Out of Commission
Why the Kent recommendations have been trashed. An insider's report
We can add the Davey Committee and the Kent Commission to the “boneyards of broken dreams,” the description the Davey report gave to most Canadian newsrooms.
It is true that had it not been for the two inquiries, the first on the mass media in general, the second on the daily newspaper industry in particular, we would probably be without the press councils which now cover most of the land. Also, the cabinet directive to the CRTC against cross ownership of newspapers and television or radio stations can be traced to a Kent recommendation, which was preceded by a Davey recommendation along the same lines.
But these are rather slim pickings, especially from the menu of reform set out by Tom Kent and his Royal Commission on Newspapers. What went wrong? I will try to give some answers in terms of the work of the commission, for which I was director of research, and in terms of the political, administrative and juridical environment in which the recommendations were made and considered by the government.
In 1980 Kent and his fellow commissioners, Laurent Picard and the late Borden Spears, saw themselves picking up where Senator Keith Davey and his Special Senate Committee on Mass Media had left off a decade before: updating its information, broadening and deepening its lines of inquiry, particularly into the economics and organization of the daily newspaper industry, and looking at the newspapers both in the world context of what response there had been to concentration in other countries and in the context of the rapidly changing technology of computer communications. As the commission gained information through its hearings and research program, it became steadily more impressed by the impact on journalism not simply of concentration of newspaper ownership, but of the concentration of ownership of newspapers and other media and, more alarmingly, even larger interests outside the media. Some papers faced the twin dangers of being used as cash cows to build other parts of the business groups to which they belonged, and as shields to protect their owners from adverse publicity. The commission took an institutional and organizational approach toward concentration, seeking to determine whether it might lessen the diversity and independence of the community’s sources of journalism. It deliberately did not try to sit as a kind of super press council, passing judgment on editorial content. And It painstakingly steered clear of the role which would be that of the courts: to see whether any existing law had been broken. I think the approach was right, though unexciting. But-with hindsight-it would have been more effective if the commission had not been trapped by its tenth month deadline, a point to which I will return later.
What is basic to both the Davey and Kent recommendations is the principle of the public’s right to a free flow of information and opinion from a diversity of sources. Davey had recommended the creation of a Press Ownership Review Board empowered to prevent mergers or takeovers of newspapers, and periodicals as well. Kent called for creation of a g Press Rights Panel with broad power to prevent mergers and takeovers of newspapers, prevent cross-media ownership, order divestment in certain cases of concentrated ownership, and oversee a system of editors’ contracts and local consultative committees for papers that constituted a minority of their owners’ interests; Kent also suggested some tax measures and subsidies to offset the effects of concentration. From the outset of the Commission’s work, most journalists had been skeptical that there would be strong recommendations, or that the government would act on them if there were. Kent, on the other hand,. felt the government’s concern about concentration was genuine, its willingness to act firm. My own impression from some recent inquiries is that enthusiasm for the Commission may have run a bit higher among the powers behind the throne-James Coutts and Michael Pitfield-than in the Cabinet, where one senior minister, Allan MacEachen, then in charge of Finance, held the view, “Why get into it at all?”
As the Commission’s public hearings got under way, it became clear that there was no great public constituency for action against concentration. The Consumers’ Association of Canada took a firm position in favor of diversity and competition, as it had before Davey. But no newspaper in Canada was about to rally opinion under this banner, and the issue proved of no great interest to the other mass media.
It seems to me that this absence of organized public concern was the critical factor in sending the Kent recommendations to the boneyard. The newspapers themselves unleashed a tremendous barrage against the Commission’s recommendations as well as lobbying furiously against them. One public official told me he was “astonished by the vehemence of feeling against Kent personally.” He felt the publishers and editorialists had for the most part failed to recognize genuine concerns about lack of newspaper accountability to the public and the consequences of too much ownership in too few hands. Even after the government had sought to meet their objections concerning “intrusionist” recommendations, the papers had continued with exactly the same objections they had had to the original Kent recommendations.
