Archive for category Fair Elections
YRDSB Chair Loralea Carruthers (right) Still Dealing with Massive Public Confidence Issues
This past week there was much indecision at the York Region District School Board [YRDSB] on how to fill former Trustee Nancy Elgie’s seat, punting the ball in an unprecedented move to the people of Georgina. Trustee Elgie stepped down last month after being caught making a racial slur to a black parent in a meeting regarding systemic racism at the board. The YRDSB has two options under law. One is to appoint a trustee; another is to hold a by-election. Both options are being put to the people of Georgina in a “community consultation” process.
A report tabled on March 7th to the YRDSB listed the costs for a trustee by-election at a staggering $300,000. That may be an exaggeration Mind Bending Politics has learned. In an e-mail to Mind Bending Politics, Georgina spokesperson John Espinosa stated that the estimate for the $300,000 that was provided to the YRDSB was a “very rough” estimate, and noted that the basis for the high costs was the 2014 municipal election in which was a full election of town council, school trustee, mayor, and not a trustee by-election. The breakdown of the by-election estimate provided to the YRDSB is displayed here.
YRDSB Chair Loralea Carruthers has been largely stating in media (page 7), that the approximate $300,000 is a lot of money to spend, and potential candidates for trustees would also be on the hook for thousands of dollars due to campaigning. Questions have arisen over whether the YRDSB is actively trying to deter the people of Georgina, and potential candidates away from the electoral process due to high costs. In an e-mail to Mind Bending Politics, Carruthers replied:
I’m just speaking the truth – no agenda here.
It is unclear when the YRDSB plans on holding its consultations with the people of Georgina, or what form this consultation will actually take. Several witnesses to last Tuesday’s meeting including some in media got the impression that these consultations will be in a town hall in person format, something Carruthers denied in her response to Mind Bending Politics when asked about the town hall style approach.
Carruthers stated to local media that the people of Georgina would have to fill a room in order to ensure that there is enough interest to justify the expense of a by-election:
With the board currently under investigation by the province as a result of a major loss of public confidence, can it be a realistic goal that the public will actually show up for a meeting like this in droves? Realistically if people have lost confidence in the board itself, how can they not expect a low turnout for a meeting like this? An election is much different since campaigning and a good selection of candidates generates interest, something that is currently happening in Georgina’s Ward 1 by-election.
I’ve asked whether or not the costs of the trustee by-election to the Town of Georgina should be shouldered directly by trustees and staff (rather than taken from kids in the system) as a by-election would be seen as trying to regain public confidence in the board. Carruthers replied:
I’m really not sure what this means.
When asked if appointing a trustee would be largely seen as sending the wrong message to the public regarding public representation, and public confidence at the YRDSB. Carruthers replied:
I think we answered that [on Tuesday] by going to the public to ask them what they would like.
On the outside allowing members of the public to decide whether or not to appoint a trustee or go to a by-election looks to be a good idea. On the other hand what seems to be transpiring is a lot of misdirection and misinformation to protect the board from criticisms over a decision to go to the polls, or to appoint. If the YRDSB goes to the polls, then they are likely to get heat for spending any money on an election as a result of how current trustees have mis-spent tax payers money. On the other hand if they appoint than it’s viewed as a detriment to the electoral process, and the democratic nature of the board. What better way to avoid more controversy, than to punt the ball to someone else, in this case the people of Georgina. That doesn’t really sound like leadership, it sounds rather representative of the protectionist nature of the YRDSB – a nature that has currently landed the board and all its trustees under a provincial investigation.
What’s even more troubling is that I sent Carruthers several e-mails to get her response on questions relating to the $300,000, and the by-election for this blog. When none was offered I took to twitter, in which Carruthers told me she had not received any of my e-mails and asked that I delete any tweets suggesting she didn’t respond:
It seems to be clear to me there is no credible public representation at the YRDSB. Trustees have pretty much decided not to decide on how to handle the most basic of functions of democracy on the board leaving the decision to others to save the institution from more criticism – or worse – they are intentionally misleading the public on costs and manipulating a process to ensure a desired outcome of an appointment.
