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Bill C-10 - When Funding Becomes Censorship

Brenda Cossman
Thursday, March 6, 2008

There is a new censorship kafuffle in town. It’s Bill C-10, which will restrict tax credits to film and television productions deemed offensive and "contrary to public policy" by the Ministry of Heritage. The arts community is rightly up in arms, condemning the Bill as government censorship. But, the government, along with more than a few supporters, insists that this isn’t censorship. Artists are free to make art, they say, just not on the government’s tab.

So, just what is censorship, exactly?

(A shorter version of this article was first published on Xtra.ca) 

The Miriam Webster dictionary defines censoring as the act of examining material "in order to suppress or delete anything considered objectionable" It is often, but not always, done by governments.

Okay, so let’s focus on government censorship. When does a government act become the suppression or deletion of objectionable information?

Some kinds of censorship are pretty easy to identify. Like when you write something and end up in jail because of it. Laws that make certain kinds of speech a crime are obviously censorship. And we have had our fair share of those laws. Like obscenity laws used to censor works of literature, like Lady Chatterley’s Lover.

New Articles Available Online: On Competition Law and Intellectual Property, and on Patents and Phramaceuticals Regulation

Ariel Katz
Tuesday, March 4, 2008

Two articles of mine have been recently published and are available online.  The first article, published in 49 Arizona Law Review is Making Sense of Nonsense: Intellectual Property, Antitrust, and Market Power.  Here's the abstract:

While the economic rationale for intellectual property ("IP") rights rests on the concepts of "monopoly" or "market power," the U.S. Supreme Court, in Illinois Tool Works v. Independent Ink, has recently joined a "virtual consensus" among antitrust commentators believing that no presumption of market power should exist in antitrust cases involving IP. This Article critically analyzes this consensus, and clarifies the relationship between IP and market power, shows why IP rights often do confer market power in the antitrust sense, but also explains why acknowledging this should not necessarily lead to oversized application of antitrust law to IP.

The second article is Pharmaceutical Lemons: Innovation and Regulation in the Drug Industry, published in 14 Michigan Telecommunications and Technology Law Review.  Here's the abstract:

Collegiality and Ideological Commitment

Benjamin Alarie
Tuesday, February 19, 2008

I've just posted a new paper on SSRN entitled, "Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada".  My coauthor, Andrew Green, and I argue that the singular focus on the policy preferences of Supreme Court justices is apt to miss an important dimension of Court dynamics--the degree to which the justices engage in cooperative decision-making.

Here's the abstract:

Veils, Isotopes and the Meaning of “Independence”

Lorne Sossin
Sunday, January 13, 2008

There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.

In September, Prime Minister Harper said he “profoundly disagreed” with the decision of  Elections Canada not to require veiled women to submit to visual identification before being able to vote in federal elections. Harper added:

A Malignant Vestige Of 'Tradition'

Anver Emon
Tuesday, December 18, 2007

This commentary was first published in the National Post on December 14, 2007.

The tragic death of Aqsa Parvez has been on my mind incessantly since I heard the news that the Mississauga, Ont., teenager had been killed -- allegedly by her traditionally minded Muslim father. As a professor of Islamic law, I teach my students about its history, doctrines and modes of analysis. We shift back and forth from common law reasoning to Islamic doctrines. We analyze the differences between the values of the Islamic system and our own value commitments.

But then an extreme episode such as the death of Ms. Parvez arises, and we move beyond the academic exercises of the classroom to pangs of outrage and heartbreak.

One hopes that no religion would sanction the killing of a child. And, indeed, the Islamic tradition does not condone the crime Ms. Perez's father is alleged to have committed against his rebellious daughter. But is it possible that there's something in his Muslim faith that influenced him to act so outrageously?

Getting on Like a House on Fire – Bali Style

Jutta Brunnée
Thursday, December 13, 2007

There is something surreal about the current climate talks in Bali. Think about it this way…

Life is good in the penthouse suites.  The open and airy lofts boast the latest in sleek Italian furniture, the ultimate in German kitchen design, and screening rooms with state of the art plasma screens and surround sound systems.

