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Jeremy Roberts: Can local media come back from the dead?

Commentary

The news media in Canada is in crisis. Policy responses to date are failing to solve for the information that citizens need to make informed decisions about important issues and debates. The Future of News series brings together leading practitioners, scholars, and thinkers to imagine new business models, policy responses, and journalistic content that can support a dynamic future for news in Canada.

The past few weeks have seen a score of large layoffs at local media stations across the country. Local news broadcasts were eliminated or scaled back, popular shows ended, and some radio teams disbanded. It’s a sad state of affairs for the fifth estate. 

Prime Minister Trudeau indicated his anger at the decision, saying he was “pissed off.” Conservative Leader Pierre Poilievre, meanwhile, used the opportunity to strike back at the government, pointing to their recent multi-million-dollar investment into Canadian media as a failed government bailout. Clearly, that solution doesn’t seem to have worked.

The news has sparked considerable discussion about the future of news broadcasting and the role, if any, government should be playing in this discussion.

But there’s a missing part to this conversation. As we watch local media be slimmed back again and again due to market realities, we risk not only losing local sources of news and information, we risk losing a sense of our collective selves.

I’ve written before here about the challenges in defining a collective identity in Canada. Governments of different stripes have been trying to do this for years. And, as I’ve argued, this is for good reason. Collective identity gives us a sense of unity, of purpose, and of compassion and care for each other.

While governments have sought to shape this identity, media has—perhaps to an even larger degree—been a key driver of the conversation.

Shows like Hockey Night in Canada, with its brash tough guy Don Cherry and his unfailingly polite co-anchor Ron Maclean, brought us together as a country. It helped that the hosts were two sides of the typical Canadian stereotype. 

But let’s zoom in to the local level.

In Ottawa where I grew up, there was a long-time news anchor with first CJOH and then CTV Ottawa, the late Max Keeping.

Max was a legend in Ottawa. Not only did we see him on television every night delivering stories from around our city, but he was everywhere. He hosted the local philanthropic telethons, attended community sports, spoke at fundraising dinners, helped boost local eateries, and started his own community initiatives. Max was more than a newsman: he was a community leader. And through his platform on local news, he helped us understand who we were as “Ottawans.” 

For people who grew up with Max on the news, there was a palpable sense of community that he helped to forge. We celebrated our local stories together and felt a strong sense of camaraderie during our challenges. I remember his leadership after a pair of tragic suicides claimed the lives of two of our city’s youth. Max shaped the story and emboldened us all to take action. He told us why all of us in the city should care and drove the conversation about how we could prevent this sort of horrible event in the future.

This was also true during the 1998 ice storm when Max not only made sure that residents had up-to-date information about what was happening, but he also used his platform to share inspiring stories. Stories about neighbours helping neighbours and the resiliency of our community. These stories gave us a sense of common purpose and drew us together. Without local coverage, I fear we lose some of that. 

Although we lost Max in 2015, his legacy lived on in the Ottawa media. But it’s gradually been chipped away.

This week, the popular long-time hosts of Ottawa’s Move100 Morning Show, Stuntman Stu, Annie, and Janelle, were shown the door. Stu has always been a media figure in Ottawa in the mould of Max—someone who took his responsibility as a community leader with a platform to drive conversations and pull us together during tough times. Losing his voice on the radio is a tremendous loss for our community.

I recognize that not many people tune in anymore to local news or local radio. Certainly not many people in my generation. Why watch the news when you can get it online? Why listen to the radio when there are podcasts galore? And that’s assuming you consume news at all.

The old mediums are dying. Time marches on. 

There’s some irony here because although Canadians overwhelmingly claim to believe local media is important, the audience for it has been steadily declining. 

But even though new platforms might be taking their place, that doesn’t mean they bring the same value.

So as we mourn the gradual decline of local media, I toss this question back out: how do we preserve this vital role that local media has played in shaping our collective identity?

There are many people pondering the survival of local media, and many solutions are being considered.

