As you may have already noticed S.3 of the Broadcasting Act (S.C. 1991, c. 11) is bit different from most other statutory provisions you might have come across. It is rather full of the word “should”. This is in stark contrast to most statutory drafting norms and, interestingly for our purposes, quite different in style if not substance from a similar in purpose S.7 of the Telecommunications Act (S.C. 1993, c. 38).
Some excerpts from the Broadcasting Act (S.C. 1991, c. 11) ….
“Broadcasting Policy for Canada
Declaration
3 (1) It is hereby declared as the broadcasting policy for Canada that
(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;
(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty;…
(d) the Canadian broadcasting system should
(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,
(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,
(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society, and
(iv) be readily adaptable to scientific and technological change;
(e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming;
(f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources;
(g) the programming originated by broadcasting undertakings should be of high standard;
(h) all persons who are licensed to carry on broadcasting undertakings have a responsibility for the programs they broadcast;
(i) the programming provided by the Canadian broadcasting system should
(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,
(ii) be drawn from local, regional, national and international sources,
(iii) include educational and community programs,
(iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and
(v) include a significant contribution from the Canadian independent production sector;
(j) educational programming, particularly where provided through the facilities of an independent educational authority, is an integral part of the Canadian broadcasting system;
(k) a range of broadcasting services in English and in French shall be extended to all Canadians as resources become available;
(l) the Canadian Broadcasting Corporation, as the national public broadcaster, should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains;
(m) the programming provided by the Corporation should
(i) be predominantly and distinctively Canadian,
(ii) reflect Canada and its regions to national and regional audiences, while serving the special needs of those regions,
(iii) actively contribute to the flow and exchange of cultural expression,
(iv) be in English and in French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities,
(v) strive to be of equivalent quality in English and in French,
(vi) contribute to shared national consciousness and identity,
(vii) be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose, and
(viii) reflect the multicultural and multiracial nature of Canada;
(n) where any conflict arises between the objectives of the Corporation set out in paragraphs (l) and (m) and the interests of any other broadcasting undertaking of the Canadian broadcasting system, it shall be resolved in the public interest, and where the public interest would be equally served by resolving the conflict in favour of either, it shall be resolved in favour of the objectives set out in paragraphs (l) and (m);
(o) programming that reflects the aboriginal cultures of Canada should be provided within the Canadian broadcasting system as resources become available for the purpose;
(p) programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose;
(q) without limiting any obligation of a broadcasting undertaking to provide the programming contemplated by paragraph (i), alternative television programming services in English and in French should be provided where necessary to ensure that the full range of programming contemplated by that paragraph is made available through the Canadian broadcasting system;
(r) the programming provided by alternative television programming services should
(i) be innovative and be complementary to the programming provided for mass audiences,
(ii) cater to tastes and interests not adequately provided for by the programming provided for mass audiences, and include programming devoted to culture and the arts,
(iii) reflect Canada’s regions and multicultural nature,
(iv) as far as possible, be acquired rather than produced by those services, and
(v) be made available throughout Canada by the most cost-efficient means;
(s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,
(i) contribute significantly to the creation and presentation of Canadian programming, and
(ii) be responsive to the evolving demands of the public; and
(t) distribution undertakings
(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,
(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,
(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and
(iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.”
Now some excerpts from the Telecommunications Act (S.C. 1993, c. 38)…
“Canadian Telecommunications Policy
7 It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives
(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;
(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;
(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;
(d) to promote the ownership and control of Canadian carriers by Canadians;
(e) to promote the use of Canadian transmission facilities for telecommunications within Canada and between Canada and points outside Canada;
(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;
(g) to stimulate research and development in Canada in the field of telecommunications and to encourage innovation in the provision of telecommunications services;
(h) to respond to the economic and social requirements of users of telecommunications services; and
(i) to contribute to the protection of the privacy of persons.“
Legally do you see these provisions as effectively similar, or quite different? Is the difference simply that the Telecommunications Act requires some positive action of licensees (no matter how small), while the Broadcasting Act doesn’t necessarily require even that?
