CHMP-FM re comments made on Dutrizac

QUEBEC REGIONAL PANEL
CBSC Decision 11/12-0630
August 15, 2012
D. Meloul (Chair), G. Moisan (Vice-Chair), A. H. Caron, T. Porrello

THE FACTS

Dutrizac is a talk show broadcast on CHMP-FM (98.5FM, Montreal). The program is hosted by Benoit Dutrizac and is broadcast Mondays through Fridays from 12:00 pm to 3:00 pm.  Dutrizac and his collaborators do editorials and discuss news and public affairs.

On September 29, 2011, Dutrizac and religious affairs commentator Alain Pronkin discussed a regulation of the City of Hampstead which prohibits noise on certain holidays.

The City of Hampstead at one time passed a nuisance by-law dealing specifically with noise. This by-law limits the use of loud construction and home maintenance equipment to certain hours on certain days, such as statutory holidays, so as not to disturb the peace.

In Spring 2010, the City amended this by-law to add two Jewish holidays to the list of days already covered by the regulation, namely Rosh Hashanah and Yom Kippur in recognition of the fact that approximately 83% of Hampstead residents are Jewish.

In September 2011, there was some media coverage of this by-law after a non-Jewish resident had been asked to refrain from doing some outdoor work at his home.

Dutrizac introduced the segment with the sound of a lawn mower and the statement in English “Hey, turn that off!” He emphasized that the City of Hampstead would be doing by-law patrols and fines would be imposed [translation] “if you shave your face with an electric razor”.  He claimed that [translation] “the Jewish community has decided that there should be no noise” and that he would be labelled an “anti-semite” and a “racist” for having this discussion.

Pronkin attempted to explain the history and significance of the Jewish holidays, but when he pointed out that Rosh Hashanah represents the new year in the Jewish tradition, Dutrizac replied [translation] “No, no. You’re in Quebec! It’s January 1st!”  Dutrizac and Pronkin went on to discuss religious accommodation in Quebec.  Pronkin mentioned other laws and policies in Canada surrounding such issues, such as the 1985 ruling of the Supreme Court of Canada in Big Drug Mart that allowed shopping on Sundays, the introduction of the Multiculturalism Act in the 1980s, and the abolition of prayer in schools.

In that context, he said [translation] “No, no, but we can’t even impose anything on the Jewish communities! We can’t even impose on those mentally ill, retards who don’t want to see women exercising by a window.”[i]

At one point, Dutrizac also made the following statement:

[translation]

So, we invite everyone who is passing by the City of, City of Hampstead on Thursday and Friday to honk, to make noise, to, to, to fart, to do whatever, whatever noise to indicate to the Jewish community that it’s not the Jewish community who runs Quebec. It’s not them, they who will determine how we live in Quebec society.  It’s just not true.  It’s not true that they’ll impose their religious concepts, their religious precepts on the whole society.  There are goddamn limits.

For his part, Pronkin pointed out that the Jewish community in Hampstead is more orthodox than others in the Montreal area, although they are not Hassidic as in Outremont. He also stated that the question now was whether the City would actually apply its law and, more generally, suggested that it was time for law-makers to revisit the issue of reasonable accommodation.

Towards the end of the conversation, Dutrizac said

[translation]

Aside from the laws it’s the citizens who will decide how this will work. And Thursday, Friday in Hampstead, you know what?  If you want to run your lawn-mower, do it then.  And don’t do it on purpose to patronize your neighbours.  Don’t do it on purpose to be annoying.  Don’t play music too loud on purpose.  But at the same time, we’re not going to prevent ourselves from living because they think that, uh, today and tomorrow, it’s the beginning of the year.  What do you want?  It’s not like that in Quebec.

Pronkin then mentioned that other cities have similar noise regulations, but Dutrizac ended the segment. (A complete transcription of this segment is available in Appendix A, in French only.)