One thing is for certain though, the YRDSB seems to be in a lot worse situation that I had previously thought with its leadership. Can the board be justified whatever the outcome of this “consultation” is to appoint while in a crisis of leadership and public confidence? Would anyone appointed be legitimate to their constituency under these circumstances? If an election is held, where will the money come from, and how much will it cost?
I have requested an accurate quote from the Town of Georgina regarding the actual costs associated with a trustee by-election, and I’ve asked Carruthers to provide me with an explanation as to why board staff have seemingly left out the fact the $300,000 quote was a very rough estimate, and essentially that the costs reflected in the $300,000 are the costs of the full municipal election in 2014. I will post a follow up blog once I receive that information.
Has the Conservative Party of Canada hacked into your profile and “liked” their Facebook page on your behalf without your knowledge or consent? Reports are popping up including one from a reporter at the CBC that they are being “like hijacked” by the Conservative party. According to a CBC report, the hijacked likes could be a result of embedded computer script in Facebook videos and links launching malware bought and paid for by the Conservatives. The computer script could have the potential to reach deep into your personal profile. When questioned on this, all the other parties denied that they are engaged in the activity of hijacking Facebook users accounts, however a Conservative spokesperson wouldn’t confirm or deny the party was behind the malicious hijacks.
In an e-mail to the CBC the Conservatives stated it was “an internal party issue.” The Conservatives may be acting against their own anti-spam laws with respect to this, and if the Conservatives are hijacking Facebook users accounts, one has to question what other information has been collected by the Conservatives (if they have access to your account to like their page) that was transmitted to the party which could be very personal information the Conservatives might use to profile you as a potential voter, which also could be against Canadian privacy laws.
Whatever the case maybe, hacking into users Facebook accounts is not just extremely creepy and potentially illegal; it’s also a form of stalking and desperation by a party who is not very popular on social media and having trouble getting their message out. Liking any Facebook page will automatically show updates to that page in your news feed. Facebook users are encouraged to look at their “activity logs” to ensure there are no unwanted Conservative Party Facebook page “likes”.
More to come on the legal aspect of all of this soon.
Yesterday Prime Minister Harper dropped the election writ, and Canada is now in it’s 42nd election since confederation. There has been much speculation around the timing of the writ dropping. This election will be one of the longest and most costliest elections in modern times, which could cost Canadian tax payers close to $1 billion+ when all is said and done at a time of economic instability, and recession.
The majority of those costs (an est. $500 million) will be dished out to Elections Canada to handle the longer election cycle for staff, offices, and supplies. The rest will be the tax payers shouldering costs to political parties. 50% – 75% of the expenses political parties incur during this election will be reimbursed by the tax payer. With the longer campaign parties can spend a lot more money on advertising. When Harper was questioned on the expenses to Canadian tax payers, he replied that there will be no cost to tax payers as a result of the length of the election period. What?
The political influence in media is becoming a very interesting side story to the debates. I’ve posted extensively on this here, here and here. Over this past week the NDP dropped out of the consortium debates, and issued a list of demands for future debates. The NDP demands (emphasis added) are:
- The host organization is credible and non partisan
- The proposed topics to be discussed are varied and relevant to a large number of Canadians; and
- The Prime Minister and other political party leaders are invited and have agreed to participate
- The NDP will participate in an equal number of French and English language debates
This is an interesting update. While many in the media focused on the NDP decision not to attend the consortium debates was explicitly due to Harper’s refusal to attend; from the above demands it looks like NDP want to debate ALL parties leaders including Steven Harper. It also looks as though the NDP are having issues with the Consortium being bias towards the Liberal party, to which I’ve discussed in great detail in other blogs.
