The Loaded Gun in The Drawer

WELL, SPEND TIME waiting for your rental car with free wireless, and what's a guy to do?

Catch up on the news.

There's an old theater cliche -- If you put a loaded gun in the drawer in Act 1, it had better go off by Act 3.

So. Bill C-10 -- nearing the end of Act One...

After her underwhelming performance in front of the Senate Banking committee on Wednesday, the Minister of Heritage stood up in the House of Commons and repeated the party line -- that this is not any kind of change from what previous governments proposed, and that objecting to it now is just partisan anti-Tory feeling.

Now, aside and apart from the fact that if there's enmity between the Conservatives and Canada's cultural sector, it's richly earned...there's one big problem with that party line.

It's false.

Here's a transcript of a pretty relevant exchange between a Senator and Gerard Lalonde, the Director of the Tax Policy Branch at the Department of Finance at the hearing on Wednesday. It gets a little arcane, but you can follow it. I have faith in y'all.

Senator Goldstein: The minister told us that the proposal is no different than what has existed in the past. She asserted that the language is the same, the details are the same, and they have been dealt with, passed and accepted by a variety of governments. However, the wording of the provision is radically different; 125.4, which is what we are talking about, reads that a Canadian film or video production certificate means a certificate issued in respect of a production, et cetera, in respect of which theminister is satisfied that public financial support of the production would not be contrary to
public policy.

However, 1106, which was the previous provision, said that an excluded production was a film or video production, the production for which financial support would, in the opinion of the minister, be contrary to public policy. On its face, it would appear that the distinction between the former legislation and the proposed legislation is slight. It is rather significant, do you not think, that in the previous drafting in 1106, the presumption was that the film or production was not contrary to public policy, and the minister was required to make a determination that the production was contrary to public policy, whereas the way you have put it now, the
situation is completely reversed? The presumption is that a production is contrary to public policy unless the minister renders a determination that the production is not contrary to public policy. Why did you make this fundamental change in your drafting?

Mr. Lalonde: For the most part, it is to make it fit grammatically into the legislative framework. The regulation that was talking about an excluded production was phrased in the positive because that is how it was originally drafted. This particular test was proposed to be moved from the regulations into an existing structure. As a result, it had to be massaged grammatically to fit within the structure of the income tax law because there was previously existing income tax law at that time


Senator Goldstein: Mr. Lalonde, you would agree that that is not a grammatical change but rather a change of substance. Lawyers around the table recognize that is a fundamental change of substance. There are questions of onus, of proof, and of when this is determined, as well as the more important question of the inability of proposed financiers to know whether, in the future, the minister will declare that something is contrary to public order. Apparently, you have not considered the impact of financing on a $5-billion industry. I find it rather amazing that we are about to look at this.

There is not a thing to this story that is not amazing.

• That such a fundamental change was slipped in in two paragraphs in a mundane tax bill
• That something that could so profoundly affect an industry was allowed to sail through the Commons without even a moment of debate.
• That, met with a universal howl of derision, and patient explanations of how this is potentially crippling to an industry that has absorbed its share of kicks already, the Tories choose to stay the course.
• That their little censorious friends smack their lips in glee as if the fix is in and the Majority government is already at hand
• And finally, that even when questioned directly about it, the Minister cannot come up with the clear and present need for this legislation. It is a solution for a problem that isn't there. The only conclusion can possibly be that the intent is the chilling effect we're all worried about.
  
• Oh yeah. It's trying to influence content through tax policy.

Verner will not move from her position, which is pass the bill and make it law and we'll worry about the guidelines later. In fact, she's going to great pains now to suggest there will be after-the-fact consultation. Look at this excerpt from an article in Yesterday's Globe:

Producers to help draft guidelines, minister says

GLORIA GALLOWAY

From Thursday's Globe and Mail

April 3, 2008 at 3:49 AM EDT

OTTAWA — The Canadian Heritage Minister says she would wait a full year to wield new powers to deny film and television producers tax credits if their works do not jibe with taxpayer sensibilities - should those powers be granted to her.

And during that time, Josée Verner told the Senate banking committee yesterday, she would allow members of the entertainment industry to draft guidelines to establish what would not qualify for the credits, and how those guidelines should be applied.

The participation of the Entertainment Industry in the 'drafting of guidelines' is now key to her case. The Senate, Verner says, should pass the bill, and then she'll consult. Give me the power, I won't use it, and then we'll all sit down and draft happy guidelines.

Let's go with a simple analogy here:

1. Give me the loaded gun.
2. I will not use the loaded gun. I will talk to y'all about how and when I may shoot someone. Oh, and what kind of varmint I'm looking to shoot.

Does this make any sense at all? Wouldn't you have that conversation before handing someone the loaded gun? Wouldn't the conversation, in fact, be about whether the person needs the loaded gun at all, and if they can be trusted with it?

I think, in no uncertain terms, what the CFTPA and the creative unions should do when they appear before the Banking Committee is to refuse to play that game. Flat out. Say, "This is ill conceived. It was done with no transparency, and it is potentially disastrous." Say that passing the law first, and then drawing up guidelines is backward. Say that you can't participate in that farce.

This choice should be stark. And we should not give the Minister the cover she seeks.

Unless the answers become a whole lot more transparent and satisfying it is clear that the government has yet to make its case about why they should be trusted with this power.

The Gun may still go into the drawer. But we should not be the ones to load it.