Introduction

Under the Canadian constitution, broadcasting is a matter of federal jurisdiction given its transcendent national significance. The broadcast regulatory regime was placed in proper context by the Federal Court of Appeal when it stated that, "the importance of broadcasting to the life of the country is reflected in Section 3(b) of the Broadcasting Act, which [provides] that ‘the Canadian broadcasting system should be effectively owned and controlled by Canadians so as to safeguard, enrich and strengthen the cultural, political, social and economic fibre of Canada.’" (47)

The cornerstone of the regulatory regime is the 1991 Broadcasting Act (BA) (48) which defines the basic mandate and philosophy for broadcasting in Canada, and creates an independent administrative agency, the Canadian Radio-Television and Telecommunications Commission (CRTC) to implement and administer the nation’s broadcasting policy. The BA also establishes the Canadian Broadcasting Corporation (CBC) as Canada’s public service broadcasting organisation. This section will discuss the public mandate of the CBC, its services, and funding structures, as well as the regulatory relationships between the CBC as public service broadcasting organisation, the CRTC as broadcast regulator and Parliament as the ultimate arbiter of broadcast policy and practice.

The CBC was first created by Parliament in 1936 to provide a national radio service, to some extent in response to fears of emergent American broadcasting growing to dominate the Canadian airwaves. Today, the CBC produces an extensive array of information and entertainment programming on terrestrial and cable television, AM and FM radio, and international short wave, available in both official languages, French and English.

The CBC presently operates two main television networks, CBC Television in English, and La Télévision de Radio-Canada in French, which offer general and special interest programmes, two financially self-sustaining cable news and information television networks, CBC Newsworld in English, and RDI (Le Réseau de l’information) in French. In radio, the CBC operates four national network services, French and English AM networks offering information and general interest programmes, as well French and English FM systems which specialise in classical music and cultural programmes.

In order to serve the unique needs of the geographically remote northern regions, the CBC operates radio and television services to the North in English, French and eight aboriginal languages. The CBC also broadcasts an international short-wave service known as Radio Canada International, which provides programming in seven languages.

The public service mandate of the CBC is set out at Section 3(1)(l) and (m) of the BA. The national public service broadcasting organisation is established to, "provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains." More specifically, "the programming provided by the Corporation should be predominantly and distinctly Canadian, reflect Canada and its regions to national and regional audiences while serving the special needs of the regions, actually contribute to the flow and exchange of cultural expression, be in English and French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities, strive to be of equivalent quality in English and French, contribute to shared national consciousness and identity, be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose, and reflect the multicultural and multiracial nature of Canada."

For its part, the CBC describes its mission as "the telling of Canadian stories and the reflection of Canadian realities." In furtherance of its mandate to inform Canadians on matters of public importance, the CBC has formulated a Journalistic Policy Handbook which governs its news and current affairs programming, and is intended to guarantee that the corporation lives up to its "duty to provide consistent, high-quality information upon which all Canadians may rely." The CBC’s corporate goals are also informed by its role as a public service broadcasting organisation and it continues to insist that its schedules be driven by considerations of public service rather than market imperatives (49).

The CBC is a crown corporation, wholly owned by the Canadian government, and by consequence the Canadian people. This means that the federal government controls the terms and conditions of the CBC’s existence and operation through its legislative authority. Since it is a creature of statute, the CBC does not have a share structure, and its governance is based not on general companies legislation, but rather on the specific terms of the BA which delineate its structures of corporate governance. This is of significance, since the BA also explicitly provides for the CBC’s freedom of expression, discussed below, making the values of creative and journalistic independence paramount to political or financial interests. This affords the CBC a measure of protection from influence by its ‘owners’ external interests which private broadcasters, governed by traditional corporate law principles, do not enjoy.

A Board of Directors of up to twelve members, comprised of prominent citizens from the fields of law, medicine, accounting, business and the arts, representing all regions of the country, is charged with principal oversight of the CBC’s performance. Day to day operations, however, are handled by the professional staff and officers of the Corporation. Directors are appointed by the Governor in Council (that is, the federal Cabinet) for renewable five-year terms. All Directors, including the Chairperson and the President, hold office during good behaviour, and may only be removed for cause (50). Just as with private corporations, Directors owe an obligation of good faith and due diligence to the CBC and its public service mandate, not the interests of the government, and therefore are not permitted to have outside activities or dealings in the broadcasting industry which might give rise to conflicts with the CBC’s interests.

As a matter of company policy, the CBC retains an internal Ombudsman, fully independent of the Corporation’s management, to review serious unresolved public complaints related to the discharge of its mandate. Although the Ombudsman reports directly to the President, he or she does not possess any statutory or otherwise binding authority.

As a corporate entity, the CBC is bound by all laws of general application which relate to its operations. Two bodies, however, have a specific measure of control over the CBC, Parliament and the CRTC. Since Parliament has the jurisdiction to regulate the broadcast system, it has the prerogative to establish general principles relating to this field. Furthermore, the BA makes the CBC formally accountable to Parliament for the conduct of its affairs (51), and specifies, at Section 71, that the CBC shall submit an annual report to Parliament, through the Minister of Canadian Heritage, on its operations. This accountability, however, is circumscribed by strong guarantees of journalistic freedom.

Despite the extensive powers which the BA grants the government over the CBC, to say nothing of the broadcaster’s substantial financial dependence on the public purse, the CBC is firmly independent, and operates what many argue is Canada’s finest broadcast news service. CBC journalists pay considerable attention to domestic politics and are often at the forefront of critical investigations into the conduct of government. This independence is not merely a product of fortunate happenstance, but is clearly established in the BA. Most importantly, Section 46(5) states that, "[T]he Corporation shall, in the pursuit of its objects and in the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence."