That bias was very visible especially with the CBC coverage of the election call which pointed to Liberal Leader Justin Trudeau being the most “ready” for the election, while Trudeau seemed extremely uptight, reading from cue cards, and late to his speech. NDP leader Thomas Mulcair looked a bit rattled as well during his speech reading from a teleprompter and not answering any questions. The leader that looked more ready out of the bunch to me was Green Party leader Elizabeth May. May seemed rather relaxed, ready to go, and the only leader out of the opposition parties not reading from cue cards, or teleprompters. I’m very curious as to why CBC pointed towards Trudeau as being the most ready out of the bunch, when that’s not clearly the case.
While the NDP hasn’t come out fully accusing the consortium of bias, the political messaging around their demands looks to be quite clear. The Consortium debates are essentially dead now and other debates may fall by-the-way-side as well. From the looks of the last line of the NDP demands that might actually happen. So far there has been only one French language debate confirmed. That means right now the NDP will only commit to one English language debate, to which the first of those debates is scheduled for Thursday August 6th, and all political parties will be attending that debate.
On top of the media consortium having a crisis of ethics, we now have confirmation that the Organization for Security and Economic Co-operation in Europe (OSCE) will be monitoring our federal election. The OSCE is an international body that specializes in monitoring elections, and their presence in this election is to ensure that the election laws recently passed by the Conservatives allow for a free and fair election, and to ensure that these laws are consistent in ensuring democracy can take place. The OSCE will release it’s final report to the Canadian public eight weeks after the election.
The Fair Elections Act which was passed by the Conservatives will not allow Canadians living abroad to vote in the next election. Actor Donald Sutherland recently posted an op-ed in the Globe and Mail in which he blasted the Conservatives in taking away his right to vote. Sutherland stated:
It’s very sad. And this new “Canada,” this Canadian government that has taken the true Canada’s place, has furiously promoted a law that denies its citizens around the world the right to vote. Why? Is it because they’re afraid we’ll vote to return to a government that will once again represent the values that the rest of the world looked up to us for? Maybe.
There was also a court challenge on the fair elections act. The courts decided not to strike down the law so close to an election, stating that it might appear the courts would be influencing the vote if they did. The courts determined that the issues with the fair elections act were extremely serious, and likely to be dealt with after the election. This means that if there are any court challenges on the election (look to that also coming from Canadians living abroad), this will be one of the most costliest elections in Canadian history to Canadian tax payers.
While the Conservatives shoulder a lot of the blame for this, the media shoulders the other half. If in fact we have media being influenced by any political party and not fully educating Canadians on the facts due to political influences and favors, than we’ve already lost our democracy, and I think that will play out with the OSCE report and substantive court challenges that are sure to follow as a result.
Last week, I wrote that the Munk School of Global Affairs received $9 million in federal research grants, and hinted about a possible conflict of interest this funding may have on the federal leaders debate, and with the leader selection processes for these debates. The Munk School of Global Affairs responded to that blog. Munk School Director Steven Toope released this statement (emphasis added):
To be clear, we at the Munk School are neither hosting nor running the foreign policy election debate. The semi-annual Munk Debates are a project of the Aurea Foundation; a federally registered charity dedicated to public policy research and discussion. Our only potential role is to give advice on questions that might be posed, but as part of an independent national advisory committee. We have nothing to do with the decision about who can participate.
Essentially what this says is that the Munk School of Global Affairs is a separate organization from the Munk Debates. A fact that the school seems to be rather intent in correcting since numerous news agencies recently have been tying the Munk School to the Munk debates. Sick of Munks yet? Wait there’s more.
It is important to note that Janice Stein who is the founding director of the Munk School of Global Affairs sits on the advisory board of the Munk Debates. I raised concerns regarding Ms. Steins role on the advisory committee at the Munk Debates being a potential conflict of interest, along with the fact that the Munk School of Global Affairs is advising a committee on questions that might be posed to the leaders. Questions posed could be tailored in a way that could very well lean towards the Conservatives to give them the upper hand in answering them.