In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489, Rothstein J. (for the majority) had this to say about S.3:
“Policy statements, such as the declaration of Canadian broadcasting policy found in s. 3(1) of the Broadcasting Act, are not jurisdiction-conferring provisions. They describe the objectives of Parliament in enacting the legislation and, thus, they circumscribe the discretion granted to a subordinate legislative body (Sullivan, at pp. 387-88 and 390-91). As such, declarations of policy cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring provisions.
In my opinion, to find jurisdiction, it was not sufficient for the CRTC to refer in isolation to policy objectives in s. 3 and deem that the proposed value for signal regime would be beneficial for the achievement of those objectives….
In my opinion, CKOY cannot stand for the proposition that establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the Act is a sufficient test for conferring jurisdiction on the CRTC. Such an approach would conflict with the principle that policy statements circumscribe the discretion granted to a subordinate legislative body.
The difference between general regulation making or licensing provisions and true jurisdiction-conferring provisions is evident when this case is compared with Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764. In Bell Aliant, this Court was asked to determine whether the creation and use of certain deferral accounts lay within the scope of the CRTC’s express power to determine whether rates set by telecommunication companies are just and reasonable. The CRTC’s jurisdiction over the setting of rates under s. 27 of the Telecommunications Act, S.C. 1993, c. 38, provides that rates must be just and reasonable. Under that section, the CRTC is specifically empowered to determine compliance with that requirement and is conferred the express authority to “adopt any method or technique that it considers appropriate” for that purpose (s. 27(5)).
This broad, express grant of jurisdiction authorized the CRTC to create and use the deferral accounts at issue in that case. This stands in marked contrast to the provisions on which the broadcasters seek to rely in this case, which consist of a general power to make regulations under s. 10(1)(k) and a broad licensing power under s. 9(1)(b)(i). Jurisdiction-granting provisions are not analogous to general regulation making or licensing authority because the former are express grants of specific authority from Parliament while the latter must be interpreted so as not to confer unfettered discretion not contemplated by the jurisdiction-granting provisions of the legislation.
That is the fundamental point. Were the only constraint on the CRTC’s powers under s. 10(1) to be found in whether the enacted regulation goes towards a policy objective in s. 3(1), the only limit to the CRTC’s regulatory power would be its own discretionary determination of the wisdom of its proposed regulation in light of any policy objective in s. 3(1). This would be akin to unfettered discretion. Rather, discretion is to be exercised within the confines of the statutory regime and principles generally applicable to regulatory matters, for which the legislature is assumed to have had regard in passing that legislation.“
Worth noting is that Mr. Justice Rothstein never takes on the the word “should”. But if there were no “should’s” in S. 3 might Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 have been decided differently.
Which begs the core question: Should there be “should’s” in S. 3 of the Broadcasting Act?
Jon
I think as lawyers and law students we are conditioned to prefer clear and definite language, and to be cautious and even suspicious of vague instructions like “should”, especially in a statute. But in reading the clauses with “should”, at least the ones in the excerpt posted, I don’t know if there would be a huge practical difference for many of these clauses if you just replaced “should” with “shall/must” because most of them are already quite vague and hard to measure in a binary sort of pass/fail or acceptable/unacceptable sense.
They say things like “provide educational programming” or “serve to strengthen and safeguard culture,” and whether or not you said that broadcasters “should” or “must” do these things, I don’t see how you could ever really determine whether these objectives were being met, other than in some kind of extreme scenario, like if all the broadcasters in Canada decided to only run The Real Housewives over and over on repeat, and nothing else. In such a nightmare scenario, we would probably all wish the legislators wrote “MUST provide educational programming” (although even then, I’m sure some lawyers would find creative arguments about how the Real Housewives can be educational).
There are of course some clauses that would be different with “must”, like the clauses dealing with language requirements for example. But the overall thrust of this section, as Rothstein points out, seems to be simply to outline the objectives of Parliament in enacting this legislation, and it is deliberately loosened up somewhat by the use of “should”, perhaps because they realized that they were legislating in an ever-changing area here, and it would need to be flexible and adaptable as culture and technology rapidly changes. In fact they even have section 3(1)(d)(iv) which speaks directly to that.
I think the case may have been decided differently if strict, definite language was used throughout, but there would still be so many vague instructions (“must be of high quality” “must be varied and comprehensive” “must reflect the needs and aspirations of Canadians”) that it would be very hard to interpret it as anything other than a policy statement.