“The Declaration on the Essential Role of Artists and Creative Expression in Canada Act”: Will it Become Law?

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Last fall, in October, the Canadian Senate gave Third Reading to Bill S-208, The Declaration on the Essential Role of Artists and Creative Expression in Canada Act”. That legislation, sponsored by Senator Patricia Bovey, a distinguished art historian by profession, (former director of the Winnipeg Art Gallery and the Art Gallery of Greater Victoria, Adjunct Professor of Art History at the University of Winnipeg, and the author of a new book to be released later this month, Western Voices in Canadian Art), was then sent to the House of Commons where it was introduced by a Member of Parliament, Jim Carr, and given First Reading there. To become law, it must also successfully undergo three readings in the House, receive Royal Assent (a formality) and eventually be “proclaimed” in order to become an Act of Parliament. What does the Declaration cover, how likely is it that it will become law, and what would be its impact if it did? Let’s unpack these various questions.

First, the ten-point Declaration itself. Here is its full text, contained in an annex to the Bill.

Declaration on the Essential Role of Artists and Creative Expression in Canada

1. The essential role and contribution of the arts, culture and heritage to the health and the social and economic well-being of everyone in Canada, including all aspects of social justice and reconciliation, is hereby recognized and affirmed.

2. Everyone in Canada, including artists, has the right to freedom of expression and association, especially on issues and at times of public debate.

3. Canadians and residents of Canada of all ages, cultural diversities and backgrounds have the right to know and participate in their artistic memory and collections and in their material and built heritage, which together define our histories and experiences and our individual and community traditions.

4. People in Canada of all cultural diversities and backgrounds have the right to take part in the arts through access to and attendance at artistic events, including music, literature, drama, visual arts, film, dance, theatre and all performing arts.

5. People in Canada of all ages, including children and youth, have the right to engage in artistic creativity and the expressive arts, including the right to learn and acquire the knowledge and the creative processes and skills needed to play a musical instrument, draw, dance, compose, write, design or otherwise live a life of creative innovation.

6. Artists have the right to the intellectual property in and copyright for their work; to be free from cultural appropriation; to equity in employment and to economic security; and to be accorded recognition for the value of their work, which is integral to our nation’s economic health.

7. Artists in all disciplines have the right to earn a prominent presence in public life through their art — including public art presentations — and to the incorporation of their voices and artistic visions in democratic debate.

8. Canadian artists have the right to be represented to the rest of the world, and the public has the right to know about and explore art through the ages from all parts of the globe.

9. Artists, arts organizations and production companies in Canada have the right — and should have the arm’s-length support and capacity — to take risks and invest in creative innovation while serving communities and the public interest.

10. Everyone in Canada, including artists, has the right to be free from discrimination, including racism, ageism and all stigmas, and artists, including those with disabilities or those who are deaf, have the right to barrier-free physical access to places and spaces to create, perform and present their work in both behind-the-scenes spaces and on stages and in galleries, museums, studios and practice spaces, and through online and digital opportunities.

There is a lot to digest there. What are the key takeaways? The Declaration talks a lot about “rights” but generally speaking rights are enshrined in the Charter of Rights and Freedoms, which in most instances overrides legislation. Put another way, legislation must be consistent with the Charter. As far as I can tell, the Declaration meets this test although it does not add any additional rights. What the Declaration does do is to recognize the key economic and cultural role the arts play in Canada’s economy and society. The rights to freedom of expression and association are affirmed along with the right to participate in artistic creativity and endeavours through learning and acquiring skills. It further notes the importance of intellectual property and copyright and recognizes the economic struggles that many artists face in earning a living from their work. There are other points too that you can read for yourself—freedom from discrimination and racism, having artists voices included in public debate, etc. In fact, if this Declaration became the guiding rule for artists and creators, (as Louis Armstrong loved to sing), what a wonderful world it would be!

As a statement of broad objectives and support for the arts, the Declaration is a laudable piece of work. But if it passes, how is it intended to be implemented in the real world? The Bill requires that the Minister for Canadian Heritage consult with various other federal ministers (Labour, Indigenous Relations, Justice, Health), provincial governments, the Canada Council for the Arts (funding agency), the Official Languages Commissioner, artists and organizations whose objects include promotion of artists and the arts, French-speaking artists and organizations representing those artists, artists who represent the ethnic and racial diversity and all other diversities of Canada and organizations that work on their behalf, First Nations, Inuit and Métis artists and organizations representing those artists, and, in case anyone felt left out (which is hard to imagine given the inclusivity of the list), “all other interested persons or organizations that the Minister considers appropriate”. The point of all this consultation is to develop an Action Plan, within two years of Proclamation, to implement the Declaration. How that is to happen is left to those named although as part of this planning, a conference of stakeholders is to take place within six months of the passage of the Bill. This is no small task, especially considering the interdepartmental and intergovernmental nature of many elements of the Declaration, not to mention a certain degree of non-specificity with respect to many of the “rights”.