Questions I posed to Toope on his statement were the following:
1) Is it ethical or even considered independent that the Munk School would have any potential role in asking leaders questions while in receipt of $9 million in public funds?
2) Your founding director sits on the advisory committee for the Munk Debates. Is that not a conflict of interest?
Munk School of Global Affairs spokesperson Kelley Teahen e-mailed the following on the conflict of interest questions on Stein and the Munk School’s position on the advisory committee regarding leader questions:
You brought up the fact the school recently was awarded a research grant from a federal ministry to support the Digital Public Square project.
Professor Toope explains that the Munk School, like all Canadian post-secondary institutions involved in conducting research, receives many grants from the federal government, and other governments, related to supporting research. These are awarded through competitive processes, or agreed to after processes in and due diligence with the departments involved. They are not awarded politically.
Why is the Munk School of Global Affairs advising a committee on potential leadership debate questions, when those questions should be coming from the voters to begin with? Why are the Munk Debates still refusing to let all leaders participate in these debates?
In a recent article Munk Debates Chairman Rudyard Griffiths was recently questioned on Green Leader Elizabeth May`s exclusion from the Munk Debates:
The chairman of Munk Debates, Rudyard Griffiths, said back in May that inviting all six parties with MPs “would unduly limit our ability to hold a substantive debate.” Now he says he “really struggled” with this decision.
The academic community doesn’t seem to quite fully understand the public’s perception of conflict of interest, nor do they seem they care that these debates belong to the Canadian public, so do the funds they are receiving from the federal government.
As the debates over the debates has raged on over the past several months, one thing is becoming increasingly clear. Journalists in Canada seem to be throwing out their duty of independence and holding our political parties to account for political favors; thus Canadians can’t rely on the media to do their traditional role of independently reporting on the election and providing the public with proper facts on policy to make an informed choice at the voter booth. Due to this, our democratic system looks more like a 3rd world two bit operation than a thriving democracy which depends on a free independent press as a major pillar to the democratic system of government.
I’ve reported extensively on this blog about how the consortium colluded together against the Conservatives, and how that collusion is highly illegal and has yet to be dealt with in law. On the flip side, last week award winning Toronto Star journalist Paul Watson quit his job in protest after being silenced by the Star while trying to report misinformation on the Franklin expeditions and how the expeditions were being purposely influenced by ties to the Prime Ministers Office. Facts during the expedition according to Watson were left out of this feel good story to purposely mislead the public in favor of the PMO’s preferred version of events. According to Watson he was punished by the Star executives in trying to confront his superiors with misinformation on this story with a 6 week reporting ban.
It’s not just the Toronto Star or the broadcast consortium looking for political favors. This week, the Globe and Mail responded to stark criticism of it’s readers not allowing Green Party Leader Elizabeth May in the Munk Debates. The Globe replied to angry readers with this following statement:
The Globe & Mail is hosting a federal election debate in September in partnership with Google Canada. The debate, to be hosted in Calgary, will be streamed live on The Globe’s website and distributed on YouTube, and will focus on the Canadian economy.
We have invited the major party leaders to this debate – those who have official status in The House of Commons. Prime Minister Stephen Harper, NDP Leader Tom Mulcair and Liberal Leader Justin Trudeau have been asked to take part, because we believe a more streamlined, effective conversation about the Canadian economy will take place in that format.
David Walmsley, The Globe’s editor-in-chief says, “We’ve set up the debate this way because we believe that by limiting the format to Canada’s three main party leaders, we will create a truly focused, successful discussion about the state of the Canadian economy.”
There are now at least three independently organized leaders’ debates in the works. Politics reporter Steven Chase writes:
“Mr. Harper’s Conservatives kicked off a spat with major broadcasters including the CBC, Radio-Canada, CTV and Global when they announced they would refuse an invitation to participate in debates organized by the broadcasting consortium, instead opting for a variety of independent debates. Kory Teneycke, a spokesman for the Conservative Party campaign, said in a statement that he hopes major broadcasters will cover the independent debates.”