The CBSC received a complaint dated November 22 about the segment from the Centre for Israel and Jewish Affairs. The Centre argued that Dutrizac had made defamatory remarks against the Jewish community by accusing the entirety of the Jewish community of wanting to dominate Quebec.  In its complaint, the Centre specifically cited Dutrizac’s comments which invited people passing through Hampstead to make noise and argued that the comments violated Clauses 3 and 4 of the Canadian Association of Broadcasters’ (CAB) Equitable Portrayal Code.

The station sent a response on November 28. It pointed out that the subject had been in the news and numerous commentators had discussed it.  It defended Dutrizac’s comments on the basis that:  1) Dutrizac criticized a City regulation; 2) Pronkin, a religion expert, explained the religious significance of the holidays and the place of religion in Canada; 3) Dutrizac did not criticize the Jewish community for its religious beliefs; 4) Dutrizac favours a separation of church and state; and 5) it was a topic in the public interest.  CHMP-FM also emphasized that it is a station featuring talk and opinion programs and that it is widely known as such in the Montreal radio market.  The letter explained that opinion-based journalism accords a wide latitude to its practitioners to express their points of view and in their choice of style or tone; Dutrizac was merely expressing his point of view on a political matter and did not violate any industry Code provisions.

The complainant wrote back to the station on November 29 stating that it did not take issue with Dutrizac’s right to criticize Hampstead’s controversial by-law, but rather with the way he [translations] “stigmatized the entirety of the Quebec Jewish community for a regulation adopted by a city council” and “gratuitously attributed to all Quebec Jewish people a desire to ‘impose their religious concepts, their religious precepts on the whole society’.”

The Centre also argued that [translation] “Mr. Dutrizac relies on a stereotyped perception of a monolithic Jewish community that allegedly used all its force to apply pressure on Hampstead city council, when really the community was largely unaware of the existence of this by-law […]. If opinion-based journalism allows its professionals great latitude, it remains that they must base their information on verifiable and verified facts and not on personal prejudices.”

In its November 29 letter, the Centre also attached a letter dated October 27, 2011 which had originally been sent directly to the president of Cogéco Inc., ultimate controlling shareholder of the station, but which the station claimed never to have received. That letter complained that Dutrizac had failed to mention that the City of Hampstead by-law applied to other holidays, such as Christmas, Easter and Saint-Jean-Baptiste Day.  It also claimed that members of the Jewish community had received threats and hateful messages as a result of Dutrizac’s comments.

CHMP-FM wrote again to the complainant on December 1, indicating that it had taken the Centre’s concerns seriously, had met with its hosts to discuss the matter and even had a broader discussion about the respect of ethical standards by Cogéco’s radio stations.

The Centre wrote to the CBSC on December 6 requesting that the CBSC require an on-air apology from Dutrizac. (A copy of all correspondence can be found in Appendix B, in French only.)

THE DECISION

The Quebec Regional Panel examined the complaint under the following clauses of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Equitable Portrayal Code:

CAB Code of Ethics, Clause 2 – Human Rights

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

CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.

CAB Code of Ethics, Clause 7 – Controversial Public Issues

Recognizing in a democracy the necessity of presenting all sides of a public issue, it shall be the responsibility of broadcasters to treat fairly all subjects of a controversial nature. Time shall be allotted with due regard to all the other elements of balanced program schedules, and the degree of public interest in the questions presented.  Recognizing that healthy controversy is essential to the maintenance of democratic institutions, broadcasters will endeavour to encourage the presentation of news and opinion on any controversy which contains an element of the public interest.

CAB Equitable Portrayal Code, Clause 2 – Human Rights

Recognizing that every person has the right to the full enjoyment of certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 3 – Negative Portrayal

In an effort to ensure appropriate depictions of all individuals and groups, broadcasters shall refrain from airing unduly negative portrayals of persons with respect to race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability. Negative portrayal can take many different forms, including (but not limited to) stereotyping, stigmatization and victimization, derision of myths, traditions or practices, degrading material, and exploitation.

