CFUN-AM re The Pia Shandel Show (Native Land Claims)

BRITISH COLUMBIA REGIONAL COUNCIL
S. Warren (Chair), H. Mack (Vice-Chair), R. Cohen (ad hoc),D. Cooper, M. Loh and D. Millette

THE FACTS

The Pia Shandel Show is a morning talk show broadcast on CFUN-AM (Vancouver). On July 7, 1998, the host chose to discuss the native land claims issue. She began the discussion as follows: (see Appendix A)

Pia Shandel: First, we pay for them take us to court. Then, we give them the land and a whole bunch of money. Now, we train them to manage its resources. Have we forgotten anything? Is there anything left that we could give to 3% of the population? 3% of the population, our aboriginal brothers and sisters? We’re going to re-write history. Now, what are we going to leave in the 19th century and what are we going to deal with in the modern world? Well this is [unfinished sentence].

All right, this is the way it looks to me. Basically we have 3% of the population, the aboriginals of Canada, claiming, at least in British Columbia, about 110% of British Columbia. And we have a coalition of the federal government and the British Columbia government just determined to give it all away and you and I are paying for it. O.K., so first of all, we have paid for the Indian bands’ legal expertise to take our land away from us. So we paid for that. Is this making any sense to you so far? Like does it have any common sense attached to it? And then, of course, they win because we paid for them to have the best legal help and our will is for them to win because we are consumed with guilt about the 19th century explorers and the residential schools and all the ca-ca things that have happened. So there are bad things that happen to everybody in all cultures in society. Are we going to revisit history? Anyway. So we paid for their lawyers to make the land claims and then we give over the land, plus money, some percentage of the land, the negotiations are all really basically were about how much land are we going to give you and how much money are we going to give you to deal with that land. And nobody knows. Nobody can really tell, what the result is going to be. All of a sudden, resource companies have to negotiate with Indian bands and, you know, governments are going to be out tremendous numbers of tax dollars that provide services for everybody. And we’ve paid for this process of a give-away to a tiny percentage of the population on the basis of, you know, things that happened over a century ago.

Now, the latest little twist is, now that we’re giving it all away, now we realize that, of course, our aboriginal population is completely unable to deal with this complex new situation, completely. I mean you and I couldn’t deal with it either. So we’re now going to put millions of dollars into training to help them to figure out how to deal with this windfall. Have we forgotten anything? …

You know, to me, this just doesn’t make any sense, does it make sense to you? Is this the way to be dealing with the social problems, the economic problems, the integration problems, that our aboriginal culture has? I don’t think so. To re-write history, to turn ourselves inside out? To compensate for something, you know, explorers did two hundred years ago? To compensate for the mess of the residential schools, which is already being compensated for to the tune of multi-millions of dollars in different ways. You know, why don’t we just bankrupt the country, hand it over and we could all leave. Where are we gonna go? Maybe south of the border. I just don’t get it. Can guilt be so profound that we’re prepared to throw this country into the mess that it’s going to be in for who knows how many decades trying to sort out this, this situation that does not make any sense.

Throughout her show, Ms. Shandel continued to argue that the First Nations peoples are not capable of dealing with what they are asking for. Her arguments included the following points:

And we’ve already seen examples of where self-government on reserves is incredibly corrupt: Band councils holding almost fascist power over their people; money being concentrated in the hands of the few. We are going to see a very, very disconcerting spectacle as we watch self-government and Indian sovereignty fragment, ethnic, tribal, aboriginal sovereignty breaking this country up even more than it is.

We are giving away control to children, and I don’t want to sound racist here but I mean to people who are ill-prepared to deal with it. And that is why, the government in the middle of this total negotiation has decided that they’d better throw some more millions of dollars in towards training aboriginals to deal with this.

We’ve created a dependant child in the aboriginals and an abhorrent child and it’s absolute madness. It’s the same as if you were a parent and you’d spoiled rotten one kid as opposed to the others and that kid just kept doing the bad things. And you kept rewarding them for it. That’s what we’ve done with our aboriginal population out of some ill placed guilt about something that our forefathers did in their explorations and in their settlement of this land.