Industry Minister James Moore yesterday announced the federal government will be forwarding $9 million in tax payers money to support the Munk School of Global Affairs.
The “Munks” are disallowing Green Party Elizabeth May to debate in their debates as well. Most Canadians believed that the last time May got her time in the federal elections debate during the 2008 economic crisis, that she won that debate hands down regarding the economy and other election issues. While I’m not a Green Party supporter, I remember those debates very well, and May brought forth an independent non-partisan view towards the facts, including the fact that we were in a recession in 2008, which all parties at that time were denying we were in. Enter 2015, and all indications are pointing to the fact we are in a recession with the Conservatives dodging the bad economy at every step. Readers can draw their own conclusions.
The story that’s emerging here is one where media executives who are in charge of overseeing our election debates seem to be acting without independence. Watson in a recent interview had this to say regarding political interference over our “independent” media:
This is a symptom of a broader disease that is eating away at the core of our democracy. Experts on climate, on medicine, on things that are central to our society are being silenced by a government that does favours for the politically connected. And that is just very dangerous for our future.
Due to the current partisan nature of the politics in this country facts are being left out. Media independence is not a left vs right or right vs left issue, it’s both. The broadcast consortium back in October threw journalism ethics out the window with solid evidence that the CBC was colluding with the other broadcasters against government regarding political advertising which is a highly illegal offense under the competition act.
At heart was the attack ad scandal, and the broadcasters threatened to not air political advertising using broadcast consortium materials. The broadcasters claimed journalism ethics and independence was being threatened by misleading advertisements. Today the CBC is still threatening to illegally take down any content that anyone uses without their permission. The law allows the use for such material under certain circumstances. This is called the “fair use” copyright exemption. In some of my comments on my recent blog posts, I compared internationally accepted journalism ethics to that of the broadcasters used to justify not airing or interfering with political advertisements:
Last week former Conservative MP Dean Del Mastro was sentenced to one month in jail for his part in over spending in the 2008 election. The judge thought that jail time was necessary to send a message to politicians ahead of an election that cheating election rules will have severe consequences. After last week, most Canadians are expecting a “clean” election campaign, that is until the CBC published a blog post on Friday, warning that it was going to start taking down content posted online that uses any CBC material.
Jennifer McGuire CBC News Editor-and-Chief stated:
“No one – no individual candidate or political party, and no government, corporation or NGO – may re-use our creative and copyrighted property without our permission. This includes our brands, our talent and our content.”
It’s quite clear from this statement that it’s not just political parties the CBC has issues with, it’s Canadian copyright law. Copyright law permits the use of clips from CBC and other broadcasters for political criticism and news. The CBC’s decision to take down content regardless of current law that allows this, will have a profound impact on the online coverage of the consortium debates, since blogs like mine, political YouTube commentators even tweets will be subjected to false and illegal copyright take down notices. This will impact freedom of speech and political commentary in the most profound way during the election, if mass take downs of copyright occur online. These illegal take downs can be challenged, however it will take far beyond the election to resolve.
A lot of this started back in 2013. Back then The Liberal “Democratic Reform” Critic Stephane Dion raised the possibility of shielding the Liberal party from political attacks using copyright. Dion went as far as writing the Commissioner of Elections Canada on the issue which was seemingly rejected by Elections Canada.
Back last year, the consortium broadcasters again raised this concern, with starkly similar issues Dion raised to shield the Liberal party. CBC, CTV, Global took to the airwaves in October 2014 after the Conservative government tried to “clarify” copyright law, by amending current copyright law to avoid the situation we find ourselves in now. The amendment was later dropped by government.
Internet Law Expert Micheal Geist stated in his most recent blog:
“The CBC is simply wrong. Its guiding principle is wrong and its attempt to use copyright to take down an offensive advertisement is wrong. The claim brings to mind the story from last fall involving a government proposal (that was shelved) to create a specific copyright exception for the use of news content in political advertising.
