With a painting from the late 1800s in the middle of a court dispute over whether or not it can leave the country, it seems like a good time to look at where our rules around culture and exports come from -- and how they work in the international art world (and elsewhere). What is the Canadian Cultural Property Export Review Board? How are these quasi-governmental bodies created, and how do they derive the power to decide what Canadians can buy and sell, import and export? Gerard Kennedy, one of the developers of Law 207/707, International Law, joins us to talk about art across the oceans, and where and how the government can exercise power over culture -- and our borders more broadly.

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Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.  


Transcript: [music]


00:05 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd and my knowledge of fine art pretty much extends to back issues of Spider-Man, but art is big business. And recently an interesting case hit the headlines where the export of a major work to a European buyer was blocked by a Canadian tribunal supervising our cultural heritage. Who are these people? How do they get the authority to decide what art we could ship to Europe? Where does their power come from? And were they right in their decision? Gerard Kennedy is one of our course designers for law 207707 international law, he's also an expert in public and constitutional law and the kinds of questions that these tribunals raise. He joined me from Ottawa via Skype. This podcast is brought to you by The Queen's Certificate in Law. The only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.


01:13 MS: This has come up recently in the news, it's really interesting and it has to do with somebody who purchased a painting and tried to export it and then got stopped, basically. And it's interesting to me because it raises a whole bunch of questions about public and constitutional law and it's interesting also because you are actually part of the team that's developing the International Law course, for the Certificate in Law and in this case it's about something that is actually been blocked from going international, well was being blocked. But now isn't. So, do you mind, giving us sort of a quick run down of the situation as it is.

01:50 Gerard Kennedy: Sure. First, let me just say thank you very much for inviting me on the podcast. This is certainly a very interesting case in administrative law, which I am... Not only do I do international, but I had the chance to teach administrative law at Queen's last fall, and it illustrates a lot of the issues that come up in administrative law, so at a high level, this entity called the Heffel Gallery. It wanted to sell a painting, that it had in its possession called Iris bleus, jardin du Petit Gennevilliers, it's an 1892 painting by Gustave Caillebotte who was a famous French impressionist.

02:29 GK: It had held the painting for quite a while, it had been in Canada for more than 35 years. But the painting, because it was painted by this is famous French impressionist. It was listed as a painting that needed to pass a certain statutory procedure before it could be exported from Canada and as a result of going through that statutory procedure the Canadian Cultural Property Export Review Board, which we can talk a bit about its basis in a moment. It held that it was of outstanding significance and of national importance to Canada and as such, the export permit that the gallery sought should be denied. So in... Not being very happy with this decision. The seller sought what's called judicial review of that decision in the Federal Court and the Federal Court allowed the application for judicial review, said that the board came to an unreasonable interpretation of what national importance means in this context and they said it had to be reconsidered by the board with the practical implication, being that it could be exported.

03:42 MS: So this is all happening at the federal level.

03:45 GK: Yeah, it's a federal statute, has given the board this power and the Federal Courts Act, guarantees the ability to seek judicial review of the vast majority. We could talk about some theoretical exceptions, if we want, but they tend to be pretty theoretical, of decisions made by members of the executive branch of government, in the Federal Court. So, it does not go to a Provincial Superior Court, it goes to the Federal Court.

04:15 MS: So I think it might be helpful to kind of walk through this chronologically step-by-step. 1892 guy paints a painting, does a really good job of it, at some point between then and now painting winds up in Canada, someone in Canada wants to sell the painting and somebody outside of Canada wants to buy it. But at some point in the interim, the Federal government decided that we needed a law about what we can export from Canada that might be of cultural value, right?

04:42 GK: Yeah, the Cultural Property Export and Import Act is meant to govern outstanding works of art, that are relevant to the Cultural Heritage of Canada. There's a list attached as an appendix to the act that lists these works of art and before any of these can be exported it has to pass through an administrative process, and the rationale behind this law, makes a lot of sense. We wanna make sure that items that are of outstanding significance and national importance aren't exported from Canada, barring certain circumstances such as no one in Canada willing to hold it, and also respecting the private property rights of those who happen to hold it to dispose of them as they wish. It's not to bar in all circumstances a piece of art that's of outstanding significance and national importance from leaving Canada. But we have to make sure that if it is of outstanding significance and national importance that no one else in Canada is willing to give a fair chance to buy the property.