Do we subsidize the hiring of journalists? As critics have pointed out, this jeopardizes the independence of media, whether through perception or reality. It’s unlikely this idea will ever gain consensus. 

Postmedia newspapers are on display in Toronto on Thursday, January 12, 2017. Nathan Denette/The Canadian Press.

Do we force the social media giants whose platforms disseminate local news to pay more towards supporting it? That policy doesn’t seem to be working well. The fight between government and these companies is putting people’s lives at risk, as we saw when people weren’t able to share up-to-date news information during the wildfires in the North this past August. 

Perhaps the key is to use the tax system to support start-up local platforms or podcasts that focus on local issues, then? As fellow Hub contributor, Bill Fox, argued here, an enhancement to the Digital News Subscription Tax Credit could be part of a market-based solution. 

Others with more libertarian leanings suggest that this is not a place for government intervention. In an interview on the Herle Burly podcast, American conservative Joe Walsh acknowledged that the collapse of traditional media is problematic, but cautioned against any instinct towards government intervention. 

So are there any solutions to this problem that lie outside the realm of government intervention?

The not-for-profit model of journalism could be a potential solution. As Geoff Russ writes here, there are some promising success stories that suggest there is still a market out there for thoughtful, local content that fosters a sense of community. 

On the issue of collective identity, we can also look to community organizations, charities, and even social enterprises as the places that will have to increasingly seize the mantle of building a sense of community. All of these organizations rely on fostering feelings of collective responsibility, of caring for your fellow man. Take the Glowing Hearts social enterprise that took off during the pandemic. Hundreds of windows on empty streets were adorned with these neon hearts, building a sense of unity through the darkness. At the time of our greatest isolation, these hearts reminded us that we would get through the tough times together. 

And there is also work being done to target the issue of apathy towards media at its root. The CTRL-F program is running in schools today across the country, teaching our youth how to be smarter and more engaged consumers of news, and hopefully inspiring a new generation of interested citizens who look beyond their social media feeds for thoughtful stories. 

All of these solutions deserve serious thought. Not just for the sake of preserving local journalism, but also, as I argue here, to preserve our ability to build identity through common stories.

As we move away from local media in the traditional sense, we lose our ability to share our stories to each other. We lose local platforms for leaders to inspire us. We lose a vital avenue to celebrate together in community. We lose our ability to rise up together to meet challenges. We lose our sense of belonging.

After several years of prolonged isolation, people are more desperate than ever for that sense of belonging and community. As the challenges we face become all the more complex, and as our population becomes more heterogeneous, it is more vital than ever that we know how to band together.

I know that the days of tuning in at 6 pm to listen to guys like Max are over. But together, let’s have a serious conversation about how we can take what they’ve taught us into the future.

The Future of News series is supported by The Hub’s foundation donors and Meta.

Norman Siebrasse: Responsive use of the notwithstanding clause will benefit both courts and legislatures

Commentary

The debate over the use of the notwithstanding clause is often framed as a struggle for supremacy between the legislature and the courts, where the side one favours depends on whether one trusts the courts more than the legislature or vice versa. This view misunderstands the problem.

It is not that the legislature is bad and the courts are good, or the other way around. The problem is that crafting laws to promote a just and prosperous society is very difficult. The legislatures and the courts have distinct strengths and weaknesses to bring to bear on this task. I propose that a responsive use of the notwithstanding clause can engage both bodies in a dialogue that builds on their respective strengths to craft laws that respect Charter rights more perfectly than either body can achieve on its own. 

I recently wrote an article for The Hub criticizing a decision of the Supreme Court of British Columbia which implied that there may be a Charter right to use fentanyl in public parks. I concluded that “the time has come for the notwithstanding clause to be used routinely.” This article elaborates on what that “routine” use should look like. 

The use of the notwithstanding clause has typically been pre-emptive, in the sense that it is invoked in the original legislation before any court has ruled on its constitutionality. The problem with the pre-emptive use of the notwithstanding clause is that it signals a dismissive attitude towards Charter rights and the courts. It suggests that the legislature doesn’t care about Charter rights, or at least that the legislature doesn’t care what the courts think about Charter rights. What’s more, because it completely shields the legislation from judicial scrutiny, it fails to take advantage of the courts’ insights into whether the legislation respects the Charter. 

