At our guest’s request I put together some questions which we reviewed over the weekend and which will guide at least parts of Justice Rothstein’s remarks and our interactions. May be helpful to post them as they may spur further thoughts:
“Questions that the Honourable Mr. Justice Marshall Rothstein, Q.C. might want to consider answering in the context of speaking to Law 424-001 Communications Law, Allard School of Law Room, Tuesday February 5, 2019 (Room B101)
- What do you remember as the main considerations in your mind when you wrote for the majority in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489 (“the Cogeco case”)?
- When you look back from the perspective of 2019 with our current media landscape including broadcasting, the internet, the rising presence of streaming services like Netfix, at the judgments in the Cogeco case does anything in particular jump out at you.
- Do you find the Broadcasting Act is drafted rather unusually compared to other statutes? For example, did the relatively frequent use of the word “should” as opposed to “must” (which also appears at times) in the S. 3 Objectives of the Broadcasting Act give you any pause when you wrote your decision in the Cogeco case? Does it today?
- Speaking generally, before the Cogeco case, the CRTC’s jurisdiction had rarely, if ever, been questioned and had usually been expanded by the courts. Perhaps most notably by Chief Justice Laskin’s decision in Capital Cities Comm. v. C.R.T.C. [1979] 2 S.C.R. 141 ( “the Cap. Cities case”) where federal jurisdiction over cable undertakings was firmly established, and cable and broadcasting were interpreted as a single interconnected national system. As a result the CRTC was permitted to pursue it’s simultaneous substitution policies. Do you think the Cap. Cities case would be decided the same way today? In other words would simultaneous substitution survive the tests you laid down in the Cogeco case?
- Speaking of simultaneous substitution the CRTC has for the last three years suspended simultaneous substitution during the Super Bowl broadcast so that Canadians can, if they chose, watch the game over an American broadcasters original signal to see the “American Super Bowl commercials”. This is the sole exception to simultaneous substitution that the CRTC has implemented. Do you have any comment or reaction?
- Would regulating specific hours and types of Canadian content (E.g. “26 hours of original new Canadian drama be presented during the 1980-81 broadcasting year”) permitted by the SCC in CRTC v. CTV Television Network Ltd. et al. [1982] 1 SCR 530, survive the tests laid out by the majority in the Cogeco case?
- The CRTC has exempted new media services communicated over the internet from regulation starting in the mid-1990’s. That said the CRTC tends to assert that it has the jurisdiction to regulate internet content under the Broadcasting Act should it wish to. In the recent past Netflix has suggested that it does not believe the CRTC has the jurisdiction to do so. How do you think the CRTC would do under the Cogeco case if it chose to regulate internet content and Netflix objected to being so regulated?”
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Jon