CAB Equitable Portrayal Code, Clause 4 – Stereotyping

Recognizing that stereotyping is a form of generalization that is frequently simplistic, belittling, hurtful or prejudicial, while being unreflective of the complexity of the group being stereotyped, broadcasters shall ensure that their programming contains no unduly negative stereotypical material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 5 – Stigmatization & Victimization

Recognizing that members of certain of the following identifiable groups face particular portrayal issues, broadcasters shall ensure that their programming does not stigmatize or victimize individuals or groups on the basis of their race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 6 – Derision of Myths, Traditions or Practices

Broadcasters shall avoid the airing of content that has the effect of unduly deriding the myths, traditions or practices of groups on the basis of their race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

Panel Adjudicators read all of the correspondence and listened to the segment that is the subject of the complaint. The Panel unanimously concludes that CHMP-FM violated Clauses 6 and 7 of the CAB Code of Ethics, but did not violate Clauses 5 and 6 of the CAB Equitable Portrayal Code. The majority of the Panel concludes that the station also violated Clause 2 of the CAB Code of Ethics, as well as Clauses 2, 3 and 4 of the CAB Equitable Portrayal Code.  One Panel Adjudicator would not find violations of these latter provisions.

Full, Fair and Proper Presentation of a Controversial Issue

The Panel notes that Dutrizac used incomplete information on the passage of an amendment to an existing nuisance by-law to attack the Jewish community in the Montreal area:

[translation]

Hey, turn that off. It’s, uh, the Jewish holiday.  Hey, all right.  That’s the City of Hampstead that’s prohibiting noise during the two days, uh, of Rosh Hashanah, a Jewish holiday.  […]  You know, it’s the usual stupidity.  But at a certain point now the Jewish community has got all the rights and then all the rest of the community has to, Quebec society has to shut its mouth.

Later in the transcript, we read the following:

[translation]

No, no, but we can’t even impose anything on the Jewish communities! We can’t even impose on those mentally ill, retards who don’t want to see women exercising by a window, […] who don’t want to be arrested by a female police officer.  We can’t even tell them “You know what?  If you don’t like it, man, you should move, you should go live somewhere else because here men and women are equal.”  We can’t even do that and here they’re imposing silence for Rosh Hashanah.  The, the, the, the new year and Yom Kippur.

Yet, the amendment to the City of Hampstead by-law merely added two days to those already covered, namely Christmas, January 1st, Easter, National Patriots’ Day, and Saint-Jean-Baptiste Day, when certain limitations on noise occurring outside are in effect.  Had he simply read the document on the City of Hampstead’s website, the host would have realized that the scope of the by-law was not what he claimed in order to justify, in good conscience, his antagonism toward the Jewish community and call on the general population to demonstrate their disagreement by making noise in Hampstead:

[translation]

So, we invite everyone who is passing by the City of, City of Hampstead on Thursday and Friday to honk, to make noise, to, to, to fart, to do whatever, whatever noise to indicate to the Jewish community that it’s not the Jewish community who runs Quebec. It’s not them, they who will determine how we live in Quebec society.  It’s just not true.  It’s not true that they’ll impose their religious concepts, their religious precepts on the whole society.  There are goddamn limits.

The Panel unanimously concludes that Dutrizac’s remarks broadcast by CHMP-FM clearly did not comply with Clause 6 of the CAB Code of Ethics with respect to the full fair and proper presentation of the facts he reported.[ii]  While the station attempted to justify its actions by invoking Clause 7 of that same Code relating to controversial public issues, that clause specifies that “it shall be the responsibility of broadcasters to treat fairly all subjects of a controversial nature” [emphasis added].  In broadcasting the host’s biased analysis based on incomplete information, the station cannot claim to have treated a controversial issue fairly.[iii]

Negative Portrayal of a Group on the Basis of Religion – The Majority’s View

In addition, the majority of the Panel concludes that the station contravened Clause 2 of the CAB Code of Ethics and Clause 2 of the CAB Equitable Portrayal Code by broadcasting both the abusive comments, based on incomplete facts, made by the host with respect to the Jewish community in general, including referring to members of that community as being mentally ill and retards, and his allegation that this community is imposing silence on all of Quebec society.  The Panel also concludes that the station violated the provisions of Clause 4 of the CAB Equitable Portrayal Code for broadcasting comments that the host made by transforming a trivial fact into a weakly constructed, simplistic, hurtful and stereotyped generalization about the Jewish community.[iv]  Since Clause 3 of the Equitable Portrayal Code constitutes a list of different forms of negative portrayal, including stereotyping, there is also a breach of that provision.

