A-1879-83
New Brunswick Broadcasting Co., Limited
(Appellant)
v.
Canadian Radio-television and Telecommunica
tions Commission (Respondent)
Court of Appeal, Thurlow C.J., Pratte and Ryan
JJ.—Toronto, May 23 and 24; Ottawa, July 27,
1984.
Broadcasting — CRTC limiting renewal of newspaper own
er's broadcasting licences — Decision based on direction given
by Order in Council pursuant to ss. 27(1) and 22(1)(a)(iii) of
Act restricting CRTCs authority to issue or renew licences to
owners of newspapers circulated in broadcasting area
Whether direction illegal as made for purpose other than those
in s. 3 of Act — Broadcasting policy in s. 3 not exhaustive of
purposes of Act — S. 27(1) power exercisable for any valid
reason of public policy whether or not expressed in s. 3 —
Purpose of direction not to regulate concentration of newspa
per ownership — To determine classes of persons entitled to
use of radio frequencies is to "regulate and supervise all
aspects of the Canadian broadcasting system" — Broadcasting
Act, R.S.C. 1970, c. B-11, ss. 3(a),(b), 15, 17, 22(1)(a)(iii), 26,
(as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65), 27(1),(2) —
Direction to the CRTC on Issue and Renewal of Broadcasting
Licences to Daily Newspaper Proprietors, SOR/82-746.
Judicial review — Applications to review — Broadcasting
— Renewal of appellant's broadcasting licences limited pursu
ant to direction to CRTC prohibiting newspaper owners from
controlling broadcasting undertakings in same market area —
Appellant's right to enjoyment of property and right not to be
deprived thereof without due process of law allegedly violated
— Whether appellant entitled to hearing as to direction — No
vested or other property right in renewal of licences — Expec
tation of longer renewal, not right to renewal, adversely affect
ed — Direction general in scope and application, not specifi
cally aimed at appellant — Authority of Governor in Council
under ss. 27(1) and 22(1)(a)(iii) of Broadcasting Act legislative
in nature — Courts not giving persons likely to be adversely
affected by exercise of legislative authority right to be heard
— No opportunity to be heard afforded in s. 27 — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a), 2(e) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Constitutional law — Charter of Rights — Freedom of
expression — CRTC limiting renewal of appellant's broad
casting licences — Decision based on direction by Governor in
Council prohibiting person or group of persons from control-
ling several forms of media in same market area — Whether
appellant and public deprived of right to freedom of expres
sion under s. 2(b) of Charter — Freedom to communicate
ideas without restraint excluding freedom to use private or
public property to do so — Radio frequencies declared public
property — Appellant's freedom to broadcast not denied as it
may purchase time on licensed station to air information —
Public not entitled to appellant's broadcasting service — No
need to resort to Charter limitation clause to justify licensing
system — Canadian Charter of Rights and Freedoms, being
Part J of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2(b).
Evidence — Admissibility — Newspaper proprietor attack
ing CRTC decision to limit renewal of television broadcasting
licences — Decision based on direction issued to CRTC by
Governor in Council — Direction made following release of
Royal Commission report on daily newspaper industry —
Legality of direction at issue — Report admissible as evidence
of context in which Order in Council passed — Speech deliv
ered to students by Minister responsible for Government
response also admissible — Better exposing motivation of
Governor in Council — Admissible on same basis as govern
ment pamphlet considered in Reference re Upper Churchill
Water Rights Reversion Act, (19841 1 S.C.R. 297.
The appellant attacks, by way of an appeal under section 26
of the Broadcasting Act and of an application for judicial
review, a decision of the Canadian Radio-television and Tele
communications Commission (CRTC) which limited the
renewal of its television broadcasting licences. The appellant is
a wholly-owned subsidiary of New Brunswick Publishing Com
pany, Limited, an Irving interest which publishes two daily
newspapers in Saint John, New Brunswick. The appellant is
also the owner of a television-broadcasting station in Saint
John. In reaching its decision, the CRTC took into account a
direction given to it by an Order in Council made pursuant to
subsection 27(1) and subparagraph 22(1)(a)(iii) of the Broad
casting Act. The direction restricts the authority of the CRTC
to issue or renew broadcasting licences to persons who own or
control newspapers circulated in the broadcasting area. Ten
dered as evidence was a report, released following the establish
ment of a Royal Commission to inquire generally into the daily
newspaper industry and specifically into the concentration of
the ownership and control of that industry. A further item of
evidence was a speech delivered by the Minister responsible for
the Government's response to the Royal Commission's report,
to University of Western Ontario students. The appellant
argues that the direction was illegal on the grounds (1) it was
made for a purpose other than one authorized by section 3 of
the Broadcasting Act and thus made for an improper purpose;
(2) it deprived the appellant and the public of the right under
paragraph 2(b) of the Charter to freedom of expression includ
ing freedom of the press and other media of communication;
(3) it deprived the appellant of its right under paragraph 1(a)
of the Bill of Rights to the enjoyment of its property and its
right not to be deprived thereof without due process of law.
Held, the appeal and the review application should be
dismissed.
(1) Admissibility as evidence of the Royal Commission
report and of the ministerial speech
In view of the appellant's objections to the direction, the
report is admissible as evidence of the situation and context in
which the Order in Council was passed.