05:47 MS: So the Federal Government basically makes this law, they write the Act, the Act gets passed and the means of enforcing this act is the Canadian Cultural Property Export Review Board.

05:58 GK: Yeah, it is the body that enforces the act.

06:00 MS: Right, So this is a group of people, the board is empowered by the government to review anything that's gonna be taken out of the country as per this list, and then make a decision about whether or not it's allowable according to the terms of the Act.

06:13 GK: Correct. And in order to do so, they engage an expert who examines the piece of art. And they rely not exclusively, but appears largely on her determination of whether it's of outstanding significance in national importance. And not just that, in the interest of full disclosure, I know the expert retained in this debate, not well, but we've encountered each other through Massey College at the University of Toronto, and I have nothing but outstanding things to say about her as an art curator.

06:44 MS: Oh, excellent. So the Heffel Gallery wants to sell this painting, Iris bleus, jardin du Petit Gennevilliers. Since it is deemed to be of significance it has to go through the Canadian Cultural Property Export Review Board and they say, "Hang on, we've got two problems here. The first is Section 11-1 of the Cultural Property Export and Impact Act, says that an expert examiner has to review this and determine whether or not it's of national significance, and the expert-reviewer has said... The examiner has said "Yes it is." And second, there's this 29 sub-section 5 of the Act which says that there has to be an opportunity for an entity in Canada to have kind of made what they deem a fair offer to purchase it."

07:30 GK: So section 11 sub 1 of the Act allows a... Not just allows, but mandates that an expert examiner can determine whether the piece of art or object at issue is of outstanding significance and national importance. And Section 29 sub 1, refers to a hearing to determine what should happen if someone who wishes to sell the painting hasn't made a fair offer... A reasonable effort for someone in Canada to purchase the painting and prescribes a procedure later on in that section to delay the export of the particular painting for six months, so that there can be a fair offer to purchase the object by someone in Canada.

08:22 MS: So these were kind of the conditions under which the board said. Hang on, you can't go through. The Heffel Gallery can't actually sell this because we feel it's not meeting the obligations of the act. But The Heffel Gallery, you mentioned earlier, has the right to appeal these things to the Federal Court. So where does that derive from? What gives them the ability to take this to the next level? If the expert review board says you can't do this, what gives the Heffel Gallery kind of the right to go to Federal Court and say, "We'd like you to look at this again."

08:55 GK: This is where I think we should actually be pretty careful about our terminology. In that, what gives the right... The Heffel Gallery has the right not to appeal, but to seek what's called "judicial review of the decision." All executive actors in Canada need to act in accordance with the law, usually legislation, that gives them their power. And in order to preserve the rule of law in our society, you always have the option to go to a court... I shouldn't say always... Almost always to ensure that the executive actor acted in accordance with their legal obligations. Historically, you would have had to bring this case in a superior court of a province, but according to the Federal Court's Act, federal government decisions are generally... They have their judicial reviews, heard in the Federal Court. And section 18.1 of the Federal Court's Act directs the vast majority of applications for judicial review made by federal government decision makers to go to the Federal Court or sometimes the Federal Court Appeal rather than a provincial Superior Court.

10:18 GK: Judicial review is a constitutional right in Canada to ensure that a decision that's made that affects someone is in accordance with law. Now, it's important to flag here that the amount of... The number of people in the executive branch of government, likely numbers in the hundreds of thousands, certainly in the tens of thousands, whereas the number of people in the legislative and judicial branches of government, even looking at all the provinces, would render in the low thousands, at most. And we don't want the courts second guessing every decision that an executive actor makes. At the same time there's no such thing as unlimited discretion. So a complicated case law has emerged as to when and under what circumstances judicial review should be permitted. Generally speaking, you don't get a chance to make your case again, you have to show that the decision maker, whose decision you're reviewing, acted unreasonably not just incorrectly or as the judge would have decided. But the ability to review the decision to ensure that it doesn't offend the rule of law, that's constitutionally guaranteed In Canada, there's a presumption it's to be brought in a provincial Superior Court.

11:40 GK: But so long as that right is allowed in another form, legislators are allowed to direct you to another place, and the federal government did that here by allowing you to review the Canadian Cultural Property Export Review Board's decisions, in the Federal Court.

11:58 MS: I'm in error by saying that this was an appeal, it wasn't, this was a request for a judicial review.

