The Constitutional Debate and Communications Policies

Gaëtan Tremblay (Université du Québec à Montréal)

In Quebec, the traditional view of communications and culture has been that jurisdiction over them should be transferred to Quebec. That the Parti Québécois makes this demand should hardly come has a surprise. It stems logically from its total plan. A sovereign Quebec would hold all powers pertaining to communications and culture, just as it would in other sectors.

Even Robert Bourassa's Liberal Party feels that authority in these areas is exclusively a provincial affair. The Allaire Report clearly asserted this view and recent statements by Lise Frulla-Hébert and Lawrence Cannon suggest that the Bourassa government concurs with the Liberal Party and the Allaire Report. But again, there is nothing new here. The Liberal Party's platform, under Robert Bourassa, had already, by the early 1970s, begun to advocate "cultural sovereignty" for Quebec!

However much this demand may have the unanimous support of Quebec's political representatives, such is not the case in Ottawa. Despite public manifestations of a spirit of collaboration and opening toward the sharing of powers, recent statements by Perrin Beatty, not to mention the wording of a proposed telecommunications bill, hardly give the impression that the federal government is ready to remove itself from this field of jurisdiction. Indeed, the contrary appears to be the case!

What impact might the constitutional talks undertaken since Meech Lake--if ever they get beyond the stage of general notions such as distinct society, triple E Senate and inherent rights--have on the articulation of policies regarding communications and the future management of this sector in the country? Can we expect to see, as Quebec would have it, major changes in the definitions of jurisdictions? In what follows, the focus is on communications. Culture will not be mentioned except to say that, in my view, its treatment has not been unlike that of communications. After having laid out the main parameters of the current situation, I will discuss three possible scenarios, followed by the identification of the one which, unfortunately, seems the most likely to come about.

The Current Situation

After a long conflict begun in the 1920s, provincial power was disarmed by successive decisions made by the country's highest judicial authorities. The Privy Council's 1931 judgment in London concerning federal authority over broadcasting, and those by the Supreme Court in 1977 regarding cable and in 1991 (AGT vs. CRTC) with respect to telecommunications combined to confirm the federal government's nearly unshared authority over the regulation of broadcasting and telecommunications in Canada. The new Broadcasting Act, adopted in 1991, recognized for the first time the peculiarities of the francophone market and invited the CRTC to regionalize its activities. It did not, however, establish mechanisms allowing for the participation of the provinces in the management of broadcasting in Canada, such as was recommended by the Aird Report.

The proposed telecommunications act goes even further: it contains no mention whatsoever of the provinces.

Throughout the 1970s, Quebec intensified the struggle and clearly indicated its intention to play a key governing role within respect to communications activities within its territorial limits. To do so, and with a view to assuming the powers it was demanding, it created a number of institutions similar to those at the federal level. It created its own ministry of communications only a few months after Ottawa. It concretized its bill concerning Radio-Québec by allocating the necessary resources for production and diffusion. It amended the bill concerning the Régie des services publics, authorizing it to regulate communications activities. It adopted fiscal measures intended to favour audiovisual production, initiated aid, and support programs, etc.

But all these efforts were thwarted by Supreme Court decisions. Quebec lost the legal battle. For all practical purposes, its zone of competence is limited to educational broadcasting and to telephone companies operating solely within its territorial limits. It had to settle for a collaborative relationship with the federal government and be content with whatever consultative role the latter deigned to give it. Through its communications and cultural affairs ministries it still disposes of means for intervening in the domain. But these hardly compare with the power held by Communications Canada and the federal Secretary of State. All that remains for the Régie des télécommunications is a marginal regulatory role compared to that of the CRTC. And while the SODIC can offer support to the audiovisual industry, its means are quite limited compared to those of Telefilm Canada.

Despite having its historical demands thwarted and being accorded a scaled-down role in the communications sector, Quebec, via its present government, continues to demand full powers in this area! The Allaire Report, the Arpin Report, and the cultural policy tabled by Lise Frulla-Hébert, as well as what is known about the policy being formulated in Lawrence Cannon's ministry all reiterate the same demand: Quebec's full and entire jurisdiction over culture and communications.

Possible Scenarios

Present constitutional discussions could lead to three broad kinds of scenario: (1) Quebec sovereignty; (2) the status quo; and (3) some form of renewed federalism.