As to the speech, the respondent's attempt to classify it
among the speeches made by members of legislative bodies and
thus not reliable as evidence of the intent of legislation, fails.
The speech comes much closer to exposing the motivation of
the Governor in Council in passing the Order in Council and is
therefore akin to and admissible as evidence on the same basis
as the government pamphlet titled "The Energy Priority of
Newfoundland and Labrador" considered by the Supreme
Court of Canada in the Reference re Upper Churchill Water
Rights Reversion Act.
(2) The improper purpose point
While the policy stated in section 3 of the Broadcasting Act
appears to govern and limit the objects to be implemented by
the CRTC, that policy is not exhaustive of the purposes of the
Act. The power conferred by subsection 27(1) to issue direc
tions pursuant to subparagraph 22(1)(a)(iii) precluding the
issue or the renewal of licences to particular classes of persons
is exercisable by the Governor in Council for any valid reason
of public policy whether or not it is one expressed in section 3.
To deny that power scope for differentiating on grounds of
public policy between particular classes of Canadians is to deny
it all practical scope. Therefore, it cannot be affirmed that the
direction was not made in furtherance of a purpose of the Act.
It cannot be affirmed either that the direction was made
solely for the purpose of regulating ownership and control of
newspapers. On its face, the direction relates to those persons
who may not hold broadcasting licences. In fact what it does is
to restrict the classes of persons who may hold such licences. It
says nothing and does nothing to regulate either the concentra
tion of ownership of newspapers or the owners of newspapers.
Even if this interpretation were incorrect, the appellant's
objection would still fail because such a direction falls within
the policy set out in section 3 and thus within the purposes of
the Act. The authority conferred on the Governor in Council by
subsection 27(1) and subparagraph 22(1)(a)(iii) is broad
enough to enable the Governor in Council to decide who or
what classes of persons or corporations should be licensed to
make use of the radio frequencies that are declared by para
graph 3(a) to be public property. To exercise that authority is
to "regulate and supervise all aspects of the Canadian broad
casting system" of which broadcasting undertakings in Canada
are, under paragraph 3(a), a part.
(3) The Charter of Rights point
The appellant's argument based on an alleged violation of
paragraph 2(b) of the Charter confuses the freedom guaranteed
by the Charter with a right to the use of property. The freedom
guaranteed by the Charter is a freedom to express and com
municate ideas without restraint, whether orally or in print or
by other means of communication. It is not a freedom to use
someone else's property to do so. It does not give anyone the
right to use the radio frequencies which, before the enactment
of the Charter, had been declared by Parliament to be and had
become public property subject to the licensing provisions of
the Broadcasting Act. The appellant's freedom to broadcast
what it wishes to communicate would not be denied by the
refusal of a licence: it would have the same freedom as anyone
else to air its information by purchasing time on a licensed
station. Nor does the Charter confer on the rest of the public a
right to a broadcasting service to be provided by the appellant.
Moreover, since the freedom guaranteed by paragraph 2(b)
does not include a right for anyone to use the property of
another or a public property, the use of which is governed by
statute, there is no need to resort to the limitation clause in
section 1 of the Charter to justify the licensing system estab
lished by the Act.
(4) The Canadian Bill of Rights point
The first issue is whether the appellant may properly invoke
the Bill of Rights.
Although the word "individual" in section 1 of the Bill does
not include a corporation, there is no reason to conclude that a
corporation is not entitled at common law to the enjoyment of
property and the right not to be deprived thereof without due
process of law. Similarly, there is no reason to conclude that the
word "person" in paragraph 2(e) of the Bill, which deals with
the right to a fair hearing, cannot refer to a corporation
whenever the subject-matter of a provision in which it is found
can have application to corporations.
In view of the above, was the appellant entitled to a hearing
as to why the direction should not have been made? The answer
must be negative. The appellant had no vested or other prop
erty right to have its licences renewed. What was adversely
affected by the direction was nothing but an expectation: the
expectation that the appellant had of a longer renewal than was
in fact granted. The appellant's argument that it was forced to
sell its broadcasting station is not warranted on the record
before the Court. On its face, the direction is not aimed at
anyone in particular but is general in scope and in application,
and there is nothing in the record establishing that it is
applicable only to the appellant's situation or that it has only
been applied to the appellant.
The authority conferred on the Governor in Council by
subsection 27(1) and subparagraph 22(1)(a)(iii) is neither
judicial nor quasi-judicial nor administrative in nature. It is
legislative in character. It authorizes the making of orders to
the CRTC respecting classes of applicants to whom licences
may not be granted, and it is not restricted by wording dealing
with the grounds on which particular classes may be disquali
fied. Furthermore, subsection 27(2) requires that any order
made under subsection 27(1) be published forthwith in the
Canada Gazette and laid before Parliament. This affords Par
liament the opportunity to consider the direction, and revoke or
alter it if it sees fit to do so. Courts have not heretofore
conferred on persons likely to be adversely affected by the
exercise of legislative authority a right to be heard. Finally,
there is no provision in section 27 affording to a member of a
class or a class as a whole an opportunity to be heard.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Reference re Upper Churchill Water Rights Reversion
Act, [1984] I S.C.R. 297; Attorney General of Canada v.
Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735.
