By Ahmad Hathout
OTTAWA — The Attorney General of Canada has told the Federal Court of Appeal that it intends to file an application for the court to hear its arguments against a decision by the CRTC forcing CBC/Radio-Canada to apologize for a program’s use of the slur, saying the regulator was not in its statutory right to do so.
Last month the public broadcaster appealed the June 29 decision, stating in arguments filed to the court that the CRTC had no jurisdiction under Section 3 of the Broadcasting Act and failed to take into consideration Charter values in ruling against the CBC. The CRTC decision not only forced the broadcaster to make an apology, but also to file a report outlining what internal measures it has come up with to ensure that harm from such language is mitigated.
Now, in a submission last week, the Attorney General has notified the court that it intends to back the CBC on the matter and will ask to intervene in the case. The section 3 provision “does not confer power or jurisdiction and that no other provision of the Act confers on the CRTC the jurisdiction to decide a complaint on the sole basis of subsection 3(1),” a translation from French of the AG’s arguments state, adding the program’s use of the term does not “trivialize” it.
The regulator has very limited powers to regulate broadcasting content, the AG said, and it had to carefully weigh the dissemination of offensive language and freedom of expression and journalistic independence.
“The Act does not give the CRTC, expressly or by implication, the power to control directly…the conformity of the content of a program with regard to the objectives and values of the Canadian broadcasting policy” under section 3 (1) (d) (g) and (m), the AG added.
The CRTC had two dissent opinions arguing similarly that the regulator did not have jurisdiction to make such a decision. One of those opinions was from commissioner Caroline Simard, who argued that the decision imposed restrictions on the CBC and neither the Charter or the Broadcasting Act’s provisions protect the complainant’s right not to be offended.
Commissioner Joanne Levy similarly argued that the decision ignored the Charter and would have the long-lasting effect of putting a “chill” on journalistic practice.
The CRTC decision drew widespread backlash. This summer, CBC personalities signed an open letter asking the public broadcaster to refuse to comply with the commission’s order. The Fédération professionnelle des journalistes du Québec, representing journalists in Québec, came out against the decision, as well as members of the Bloc Quebecois and the Conservatives.
The case’s origins
The case stems from a complaint about an August 2020 segment in ICI Radio-Canada Premiere, in which commentator Simon Jodoin and the show’s host Annie Desrochers discussed a petition for the dismissal of a Concordia University professor who quoted the title of a book containing the “N-word” in French during a class.
“The commentator shared his opinion on the acceptability of naming the title of the book and, more specifically, the consequences stemming from the controversy surrounding its mention, claiming that it obscures the content of the work and the author’s thoughts,” the CRTC’s June decision said.
The “N-word” was used four times (once in English, three times in French) during the segment, which was six minutes and 27 seconds long.
In 2020, former CBC News Host Wendy Mesley, who retired from the CBC last summer, was suspended from hosting and was disciplined after an internal investigation found she used offensive language on two separate occasions during editorial meetings.