I argued then that no exception was needed because copyright already provides latitude for political parties to use works without permission. That is because copyright does not provide the absolute rights suggested by the CBC. The CBC obviously has rights as the copyright owner in its broadcast, but those rights are constrained by limitations and exceptions under the law that allow for use of its work without the need for further permission. The CBC itself (like all broadcasters) regularly relies upon those exceptions to use the work of others without permission. Similarly, I just used the exceptions to quote the CBC policy in this blog post without their permission.”
The CBC needs to be reminded of the law, and that while the broadcaster owns the copyright it’s Canadian tax payers that pay for it!
A few weeks ago I blogged about exactly this, and how content ownership rules of the consortium debates could potentially have a very negative impact on free speech, and online coverage of the consortium debates. It profoundly looks like those concerns have been well justified. Both the NDP and Green’s have been stark supporters of these copyright exemptions in law. The Greens in particular have been stark supporters of the consortium lead debates. I’ve reached out to Green Party leader Elizabeth May on this issues, and she wasn’t available for comment.
We have exemptions in copyright law for a reason, and that is too ensure that free speech isn’t controlled by anyone. Last week, Ontario Court of Justice Judge Lisa Cameron made it very clear in Del Mastro’s case that the courts would not accept deceitful behavior from politicians calling it “an affront to the principles of our democratic system”. Similarly the CBC’s attack on free speech under the guise of “journalistic” principles months before an election, should be treated also as an affront to the principles of our democratic system by Canadians as well. I highly doubt that with the message Justice Cameron sent last week, that media companies will be treated any differently by the courts if the consortium is legally challenged on this issue.
Don’t be fooled by political discourse. The debates over the media consortium debates should be of utmost concern to Canadians of all political stripes, since the end game (if it plays out as expected) has the potential to shape how broadcast media covers political news, and what we as Canadians can use that content for. All political parties are playing politics (to no one’s surprise) over the consortium debates. So let’s cut through the spin, and get to the meat of what this is really about.
The Conservative’s decision to pull Prime Minister Harper from the consortium debates has created a lot of buzz and talk from us political junkies. The move has been widely criticized as undemocratic by the consortium, Liberals and Greens.
The NDP have been very careful around their messaging towards the debates on the debates opting to use words about debating Harper specifically (which seem to indicate the NDP is passing the ball to the Conservative court regarding the debates) and the more debates the better (making sure they don’t end up looking undemocratic). The NDP seem to be sitting on the fence with the consortium debates (for very good reason) and haven’t 100% committed to them yet. They have only agreed in principle to participate, not that they will show up for these debates. This seems like more of a stalling tactic to me.
Meanwhile the Liberals and Greens have gone full court press on how anti-democratic Harper’s move to pull out of the debates was. The consortium itself seems to be shielding the Liberals intentionally from the backlash Trudeau has received on social media from supporting Bill C51 by refusing outright to report on it even when current polls are strongly suggesting the Conservatives and Liberals have lost seats to an NDP surge as a result of the NDP position on the new anti-terror bill.
In order to really get some context around the politics of the debates around the debates, and how serious this has actually become, we need to re-visit when and how this all started. In October last year Global, CTV, and CBC the members of the media consortium took exception to the Conservatives planned use of news footage in attack ads. The consortium took advantage of political discourse around attack ads, and has since taken advantage of the Conservatives politically crying wolf quite a bit on media bias against the party to try to get away with breaking the law on a number of fronts. I’m not at all defending the use of attack ads. I hate them as well, however we need to shift away from attack ads and look very seriously on how this has played out in respects to the law, to fully understand how serious this situation has become for consortium members.