Money is no object. The owners are, well, “financially comfortable” (some would say plain rich).  They enjoy the best wines from around the world, champagne from France, beef from Japan (sometimes Argentina), caviar from Russia and bottled mineral water from the finest springs.

Only one thing is puzzling about the penthouse suites. The blinds are drawn. And the air-conditioning is running in the winter.  Delivery staff rushes in and out, leaving sooty clothes and oxygen tanks at the door.  Because, you see, there is trouble in penthouse paradise. It sits atop a building that is now surrounded by fire and is beginning to smolder.

This is not news to the people in the penthouse, or to anyone else in the building. In fact, the building association has known about the approaching fire for many, many years. Back in 1992, it even adopted a framework agreement with the objective to avert a “dangerous” fire hazard. 

What Can Canada Learn from Israel about Copyright Reform?

Ariel Katz
Saturday, December 8, 2007

A bill entitled Bill entitled "An Act to amend the Copyright Act" is likely to be handed down next week.  While the bill itself is probably drafted already, its content will be deliberated in Parliament.   Therefore, Canadian policymakers may wish to consider looking at the new copyright act which the Knesset, the Israeli parliament, passed last month (downloadable here, in Hebrew; English translation now available here).  There are at least two reasons to look at Israel's new act:  one is to consider the approach taken by the Israeli legislators to many copyright issues that are relevant to Canada.  A second reason is that despite the geographic distance, the two countries share a common copyright heritage.  Until last week, Israel's copyright law was principally based on the UK Copyright Act of 1911, the same statute after which Canada's first home-made copyright act was modeled in 1921. 

Here are a few issues that may be relevant to the upcoming debate in Canada:

The Bali Challenge: How to Get a Global Climate Deal, and Fast?

Jutta Brunnée
Friday, November 30, 2007

According to UN secretary-general, Ban Ki- Moon, the most recent findings of the Intergovernmental Panel on Climate Change (IPCC) suggest that the impacts of climate change will be “so severe and so sweeping that only urgent, global action will do.”

The challenge at the pending UN meetings in Bali will be to set the tracks for just that: a regime that includes all major greenhouse gas (ghg) emitters and imposes meaningful emission reduction targets on them.

Canada’s Environment Minister, John Baird, has called the IPCC findings “powerful” and “overwhelming.”  Assuming, then, that Canada’s goal is to promote urgent and global action, what of its negotiating strategy for Bali?

That strategy was spelled out at last weekend’s Kampala meeting of the 53 Commonwealth states.  Canada blocked a final communiqué that would have called for a long-term global target, as well as binding commitments to deep, absolute emission reductions by developed countries.  The statement’s focus on developed countries was the rub.  As Prime Minister Harper confirmed, Canada will resist any deal that does not include all major polluters.

Why Judicial Independence Matters

Lorne Sossin
Monday, November 26, 2007

co-authored by Adam Dodek and Lorne Sossin

This commentary was first published on the Globe and Mail website on November 23, 2007.

Why should Canadians care about judicial independence? For one, history shows that a strong independent judiciary can be a bulwark against tyranny. Often, the first thing that an aspiring dictator does is attempt to neutralize the independence and effectiveness of the judiciary through harassment or corruption. Robert Mugabe's success to this effect in Zimbabwe is an unfortunate recent case study in the demise of judicial independence and its impact on society. Similarly, in Pakistan, where a stacked Supreme Court ruled yesterday to clear General Pervez Musharraf's path to re-election, Chief Justice Iftikhar Chaudhry and other members of the court had been confined to house arrest.

In Canada, we have been fortunate to have escaped such upheavals. However, we often look to the independence of the judiciary to resolve some of the most divisive and highest-profile issues of the day — through commissions of inquiry, invariably headed by a judge. We need only think of Gomery, Goudge, Arar, Walkerton, Air-India and now, of course, the Mulroney inquiry. In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.

Why has Canada Changed its Tune on Citizens Facing the Death Penalty?

Ed Morgan
Saturday, November 24, 2007

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

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