1984. A year largely marked in Canadian consciousness as the year the Right Honourable Pierre Elliott Trudeau took a walk in the snow.¹ However, 1984 is also the year the Canadian Radio-television and Telecommunications Commission (the CRTC) established the Canadian content (CanCon) point-based system (the Points System), a system integral to the determination of Canadian content for broadcast and tax credit purposes. Yet, it may surprise some to know that over the forty years since the institutionalizing of the initial Points System, in the words of the CRTC, “this points system for certification hasn’t changed in any way”² since 1984. As a millennial born a few years after the birth of Canada’s Points System (reserving my right not to share just how many years after), the anachronistic nature of the system seemed intuitive to me, but forty years? The Canadian Points System is officially middle-aged and in need of a makeover.

By chance, a makeover is currently underway at the CRTC. The slow implementation of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other acts, otherwise known as the Online Streaming Act,3 has begun with Ipsos reporting that CRTC held several workshops with industry stakeholders during February and March of this year.⁴ According to the Ipsos report, the workshops were part of CRTC preparations for broader public consultation on the matter of CanCon. The aim of the workshops was to discuss the CanCon definition and address domestic changes in the broadcasting and media industry. One of the central issues at focus concerning CanCon was the so-called “cultural test” which depends, in large part, on the Points System.

For those readers unfamiliar with the Points System, one of the key conditions for an audiovisual production to be certified as “Canadian” requires a production to meet a minimum of 6 out of 10 points based on the below criteria. Points are earned when the below key creative roles are performed by Canadians:⁵

• Director (2 points)
• Screenwriter (2 points)
• First Lead Performer (1 point)
• Second Lead Performer (1 point)
• Production Designer (1 point)
• Director of Photography (1 point)
• Music Composer (1 point)
• Picture Editor (1 point)⁶

Additionally, within the overall 6 out of 10 requirement, the roles of director or screenwriter and either the first or second lead performer must be performed by a Canadian in order to satisfy the points test.

A 2022 report prepared for the Motion Picture Association (Canada) (the MPA Report)⁷ highlighted that Canada’s CanCon system is outdated, restrictive and compromises Canadian opportunity in the global market. According to the report, the Canadian system is misaligned with global production trends, fails to adapt to international high-budget production models required to attract audiences in many markets and not well equipped to leverage the increased production opportunities provided by the international market.⁸ The MPA Report stated that one major area for improvement in Canada’s content system is the cultural test or Points System.⁹ As stated by the MPA Report, in order for Canada to better align itself with current global production models, the Points System needs to expand in both scope and flexibility.

The MPA study analyzed point-based cultural tests in other jurisdictions such as the UK, New Zealand, the Netherlands, France and Germany, which range from a minimum of 18 available points in France to 210 possible points in the Netherlands, with most productions requiring half or less than half of the available points to pass the cultural test.¹⁰ Unlike Canada’s Points System which is restricted to key personnel, the national systems of other countries encompass cultural content and production points, and include all national cast and crew in a diverse large-scale points scheme. From a public policy perspective, the cultural content criteria is particularly inspiring in its promotion of national culture on a global stage. National producers can obtain points based on cultural elements such as language, characters, setting, contribution to culture or history, underlying artistic or historical material and general cultural content (e.g., identifiable social issues relating to a particular culture or society).¹¹ Further, some jurisdictions apply a sliding scale method in points analysis allowing producers to obtain partial points based on other related criteria.¹² Overall, the jurisdictions examined in the MPA study reveal broad flexibility within their respective national points systems, providing producers with a reasonable degree of latitude. According to the MPA Report, the expanded points systems of other jurisdictions, which offer diverse categories from which to obtain such points (i.e., personnel, culture, production), provide producers the flexibility required to “balance the needs of productions against larger policy objectives.”¹³

Fortunately, flexibility was a key topic during the CRTC workshops. However, not everyone in attendance was enthusiastic about the idea. Ipsos reported that discussions concerning flexibility within the CanCon system became “emotionally charged.”¹⁴ According to the report, several producers and creators expressed concern that flexibility within CanCon definitions would “dilute” or “weaken” Canadian content.¹⁵ The fundamental fear being that flexibility would benefit foreign streamers at the expense of Canadian industry and culture. Notwithstanding the reservations of some, other participants were open to developing a more flexible Points System, including expanding the number of points and creative roles available, introducing bonus points and/or swapping points.¹⁶

In a fast-moving and competitive industry like film and television production, one thing is clear, a lot can happen in forty years. Reform of CanCon is necessary and not strictly limited to the Points System (another blog for another day). Many stakeholders believe it is time for Canada to rise to the occasion if our industry and culture is to thrive both domestically and internationally. It has been noted that the experience of other jurisdictions could offer successful industry blueprints from which Canada can draw inspiration. The fears expressed by some in the Ipsos report are predictable, however, they may be shortsighted. It has been said that fear of failure or aversion to risk-taking is the enemy of innovation, and innovation is what our industry needs now more than ever. The risk of doing nothing is Canada falling further behind in the international market.

For more information on this topic, please reach out to the author, Lindsay Paquette.

[1] Reference to the so-called “walk in the snow” that signaled Pierre Trudeau’s resignation as leader of the Liberal Party and Prime Minister of Canada in February 1984.

[2] Canadian Radio-television and Telecommunications Commission (CRTC), Canadian Content: Have any changes been made to the basic points system?, online: <https://crtc.gc.ca/eng/cancon/c_cdn.htm>. It should be noted that limited exceptions are available for certain types of pilot projects.

[3] Online Streaming Act S.C. 2023 c. 8, online: < https://laws-lois.justice.gc.ca/eng/AnnualStatutes/2023_8/>.

[4] CRTC, Defining Canadian Content – Workshops with Stakeholders and Industry: What We Heard Report, September 2024 IPSOS online: <https://crtc.gc.ca/eng/publications/reports/ipsos24.htm> (the “Ipsos Report”).

[5] A “Canadian” is defined as a Canadian citizen or permanent resident of Canada.

[6] Note this points-criteria applies to live action productions, different points-criteria apply for animation productions.

[7] MDR Communications Report (prepared by Maria De Rosa and Marilyn Burgess), Defining Canadian Content: Approaches Taken in Other Jurisdictions and Lessons Learned for Canada, February 23, 2022, Motion Pictures Association Canada, online: < https://www.mpa-canada.org/research_docs/defining-canadian-content-approaches-taken-in-other-jurisdictions-and-lessons-learned-for-canada/> (“MPA Report”).

[8] MPA Report at 4.

[9] MPA Report at 6. The report also proposes reducing Canada’s minimum thresholds for production expenditures in order to match other international jurisdictions, proposing a threshold of between 10% and 50% of production budgets. Currently, the Canadian spend threshold required under CanCon is at least 75% of total labour costs are payable for services provided to/by Canadians, and 75% of the total of all post-production costs for a production must be incurred for services provided in Canada. Removing the current copyright ownership requirement was another proposed change to improve the Canadian system. Under the current CanCon regime, the Canadian producer must retain 100% copyright which, as noted in the report, can hinder a Canadian producer from brokering the best business and finance deals for their company and for the production.

[10] MPA Report at 11-12.

[11] MPA Report at 12.

[12] MPA Report at 11.

[13] MPA Report at 3.

[14] Ipsos Report, see Introducing flexibility and adaptability: for whom and for what?

[15] Ibid.

[16] Ipsos Report, see Rethinking CanCon definitions’ point-based systems.