In considering whether the CBC constitutes a branch of government for the purposes of being bound by the Charter of Rights and Freedoms, the Alberta Court of Queen’s Bench made the following observations as to the broadcaster’s independence:

As discussed above, Parliament has the power to appoint the CBC’s Directors, and although party patronage may play a role in the selection of directorial candidates, political interference by the directors would be inconsistent with the spirit, if not the letter, of both the BA as well as the Charter of Rights and Freedoms. Political interference with the operation programming of the CBC would be certain to provoke widespread public and political outrage. It is interesting to note that until recently Perrin Beatty, a former cabinet minister in the Conservative government of Brian Mulroney, continued to serve as President of the CBC, notwithstanding the fact that the present Liberal government is well into its second term of office.

The CRTC, Canada’s general broadcast regulator, is an independent agency, vested with administrative and quasi-judicial authority (53), operating at arms-length from government and reporting directly to Parliament through the Minister of Canadian Heritage. Its mission statement declares its purpose to be "ensuring that Canadian communications contribute fairly and equitably to Canada’s economic, social and cultural prosperity though regulation, supervision and public dialogue (54)." The CRTC consists of thirteen full-time and six part-time commissioners, appointed by Cabinet for renewable five-year terms. Its task is to "regulate and to supervise all aspects of the Canadian Broadcasting system with a view to implementing the broadcasting policy, (55)" and it is required to meet at least six times per year.

Under Section 28 of the BA, the Cabinet has the power to override CRTC decisions (56) but in practice it is rare for this to happen. More importantly, the BA now specifies that the Cabinet can only take such action if it is satisfied that the decision derogated from the attainment of the policy objectives for the Canadian broadcasting system set out in the Act. This provision imposes an obligation on the Cabinet to observe certain principles of natural justice and substantially fetters what would otherwise be a purely discretionary decision-making power. Section 28(5) of the Act now requires that the Cabinet produce reasons for overturning a CRTC licensing decision. Should the Cabinet attempt to use these powers to attempt to politically influence the CBC, this would almost certainly fall foul of the guarantees of freedom of expression and the press contained in Section 2(b) of the Canadian Charter of Rights and Freedoms.

The CRTC has no power as a censor of specific CBC programmes, or those of any other broadcaster, but sets overall standards by issuing, renewing and even revoking broadcast licenses, consistent with the purposes of the BA and the public interest. It should be noted, however, that the most severe of these sanctions, license revocation, has never been applied. The CRTC may also issue guidelines and statements, which are not necessarily binding but provide guidance to broadcasters (57). Given the public nature of the CRTC’s work, it regularly hears submissions from individual citizens on the past performance of broadcasters, including the CBC, as well as the need and desire for future services. Indeed, pursuant to Section 18 of the BA, the CRTC is compelled to hold public consultations in the case of license applications and renewals.

In theory, the CBC is treated like a private broadcaster by the CRTC, and it remains accountable to the Commission for its licensing and renewals. However, the BA enables the CBC to request a consultation with the CRTC if the Commission proposes to attach any conditions to one or more of the CBC’s broadcast licenses. If the CBC is satisfied that these conditions would unreasonably impede its operations, it may refer the condition to the Minister of Communications for consultation. Similarly, no licence issued to the CBC may be suspended or revoked by the CRTC except on application by, or with the consent of, the CBC (58). As a result, the CBC’s appearance before the CRTC for periodic license renewals is largely pro forma, although it serves the arguably useful purpose of exposing the CBC’s senior management to public scrutiny, accountability and criticism.

The CBC’s relative immunity from the CRTC’s jurisdiction is tempered by the power of the Commission, under Section 25 of the BA, when it is satisfied that the CBC has contravened or failed to comply with any condition of a licence, order, or regulation, to address a report to the Minister of Communications, who will provide a copy to each House of Parliament. Section 26(1)(b) of the BA also empowers the Cabinet to issue directions to the CRTC respecting the reservation of channels or frequencies for the use of the CBC. The CBC is also subject to the Cabinet’s discretionary power to issue orders, through the CRTC, directing all or some broadcast licensees to broadcast a specific programme deemed to be of singular public importance (59).

CBC is primarily financed by public funds. It submits a yearly corporate plan to the Minister of Communications which includes the budget of the Corporation for the following fiscal year. This budget may then be approved or rejected by the Treasury Board and subsequently Parliament. Once the estimates for a financial year have been approved, the CBC submits a summary of the corporate plan, modified to accord with the actual funding which it has been allocated.

In 1999, 66% of the CBC’s budget flowed from a federal grant, amounting to a total of CDN$ 935 million. The Corporation obtained a supplementary 23% of its revenue from commercial advertising on CBC Television and a further 11% came from "other revenues".(60) These levels are not fixed, and in fact the level of public funding has fallen significantly during the era of general government restraint and cut-backs since the 1990s. Friends of Canadian Broadcasting, a public-interest advocacy group concerned with "the quality and quantity of Canadian programming in the Canadian audio-visual system," has severely criticised successive governments for financially undermining the CBC’s ability to fulfil its mandate (61). Indeed, given the extensive reductions to CBC staffing and programmes as a result of diminishing resources, there is much merit to the view that securing adequate provision of financial support is the key challenge facing Canadian public broadcasting today (62).