Law Times

Page 6 SePtember 15, 2014 • Law Times www.lawtimesnews.com COMMENT Our lumbering justice system t seems it's one step forward and two steps back when it comes to progress on resolving issues in Ontario's court system. On the one hand, Superior Court Chief Justice Heather Smith, speaking at the opening of the courts ceremony last week, noted progress on reducing delays in civil cases over the past year. On the other hand, Ontario Chief Justice George Strathy lamented a "legal system that has become increasingly burdened by its own proce- dures," takes to o long to resolve matters, and is too expensive. It's in some ways ironic that these issues linger. With reports of declining activity in the courts due to falling crime rates and talk of the vanishing trial as litigants deal with their matters in other ways, the issues should largely be resolving themselves. But with a motions culture and other elaborate rules and practices referenced by Strathy, the system continues to hobble along. It's not that governments are necessarily helping. Last week, Smith noted her concern about the increasing number of judicial vacancies at the Superior Court. If the federal government doesn't appoint new judges, there will be 30 unfilled positions by the end of the year, she pointed out. The slow pace of appointments is evident in the fact that it has been since June 13 that the government has named any judges. It may name some soon but it's clear the appointments process has Ontario shows it's out of step at CRTC hearings an government control and reg- ulate the Internet? Theoretically, it's possible to do it, but the cost of enforcement, the pain of processing and punishing of- fenders, not to mention the outcry over trampling individual and democratic rights, means it's not practical. Technically, it's also a nightmare. Ontario, however, isn't the Middle East or China and regulation of the airwaves clearly lies on the federal side of the ledger of jurisdiction and responsibilities. That hasn't stopped the province from stumbling into the arena and light- ing up the social media network with a maelstrom of abuse. The Canadian Radio-television and Telecommunications Commission is cur- rently holding hearings into the future de- regulation of television because in the last 15 years, things have obviously changed and more Canadians are opting to cut the cord and ditch their high-priced cable TV or satellite service in favour of streaming content via the Internet to the chagrin of content providers like Bell Canada and Rogers Communications Inc. Front and centre is Netf lix, but there are others out there from players like Sony and Cineplex as well as the new Rogers-Shaw service, Shomi, that's about to launch. Ironically, of course, Bell, Shaw, and Rogers are the big three Inter- net providers, too, although their margins on those services probably aren't as profitable as their TV offerings. The debate prompted the province to dispatch Kevin Finnerty, assistant deputy min- ister at the Ministry of Tourism, Culture, and Sport, to testify at the hearing. His comments promptly ignited a storm of controversy online. Under the guise of protecting Ontar- io's multibillion-dollar media industry, which in turn generates 46 per cent of Canadian content as required by broad- cast regulations, the province urged the CRTC to take a stance against the "dis- ruptive technological transformation" of the on-demand media world in order to guarantee homegrown production. Further, said Finnerty, the CRTC should "decrease regulatory asymmetry by expanding new-media TV regulation, not by lightening TV regulation." It should also, he suggested, expand its reach to regulate "made for new media programs," something that to me sounds like trying to control sites like Vimeo and YouTube. In Ontario's view, every piece of content, whether it's over the air or via the Internet, should be subject to Can adian content rules. And here's the gem: On- tario wants to impose future financial obligations related to Canadian content on foreign over-the-top content provid- ers. That would mean taxing Netf lix and others like it and diverting that money to fund Canadian programming. In the free-market world of the Internet, this hasn't been a popular idea and federal Heri- tage Minister Shelly Glover was quick to respond: "We will not allow any moves to impose new regulations and taxes on Internet video that would create a Netf- lix and YouTube tax." Shortly after that, University of Otta- wa Faculty of Law Prof. Michael Geist put up a post on his blog suggesting Ontario was already backing off with an e-mail clarification from the minister's spokes- man saying it "wasn't advocating for any Canadian content changes or seeking to impose specific regulations on new me- dia TV until more evidence is available." Right. How much evidence do you need? It's already happening, so get over it. Geist rightly called the province's sub- mission a "detailed vision of regulating online video providers." In a followup post quoting the transcript, it's clear the CRTC chairman wasn't impressed with the sug- gestion for a so-called Netf lix tax either. Finnerty didn't back down at the hear- ing, however. "We recommend new me- dia broadcasting activities be regulated. We did not recommend that the Internet be regulated but we are very clear we be- lieve that new media broadcasting activ- ity should be regulated to support the principles of the Broadcasting Act and to support Ontario's very important enter- tainment and creative cluster." Predictably, the next day Quebec, the CBC, and the usual arts groups made similar assertions in a transparent dis- play of groupthink. It begs another question, however. Surely, policy wonks aren't so distant from the real world that they would underesti- mate the impact of the mere suggestion of a Netf lix tax or some other kind of Inter- net regulation in the name of Canadian content? Or is this just more of the nanny- state approach from Premier Kathleen Wynne's Liberals? Has the confidence of winning an election against the odds morphed into arrogance? LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political af- fairs. His e-mail address is ianharvey@ rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.Editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. 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That's perhaps not surprising given the recent controversies over the lack of women on the bench and the continuing debates about the Supreme Court of Canada, but that's no excuse. The problems facing the justice system are com- plex enough without the government adding to them by taking too long to make appointments. The fact that the justice system continues to lan- guish despite some positive developments is a re- f lection of just how complex it is as well as govern- ments' reluctance to invest significant resources into reform. The judges' comments last week are a reminder that they need to pick up the pace. — Glenn Kauth I C Queen's Park Ian Harvey

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