Catching Up on MediaPolicy.ca – *- Heritage’s Anti-Racism Consultant Gets Fired – * – Ethics Commissioner clears CRTC chair Ian Scott – * – The struggles of independent Canadian programming services.

August 27, 2022

This week I posted about the CRTC’s renewal of OUTtv’s broadcasting licence. The cable specialty channel focusses on LGBTQ+ content. 

The post gets a bit heavy-duty on the fine points of CRTC policy, but it is an interesting (and I think important) story of how independently-owned programming services are fighting to enlist the CRTC’s help in getting better audience exposure from the telco and cable companies.

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Heritage Canada was on the hotseat this week when Jonathan Kay broke the story of the federal government’s retainer of Laith Marouf as an anti-racism consultant for Heritage despite his outrageous Tweets over several years now described by Diversity and Inclusion Minister Ahmed Hussen as “anti-Semitic and xenophobic.”

Hussen effectively fired Marouf but the controversy is far from over. The Marouf tweets were highlighted several times over the twelve months in tweets and blog posts by telecommunications analyst Mark Goldberg, tagging the Heritage Minister and his Department among others.

Kay’s article asks how federal civil servants could have ignored these warnings. While Kay habitually delights in pranging the Left, in this article he has done a public service by opening a taboo policy debate over how government should be advancing its agenda to fight systemic racism without getting lost in negative identity politics.

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The online threats against Global News journalist Rachel Gilmore —who bravely will not back down— keep getting worse.

In response, the Prime Minister has tweeted an appropriate condemnation.

Between the Marouf scandal and the targeting of journalists with hate and threats of harm, the public is well primed for a good discussion of the federal government’s Online Harms Bill once it is tabled in Parliament.

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In February I wrote a context-piece about TekSavvy’s accusation that CRTC Chair Ian Scott was in cahoots with Bell. The central allegation was “the beer” shared by Scott and BCE CEO Mirko Bibic in an Ottawa pub, caught on camera. 

TekSavvy and other wireless re-sellers have incorporated “the beer” incident into their appeal of a CRTC decision on wholesale rates charged to them by Bell and the other telcos, alleging a “reasonable apprehension of [CRTC] bias.” The Federal Court of Appeal has yet to schedule a hearing.

TekSavvy also filed a complaint to the federal Ethics Commissioner Mario Dion, the same commissioner who found against the Prime Minister in the SNC Lavalin affair in 2019 and against former Finance Minister Bill Morneau in the WE Charity scandal in 2020 (while clearing Trudeau).

This week Dion exonerated Scott in the “beer scandal,” clearing him of allegations he violated section 6 of the federal Conflict of Interest Act.

Section 6 specifies two different standards of illegal conflict of interest. The more demanding standard states that if a public officeholder has an opportunity (for example, just by having a beer in private with a stakeholder) to benefit their self, a relative or a friend, that’s a conflict of interest. It’s a legal presumption that the opportunity is the wrongdoing. Proof of corruption is not required.

But if the opportunity is with just an ordinary “person” then there must be proof of something “improper.” 

The headline of Dion’s ruling was that he accepted Scott and Bibic were long-time business acquaintances but never friends and did not socialize outside of work. It was media reports that used the term “friends” (I made the same mistake in my post) but here are Scott’s actual words as reported last February in the Toronto Star:

I went for a beer with someone I have known for many years …. And it ended up he chose to address a broadcasting issue a little of what Bell might be doing in the future.

Dion took Scott at his word and did not open a formal investigation. TekSavvy spokesperson Peter Nowak expressed disappointment, but it’s hard to see how Scott is supposed to prove a negative. 

What’s not elaborated upon in Dion’s report is why, if Scott and Bibic’s meeting was between “persons” and not “friends,” he found nothing “improper” in the opportunity that the private meeting created.

There is a helpful passage from Dion’s WE Charity report (it’s called the “Trudeau III Report,” which is some cause for mirth) where Dion explains what “improper” means under the Conflict of Interest Act:

For there to be a contravention of subsection 6(1), those private interests must have been furthered improperly. In the Trudeau II Report, I provided examples of improprieties from past examination reports. I explained that an impropriety under the Act occurs when a public office holder exercises an official power, duty or function that goes against the public interest, either by acting outside the scope of their jurisdiction or by acting contrary to a rule, a convention or an established process.

Although I found no indication of preferential treatment of WE by Mr. Trudeau in my analysis of the matter under section 7 of the Act, it must be pointed out that preferential treatment, in the general sense, could also be viewed as an impropriety under subsection 6(1). 

The beer meeting post-dated the CRTC ruling on wholesale rates (so no preferential treatment) and (to quote Scott’s denials) “no rule was broken.” Ergo, no impropriety under the Act.

There is still the matter of whether a federal judge thinks the long-accepted practice of lobbying CRTC commissioners on matters of general policy —participated in widely by industry stakeholders including Bell, TekSavvy, and at one time by yours truly— creates a reasonable apprehension of bias when those same Commissioners sit as adjudicators.