CBC internal e-mails were obtained through access to information back in October showing all three competitors knew the facts on law regarding the use of news coverage in political ads and went to air on news coverage that was used to intentionally mislead Canadians and drum up more public discourse on attack ads to gain support for the consortium position on copyright law. The three broadcasters were also trying to box all political parties in legally on this issue prior to an election by threatening to not air ads that contained any consortium news coverage (attack ads or not). A court challenge towards the broadcasters position not to air ads with news coverage would have lasted well past the next election. The conservative knew this and moved to try and amend the copyright act and to clarify the law around the use of news material which was a mistake the consortium picked up on. That amendment was later rescinded by the Government as it was later deemed not needed. Current law clearly covers the use of news material for political criticism.
Internal CBC e-mails outlined that the CBC consulted its legal team which referenced to copyright expert Michael Geist in March 2014 and concluded that legally the use of news coverage in political ads was not stealing months prior to CTV, Global, CBC’s leading news coverage that it was stealing (pg. 112 of CBC’s e-mail thread).
To put it bluntly, the consortium members CTV, Global and CBC intentionally mislead Canadians on a point of law, clearly manipulated news casts to that effect all while using discourse on an the unpopular subject of attack ads to make their point to the public.
Geist later strongly criticized the consortium’s policy around not airing political ads with news coverage owned by the consortium:
“Documents obtained by others under the Access to Information Act reveal that the CBC was the instigator behind the April 2014 warning letter to all political parties that the broadcasters wold [sic] not accept political advertisements using their content without express authorization. The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation”
Supreme Court Copyright Lawyer Howard Knopf also weighed in on how the consortium was covering the attack ad scandal stating:
“I’ve been involved with copyright law for longer than I care to admit – indeed, more than three decades. But I don’t think I’ve ever seen so much confusion and just plain WRONG commentary about a copyright issue as I’ve seen in the last week of Coverage of the issue of copyright and negative political ads.”
Knopf also said:
“My friend and colleague Prof. Ariel Katz of the U of T Faculty of Law, with whom I have worked closely on a factum that was quite influential in a landmark Supreme Court of Canada fair dealing case and other issues, is an internationally recognized leading copyright scholar and Canada’s foremost expert in the interplay of IP and competition law. Here’s his blog from October 14, 2014 entitled Attack Ads, Copyright, and Collusion: Have Canada’s Major Broadcasters Violated the Competition Act?
Prof. Katz discusses s. 45 of the Competition Act, which comes under the heading “Conspiracies, agreements or arrangements between competitors” and is perhaps the most feared and potent provision of the legislation. It is used in serious cases. It can put people in jail for up to 14 years and result in a fine of up to $25 million per count, or both, which is a very big time penalty by Canadian standards. Changes made by Parliament to the s. 45 provisions in 2009 that came into effect in 2010 may now make it easier in some circumstances to obtain a conviction. The new section provides for “per se” offences, which do not require proof that competition was lessened “unduly” and there is no need to prove any adverse market effects. There is no need to prove that the conspiracy in question was actually carried out – only that it was entered into. There’s also a less harsh new “civil” enforcement provision to be found in s. 90.1 that involves the Competition Tribunal, which may or may not be of interest in the current situation. To be crystal clear, nothing I am saying or have said accuses anyone of any offence or violation under this or any other provision of the Competition Act. I am merely pointing out that there are provisions in the Competition Act that may be relevant, depending on the facts, and that folks, including the Commissioner of Competition, may be interested in looking at this situation.”
Knopf, Geist and Katz are all leading heavyweight independent legal experts on copyright law. Katz as listed above is also one of Canada’s leading experts on Canadian competition law.
A few days after the attack ad scandal broke; Rick Mercer took to the airwaves repeating the consortium line that using news coverage for political advertising was stealing, in which CBC’s internal e-mails state their own legal team didn’t even support that claim. A day after Mercer’s rant aired, York University saw it fit to provide Mercer with an honorary law degree which could explain why currently the NDP are taking up issues with hosting any debates at universities. From the Huffington Post:
“The NDP had the same concern as the Conservatives, in that the venues being proposed are universities,” one source said, requesting anonymity. “The NDP’s argument was that universities are not really neutral.”