Quebec Sovereignty

The first possibility: the Quebec government, in conformity with Bill 150, holds a referendum on sovereignty, and the majority of the Quebec people vote in favour of this solution. In this scenario, things are relatively clear. Quebec assumes full powers in this domain as it does in all others. It would no doubt be obliged to negotiate a property settlement with the rest of Canada. Quebec would also have to negotiate, as a sovereign country, international agreements with Canada, the United States, and several other countries with respect to the control of telecommunications, the frequency spectrum, the establishment of co-production programs, distribution arrangements, etc.

With respect to telecommunications, Quebec would likely be more favourably disposed towards competition than the rest of Canada. Without the presence of a large national business (a Bell Quebec would be of very modest dimensions), it would no doubt be inclined to search out the benefits of competition rather than favouring the monopoly of a single company, which would either have its head office in another country or not be able to maintain high quality standards at reasonable prices. But, as the CRTC's recent decision regarding Unitel's application would lead one to believe, Canada itself will be very much open to competition.

With respect to broadcasting, Quebec sovereignty would probably lead to the consolidation of Radio-Québec's and Radio-Canada's administrations and equipment. Could a sovereign Quebec afford a high quality general- interest network and a cultural and educational network (in the broad sense of the expression)? The problem would no doubt be raised, and the solution could well be found in the break-up of the present Radio-Québec, whose cultural programming (broadly speaking) would be integrated with that of the former Radio-Canada under the aegis of a new entity called Radio-Québec. Purely educational programming could be handed over to the current university channel.

In this scenario, there remains one question for which there is no clear answer: in what way(s) would a Québécois broadcasting and telecommunications policy differ from the present Canadian one? How would full jurisdictional authority over communications benefit the interest of the Québécois people? It needs to be pointed out that neither Péquistes, fervent supporters of Quebec sovereignty, nor Liberals, advocates of full jurisdictional authority for Quebec in the field of communications, have offered any precise indications of the distinctive characteristics of an eventual Québécois communications policy.

The Régie des télécommunications would be given a broader mandate with respect to broadcasting and regulatory responsibilities for the entire communications sector. But nothing allows one to think that it would perform these functions in a fundamentally different way than the CRTC does at present.

The Status Quo

Second scenario: the referendum is on offers made by the federal government, and is rejected by a majority of the Québécois people. Or, the referendum is on an ambiguous question and no clear conclusions can be drawn from the results of the vote. Or again, the offers made by the federal government (distinct society, new senate, inherent rights, some form of veto) are accepted, but subsequent negotiations over power sharing either lead nowhere or only result in insignificant changes to Quebec's prerogatives!

In any event, the status quo would result. What a joyful prospect! Nothing would be resolved. As always, Ottawa would keep time on its drum and Québécois recriminations and demands would continue to issue forth with as much force and regularity.

Renewed Federalism

This is the most complex scenario! Canada makes a number of offers acceptable to Quebec involving an important redistribution of powers. But would these offers and this redistribution include--as the Quebec Liberal party demands--Quebec's full jurisdiction over culture and communications? Personally, I do not think Canada would go that far.

No doubt federal offers would go further with respect to culture than with communications. Let me state once again that my interest here is in the field of communications; I only mention culture to the extent that it is implicated at the level of broadcasting content, and the fields of communications and culture cannot be completely separated from one another.

Unless it is willing to renounce its status as a true country, Canada cannot completely cease its interventions in the areas of culture and communications. In this connection, English Canada could well take the view that it would simply be better to accept Quebec independence.

A country is not only a political structure or an economic space. Its existence is also predicated on a feeling of belonging, the sharing of a certain number of values, symbols, and collective projects. A country is also a symbolic universe, a common cultural space. It will no doubt be said that, in Canada, two cultures who ignore one another already exist! All the more reason for the federal government to want to intervene in order to keep the country from breaking up, in order to promote shared values and a minimal feeling of belonging, and in order to ensure common norms for the regulation of communications throughout its territory. The idea of "cultural sovereignty" within a renewed federalism makes no sense. If one argues or accepts that Canada is a country, one must accord the central government some power of intervention in the areas of culture and communications.