Only in Canada would we be so consumed with guilt about the actions of our forefathers in settling this country that we would give it away now to people who are ill-equipped to do so after many generations of a ridiculous dependancy and a bad attitude towards the whole of Canada as it exists today.

Now all of this has opened up after the Delmaguk decision which sort of said that aboriginals have a certain kind of a claim to land, not the kind of claim they wanted, but, you know, basically in the 19th century they were doing certain things on their land that gave them a special bond with the land and therefore anything that was done with the land ever since had to be negotiated through them. Like they’re really well equipped to deal that, right? This brand new thing in the world. They can’t even keep their people fed and alive and off the bottle and not committing suicide. Come on, the problems are very real that are there and it’s not your fault and it’s not mine.

But you know, you put all this special case, all this spoiling, all this dependancy continuation and still don’t you find that aboriginals have a very bad attitude towards the rest of Canada? They still feel like victims. … But they have mismanaged their own largesse. You know, the mistakes that the government have made are real. The mistake that the aboriginals made are also real.

The Letter of Complaint

A listener sent the following letter, dated July 7, to the CRTC’s Vancouver office, which forwarded the complaint to the CBSC in due course (although much later in the process than usual):

[On July 7] Pia Shandel made a number of racist statements during her talk-show. I made a note of one of them: “Indians are children and not capable of governing themselves”.

This statement alone is so shocking to be beyond belief. If the year was 1898 and not 1998, no one would be upset, perhaps!

I believe similar statements have been made about black people over the centuries.

Pia Shandel went on, in this vein for 30 minutes, spewing her racist, evil venom on public airwaves.

Please obtain a transcript of this broadcast and take the legal action required to give remedy to first nations people who have been so maligned.

I do not believe that this is the first broadcast of this nature that Pia Shandel has made, however, since I am a visitor I have no concrete proof that this is the case.

I do believe that Pia Shandel’s broadcast on July 7th is a clear case of inciting race hatred, hence a breach of all legislation of the province and the nation and the CRTC

The Broadcaster’s Response

The Vice President and General Manager of CFUN-AM responded to the complaint with the following letter dated September 11:

This letter is in reference to your correspondence dated July 7, 1998 to the CRTC regarding the Pia Shandel radio program.

In your letter you noted that Ms. Shandel stated that, “Indians are children and not capable of governing themselves”. After reviewing the tape of the program for July 7, 1998, we cannot find this statement.

This particular program dealt, in part, with the complexities of the native people’s negotiations on land claims in British Columbia. Ms. Shandel made the point that the issue was so complex that no one seemed to be able to understand the ramifications of the agreement.

Ms. Shandel noted, “…our Aboriginal population is completely unable to deal with this complex new situation…I mean you and I couldn’t deal with it either”.

It was not our intention at CFUN, nor Ms. Shandel’s intention to malign First Nations’ people. Ms. Shandel’s point was that neither Aboriginal, nor anyone else could understand the complexities of the land claims agreement.

The Ruling Request

The CRTC forwarded the complaint and all its related correspondence, including a tape of the broadcast in question, to the CBSC on November 13. The CBSC then assumed the complaints resolution process and afforded to the complainant an opportunity to request a ruling from the B.C. Regional Council. The complainant did so by returning her signed Ruling Request on December 8.

THE DECISION

The CBSC’s B.C. Regional Council considered the complaint under the Canadian Association of Broadcasters’ Code of Ethics. The relevant clauses of that Code read as follows:

CAB Code of Ethics, Article 2

Recognizing that every person has a right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall endeavour to ensure, to the best of their ability, that their programming contains no abusive or discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, marital status or physical or mental handicap.

CAB Code of Ethics, Article 6, Paragraph 3

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.