APPLIED:
Bates v. Lord Hailsham of St. Marylebone, et al., [1972]
I W.L.R. 1373 (Ch.D.).
REFERRED TO:
Thorne's Hardware Ltd. et al. v. The Queen et al.,
[1983] I S.C.R. 106; Regina v. Colgate Palmolive Ltd.
(1971), 5 C.P.R. (2d) 179 (G.S.P. Ct.).
COUNSEL:
J. Edgar Sexton, Q.C. and Ronald G. Atkey,
Q.C. for appellant.
Jean L. Doucet for respondent.
Derek H. Aylen, Q.C. and David Sgayias for
Attorney General of Canada.
SOLICITORS:
Osler, Hoskin & Harcourt, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is a joint proceeding con
sisting of an appeal under section 26 of the Broad
casting Act [R.S.C. 1970, c. B-11 (as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 65)] and an
application under section 28 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10]. What is
attacked by both the appeal and the review
application is a decision of the Canadian Radio-
television and Telecommunications Commission
[CRTC] dated August 11, 1983, which limited the
renewal of the television broadcasting licences of
the appellant and its rebroadcasters to a term
expiring on January 1, 1986. It is common ground
that but for a direction to the Commission given
by Order in Council dated July 29, 1982, and
purporting to be made pursuant to section 22' of
the Broadcasting Act, which the Commission took
into account in reaching its decision, the period for
which the renewal of the licences was granted by
the 'Commission woùld have been at least some
what longer, though, for reasons appearing in the
decision, it would not have been for the full five-
year period for which the Commission has, under
section 17, authority to grant or renew broadcast
ing licences.
The appellant's case is that the direction was
illegal and void and should not have been taken
into account by the Commission because:
(1) it was made for a purpose other than one
authorized by the Broadcasting Act and thus for
an improper purpose;
(2) it deprived the appellant and the public of
the right under paragraph 2(b) of the Canadian
Charter of Rights and Freedoms [being Part I
of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)], to free
dom of thought, belief, opinion and expression,
including freedom of the press and other media
of communication;
(3) it deprived the appellant of its rights under
paragraph 1(a) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III] to the enjoyment
of its property and not to be deprived of its
property without due process of law.
' 22. ( I ) No broadcasting licence shall be issued, amended or
renewed pursuant to this Part
(a) in contravention of any direction to the Commission
issued by the Governor in Council under the authority of this
Act respecting
(iii) the classes of applicants to whom broadcasting
licences may not be issued or to whom amendments or
renewals thereof may not be granted and any such class
may, notwithstanding section 3, be limited so as not to
preclude the amendment or renewal of a broadcasting
licence that is outstanding on the 1st day of April 1968;
and
27. (1) The Governor in Council may by order from time to
time issue directions to the Commission as provided for by
subsection 18(2) and paragraph 22(1)(a).
At the centre of the situation from which the
problem arises is the fact that the appellant is a
wholly-owned subsidiary of New Brunswick Pub
lishing Company, Limited, a company which is
owned by James K. Irving, Arthur L. Irving and
K. C. Irving Limited and which publishes two
daily newspapers in Saint John, New Brunswick.
The direction, the text of which is cited later [at
page 420], restricts the authority of the Commis
sion to issue broadcasting licences to persons who
Own or control newspapers circulated in the broad
casting area.
The appellant's broadcasting station, CJCH-
TV, began television-broadcasting on March 22,
1954. It was the second privately-owned English-
language television `broadcaster to receive a televi-
sion-broadcasting licence and its television licences
have been successively renewed ever since, permit
ting it to provide some 30 years of uninterrupted
television-broadcasting service. It employs some
104 persons and through its CHSJ-TV station at
Saint John, which is a CBC affiliate, and its
rebroadcasters it extends the English-language
CBC television network throughout the Province
of New Brunswick and parts of Nova Scotia and
Prince Edward Island. The viewing audience of
CHSJ-TV and the rebroadcasters is approximately
100,000 persons. The CBC reserves approximately
half of CHSJ-TV's broadcasting time for CBC
programs and produces the majority of the news
and public affairs programming offered by CHSJ-
TV. The appellant has a very substantial invest
ment in transmission and ancillary broadcasting
equipment and in premises used to house the
equipment and offices required for the operation.
The appellant's owners do not want to discontin
ue the television-broadcasting operation. Nor do
they want to dispose of their newspaper-publishing
operations. On the other hand, it is apparent from
the historical facts appearing in the record as well
as the opposition mounted by the Consumers'
Association of Canada and others to the renewal
of the appellant's television-broadcasting licences
that not everyone is persuaded that it is a good
thing to have several forms of media communica-
tion in the same market controlled by a single
person or group of persons.
As a result of the simultaneous closing on
'August 27, 1980, of the Ottawa Journal and , the
Winnipeg Tribune, a Royal Commission was
established to inquire generally into the daily
newspaper industry in Canada and specifically into
the concentration of the ownership and control of
that industry. The Commission and its report take
their name from the Chairman, Mr. Tom Kent.
The report was tendered by counsel for the appel
lant at the hearing and was, without objection by
the respondent as to its reception or to the timeli
ness of its being tendered, added to the case on
which the proceeding is to be determined.