Instead of a pre-emptive use of the notwithstanding clause, I am arguing for a responsive use of the notwithstanding clause, invoked after the court has spoken. As I put it in my earlier article, the legislature should be able to say: “Thank you for your opinion, but on careful reconsideration, we disagree, and it is democratically elected representatives of the people who have the final say.” A responsive approach, unlike a pre-emptive approach, cares what the courts think—and relies on that perspective when making the final decisions that it, as the legislature, ultimately has the competency to make. 

There are structural reasons why judicial oversight of legislative decisions is valuable. The courts are insulated from immediate political pressures and have a deep understanding of the inner workings of the legal system. The legislature, though democratically elected, may be tempted to ride roughshod over the interests of one group in pursuit of a popular agenda. A legislature pursuing a tough-on-crime agenda may find it politically convenient to ignore the rights of an accused in a manner that secures more convictions, at the risk of jailing the innocent. The Charter allows the courts to remind the legislature that the power of the state must be constrained if justice is to prevail.

While the courts have structural advantages, they also have structural shortcomings. As the Supreme Court of British Columbia’s fentanyl park decision illustrates, Charter cases often involve the balancing of rights and interests affecting many more people than those who are represented in the court proceeding. The legislatures are better suited to balancing a wide range of competing interests in multipolar issues. This means that just as the legislature may unjustifiably infringe on individual rights in the pursuit of legitimate objectives, so the courts may overreach when trying to protect those rights in a multipolar context. This is an increasing concern as the trend of Charter jurisprudence in the five decades since the Charter was adopted has seen the reach of the Charter extend further into multipolar policy issues, places where the court’s advantages of isolation from political pressure and unique knowledge of the law do not weigh as heavily in comparison with the courts’ deficiencies in representation and scope. Moreover, the Charter should reflect widely shared, fundamental values, and in these penumbral areas the values of the judiciary, drawn from a stratified educational and socioeconomic class, are more likely to diverge from those of ordinary Canadians.

The view that the notwithstanding clause should rarely, if ever, be used, implies that Charter rights need to be defended by the courts against attack from legislators. But Charter rights are valued by all Canadians—by our elected representatives as much as by the courts. After all, it was our elected representatives who adopted the Charter on our behalf. The responsive approach to the notwithstanding clause considers that the legislators and the courts are not adversaries but rather collaborators; they are engaged in a joint enterprise of interpreting and applying the Charter, using the strengths of one institution to complement the shortcomings of the other.

The fact that the Charter has a notwithstanding clause shows that it was always intended that the legislature have the final word; the question is how to bring the strengths of the judiciary to bear on the relevant legislation.

In a responsive use of the notwithstanding clause, a Charter challenge would wind its way through the courts in the normal manner until appeals are exhausted—even to the Supreme Court of Canada if that is where the litigation process takes it. A responsive use of the notwithstanding clause concerns what happens next, in those cases in which the final court holds the legislation to violate Charter rights.

Often, the response of the legislature will be to recognize that the legislation is indeed unconstitutional. In that case, the legislature need do no more. But in some cases, the legislature, on full consideration, may disagree with the Supreme Court. That should not be surprising—I doubt there is a legal scholar alive who believes that the Supreme Court has been entirely right on every decision in their area of expertise. There is no reason to believe the Supreme Court suddenly becomes infallible when it deals with Charter issues. In such cases, the legislature may choose to reintroduce the legislation, invoking the notwithstanding clause. In some cases, the legislature may decide the Supreme Court was partially right and reintroduce the legislation with amendments addressing some of the Charter violations identified by the Court, while using the notwithstanding clause to preserve other aspects of the legislation.

So far, none of this is new. It is what already happens when the legislature decides to invoke the notwithstanding clause in response to a judicial decision. A responsive use of the notwithstanding clause differs from the standard after-the-fact approach in two ways. 