The B.C. Regional Council members listened to a tape of the broadcast in question and reviewed all of the correspondence. While the Council was uncomfortable with some of the statements made by Ms. Shandel during her discussion of the native land claims issue, it finds that these statements were mitigated throughout the entire discussion and thus did not breach the human rights provision of the Code.

The Freedom to Express Political Opinions

The CBSC always begins its assessment of complaints with the bedrock principle of freedom of expression as a foundation. As will be noted below, other Canadian societal values may occasionally require protection in the face of this basic right; however, in the Council’s constant review of challenged circumstances, this principle is never more inviolate than when the type of expression targeted by the complaint is of a political nature. As stated by this Council in CFUN-AM re The John and JJ Show (Immigration Policy) (CBSC Decision 97/98-0422, May 20, 1998), “the freedom to criticize Government policies and practices is a core example of freedom of expression, in some senses the very root of that right in a democratic system.” The Quebec Regional Council reinforced this point in CIQC-AM re Galganov in the Morning (CBSC Decision 97/98-0473, August 14, 1998) when it stated that

of all of the categories of speech, none can be worthier of protection than that speech which can be described as political. After all, the freedom to express political views is at the very root of the need for a guarantee of freedom of expression in the first place. It is that speech which has historically been the bridge to democracy.

This is not to say that freedom of expression has no limits when the expression can be characterized as political. The Quebec Regional Council made this point in the CIQC-AM decision referred to above:

As Section 1 of the Charter provides, these freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Although the Codes administered by the CBSC are not subject to the application of the Charter, the Council has always proceeded with its deliberations on the basis that freedom of expression is fundamental to the rights of the broadcasters but that even they fully expect that the Codes they have created are of the nature of those reasonable proscriptions which ought to apply in the free and democratic society of which they are a part.

Correspondingly, the Council must, in this case, weigh the host’s entitlement to freely express her political opinion on the native land claims issue with the right of First Nations peoples not to be abusively discriminated against over the airwaves. It is, after all, on the micro level a fundamental right which they have under Clause 2 of the CAB Code of Ethics. Nor should it be forgotten that, on a macro level, all Canadians have that fundamental right that none among their number shall be abusively discriminated against on the basis of colour, racial or ethnic origin and so on. In the end, it is the fabric of the entire Canadian polity which is weakened when such discrimination is practised and tolerated. Where a broadcast commentary fails in that respect, it fails the primary broadcast journalistic requirement set out in paragraph 3 of Clause 6 of the Code of Ethics which mandates that the presentation of opinion, comment or editorial on the airwaves be “full, fair and proper”.

Abusively Discriminatory Comment

The Council acknowledges that the subject-matter dealt with by host Pia Shandel on the challenged show risks giving rise to discriminatory comment. The native land claims issue is first and foremost attached to the entitlements, if any, of a group characterized by their ethnic origin. Moreover, the political circumstances in which the native population finds itself today are tinged, if not fraught, with principles of ancient conflict, historical inequity, and the measure of the balancing of the rights and interests in a multicultural society, with the inevitable intermingling of guilt and other sensitivities. It is not easy, in such circumstances, to ensure that the commentary of hosts and callers will adhere strictly to the political issues, without straying and crossing the line into commentary about the ethnic group itself.

While such commentary would be discriminatory, it has long been the principle of the CBSC that not all discriminatory comment will violate the human rights provision of the CAB Code of Ethics. In order for a comment to fall afoul of the Code, it must not only be discriminatory, it must be abusively so (see CFTO-TV re “Tom Clark’s Canada” (CBSC Decision 97/98-0009, February 26, 1998)). In CFRB re Ed Needham (OWD Publication) (CBSC Decision 92/93-0096, May 26, 1993), the host discussed a booklet entitled Words that Count Women In, published by the Ontario Women’s Directorate. The Ontario Regional Council concluded that

the host used abusive, degrading and discriminatory language when referring to women, in particular, when he claimed that, “A lot of women nowadays will vomit this one at you … ‘why do you feel threatened?’ … This is their favourite little way, because they can’t think and they can’t argue properly — these radical feminist nutcakes …. Don’t even respond to that … Don’t talk to the dumb stupid idiots.” The host added, “That’s how these crazed, unhappy, twisted creatures who turn out this kind of swill are. These are unhappy people, hard to get along with in the world, can’t find a real job, so they turn to producing this kind of nonsense. You know, it’s a shame. They need help. They really need help.”