Fast forward to May 2015. The consortium is very publicly and noticeably trying to shield the Liberals from any backlash on bill C51 by not reporting on the social media backlash. The day after the Liberals supported bill C51 and at the height of the Liberal backlash on twitter, the consortium lead with a Liberal platform announcement. Even after almost a full week of social media protest, and Liberal members posting pictures of them burning their membership cards in protest to the parties support of it, the consortium instead attacked Elizabeth May on her failed attempt at comedy.
If you read in between the lines of the consortium moves, it seems as though they are pretty much daring the conservatives to move forth legally on consortium members. The consortium seems to think that it has the political upper hand here considering the conservatives have cried wolf on media bias several times, and that no one will believe the conservative position.
The consortium seems to also think that they have a much wider reach towards Canadians. Consortium journalists have used that line consistently when questioning the Conservatives after Harper pulled out of the debates. If the C-51 backlash and the current polls shows us anything, it’s that traditional media has very little influence on voter intention. You know what they say about playing with fire.
The Liberals, in their demand letter to the consortium on the debates, want “clarification” on how debate footage can be used from the consortium. That issue was settled in October with Geist, Knopf and Katz weighing in on the subject and with the CBC’s legal team back in March, 2014. So why are the Liberals asking for clarification on ownership of debate coverage?
It seems like the Liberals are asking the consortium if they will continue to push the copyright issue to shield Trudeau from attacks (which could be a stark misuse of copyright law as Geist noted, and have a major impact on online commentary and coverage of the consortium lead debates as a result).
We have yet to know publicly what the real agreement was with the consortium between the Liberals, NDP, Greens, and the Bloc. That agreement needs to be made public by all parties now!
What completely surprises me about all of this is the political position the Greens have taken on the consortium debates. The Greens have been stark and solid supporters of allowing anyone to use copyright protected material to criticize politicians in the past, and are trying to frame an eventual pull out of the consortium debates by the NDP after the legal hammer drops on the consortium as a result of all of this, as a coordinated political attack by the Conservatives and NDP against the Liberals and Greens:
“In my view, there is an attempt to get the Liberals off the opposition map… and the NDP doesn’t want the Greens there,” one person involved with the negotiations said. “Two parties who are diametrically opposed are working together.”
There seems to be a lot of framing of the debate around the debates by all parties. What comes next will be probably one of the biggest stories about media and journalism we have seen in a long time, and has the potential to shape how political news is covered in this country. How this will play out is anyone’s guess, but it really doesn’t look good for the consortium. Those listed in the CBC internal e-mails which include lead CBC correspondent and anchor Peter Mansbridge could very well face the possibility of jail time if the competition bureau decides to investigate and warrants the situation serious enough to lay charges with a $25 million dollar fine for each count of infringement under the competition act.
Bill C51 will have an impact on our civil liberties, however media control over criticism of political leaders is a far worse infraction of our civil liberties. How are we supposed to know what government is doing, if media is shielding these political leaders from that criticism and controlling the conversation. How would we know our rights could be violated by future governments of any political stripe, if we have media intentionally misleading Canadians for political gain.
As someone with education broadcast journalism, a free press is a pillar of democracy. We have laws in place to ensure those pillars remain standing. Laws that need now to be enacted on this media consortium to ensure that after October, Canadians can fully trust the information they are getting from major media companies are accurate and without prejudice. Otherwise the next time, we may never know about another type of bill that could be worse off from bill C51. Once that free press pillar falls, we can not accept ourselves as a democracy. This monster that CTV, Global, and CBC needs to be seriously dealt with.
UPDATE: Liberal Leader Justin Trudeau’s political adviser Gerald Butts has responded to this article, claiming it a “conspiracy theory”. If all of this is a conspiracy theory, than why is Trudeau’s chief political adviser responding to it?
— Gerald Butts (@gmbutts) May 25, 2015