July 2, 2022
Earlier this week the CRTC upheld a complaint from Montréal artist Ricardo Lamour and ruled the CBC must apologize after both the host and guest commentator of the CBF-FM radio afternoon show spoke aloud the full “n-word” while discussing the controversy embroiling a Concordia professor who did the same in a classroom reference to Pierre Vallières’ iconic sovereigntist text, “Les N**res blanc d’Amérique” (in English, “White N***ers of America.”)
The show’s segment title was “Certaines idées deviennent-elles taboues?”
Both white, the Radio Canada program hosts repeated the unabridged title of Vallières’ 1968 book four times in six minutes. The majority of CRTC Commissioners found this offside the CBC’s obligation to broadcast programs of “high standards,” the legislative term of art in section 3(1)(g) of the Broadcasting Act.
The Commission ruled the hosts should only have have used the abbreviated “n-word” in English or “mot d’n” in French.
In addition to a public apology, the Commission ordered the CBC to draw up new guidelines for its journalists on appropriate language as well as “mitigating” the online archive of the program (presumably bleeping the offending language).
The ruling split the Commission panel hearing the case with Chair Ian Scott in a three person majority while two commissioners filed dissents.
The majority decision is only five pages long and it must be said is a little terse in its legal reasoning. The main hook in the majority opinion is the section 3(1)(g) “high standards” clause which for decades has provided the legal foundation for CRTC regulations governing “abusive comment” and “equitable portrayal” of identifiable groups.
In laypersons’ terms, the majority says that public tolerance of racist language has changed dramatically since 2020 when George Floyd was murdered by Minneapolis police and the Black Lives Matter movement against systemic racism surged in many countries including Canada. The majority clearly views the CBC hosts as having been too cavalier with their repeated use of the full n-word, regardless of the purpose of the program.
The first of two dissents written by Broadcasting Vice Chair Caroline Simard is thorough and appears to be written in anticipation that CBC might choose to appeal to Federal Court which only second guesses the Commission on errors of law, not fact. (The CBC has not commented on a possible appeal but the Editor-in-Chief of Le Devoir has called upon the CBC to file).
Simard’s first point is that the majority erred in law by not clearly applying the Charter of Rights’ protection of freedom of expression. That’s somewhat of a legal rabbit hole: the Supreme Court cases don’t go quite that far with respect to administrative tribunals and it may also be relevant that neither the complainant nor the CBC appear to have raised those constitutional arguments.
Simard offers her own analysis of that Charter right of expression in the circumstances brought forward by the complainant but then —in a puzzling move— drops the inquiry without applying the Charter’s section 1 analysis of the reasonable limitations to free expression that can be set by Commissioners empowered by statute to regulate communications. A reasonable limitation would undoubtedly include a statutory provision like the “high standards” of section 3(1)(g), applied judiciously.
Her second legal point might just trip up the Commission in the event of a CBC appeal. If the majority felt it could censure the radio hosts’ free speech based on the Broadcasting Act’s statutory goal of “high standards of programming,” Simard points out equally important statutory objectives which the majority ignored:
(2)(3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.
3(1) (c) English and French language broadcasting, while sharing common aspects, operate under different conditions and may have different requirements;
The majority’s explicit reliance on one statutory goal to the exclusion of other relevant goals (even if they did implicitly or silently consider them) is just the kind of legality that gets the Court of Appeal’s attention.
Legalisms aside, Simard’s real challenge to the majority is that in her view its ruling is blind to differences between the English Canadian and Québec social contexts.
She suggests the evidence of public attitudes underpinning a restriction of free expression should zoom in on the prevalent opinion about “mot d’n” in the black francophone community, especially in greater Montréal, which she argues in an anecdotal way does not support censorship of the full epithet. At the very least, she says, a public consultation (or opinion poll?) would be better than just assuming the full n-word is always unacceptable in the relevant community of listeners.
It’s the other dissent by Commissioner Joanne Levy that really caught my attention because she views the situation through the eyes of the Radio Canada journalists investigating a difficult topic of public importance.
She argues the hosts conducted a professional show with a respectful tone and employed euphemisms for the n-word many more times than they did the full word itself. Listeners sometimes join a show in progress, she says, and they would need to know the name of the book at the centre of the controversy.
If journalists aren’t afforded leeway to be “reasonable” in making the judgment call about the n-word in these very specific circumstances, says Levy, think of the chilling effect on all Canadian TV and radio journalists and the programming they want to air.
As others have said, this is a “hard case.” It’s interesting that none of the Commissioners delved into the related CRTC ruling in 2009-548 where the Commission censured the CBC for airing the French language comedy show “Bye Bye 2008.” That show included a number of excesses including the use of the full n-word in a satirical skit about the racist reaction to the election of US President Barack Obama. The Commission censured CBC for the use of racist language.
The Bye Bye 2008 case (very much pre-2020) is an interesting benchmark: there might well be a meaningful difference between trawling for laughs baited with racist language under the cover of comic satire versus analyzing the appropriateness of Vallières’ provocative choice of book title.
I might have expected that, if the phrases “CRTC” and “freedom of expression” were found in close proximity, Internet activist Michael Geist would link them to Bill C-11, the Online Streaming Act, now in the hands of the Canadian Senate.
Mr. Geist cites the CBF-FM ruling as a reason to suggest that the CRTC might run amok with censorship once handed the responsibility under C-11 to regulate broadcasting on Internet streaming and hosting platforms, in particular the administration of “discoverability” of Canadian content through algorithmic recommendations.
To rebut Mr. Geist’s argument, yet again:
- The CRTC is not censorship happy by instinct if the last 50 years is any indication. The Commission long ago set regulatory standards of content supervision relating to abusive comment, discriminatory stereotyping, and so on relying upon section 3(1)(g) of the Act (“high standards of programming”) and then downloaded enforcement to industry self regulation. Ever since, the Commission has made rulings like CBF-FM when appellants bring issues to their doorstep.
- Bill C-11 exempts hosting platforms (i.e. YouTube posts) from section 3(1)(g). That would oust CRTC jurisdiction to rule on the Radio Canada case if the CBF-FM program —or something even more offensive— was uploaded to YouTube. If there is ever going to be content supervision on social media posts it would have to come in an Online Harms Bill which the Liberals have yet to table.
- Bill C-11 also exempts hosting platforms and YouTubers from any programming priorities (e.g. more drama, less news, etc).
- Bill C-11 was amended (thanks to Peter Julian MP) to expressly subject regulation of YouTube videos to the freedom of expression guarantees in the Charter of Rights.