In CHOM-FM and CILQ-FM re Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997), the Quebec and Ontario Regional Councils jointly concluded that the September 1997 broadcasts of The Howard Stern Show contravened the Code of Ethics and Sex-Role Portrayal Code. On his premier show, Stern made several comments about the French in France and in Canada which outraged both Francophone and Anglophone complainants and were found to breach the CAB Code of Ethics.

The CBSC has no hesitation in finding that, in this case, the expressions “peckerheads”, “pussy-assed jack-offs”, “scumbags”, “pussies”, “Frig the French” and “Screw the French” are … abusive.”

In CFUN-AM re The John and JJ Show (Immigration Policy) (CBSC Decision 97/98-0422, May 20, 1998), the B.C. Regional Council dealt with a complaint about a discussion of Canada’s refugee policy in light of a crime committed by a man who, despite an earlier deportation order, had remained in the country because China had not yet issued the necessary travel documents. A listener complained that comments made by the hosts about Canada’s open-door immigration policy “cast suspicion on all immigrants” and were “irresponsible” as they “encourag[ed] hatred and violence”. The Council found no Code violation.

The Council considers that in the circumstances, John and J.J.’s discussion of Canada’s refugee policy, and of the specific case of Wing Fu Hau, did not cross the line into abusively discriminatory comment. Specifically, the Council considers that the hosts’ use of an analogy to “garbage” and “refuse” did not constitute a breach of the Codes. The analogy was not, in the Council ’s view, used to discriminate against all refugees but rather to make the hosts’ point concerning flaws in Canada’s “open-door” refugee policy. The Council notes that, while freedom of expression has its limits in Canada, the freedom to criticize Government policies and practices is a core example of freedom of expression, in some senses the very root of that right in a democratic system. Unless, therefore, the exploiter of that right to challenge Government policies has overstepped another equally basic standard, such as, for example, the right of members of an identifiable group to be free from abuse, that right to challenge will be sustained. In this case, the Council finds that the exercise of their freedom of expression by the hosts, John and JJ, must outweigh any danger, as suggested by the complainant, that the references “cast suspicion on all immigrants.”

While many of Ms. Shandel’s comments were discriminatory and left the Council uncomfortable, specifically the references to First Nations’ peoples as “children” and “an abhorrent child” and the contention that “[t]hey can’t even keep their people fed and alive and off the bottle and not committing suicide”, the Council is unable to conclude that these comments were abusively discriminatory in the context in which they were presented. The Council considers that the host’s comments in this case were in no way as hateful and venomous as those uttered by Ed Needham and Howard Stern in the cases referred to above. In fact, the Council notes that the overall effect of the discriminatory comments was tempered by such inclusive references such as “our aboriginal brothers and sisters” which served to defuse the we/them polemic of the discussion and the acknowledgment that the land claims create a “complex situation” which “you and I couldn’t deal with it either”.

Moreover, although the Council recognizes that the native land claims issue is a highly controversial one and one on which the expression of opinion will often be divisive; discussion of the issue cannot, nor should it, be avoided. Silence on controversial issues is never in the public interest.

It should also be remembered that, in this case as in many others, a group which is an identifiable minority is not thereby exempt from criticism simply because its members may fall under the provisions of the human rights clause. This includes the First Nations peoples. To the extent that they publicly espouse a point of view and take part in the politics of their issues, they invite comment, which will not be judged unfair on that account alone. In CJXY-FM re the Scott and Lori Show (CBSC Decision 96/97-0239, February 20, 1998), a morning show host used the single word “Wackos” to describe the Southern Baptists who had voted at their recent convention to boycott Disney for its relationship with the television series Ellen on the grounds that the star of the show, both in real life and her on-air persona, was gay. The Ontario Regional Council did not find the comment to be “anti-Christian”.