The report proposed that a Canada Newspaper
Act be enacted to secure for the press of Canada
"the freedom that is essential to a democratic
society". The main features of the proposed legis
lation included:
(1) It would prohibit significant further concentration of the
ownership and control of daily newspapers and of the common
ownership of these newspapers and other media.
(2) It would correct the very worst cases of concentration that
now exist.
The report also included the following:
In New Brunswick, the principle to be expressed in our
proposed Newspaper Act requires that the Irving interests
divest themselves of either their two-in-one papers in Saint
John or their similar Moncton papers. They would also have to
decide, under the rules against cross-media ownership, whether
to keep the Saint John papers or their television and radio
stations.
Having regard to the objections of the appellant
to the direction, the Commission's report is, in my
opinion, admissible as evidence of the situation and
context in which the Order in Council was passed.
A further item of evidence tendered by the
appellant was a printed copy of a speech delivered
on May 25, 1982, by the Honourable Jim Fleming,
the Minister responsible for the Government's
response to the Royal Commission on Newspapers,
to the Graduate School of Journalism at the Uni
versity of Western Ontario. The speech is entitled
"Government Proposals on Freedom of the Press
in Relation to the Canadian Daily Newspaper
Industry". It was received over the objection of the
respondent and added to the case for whatever
weight, if any, might properly be attributed to it.
The speech, which runs for some eight printed
pages, includes the following:
During my consideration of the Canadian newspaper indus
try I have endeavoured to address three fundamental premises:
— First, newspapers are a special business. They are the
printed record. Unlike other media, they provide daily,
in-depth coverage of events.
—Secondly, diversity of information sources is a cornerstone
of democracy.
— Thirdly, concentration of control by any power, private or
public, over the press is an issue of great import and
concern.
Having considered the current state of the Canadian newspa
per industry in the light of these basic ideas, the Cabinet has
concluded that certain governmental actions must be taken to
control potential interference with or infringement of freedom
of the press in Canada.
The argument has come from certain quarters that any
action by the Government would threaten freedom of the press.
I certainly agree that the Government must at all costs avoid
intruding or appearing to intrude in a manner intimidating to
editorial freedom. On the other hand, for a government to
remain passive while concentration or conglomerate ownership
can endanger a free press is equally wrong. There arrives thus a
point at which failure by the Government to intervene makes
the Government an accomplice against a free press through
dereliction.
The proposals I shall set forth today are an effort to see the
Government take up its responsibilities through the legislative
process and then step back. Our goal is to protect a free press
by ensuring diversity and avoiding intimidation through public
or private power.
Parliament will be asked to pass a Canadian newspaper act
and amendments to other acts, which will prohibit any one
owner from gaining control, through acquisition or merger, of
newspapers whose total circulation would exceed 20 per cent of
the average Canadian circulation of daily newspapers. This
limit will not be retroactive for the two owners who now exceed
the limit but it will not allow them to acquire any additional
papers so long as they are in excess of the 20 per ceitt level.
This legislative action will not prohibit an increase in circula
tion of newspapers already owned.
After describing further features of the proposed
legislation and the system to be established under
it, the Minister proceeded:
Beyond these legislative initiatives, the Cabinet agreed that
the Governor in Council direct the Canadian Radio-television
and Telecommunications Commission (CRTC) when consider
ing licence renewals or applications to prohibit newspapers as a
class of applicants from holding controlling interest in compa
nies holding federal broadcasting licences in the same market
area.
This would be subject only to overriding public interest
considerations and/or consequences that would create excep
tional and unreasonable hardship. The strictures on cross-
media ownership in a particular market would also take into
consideration existing competition and dominance by a corpo
rate owner in that area, the decision resting with the CRTC.
In simple language, this decision means that, with clear
exceptions, a company will not be allowed to control a newspa
per and a television or radio station in the same locale. Given
the nature of the marketplace, of course, there may be cities
where there is so much cross-media competition that the CRTC
would have no justifiable reason to prohibit specific instances of
cross-ownership; the directive will take account of this reality.
Moreover, there may be very unusual local situations where the
CRTC feels that a divestiture would create exceptional hard
ship upon an owner; the directive also will take account of this
reality but in such a case would insist on clear proof of
independent and competitive news services.
In my opinion this speech would serve at the
least to show that what was being dealt with by the
Governor in Council when giving the impugned
direction was a matter of general broadcasting
policy 2 rather than a measure aimed specifically at
the appellant and its ownership of newspapers or
generally at the concentration of newspaper own
ership. Further, while counsel for the respondent
sought to class it with the parliamentary and other
speeches made by members of legislative bodies
and thus not reliable as evidence of the intent of
legislation, this particular speech, having been
made by the responsible Minister and purporting
as it does to announce policy decided upon by the
Cabinet, comes much closer to exposing the moti
vation of the Governor in Council in passing the
Order in Council and appears to me to be akin to
and admissible on the same basis as the govern
ment pamphlet entitled "The Energy Priority of
Newfoundland and Labrador" considered in Ref
erence re Upper Churchill Water Rights Reversion
Act, [ 1984] 1 S.C.R. 297. There McIntyre J., for
the Supreme Court, said [at page 319]:
2 See Thorne's Hardware Ltd. et al. v. The Queen et al.,
[1983] 1 S.C.R. 106, per Dickson J., (as he then was), at p.