This is why this Declaration, welcome as it is as an aspirational target, is unlikely to become the law of the land. There is really nothing in the Declaration that a reasonably minded person could object to, but this is also part of the reason that it will almost certainly remain a hortatory call to arms rather than a concrete plan of action. As a private member’s bill (i.e. not one proposed by the government), it has no budget attached. It cannot create a spending authority without government sponsorship, although this could happen later in the process if the government decides to support the Bill. However, this is most unlikely to happen as the aims of the Bill are so broad that specific action flowing from them would be difficult to define.

Even if the Declaration had the force of law, to whom would it be applied? Would the “the right to learn and acquire the knowledge and the creative processes and skills needed to play a musical instrument” mean that a local school board that decided to terminate or scale back its music program in order to save money and meet its budget (as happened recently in Victoria, BC, where I live) would be prevented from doing so? That won’t happen. Education is a provincial responsibility, and local school boards are given considerable autonomy in setting their budget priorities. Would the right of Canadian artists “to be represented to the rest of the world” mean that the Canada Council or some other organization is obliged to provide financial support for overseas exhibitions of Canadian art? Overseas exhibitions will continue to be supported for various reasons but not because of any inherent right on the part of artists. Does the “the right to take part in the arts through access to and attendance at artistic events” mean that it is your right to attend even if you don’t have a ticket, and that you have a “right” to buy a ticket? (Taylor Swift fans would love it). I don’t think so. You get the idea. These are declaratory rather than legal rights.

When all is said and done, realistically this legislation is very unlikely to have any greater chance of success than most private member’s bills, which is to say, little to none. Another obstacle is that it needs to find a new sponsor in the Commons, a task made more difficult by the untimely passing of the MP who sponsored the Bill’s First Reading in the House, the Hon. Jim Carr. (First Reading is essentially a formality. It is the Second Reading, Committee Review, and eventual passage at Third Reading that really counts). If getting privately sponsored as opposed to government sponsored legislation passed is such a heavy lift, why do we have private member’s bills within the Parliamentary process? Many Members of Parliament or Senators want to advocate for their beliefs and causes and choose to use privately sponsored legislation as a means to do so. And on very rare occasions, where a private bill attracts government support, it sometimes even passes. Private members’ bills are a useful part of the Parliamentary system, providing a good platform for the socialization of ideas and initiatives, even if they never become law. The idea of a Declaration dedicated to artists and creators is one such example.

The arts and cultural industries play key economic roles in many countries, and this is often under- appreciated. For example, the Ontario Arts Council estimates that Ontario’s arts and culture sector represents $28.7 billion or 3.5% of the province’s GDP and 301,495 jobs. For Canada, the figure is estimated to be close to $60 billion, larger than that of agriculture, forestry, fishing and hunting, accommodation and food services and eight times larger than sport. The figures are similar in other countries. In the US the percentage of GDP generated by the arts and culture sector is 4.3%, and with the enormous size of the US economy, that translates into economic impact of over $900 billion and 5.2 million workers. In the UK arts and culture contributes £10.8 billion to the UK economy. A broader definition that includes film, TV and music brings the total to £32.3 billion (and that was in 2018). But, of course, it is not just economic impact that counts. Arts nourish the soul of the nation. Culture fosters identity and encourages expression. If “The Declaration on the Essential Role of Artists and Creative Expression” makes the role of artists and creatives more visible and respected, that is a good thing, even if Senate Bill 208 never becomes law.

© Hugh Stephens 2023. All Rights Reserved.

Post-script: On April 24, 2023 the Bill was presented to the House of Commons for Second Reading. First Reading, which took place in October last year, was sponsored by Manitoba MP Jim Carr, who died in December. A new sponsor who is a member of the Commons is required, but to everyone’s surprise, none stepped forward. Usually this is pre-arranged. The House, which had expected to debate the Bill, had to unexpectedly adjourn. Thus ended the journey of S-208. It was not fated to become legislation but the way in which it died on the order paper was particularly unfortunate for artists.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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