12:03 GK: It's a request for judicial review. Now admittedly, some government statutes direct you to have what they call the statutory appeal of an execute actor that looks a lot like a judicial review, and sometimes this distinction of terminology can become blurry, but properly, this was an application for judicial review, and not an appeal in the way that you would appeal the decision of a superior court judge to the Court of Appeal.

12:35 MS: Okay, and so what the Federal Court came back with was, we disagree with the Board, we think they may have been over-reaching slightly in their interpretation of cultural significance at the end of the decision, it says "The matter was referred back to a differently constituted board for reconsideration". So what does that mean, does that mean they have to have different personnel on the board to take another run at whether or not this is allowable?

13:06 GK: In essence, that is what it means. Generally speaking, a remedy on judicial review is not to remake the decision, largely because the Federal Court or any judicial reviewing judge doesn't have the power to remake the decision. They simply have the power to ensure that the original decision maker acted in accordance with law. So there will have to be a new panel of the board decide whether or not the export is permitted, but in light of these findings of the Federal Court, which are binding on the Board, unless something drastic has come up, and even that would require issues that shouldn't have been raised before, it looks as though this is going to be permitted.

13:55 MS: I think because I've watched a lot of television, and seen a lot of movies, it's all very dramatic in my mind. But ultimately, this isn't the Federal Court saying "No, we reject their decision. Get out of here, you guys", all they're doing is saying... "I think you need to rethink this", and sending it back and saying, "Let's reconstitute another panel and just take another look at the issue, given the context that we're giving you back".

14:19 GK: True, but there's reconsideration and then there's reconsideration. The Federal Court has decided what they think this act means, and specifically, that the original panel of the Board came to an unreasonable determination of what it means. If the new Board comes to the same determination as the original board did, it will have ignored a precedent from the Federal Court that's binding on it. And then we'll just be back in this situation again. It's possible that new information about this painting will be presented towards or before the new board, that will essentially mean that even under this higher standard of what constitutes national importance, the export will still not be allowed. That strikes me as unlikely, but you never know.

15:12 MS: But we're in a precedent-based system. So kind of what's happened here is the Federal Court has raised the bar slightly to determine works of national significance.

15:22 GK: No, I wouldn't even say they deem something slightly, they raise it slightly, in determining that it's of national importance. They've said it has to have a lot more connection to Canada than this particular painting has.

15:36 MS: And we're a precedent-based system. So this is not a one-off thing that's happening, this is something that's going to change the work of the board going forward.

15:44 GK: Absolutely, it will, yes. I think it's important to emphasize that the court didn't decide that the decision of the board was incorrect. They decided that it was unreasonable. On applications for judicial review as I already mentioned, there is a presumption that in interpreting its home statute, an administrative decision maker is to be given deference in terms of what the statute means. And one thing that struck me while reading the decision is whether or not the Federal Court judge was giving sufficient deference. He certainly makes a very persuasive case as to why an object needs to have a lot of connection to Canada before it can be deemed of national importance within the meaning of this Act, and why the opinion rendered by the board, appears to be constraining that excessively broadly, so that any work of outstanding significance that would be important to study or demonstrative of one of the great cultures of the world that makes up Canada's multicultural heritage would be of national importance to Canada. The judge explains why he thinks that that just is fundamentally unreasonable, but it's not a opinion that has as much deference as we sometimes see in applications for judicial review.

17:20 GK: The amount of deference that can be seen in different applications for judicial review definitely varies, in light of the circumstance. I think the Supreme Court is gonna have to deal with this issue fairly soon, because it says, it's gonna reconsider the framework of judicial review of administrative law decisions. But that is something that struck me, like how much deference was appropriate. Did the judge give it? I certainly thought he was, [17:47] ____ bode a very persuasive decision, but as someone who reads a lot of judicial review decisions, that was one thing that was going through my mind while reading it.

17:56 MS: Well, thank you very much, Gerard.


17:58 GK: You're most welcome.

18:02 MS: Thanks to Gerard Kennedy, one of the course designers and instructors for our International Law course. If you're registered for the Certificate in Law you can sign up for Law 207707, International Law, right now. The course begins in January, 2019. If you're interested in Government and Legislative Authority in Canada, take a look at Law 205705, Public and Constitutional law. You can find out more about the certificate and all of our courses at takelaw.ca. Fundamentals of Canadian law is recorded at Queen's university, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valérie Desrochers. You can see them at takelaw.ca and visit Valérie's portfolio at vdesrochers.com. Thanks for listening.