115.
I am also of the view that the government pamphlet entitled,
"The Energy Priority of Newfoundland and Labrador", may
be considered. The purpose of this pamphlet, explained in the
pamphlet itself, is to inform the financial community of the
Government's reasons for enacting the Reversion Act. It was
published by the Government less than one month before the
Reversion Act was given Royal Assent, and actually includes a
copy of the Act. It is my opinion that this pamphlet comes
within the categorization of materials which are "not inherently
unreliable or offending against public policy", to use the words
of Dickson J. quoted above, and are receivable as evidence of
the intent and purpose of the Legislature of Newfoundland in
enacting the Reversion Act.
The speech, however, appears to me to add little
if anything to what becomes apparent from the
record, the Kent report and the explanatory note
which is appended to the direction itself.
The direction and the explanatory note follow:
Registration
SOR/82-746 29 July, 1982
BROADCASTING ACT
Direction to the CRTC on Issue and Renewal of
Broadcasting Licences to Daily Newspaper
Proprietors
P.C. 1982-2294 29 July, 1982
His Excellency the Governor General in Council, on the
recommendation of the Minister of Communications, pursuant
to subparagraph 22(1)(a)(iii) and section 27 of the Broadcast
ing Act, is pleased hereby to issue the annexed Direction to the
Canadian Radio-television and Telecommunications Commis
sion respecting the issue and renewal of broadcasting licences to
daily newspaper proprietors.
DIRECTION TO THE CANADIAN
RADIO-TELEVISION AND TELECOMMUNICATIONS
COMMISSION RESPECTING THE ISSUE AND
RENEWAL OF BROADCASTING LICENCES TO
DAILY NEWSPAPER PROPRIETORS
Short Title
1. This Direction may be cited as the Direction to the CRTC
on Issue and Renewal of Broadcasting Licences to Daily
Newspaper Proprietors.
Definitions
2. For the purposes of this Direction,
"daily newspaper" means a newspaper that is generally pub
lished and circulated five or more days per week; and
"proprietor of a daily newspaper" means a person who, in the
opinion of the Commission, alone or jointly or in concert with
one or more other persons, effectively owns or controls or is
in a position to effectively own or control directly or indirect
ly an enterprise engaged in the publication of a daily newspa
per and includes, where the enterprise is a corporation having
share capital, a person who, in the opinion of the Commis
sion, alone or jointly or in concert with one or more other
persons, effectively owns or controls or is in a position to
effectively own or control the corporation, whether directly
through the ownership of shares of the corporation or in
directly through a trust, a contract, the ownership of shares
of any other corporation, the holding of a significant portion
of the outstanding debt of the corporation or by any other
manner whatever.
Direction
3. The Canadian Radio-television and Telecommunications
Commission is hereby directed that, on and after July 29, 1982,
broadcasting licences may not be issued and renewals of broad
casting licences may not be granted to an applicant who is a
member of the class described in section 4.
4. The class of applicants referred to in section 3 consists of
(a) the proprietors of daily newspapers, and
(b) the applicants who, in the opinion of the Commission, are
effectively owned or controlled, or are in a position to be
effectively owned or controlled directly or indirectly, by the
proprietor of a daily newspaper
where the major circulation area of the daily newspaper sub
stantially encompasses the major market area served or to be
served by the broadcasting undertaking.
5. Where the Commission is satisfied that a refusal to grant a
broadcasting licence or renewal applied for by an applicant of
the class described in section 4 would be contrary to overriding
public interest considerations taking into consideration all rele
vant factors including consequences that would adversely affect
service to the public or create exceptional or unreasonable
hardship to the applicant and the level of existing competition
in the area served or to be served under the broadcasting
licence, the Commission may, notwithstanding section 3, grant
a licence or a renewal thereof.
6. Nothing in this Direction shall be construed as limiting the
power of the Governor in Council to direct that broadcasting
licences may not be issued and amendments or renewals thereof
may not be granted to applicants of classes other than the class
described in section 4 or as limiting the power of the Commis
sion, in carrying out its objects, to refuse to issue a broadcast
ing licence to or to grant an amendment or renewal thereof to
an applicant of a class other than the class described in
section 4.
EXPLANATORY NOTE
(This note is not part of the Direction, but is intended only for
information purposes.)
This Direction is to ensure that, with certain exceptions,
enterprises engaged in the publication of daily newspapers shall
be prohibited from owning or controlling broadcasting under
takings operating in the same market area for the general
purpose of fostering independent, competitive and diverse
sources of news and viewpoints within Canada.
That the appellant fell within the definition of
"proprietor of a daily newspaper" in section 2 and
the prohibition of sections 3 and 4 of this direction
was not a subject of argument on the appeal. The
Commission found the prohibition applicable but
went on to hold, under section 5, that:
While the Commission acknowledges that there may be some
hardship for the licensee, as well as other potential adverse
consequences if the licences issued to NB Broadcasting were
not renewed, the Commission is not satisfied that a refusal to
grant renewal would be contrary to the overriding public
interest considerations contemplated under section 5 of the
Direction, but for the fact that the licences in question all
expire on 30 September 1983 with the result that there would
be a sudden cessation of the only source of CBC English-lan
guage television service in New Brunswick. Such a cessation of
service would be contrary to overriding public interest consider
ations in that it would adversely affect service to the public.
