For a long time, politicians of all persuasions have attacked the public broadcaster. But last week, Pierre Poilievre, leader of the opposition in Ottawa, went down a flight of stairs demanding on Twitter that the CBC be labeled as government-funded media. Such a designation equates the public broadcaster with the propaganda organs of totalitarian states. However, the mere fact that a public service is financed from public funds does not make it a dispensary under the orders of the leaders in place. Unless you ignore the basic requirements of the rule of law and start pretending that judges, the auditor general or university researchers are at the orders of the government of the day.
The opposition leader’s approach is in line with his threats to “defund” the public broadcaster. He said that English speakers can do without the CBC, because CNN or Fox News offer similar services, therefore interchangeable! He promised to privatize the CBC while claiming to maintain its French counterpart. An unrealistic position that seems to postulate that it would be possible to violate the right to equality in order to serve only Francophones! The most serious thing is that this posture flouts the laws and constitutional principles governing public media in democratic countries.
Radio-Canada and the CBC are not services that a government can cut at will. Providing a service that meets the standards set out in the Broadcasting Act cannot be considered a government function.
In democratic countries, public service media are not under the orders of the government in place. Their mandate imposes on them the obligation to serve the citizens — and not the government — with programming that meets the highest standards of balance and quality.
In government media, editorial decisions (to publish or not) are ultimately the responsibility of the political decision makers in place. This is the system that prevails in totalitarian countries. In contrast, a public media enjoys editorial independence. It is the information and programming professionals who alone decide what will be broadcast. The government cannot behave towards the public broadcaster as if it were the majority shareholder.
In the United States and Britain, the courts have refused to consider public broadcasters to be a government service. In the same spirit, the German Constitutional Court affirmed in 1994 the obligation to finance public broadcasters in accordance with the requirements of the functions they are called upon to assume. The Court specified that the financing must be granted according to a procedure which excludes any possibility of political influence on the programming of the public broadcasters.
Canadian courts have long recognized that government authorities have no discretion to interfere in the operation of the media. As early as 1938, the Supreme Court recognized the publisher’s ability to decide on the content of his publication, without the intervention of government authorities.
The Broadcasting Act mandates Radio-Canada as the national public broadcaster to “provide radio and television services that include a wide range of programming that informs, enlightens and entertains.” In 1983, the Supreme Court interpreted these provisions as reflecting a desire to ” […] create a national broadcasting service which is free from the influence of politics, including that of the executive and legislative powers, insofar as this influence may impinge on the smooth functioning of this public broadcasting service”.
The guarantee of freedom of expression entails the obligation to provide the public broadcaster with financing compatible with the mandate assigned to it by law. The government’s power to decide on the level and form of funding allocated to it is therefore subject to constitutional guidelines. The government does not have the freedom to fix Radio-Canada’s funding as it pleases outside of a public mechanism for assessing the adequacy between the resources granted to the public broadcaster and the requirements inherent in the mandate that the law imposed.
The constitutional guarantee of freedom of expression requires respecting a public and independent process such as that provided by law under the aegis of the Canadian Radio-television and Telecommunications Commission (CRTC) to change the morphology of the services offered by the public broadcaster. Similarly, those who believe that a broadcaster is not respecting its mandate have the possibility of asking the CRTC to examine its operation. It is within the framework of such an evidence-based process that the advisability of eliminating entire sections of the public broadcaster’s services must be assessed.
The public broadcaster contributes to the effectiveness of freedom of expression, which includes the right of all citizens to information produced according to the highest standards of rigour. To weaken it is to undermine one of the foundations of the rule of law and of democracy.
When we take freedom of expression seriously, we recognize that public media are an essential cog in the democratic process. They are too important to be left to the whims of politicians.
Professor, Pierre Trudel teaches media and information technology law at the University of Montreal.