To believe that Canadians could abandon all national jurisdiction over culture and communications is to understand poorly the history of this country and Canadians' mentalités. Communications are part of this country's founding myth. Rivers, roads, railways, telephone service, satellites, the CBC, the National Film Board: these are all media of communication which Canadians believe, rightly or wrongly, have contributed to the building of Canada. To renounce national jurisdiction over modern means of communication such as telecommunications and broadcasting would be tantamount to renouncing the minimum that allows Canada to view itself as a country. It would thus be unrealistic to expect that the central government will cede the powers it was accorded by the Supreme Court!

Moreover, recognition of Quebec's full jurisdictional authority over communications would pose considerable practical problems. What would happen to the CBC in Quebec and Radio-Canada in the rest of Canada? It would be necessary to re-conceive completely CBC/Radio-Canada's structure, which would remain national in name only. Would the operators of telecommunications services like Bell Canada be obliged to conform with two sets of regulations? It is not difficult to imagine that telecommunications and broadcasting lobbyists would be opposed to any power sharing formula that would complicate the procedures and regulations with which they must comply.

For its part, Quebec, for reasons similar to those preventing the federal government from abdicating its power of intervention, cannot content itself with a simple consultative role. For Quebec, contenting itself with those powers recognized by the Supreme Court would amount to renouncing any possibility of control over the means requisite for the defence and the burgeoning of its cultural identity, and for the survival and development of the distinct and original society that it constitutes. Quebec's demands with respect to communications are still based, moreover, on its responsibilities in the areas of education and culture.

It would thus appear that a renewed federalism should very much lead to shared jurisdictional authority over communications. Without going into the details, let me outline some plausible forms of power sharing arrangements:

(a) regionalization of the CRTC, according an important say to CRTC-Quebec in the activities of Radio-Canada and private radio and television stations in Quebec, which would, while respecting the Broadcasting Act, allow for the definition of a regulatory arena reflecting the particularities of the market and the aspirations of the Québécois people;

(b) formulation and harmonization of communication policies (objectives, means, timetable) at the federal and Quebec levels;

(c) some form of power sharing between the federal and provincial governments, as a function of the priorities outlined in their respective policies;

(d) as for telecommunications, its regulation will no doubt remain more centralized, given the volume of interprovincial and international exchanges, market globalization, and the fact that the issues pertain much more to networks than to programming. But here as with broadcasting it would be possible to define a mechanism for combining the objectives sought after by the two levels of government in their communications policies; and

(e) Telefilm Canada should be decentralized and a larger share accorded to French-language production.

Conclusion

Culture and communications are at the heart of the constitutional debate. To be sure, they are not the only issues. But the future of the country depends on the resolution of the problems they raise. Sovereignty in cultural matters alone is a myth. Canada would never agree to it. If Quebec insists on full powers over culture and communications, if it insists enough, it will assume the burden of its choices, that is, sovereignty, independence for Quebec.

If Canada makes no moves and maintains its centralist attitude in these areas, one of two things will occur: (a) Quebec will come to its own conclusions and will become independent; or (b) the status quo will obtain, the same constitutional stagnation, the same fiction of a country that is not really one. The idea of a culturally united Canada or a multicultural Canada is also a myth.

If the renewed federalism option is chosen, it must give rise to a real sharing of powers over communications. This option can only hope to succeed if Canada recognizes that Quebec needs more decisional levers in these areas in order to ensure its collective development, and if Quebec accepts that the central government of a country, however decentralized it may be, cannot abdicate all its authority in this area.

Viewed in this perspective, it is indeed surprising that advocates of renewed federalism, both in Quebec City and Ottawa, have yet to think it worthwhile to develop power sharing formulas in the field of communications. In any event, hardly a whisper has been heard to this effect. On the one hand, Quebec maintains its demands for full jurisdiction in this area, and, on the other, with the Supreme Court in its corner, Canada continues to adopt centralist legislation. In these conditions, one is doubtful of renewed federalism's chances.

For my part, I am rather pessimistic. It is getting late in the game for an agreement acceptable to all sides over matters that are only preconditions for negotiating a new power sharing arrangement. Moreover, it is not at all clear that the political will is there. And the powers that be are not in any way insistent that the people of Quebec clearly express their choices and assume the consequences. What remains is the joyless prospect of a dull, morbid, and wearying status quo! For how long?

Note

1
This paper was written in April of 1992 and was presented the following June at the Canadian Communication Association's annual conference. In my view, nothing that has happened since that time alters either its analysis or its conclusions.


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