Bill C-10: Will It Stand Up to a Legal Challenge?

The biggest problem with Bill C-10 is that it may not stand up to a legal challenge, Senator Francis Fox, who knows a thing or two about legal things, said yesterday during Senate Question Period.

The former Liberal Solicitor-General told the Senate that Bill C-10 it might be unconstitutional, according to legal scholars. Said Fox, "Consider what Pierre Trudel, a prominent legal scholar with the law faculty at the Université de Montréal, said in an article published in Le Devoir on April 7. He called Bill C-10 an unwarranted violation of freedom of expression.

"He is not a Liberal, a Conservative, a Bloc member or a New Democrat; he is a university professor, an expert in the field. He says and I quote, 'The text of the bill does not contain a definition of 'public policy.' Freedom of expression is protected by a constitutional text: section 2(b) of the Canadian Charter of Rights and Freedoms guarantees this freedom. It can only be limited by a rule of law (and not the discretionary decisions of a minister).' "

And that was the same point we made weeks ago in a previous blog post: the amendment in Bill C-10 gives the Minister of Heritage the right to supersede the Charter of Rights and Freedoms on a whim.

The government has not even outlined what 'guidelines,' will be used. To attempt to introduce this amendment, let alone pass it into law, without such guidelines is ridiculous. And the more Conservative members of the House and the Senate try to argue that bill is not about censorship, the more patently obvious it becomes that censorship is absolutely the driving impetus behind the bill.


Consider remarks made by Senator Marjory LeBreton, leader of the government in the Senate, when she was asked about the 40,000 member strong Facebook group, Keep your censoring hands off of Canadian film and TV! No to Bill C-10!.

"I have been asked about Facebook before. I never look at Facebook because I do not understand the technology. I think the concept is dangerous...Some of the information that has surfaced with regard to this bill has left the impression that this is censorship. It is not censorship. I think I am quite within my right to say that opinion is misinformed.

"I am also quite within my right to say that the vast majority of Canadians would like to see their tax dollars well protected. I am sure that most Canadians would not want to see their tax dollars funding a film that is pornographic, that shows abuse of women or men or that is violent or denigrating to any particular group."


Right. Many Canadians don’t want their tax dollars financing such films, and there are already measures in place to ensure that doesn’t happen. And defining pornography is a legal matter; it’s not a Josee Verner matter or a Marjory LeBreton matter.

Frankly, I find Stephen Harper’s hair cut somewhat obscene, possibly pornographic. But I understand that there’s a great difference between my opinion and a legal opinion of obscenity. My opinion just doesn’t matter, well, in a legal sense... It’s the rule of law that matters in a democratic society.

Keep in the mind the following declaration by G8 Foreign Ministers, "Together with democracy and the respect for human rights and fundamental freedoms, the rule of law is a key condition for lasting peace, security and sustainable development."

There’s a lot that’s wrong with the tax credit amendment…but nothing is as abominable as the fact that it may afford the Heritage Minister the power to interfere with a citizen's Charter right to freedom of expression.

And at last the legal community is saying so.