With the Trudeau government sinking in public favor, the Liberals were less and less keen to invite the disfavor of the press by espousing measures which, in any political atmosphere, would have been highly controversial. The opinions obtained by the government from its own constitutional experts in the Justice department, and from two independent experts, were that the many recommendations of the Commission depending on an assertion of federal capacity to I legislate to enhance freedom of the press were actually unconstitutional interference in provincial jurisdiction over property and over regulation of a particular industry. Unfortunately, even under the new access to information legislation, legal opinions received by the government are confidential. No government spokesman has chosen to give the reasoning under which several of the recommendations were rejected even before consideration of their political palatability. As I mentioned earlier, I believe the Commission should have had longer to consider its recommendations with the aid of expert opinion. At the same time, however, it seems to me that one does not expect royal commissions to come up with recommendations that can be immediately translated into legislation. What counts from such an inquiry is the grounding, analysis and direction contained in the report and recommendations.
The Kent recommendations received the usual consideration by an interdepartmental committee representing all the departments with an interest in their subject matter. But at the time of the Kent recommendations, the Justice department, and the whole government for that matter, was engaged in the biggest constitutional reform in Canadian history since 1867: patriation} and all that. Asserting questionable jurisdiction over the press against the provinces was the last thing the government wanted. The Consumer and Corporate Affairs department was moving for the umpteenth time toward new competition legislation and did not wish to be sidetracked by some special and controversial provision applicable only to newspapers; besides, the department was already deep into the newspapers affair through the pursuit of Southam and Thomson under the Combines Investigation Act. The Communications department, which might have expected to have responsibility ‘for the Kent report in the first place; Was by this time deep in the Applebaum-Hebert exercise of producing new cultural policies, offending quite enough people without taking on publishers as well. The Finance department was standing on guard, as always, against the use of the taxation system for non-fiscal purposes and, after the disastrous “reform” budget of November, 1981, all the more leery of unnecessary tax innovations that might get it into trouble.
When it launched the Kent Commission, the Trudeau government was still in the first flush of its February, .1980, restoration. Three years later., after the major battles of the New Energy Policy, the Constitution, and the Crow, and after the political wear and tear of the worst recession since the Thirties, it had become less and less disposed to displease the press with measures that seemed to have no vote winning power. In the summer of 1983, Jim Fleming had floated a “Proposed Daily Newspaper Act,” but it had the status of no more than a discussion paper.
Anyway, Jim Fleming was soon gone from Cabinet. Responsibility for the government response to the Kent Commission passed to Consumer and Corporate Affairs Minister Judy Erola . The responsibility for administrative back up to the responsible minister passed from the Privy Council Office to Mrs. Erola’s department. Coutts and Pitfield, backers of dealing with concentration of the press, had left. And on behalf of the prime minister in waiting, Perrin Beatty was saying to the Canadian Daily Newspaper Publishers Association, “Brian Mulroney has asked me to tell you how the Progressive Conservative Party intends to proceed. We are opposed to the [newspaper] bill in its entirety.” My best information is that Mrs. Erola does not regard the bill as a priority for reconsideration. It looks like a dead parrot up to the election, and quite likely an even deader one thereafter.
But there are those who still believe, of course, with the Kent Commission, that ” freedom of the press is nota property right of owners. It is a right of the people. It is part of their right to free expression, inseparable from their right to inform themselves.” They believe with the Commission that “the key problem. …is the limitation of those rights by undue concentration of ownership and control of the Canadian daily newspaper industry.” they believe that such undue concentration mocks the guarantee of freedom of expression, and freedom of the press and other media of communication, now entrenched in the Canadian Constitution. And if they are right in those beliefs, then some day they will prevail; for there must be some constitutional remedy for a constitutional wrong.
This is a joint byline for the Ryerson Review of Journalism. All content is produced by students in their final year of the graduate or undergraduate program at the Ryerson School of Journalism. 