Accordingly, the Commission renews the licences for CHSJ-TV
Saint John and its rebroadcasters in New Brunswick for a term
expiring 1 January 1986. This term will provide sufficient time
for NB Broadcasting to rearrange its affairs or for other
arrangements to be made which will ensure that the people of
New Brunswick are not deprived of the CBC network service.
The Commission intends, at this time, to call the licensee to a
public hearing early in 1985 to review the overall situation.
The improper purpose point
The appellant's submissions on its first point
were:
(1) that the Kent Commission report and the
Fleming speech show that the direction was not
issued in furtherance of the purposes of the
Broadcasting Act as enumerated in section 3
thereof, but rather was issued for the extraneous
purpose of regulating concentration of owner
ship in the Canadian newspaper industry, that in
object, purpose and effect it was not aimed at
broadcasting, but rather newspapers; and fur
ther,
(2) that in the result the Governor in Council,
which had no statutory or other authority to
give directions in regard to the ownership of
newspapers exceeded its jurisdiction in issuing
the direction because it was not issued in fur
therance of the purposes of the Broadcasting
Act as set out in section 3 thereof, but rather
was issued for the extraneous and improper
purpose of regulating concentration of owner
ship in the Canadian newspaper industry.
While the policy stated in section 3 of the
Broadcasting Act appears to govern and limit the
objects to be implemented by the CRTC, I do not
think what is set out in that policy is exhaustive of
the purposes of the Act or that it limits the
purposes or reasons for which the powers of the
Governor in Council to prescribe classes of persons
to whom broadcasting licences may not be grant
ed. As I see it the power conferred by subsection
27(1) to issue directions precluding the issue of
licences to particular classes of persons is exercis-
able by the Governor in Council for any valid
reason of public policy whether or not it is one
expressed in section 3. I may add that I do not
regard the reference to section 3 in subparagraph
22(1)(a)(iii), which permits an exception in
respect of persons who held a licence on April 1,
1968, from a general prohibition of a particular
class, as having any restrictive effect on the other
wise broad power conferred on the Governor in
Council. Since the only reference in section 3 to
ownership and control of broadcasting undertak
ings is that in paragraph (b) stipulating that the
broadcasting system should be effectively owned
and controlled by Canadians, there would be little
point in conferring a power to give directions on
the subject if all that could be done under it were
to direct that licences be not issued to persons who
were not Canadians. To deny it scope for differen
tiating on grounds of public policy between par
ticular classes of Canadians is to deny the power
any practical scope at all.
It seems to me to follow from this interpreta
tion of subsection 27(1) and subparagraph
22(1)(a)(iii) that even if it can be said that the
direction was not issued in furtherance of a pur
pose of the Act set out in section 3 and even if it
can be said that the direction was issued for a
purpose concerned with a problem of public policy
relating not merely to the concentration of owner
ship of newspapers, which is regarded as a problem
in itself, but relating to a broader problem of
concentration of ownership and control of both
newspapers and broadcasting operations, as in my
view it was, it cannot be affirmed either that the
direction was not made in furtherance of a purpose
of the Broadcasting Act or that it was made solely
for the purpose of regulating ownership and con
trol of newspapers. On its face it is a direction
relating to who may not hold broadcasting
licences. In fact what it does is to restrict the
classes of who may hold broadcasting licences. It
says nothing and does nothing to regulate either
the concentration of ownership of newspapers or
the owners of newspapers. They are as free as ever
to own and control newspapers. But if they own
newspapers it is not regarded as appropriate for
them to hold broadcasting licences as well for the
areas where these newspapers circulate.
On this view the appellant's objection would fail.
But even if the interpretation so put on the statute
is incorrect, the objection, in my opinion, would
fail as well because such a direction falls within
the policy set out in section 3 and thus within the
purposes of the Act. The section reads in part:
3. It is hereby declared that
(a) broadcasting undertakings in Canada make use of radio
frequencies that are public property and such undertakings
constitute a single system, herein referred to as the Canadian
broadcasting system, comprising public and private elements;
and that the objectives of the broadcasting policy for Canada
enunciated in this section can best be achieved by providing for
the regulation and supervision of the Canadian broadcasting
system by a single independent public authority.
What the section does is to declare a policy and
how it can best be achieved.
Coming next to section 15, it is provided that:
15. Subject to this Act and the Radio Act and any directions
to the Commission issued from time to time by the Governor in
Council under the authority of this Act, the Commission shall
regulate and supervise all aspects of the Canadian broadcasting
system with a view to implementing the broadcasting policy
enunciated in section 3 of this Act.
Notwithstanding what is declared at the end of
section 3, the opening words of this provision
subtract from and restrict what the Commission is
to regulate and supervise with a view to imple
menting the policy enunciated in section 3. Assum
ing that the power under subsection 27(1) and
subparagraph 22(1)(a)(iii) is one of the powers
that would otherwise be included in the general
power to "regulate and supervise all aspects of the
Canadian broadcasting system with a view to
implementing the broadcasting policy enunciated
in section 3" and is thus exercisable only to imple
ment policies so enunciated, it seems to me that
the authority conferred on the Governor in Coun
cil by subsection 27 (1) and subparagraph
22(1)(a)(iii) is broad enough to enable the Gover
nor in Council to decide who or what classes of
persons or corporations should be licensed to make
use of the radio frequencies that are declared by
paragraph 3(a) to be public property. To do that
seems to me to fall easily within the meaning of
"regulation and supervision of all aspects of the
Canadian broadcasting system" of which system
broadcasting undertakings in Canada are, under
paragraph 3(a), a part.
