failed to comply with any condition of the licence or with any order made under subsection 12(2) or any regulation made under this Part;
32. (2) Every person who contravenes or fails to comply with any regulation or order made under this Part is guilty of an offence punishable on summary conviction and is liable
(a) in the case of an individual, to a fine not exceeding twenty-five thousand dollars for a first offence and not exceeding fifty thousand dollars for each subsequent offence; or
(b) in the case of a corporation, to a fine not exceeding two hundred and fifty thousand dollars for a first offence and not exceeding five hundred thousand dollars for each subsequent offence.
33. Every person who contravenes or fails to comply with any condition of a licence issued to the person is guilty of an offence punishable on summary conviction.
CRTC Rules of Procedure
9. Where a person wishes to lodge a complaint with or make any representation to the Commission with respect to any matter within the powers of the Commission that is not directed to any application, he shall mail or deliver to the Secretary a brief written submission signed by him setting out the nature of his complaint or representation.
10. Where the Commission determines that a complaint or representation made pursuant to section 9 constitutes an application or an intervention, it may require the person who made the complaint or representation to comply with the procedure relating to applications or interventions, as the case may be.
11. Where the Executive Committee is satisfied that it would be in the public interest to hold a public hearing in connection with a complaint or representation made pursuant to section 9, the Secretary shall notify the person who made the complaint or representation and the person against whom it is made of the date and place of the hearing.
Although our experience with the CRTC regulatory authority is detailed below, the following appear to us to be matters that, at the very least, should be included in any regulatory scheme if it is to be even marginally effective:
- a defined process for public complaint
- a defined investigatory obligation on the CRTC or other body where predicate grounds exist
- creation of obligation of public hearings into complaint that is proceeded with
- creation of the specific regulatory offence of breaching the condition of a broadcast license (in specified means) with specified penalties including mandatory fines and license suspension
- a requirement of reporting to the complainant where no charges are laid
- a process of third party review of CRTC regulatory action or inaction
4. C.R.T.C. Practice
Bell ExpressVu
In April 2001, the C.R.T.C. received a written complaint in relation to one of its licensees, Bell ExpressVu, for its broadcast of hard-core pornographic material on one of its "specialty" channels. The fact of the broadcast was not discovered or originally investigated by the C.R.T.C. but was instead made public following a broadcast by The Fifth Estate a CBC newsmagazine. During the program, representatives of Bell ExpressVu were quoted as falsely claiming that the material in question had been approved by the Ontario Film Review Board (OFRB) as required by the C.R.T.C. The program went on to interview the Chair of the O.F.R.B. who repudiated the Bell ExpressVu claim and noted,
"…I didn’t know these porn channels had been approved by the CRTC so I think it’s a question that there has not been a public debate about this. And I think it’s probably overdue."
As a result of the Fifth Estate program, with still no reaction from the CRTC, Bell ExpressVu pulled the two channels in question after admitting that "somehow" their graphic content was unknown to them and that "somehow" they had failed to clear the content with the OFRB which we now understand to have been a condition of their license. The material in question was forwarded to the Toronto Police Service and through them to the Attorney General’s office in Ontario who concluded, "…the materials allegedly distributed by Bell Express are obscene under the Criminal Code." [June 2001] Anyone that doubts this conclusion should watch the Fifth Estate which, understandably, only shows a fraction of the broadcast content.
Remarkably, when, at the direction of the CRTC, Bell ExpressVu wrote to the complainant, their response was to blame their supplier. Additionally, rather than accept the seriousness of the breach, they described the criminally obscene material they broadcast courtesy of their public license as being merely, "…offensive to some Canadians…".
Their "solution", which would subsequently prove sufficient for the CRTC, included:
having their own staff review broadcast material
hiring someone with an OFRB background to review their policies
watching other porn channels for comparative purposes
having their industry partners at the Broadcast Standards Council develop a pay per view porn policy to be administered and enforced by themselves
providing warnings to their "customers" that the pornography they’re ordering might be harmful to kids or "others".
In July of 2001, the OVC wrote to the C.R.T.C. in support of the complaint against Bell ExpressVu and made clear that ample regulatory authority existed for action. Instead, in a response to the complainant dated August 3, 2001, the CRTC concluded that in light of "…the steps already taken by Bell ExpressVu…", no ‘punitive’ action was required. Curiously, the CRTC explained that rather than enforcing the terms of the license (and not just relying on Hannah Gartner and the Fifth Estate) or ensuring that license violations did not result in profitability, it was going to focus on "…ensuring Bell ExpressVu keep the commitments that it has made…".
This lethargic attitude characterized the CRTC response to the less than admiring follow up inquiries of the Fifth Estate. In attempting to explain their failure to notice the months of offending broadcast material, CRTC regulatory officials noted that there was no way they could possibly monitor all of the channels broadcast in Canada. Frankly, no one had suggested this as an enforcement strategy and with the exercize of the most basic judgment, anyone with the slightest interest in ensuring compliance with the legislation could have determined that these channels and the graphically described films they ran were appropriately the subject of examination. Of course, this same elementary level of competence applied to Bell ExpressVu but it appeared to escape them as well.
We encourage the Committee to review the Bell ExpressVu complaint and absence of a regulatory response from the CRTC in detail including calling as witnesses appropriate ExpressVu and CRTC officials. It must never be forgotten, for example, that private broadcasters like Bell ExpressVu are in the business to make money. Their broadcasting choices are a reflection of this and, unless Parliament is prepared to permit unrestricted use of the broadcast airwaves, the regulatory authority must enforce the terms of the license when confronted by a deliberate violation of the license granted. Did the CRTC bother to inquire into how much money Bell ExpressVu made as a result of breaching their license?