The first is a matter of attitude. The premise of the responsive approach is that the legislatures are just as legitimate interpreters of the Charter as the courts. When a legislature invokes the notwithstanding clause in response to a judicial decision, it is not because the legislature has decided to pass the legislation even though it violates the Charter; it is because the legislature has decided that the courts were wrong in their interpretation of the Charter—and it is the legislature that has the final say in how the Charter is to be interpreted.

The second is a matter of process. The legislature should explain why it believes the courts were wrong. Before reintroducing the legislation, the legislature should provide a detailed brief, explaining exactly why the notwithstanding clause is being invoked. There are many good reasons why the legislature might disagree with the decision of the Court. In a five-four decision of the Supreme Court, the legislature might reasonably say “We prefer the view of the minority.” If the Court itself considers the issue to be so closely balanced, it seems reasonable to allow the legislature to tilt the balance, rather than leaving the decision to the happenstance of the composition of the court.

If the Supreme Court reversed itself on a Charter point, the legislature might say “No thank you, we preferred the earlier version.” There might also be cases in which the legislature considers that the court has erred by not giving sufficient weight to the interests of the public at large, as I suggested was the case in the fentanyl park decision. In other cases, the legislature might have a substantive disagreement with the Court over the interpretation of the Charter. For example, if the Supreme Court were to hold that inconsistency with Charter “values” which are not found in the text of the Charter can be grounds for holding legislation unconstitutional, the legislature might reasonably say, “We prefer a textual approach.”

Saskatchewan Premier Scott Moe speaks to the media at the Saskatchewan legislature in Regina, on Tuesday, October 10, 2023. The Saskatchewan government plans to invoke the notwithstanding clause to override a judge’s injunction and introduce legislation about the province’s pronoun policy in school. Heywood Yu/The Canadian Press.

Whatever the reason might be, in a responsive use of the notwithstanding clause the legislature would explain in detail why it is choosing to depart from the Court’s decision in a way that is transparent and intelligible to the public. It is then for the public to decide whether it is the courts or the legislature that has the better measure of what the Charter means.

Understood in this manner, a responsive approach to the notwithstanding clause can be seen as reinforcing Charter rights rather than undermining them. Consequently, there is still a role for a pre-emptive use of the clause in some cases, for example, where the Charter landscape on a particular issue is well-established so that the legislature can predict the views of the courts. The pre-emptive use of the notwithstanding clause in such a case should be accompanied by the same kind of detailed explanatory statement as a responsive use.

Another difficulty with a responsive use of the notwithstanding clause is that litigation can be very costly and may delay the implementation of the legislation. In such cases, legislatures could use the clause in an interlocutory manner; that is, while it would be invoked at the outset, it would shield the legislation only for a limited time, perhaps until six months after all appeals are exhausted. If the final court declared the legislation unconstitutional, and the legislature agreed, the invocation of the clause would lapse automatically at the end of that period.

But if, after considering the reasons of the court, the legislature was of the view that the legislation was sound, it would have six months to prepare a responsive brief and re-enact it with the notwithstanding clause. Of course, such a use would strongly signal the legislature’s view of the legislation’s validity. But an interlocutory invocation of the clause would nonetheless invite the input of the courts in a way that a fully pre-emptive use does not.

A responsive use of the notwithstanding clause can prevent the politicization of the courts. In the United States, which does not have a notwithstanding clause, the Supreme Court is the final arbiter of many of the most important issues facing society. This inevitably leads to politicization of the courts, as the elected representatives pursue their political agenda through the judicial appointments process. With a responsive use of the notwithstanding clause, the government of the day can make judicial appointments without excessive regard to the politics of the judge knowing that political control remains with the legislature.

More fundamentally, a responsive use of the notwithstanding clause rejects the notion that the Charter is a weapon used by the courts to defend against depredations of the legislature. Instead, it views Charter interpretation as a dialogue between the courts and the legislature, which draws on the complementary strengths of each to arrive at the best interpretation of the Charter in the interest of all Canadians.