Accordingly, I would reject the appellant's first
point.
The Charter of Rights point
The appellant's submission on the Charter pro
ceeds thus:
(1) since freedom of the press and other media
of communication is constitutionally guaran
teed, the requirement of a licence for the opera
tion of a broadcasting undertaking is in breach
of paragraph 2(b) of the Charter;
(2) it is acknowledged, however, that the
requirement of a licence is a limit which can be
demonstrably justified in a free and democratic
society because:
(a) as set out in section 3 of the Broadcasting
Act radio frequencies are a public property
which have to be allotted according to agree
ment in order to ensure a fair allocation of
available frequencies, and
(b) there has to be an individual (company)
responsible for civil and criminal liability;
(3) however, the direction, in so far as it denies
broadcasting licences to "newspaper proprie
tors", is inconsistent with and in violation of the
appellant's right of freedom of the press and
other media of communication guaranteed to
everyone by paragraph 2(b) of the Charter.
Further, in so far as the direction denies to the
public broadcasting service because a newspaper
proprietor controls a broadcasting undertaking,
it is inconsistent with and in violation of the
rights and freedoms guaranteed to everyone by
paragraph 2(b) of the Charter.
In my opinion, the argument confuses the free
dom guaranteed by the Charter with a right to the
use of property and is not sustainable. The free
dom guaranteed by the Charter is a freedom to
express and communicate ideas without restraint,
whether orally or in print or by other means of
communication. It is not a freedom to use someone
else's property to do so. It gives no right to anyone
to use someone else's land or platform to make a
speech, or someone else's printing press to publish
his ideas. It gives no right to anyone to enter and
use a public building for such purposes. And it
gives no right to anyone to use the radio frequen
cies which, before the enactment of the Charter,
had been declared by Parliament to be and had
become public property and subject to the licens
ing and other provisions of the Broadcasting Act.
The appellant's freedom to broadcast what it
wishes to communicate would not be denied by the
refusal of a licence to operate a broadcasting
undertaking. It would have the same freedom as
anyone else to air its information by purchasing
time on a licensed station. Nor does the Charter
confer on the rest of the public a right to a
broadcasting service to be provided by the appel
lant. Moreover, since the freedom guaranteed by
paragraph 2(b) does not include a right for anyone
to use the property of another or public property,
the use of which was subject to and governed by
the provisions of a statute, there is, in my opinion,
no occasion or need to resort to section 1 of the
Charter to justify the licensing system established
by the Broadcasting Act.
Accordingly, I would reject the appellant's
submission.
The Canadian Bill of Rights point
The appellant's submission on this point invoked
that part of paragraph 1(a) 3 of the Canadian Bill
of Rights which recognizes and declares as exist
ing human rights and fundamental freedoms the
right of the individual to enjoyment of property,
and the right not to be deprived thereof except by
due process of law. The submission was that the
principal purpose of the direction was to force the
appellant to sell its broadcasting station and
rebroadcasters to the CBC, that the word "law" in
the expression "due process of law" means not
only statutory law but includes what are known as
the principles of natural justice, that the direction
was issued without notice thereof being given to
the appellant, with the result that the appellant
was denied the opportunity to make representa
tions or be otherwise heard with respect to the
issuance and content of the direction and that the
appellant was thereby denied its rights, as protect
ed by paragraph 1(a) of the Canadian Bill of
Rights, to due process of law.
I am of the opinion that the word "individual"
in section 1 of the Canadian Bill of Rights does
not include a corporation' and that the text of
section 1 of the statute does not apply or secure
rights to the appellant. However, what is recog
nized and declared by the statute are existing
fundamental legal rights and I know of no reason
3 1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
° See Regina v. Colgate Palmolive Ltd. (1971), 5 C.P.R.
(2d) 179 (G.S.P. Ct.).
for concluding that a corporation is not entitled at
common law to the same rights as a natural person
to the enjoyment of property and the right not to
be deprived thereof except by due process of law.
Section 2 of the Bill goes on to provide that:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
In this section the word "person" is used in
contexts which suggest that it is concerned with
natural persons but I see no compelling reason why
the word should not be interpreted as referring as
well to corporations wherever the subject-matter of
a provision in which it is found can have applica
tion to corporations. Paragraph 2(e) is, in my view,
such a provision.
Assuming then that paragraph 2(e) would
apply, a question that arises is what were the
"rights" of the appellant for the determination of
which the appellant was entitled to a fair hearing
in accordance with the principles of fundamental
justice.
It appears to me that what the appellant had at
the time the direction was issued was:
(1) a television broadcasting licence or licences
issued under the Broadcasting Act authorizing
the carrying on of a television broadcasting
operation for a period terminating on September
30, 1983;
(2) a pending application before the CRTC for
renewal of the licences for a further period of
five years; and
(3) a reasonable expectation, arising from its
having had licences and renewals of licences
over a period of 28 years, from its record of
broadcasting services provided over that period
and from its having a considerable investment in
equipment and facilities, that, on the basis of the
authority of the Commission a month earlier
when the application for renewal was initiated,
renewals would be granted for some portion, if
not for the whole, of the five-year period.
