The Radio-Canada/N-Word ruling: Court of Appeal gives CRTC a lesson about its statute

June 13, 2023

By now you may have read press reports of the Federal Court of Appeal overturning the CRTC’s censure of CBC-Radio Canada for two of its Montréal radio hosts saying the ‘n-word’ over the air.

The controversy began a year ago when the CRTC ordered the CBC to apologize on behalf of its journalists and put them through diversity training after the hosts repeated the full ‘mot d’n’ four times in a six-minute segment about Concordia students objecting to their professor speaking aloud the book title of the Pierre Vallières 1968 indépendantiste classic “N—— blancs d’ Amérique.”

CBC Head Office in Toronto responded with the mandatory apology.

But the CRTC’s rebuke of Radio-Canada and its journalists resulted in a powerful backlash of public opinion in Québec. An outcry demanding CBC appeal the CRTC ruling struck home and the case was sent to the Federal Court of Appeal. In December the federal Attorney-General —representing the CRTC as agent of the Crown—- volunteered its legal surrender and invited the Court to overturn the Commission.

MediaPolicy commented on the story here, here and here.

The Attorney-General offering his sword was an admission that the legal reasoning behind the ruling was sub-standard.

The complaint from a Black Montréalais wasn’t without merit. In fact the CRTC probably had a valid point that no matter how well intentioned the radio hosts’ desire to convene a public discussion over censorship and racism they ought to have kicked off the show with a disclaimer giving context to the reasons for identifying the book by its full title including the racial insult.

However the Commission squeezing a forced apology out of Radio-Canada on behalf of its professional journalists was an enormous misjudgment. (Forced apologies are usually a poor investment, just ask the Toronto Blue Jays).

Legally, the Commission’s majority ruling from three of five commissioners just botched it.

Inexplicably, they ignored their well known 1986 Radio Regulations —written right into the CBC’s license conditions—-that provide a legal test of ‘abusive comment.’ The regulation says that offensive language may be acceptable for purposes of artistic expression, satire or journalist analysis.

For reasons best known to themselves, the majority commissioners built their case on three ‘policy objectives’ in section 3(1) of the Broadcasting Act touting the importance of diverse and multi-cultural programming and also the section mandating that all programming on radio and TV ought to be “of a high standard.”

The latter policy objective in section 3(1)(g) of the Act authorized the Commission to pass the aforementioned code on abusive comment in its Radio Regulations forty years ago. In citing general objectives of the Act —instead of the Radio Regulations and its considerations of free expression and context— the commissioners compounded their error by ignoring other policy objectives in the Act which defended journalistic free expression. To cap it off, the Commission did not consider freedom of expression under the Charter of Rights and Freedoms.

It was a legal cluster-nut and ripe for appeal.

At this point, the Attorney-General stepped in to spare the Commission the humiliation of the Court’s inevitable smackdown. As the Commission’s legal representative, the A-G filed a brief to the Court asking for the Commission to be overturned.

You would think the Commission would listen to its friend the A-G and —as you might be told after getting knocked out in a bar fight—- ‘stay down.’

Nope.

The Commission asked the Court to be allowed to defend itself if the A-G wouldn’t. The Chief Justice denied the request but then took the unusual step of appointing University of Ottawa law professor Paul Daly as a ‘friend of the court’ to make the best case he could for the Commission.

This is where we get into some serious legal nerdship that is important beyond the immediate importance of how the CRTC navigates freedom of expression and harmful content. It goes to how the Commission interprets its powers and jurisdiction under the Broadcasting Act in any number of situations.

The fatal flaw in the Commission’s N-Word ruling was that it did not levy sanctions on Radio-Canada on the basis of the Radio Regulations which were lawfully enacted under the head of powers in section 10 of the Broadcasting Act authorizing the Commission to pass regulations aligned with the policy objectives of the Act found in sections 3 and 5. In effect, the Commission moved directly from policy considerations to sanctions without applying its regulations (which provided a proscription against abusive comment but also mitigating factors such as journalistic activity).

The law professor argued before the Court that the Commission remained in bounds because of the wording of Section 5 of the Act, seizing upon the Commission’s authority to both “regulate and supervise” broadcasting. He suggested this meant that the Commission was “supervising” when it sanctioned Radio-Canada and therefore wasn’t obliged to follow “regulations.”

Yes, you could drive a dumpster truck through the hole that legal argument makes.

To make a long story a little shorter, Chief Justice Marc Noël wasn’t buying it. If you are interested in the legal play-by-play, you can read it for yourself in paragraphs 42 to 61 of the Court decision.

The reason it’s an important ruling, and not just angels dancing on a pinhead, is readily apparent if you read the motherhood policy objectives in section 3 of the Act next to the specifics of CRTC regulations that tell broadcasters what they can and cannot do.

Could the Radio-Canada journalists have defended themselves from the charge of abusive comment under the Radio Regulations? They never got that chance.

The Chief Justice has ordered the Commission to go back to square one and apply the Radio Regulations.

A word of advice to the Commission: stay down.

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