OTTAWA – The Federal Court of Appeal has ruled the CRTC had no jurisdiction to force CBC/Radio-Canada to apologize for using the “N-word” and make internal changes as a result, sending the decision back to the regulator for review.
On appeal by the public broadcaster on freedom of expression grounds, the court said in a Thursday decision the CRTC essentially conflated its ability to make broadcasting policy with an ability to impose a rule of conduct, which “goes against the role that Parliament attributed to this policy.” It also said the CRTC’s majority decision did not address the broadcaster’s right to freedom of expression — even though the dissenting commissioners did — thus failing the balancing test required by the Charter.
The June 29, 2022 decision not only forced the public broadcaster to apologize, but also to file a report outlining what internal measures it has come up with to ensure that harm from such language is mitigated.
The Attorney General of Canada intervened in the case in support of the public broadcaster, saying the Broadcasting Act does not give the regulator the power to control programming content directly. The court agreed with its analysis.
“Nothing prevents the CRTC from relying on the Canadian broadcasting policy in order to clarify the meaning and the scope of the existing rules of conduct,” the court said.
“However, it remains that the CRTC cannot sanction licensees on the sole basis that what is said on the air is, in its opinion, inconsistent with the Canadian broadcasting policy, without more,” the decision added. “As the Attorney General submits, to hold otherwise would be tantamount to conferring on the CRTC an unfettered discretion over what can and cannot be said on the air.”
Since the CRTC wasn’t allowed to intervene on the basis that it would cause a conflict with impartiality, the court had to appoint a party to represent the hypothetical arguments the regulator would have presented before the court defending its position.
The hypothetical arguments, called an amicus curiae, claimed the CRTC has broad authority to police compliance with broadcast content solely based on its interpretation of broadcasting policy. The amicus argued that the CRTC must be able to exercise discretion in a “context of rapid social change.”
While the court agreed that the CRTC must be limber, it noted that the Broadcasting Act “allows for timely action without the need to treat the policy as thought it was a rule of conduct.” In other words, the CRTC can amend the rules of conduct to adapt them to these social changes, the court said.
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.