Finally, the Crown declined to prosecute criminally as this would have necessitated proving the intent to broadcast the offending material knowing its obscene nature. The Crown concluded, in other words, that the offending behaviour was based on the broadcaster not knowing what they were in fact doing. This is a defence to a criminal charge but hardly the basis for excusing regulatory sanction and indeed reviewing whether corporations that don’t know what they’re doing should be in receipt of public broadcasting licenses.
Scream TV-- Corus Entertainment Inc.
This is not the first time the subject of broadcasting content and policy in Canada has been publicly debated. In 1993, a national conference on television violence was hosted in Toronto by the C.M. Hincks Institute for Children's Mental Health, in conjunction with the CRTC. Writing in the Globe and Mail following the conference, Keith Spicer, then Chairman of the CRTC, noted that "research overwhelmingly proves that excessive TV violence hurts children by contributing to desensitization, aggression, impaired learning abilities, increased bullying and weapons use".
This is also not the first time that a Commons Committee has explored the same subjects. The same year that former CRTC Chair Spicer issued his warning, the House of Commons Standing Committee on Communications and Culture released their report Television Violence: Fraying Our Social Fabric. The Committee heard evidence in relation to a disturbing genre of film known as ‘slasher films’ and were sufficiently concerned to include a specific recommendation in relation thereto in their Report, Television Violence: Fraying Our Social Fabric:
Recommendation No. 26 - The Committee recommends that the federal Minister of Justice, in collaboration with his provincial counterparts, study the matter of extremely violent forms of entertainment, such as slasher and snuff films, to determine the criminal legislative measures needed to control them and to design such legislation to conform to the Canadian Charter of Rights and Freedoms.
Eight years later, the CRTC licensed a channel to broadcast these films. Based on the promotional material of the licensee (Corus Entertainment Inc.) and the films being broadcast, there is little doubt that the target market of this specialty channel includes, and arguably is directed at, teenagers. In today’s concentrated or ‘converged’ media industry, this broadcasting focus is especially concerning inasmuch as Corus is the licensee for children’s broadcasting and radio and television outlets. Will the CRTC ensure that the parent company is not advertising its slasher network to children? What would the CRTC reaction be to a decision by Corus to discourage its radio and television news outlets from carrying news of opposition to media violence generally and Scream TV specifically? Given the past disinterest in broadcast content or broadcaster behaviour exhibited by the CRTC, we suggest this Committee should explore this matter carefully itself.
5. Public Financial Support for Film Production in Canada
This matter came to the attention of our Office in 1999 when Lion’s Gate Entertainment filmed "American Psycho" in Toronto. The movie was based on the book of the same name which, according to evidence introduced at his trial, was "the bible" of Paul Bernardo (A copy was found on his bedside table when police executed a search warrant at his residence). While much of the initial outcry was focused on somehow preventing the production of the film, our Office sought information with respect to whether, like so many other film productions in Canada, American Psycho was being subsidized with public money.
Put simply, the only justification for the state to prohibit production of a film (or prevent its release post production) would be on the basis of its content contravening either criminal obscenity or child pornography provisions. Subject to these relatively narrow restrictions, film producers are free to create what they choose……and can finance. Not having the capacity to prohibit does not mean an obligation to subsidize however and thus the question of public funding (pre and post production) of certain films glorifying violence or sexual degradation or revictimizing surviving family members of crime is entirely different. As one commentator noted, while we can’t necessarily prohibit a film based on the murder of Leslie Mahaffy and Kristen French, their parents shouldn’t have to pay for it.
To that end, we have identified the provision of tax credits or subsidies in any form to film production companies which produce films that feature undue violence, sexual violence or directly depict crimes of violence committed against Canadians as a subject that merits attention. Our understanding is that both provincial and federal legislation and policy create general "contrary to public policy" exceptions for such subsidy eligibility. We urge the Committee to explore this in greater detail and specifically suggest that reference could be made to the following in determining the public interest:
"In determining the public interest, the Minister [Board] shall consider whether the film depicts, involves or pertains to any violent crime committed in Canada where the victims of that crime or their family are resident within Canada at the time the application for tax credit (or subsidy) is made."
Finally, it is our understanding that acquiring information about which film production companies have received what subsidies for which films is extremely difficult. This lack of transparency with respect to the use of public funds, especially for purposes such as these, are neither necessary nor justified. We urge the Committee to explore this issue with officials from both the Department of National Revenue and Heritage Canada and we would point to s. 8(2)(m) of the Privacy Act which permits the release of personal information where the public interest outweighs the privacy interest in question.
6. Recommendations
Based on the above we offer the following recommendations:
R1: The Broadcast Act be amended to require provincial film review board clearance for all specialty channel broadcast content.
R2: The Broadcast Act be amended to oblige the CRTC, or replacement regulatory body, to:
ensure licensees are in compliance with their broadcast license
conduct an investigation when they have reasonable grounds to believe breach of the conditions of a license has occurred including public hearings in defined circumstances in relation to improper broadcast content
impose minimum penalties, including fines, forfeiture of improperly acquired profit and suspension of broadcast license for breach of license in relation to defined broadcast content
permit public right of appeal of regulatory action or inaction
R3: The Heritage Committee should review in detail the entire circumstances of the Bell ExpressVu violation of its broadcast license and the response of the CRTC thereto by calling witnesses before it from both bodies.
R4: The Heritage Committee should review the entire eligibility criteria for public financing of film or broadcast production in Canada to prevent public subsidization of inappropriate material.
R5: The Heritage Committee should review the membership of the CRTC in assessing its adherence to the principles and provisions of the Broadcast Act and regulatory effectiveness and in particular to consider whether ensuring membership of non-broadcast industry representatives would improve the effectiveness of the CRTC.