The decision in this matter ultimately turns on the Council’s understanding of the use by co-host Lori of the term “Wackos”. It is only if the epithet were directed at the Southern Baptists by reason of their religion that the Council could find that the broadcaster was in breach of the Code. If the epithet were, on the other hand, directed at the admittedly religious group by reason of something other than their religion (race, national or ethnic origin, colour, age, sex, sexual orientation, marital status or physical or mental handicap not being relevant to this matter), then the conclusion would likely be different. In the view of the Council, the epithet was not directed at the religious group by reason of anything other than the group’s stated boycott of Disney by reason of their association with the television series Ellen. That stance by the Baptists was, in the Regional Council’s view, an economic action regarding a political issue. There is, of course, no doubt whatsoever regarding the entitlement of the Southern Baptists to hold and to express its views on controversial matters of a political or publicly controversial nature. The point is only that, if they choose to do so, they render themselves fair game on the public playing field of political controversy. They cannot expect that they have the right to publicly express controversial political opinions and to be sheltered by reason of the fact that they are a religious group from the resulting fallout from the ideological seeds which they have sown.

Here, too, the Council finds that the host’s comments were, to a very considerable extent, fair and reasonable even when ethnically oriented, rather than targeted on the precise political issue of land claims. With the exception of the unfortunate statement “They can’t even keep their people fed and alive and off the bottle and not committing suicide”, there is considerable balance in the piece and, as a result of that overall context, the Council is unwilling to find the broadcaster in breach for this particular comment although it would have been better for everyone had it not been made.

Full, Fair and Proper Presentation

In addition to the requirement that commentary be free of abusively discriminatory comment, the third paragraph of Clause 6 of the Code of Ethics requires “full, fair and proper presentation of … opinion, comment and editorial”. In CKTB-AM re the John Michael Show (CBSC Decision 92/93-0170, February 15, 1994), the Ontario Regional Council determined that the numerous misstatements of fact and inaccuracies made by the host constituted a breach of Clause 6(3) of the Code of Ethics. The Council stated:

The CBSC is conscious of the importance of free debate and the entitlement of a host to express politically contentious points of view on air. That liberty does not, however, extend to the expression of gross and multiple misstatements of fact which are calculated to distort the perspective of the listener. Mr. Michael expressed his opposition to the official government policy of bilingualism and stated “nor could I give a damn if Quebec stays in this country or not.” He added, among other things, that “We no longer wish to kneel and bow to this one province.” With these political perspectives, the Council takes no issue. The host also opined that Quebeckers control the civil service and generally wielded enormous political power within Canada. These opinions may or may not be sustainable but they are at least legitimately debatable.

The CBSC does, however, not believe that the public debate in Canada is furthered in any way by the broadcast of such accumulated misinformation as was emitted by Mr. Michael on June 1. To provide an inexhaustive list of such misinformation, it is not true, as Mr. Michael alleged, that: Canada alternates Prime Ministers from English-speaking Canada to French-speaking Canada; all of Canada’s government buildings are in Quebec; Canada’s civil service is all in Quebec; this country’s headquarters is not in reality in Ottawa; English is not spoken in Cabinet meetings (much less that it is not spoken “in the inner circles of the [other] governments of this country”); ninety per cent of Cabinet Ministers are French-Canadians; ambassadors of Canada going abroad do not speak English; ambassadors to “important” countries are always French-Canadian; and so on.

The Council does not consider that any of Ms. Shandel’s discussion of the native land claims issue fell below a reasonable level of accuracy. The Council finds no breach of Clause 6 of the Code of Ethics.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to the complaint, the CBSC always assesses the responsiveness of the broadcaster to the substance of the complaint. In this case, the Council considers that the broadcaster’s response addressed fully and fairly all the issues raised by the complainant. Consequently, the broadcaster has not breached the Council’s standard of responsiveness. Nothing more is required.

This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.