The appellant had, however, no vested or other
property right to have its licences renewed or to
have the authority of the Commission maintained
either until the disposition of its application or for
the future.
It is, I think, in this context that the alleged
entitlement of the appellant to an opportunity to
make representations or be otherwise heard before
the direction was made, must be considered. The
direction in no way affected the existing licence
referred to above as (1). Nor did it put an end to
the application for renewal referred to as (2). That
is evident from the fact that the application suc
ceeded in part. What the direction did was to
affect adversely the expectation referred to as (3)
which the appellant had of a longer renewal than
was in fact granted.
Was the appellant then entitled to a hearing,
whether by an opportunity to present representa
tions or to be otherwise heard, as to why the
direction should not be made? I have had some
doubts on this point because of the fact that the
direction was made at a time when the appellant's
application for renewal had been initiated and was
pending before the CRTC, but on reflection I
think that for several reasons the answer must be
negative.
First, what was adversely affected by the direc
tion was nothing but an expectation. It was not
something recognizable as a property right.
Second, while there seems to be no reason to
doubt that the direction profoundly affected the
appellant's prospects for continuing indefinitely to
own and operate in the same market area both its
broadcasting and its newspaper publishing enter
prises or that the direction in fact poses for the
appellant the prospect that at some future time it
may not succeed in obtaining a renewal of its
broadcasting licences if it continues to carry on its
newspaper operations and while it may also be,
because of what is in the Kent report, that the
appellant's situation was one that was in contem
plation when the direction was made, to say that
the principal purpose of the direction was to force
the appellant to sell its television station and
rebroadcasters to the CBC and that in that regard
the direction was specifically aimed at the appel
lant is, in my opinion, not warranted on the record
before the Court. On its face the direction is not
aimed at anyone in particular but is general in
scope and in application and there is nothing in the
record which establishes that it is applicable only
to the appellant's situation or that it has only been
applied to the appellant.
Next, the authority conferred on the Governor
in Council by subsection 27(1) and subparagraph
22(1)(a)(iii) of the Broadcasting Act, in my opin
ion, is neither judicial nor quasi-judicial nor
administrative in nature. It is, in my view, legisla
tive in character. It authorizes the making of
orders to the CRTC respecting inter alia the
classes of applicants, not individual applicants, to
whom broadcasting licences or renewals thereof
may not be granted. The authority is not restricted
by wording dealing with bases on which particular
classes may be disqualified. That is left for deter
mination by the Governor in Council for such
reasons of public policy as the Governor in Council
may adopt. It is also not without significance on
this point that subsection 27(2) requires that any
order made under subsection 27(1) be not only
published forthwith in the Canada Gazette but be
laid before Parliament within fifteen days if Par
liament is then sitting and if Parliament is not then
sitting on any of the first fifteen days next thereaf
ter that Parliament is sitting. This affords Parlia
ment itself the opportunity to consider what has
been done and to revoke or alter the direction if it
sees fit to do so. In my view these features of the
statute tend to show the legislative character of the
direction and of the authority to make it.
In the absence of specific requirements pre
scribed by statute authorities to legislate have not
heretofore been considered to give rise to a right to
be heard for persons likely to be adversely affected
by the exercise of .the authority. Thus in Attorney
General of Canada v. Inuit Tapirisat of Canada et
al., [1980] 2 S.C.R. 735, Estey J., in delivering the
judgment of the Supreme Court, said [at page
758]:
It is clear that the orders in question in Bates and the case at
bar were legislative in nature and I adopt the reasoning of
Megarry J. to the effect that no hearing is required in such
cases. I realize, however, that the dividing line between legisla
tive and administrative functions is not always easy to draw: see
Essex County Council v. Minister of Housing ((1967), 66
L.G.R. 23).
Earlier the learned Judge had cited the following
passage from the judgment of Megarry J., in Bates
v. Lord Hailsham of St. Marylebone, et al.,
[1972] 1 W.L.R. 1373 (Ch.D.) [at page 1378]: 5
Let me accept that in the sphere of the so-called quasi-judicial
the rules of natural justice run, and that in the administrative
or executive field there is a general duty of fairness. Neverthe
less, these considerations do not seem to me to affect the
process of legislation, whether primary or delegated. Many of
those affected by delegated legislation, and affected very sub
stantially, are never consulted in the process of enacting that
legislation, and yet they have no remedy ... I do not know of
any implied right to be consulted or make objections, or any
principle upon which the courts may enjoin the legislative
process at the suit of those who contend that insufficient time
for consultation and consideration has been given.
Finally, the procedure prescribed by section 27,
that is to say, by order, such order to be published
in the Canada Gazette and laid before Parliament,
nowhere provides for affording any member of a
class or the class as a whole an opportunity to
make representations or to be otherwise heard
before such an order is made.
Accordingly I would reject the appellant's
submission.
The appeal and the review application therefore
fail and should be dismissed.
PRATTE J.: I agree.
RYAN J.: I concur.
5 [1980] 2 S.C.R. 735, at p. 757.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.