There was not, however, a breach of Clause 5 (Stigmatization and Victimization). In the French-language dictionary Le Petit Robert, the definition of the word “stigmatize” is [translation] “to attach ill fame, to outright and ignominiously condemn”.  The Panel considers that Dutrizac’s remarks did not amount to that and that Dutrizac was entitled to broadcast his point of view that minority groups should not impose their values and beliefs on the majority.  That was fair political commentary.

Nor was there a violation of Clause 6 of the Equitable Portrayal Code because, even if Dutrizac showed a lack of awareness of Jewish beliefs and practices, the religious commentator, Pronkin, was careful to explain in detail the significance of the Jewish holidays Rosh Hashanah and Yom Kippur.

Dissent of G. Moisan

I share the opinion of the majority with respect to the violations of Clauses 6 and 7 of the CAB Code of Ethics and the non-violations of Clauses 5 and 6 of the Equitable Portrayal Code.  In contrast, I do not share the opinion of the majority with respect to the violations of the clauses regarding human rights, negative representation and stereotyping.  The CBSC has consistently said that broadcasters are allowed to air comments that are critical of government policies and actions, even when those political matters involve issues related to race, ethnicity, religion, etc.[v]  Although Dutrizac and his guest provided misleading and incomplete information about the Hampstead by-law (which resulted in the breaches of Clauses 6 and 7 of the CAB Code of Ethics explained above), the comments made about Jewish people in general were not abusive nor did they reach the level of unduly discriminatory or negative.  Dutrizac was entitled to broadcast his view that laws should not cater to minority groups.  In addition, any of Dutrizac’s dismissive remarks about Jewish beliefs and practices were balanced by Pronkin’s objective explanations of those elements of that faith.

Broadcaster Responsiveness

In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner.  In this case, CHMP-FM sent two substantial responses to the complainant organization which outlined in detail its view of the broadcast.  The broadcaster fulfilled its obligations of responsiveness and nothing further is required in this regard in this instance.

Announcement of the Decision

CHMP-FM is required to: 1) announce the decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which Dutrizac was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CHMP-FM.

The Canadian Broadcast Standards Council has found that CHMP-FM violated the Canadian Association of Broadcasters’ Code of Ethics and the Equitable Portrayal Code in its broadcast of Dutrizac on

[i] That statement was a reference to a situation that had occurred in 2006 whereby the congregation of an Hasidic Jewish synagogue in Outremont had asked that the windows of a nearby exercise studio be covered so that their children would not see the female gym clients in exercise attire.

[ii] See the following CBSC decisions for other examples where the CBSC has examined the accuracy and/or comprehensiveness of information presented during non-news programming: TQS re Black-out (“Faring Well with Welfare”) (CBSC Decision 97/98-0009, January 29, 1999); CHOI-FM re Dupont le midi (community organizations) (CBSC Decision 08/09-1506, September 23, 2010); and CHOI-FM re Maurais Live (government agency training) (CBSC Decision 09/10-1564, January 25, 2011).

[iii] See the following CBSC decisions for other examples where the CBSC has applied a combination of Clauses 6 and 7 of the CAB Code of Ethics in complaints regarding fair treatment of controversial public issues: CHOG-AM re the Shelley Klinck Show (CBSC Decision 95/96-0063, April 30, 1996) and CHRB-AM (AM 1140) re an episode of Freedom Radio Network (CBSC Decision 05/06-1959, January 9, 2007).

[iv] See the following CBSC decisions for previous examples of comments that were found to be abusive or unduly discriminatory against an identifiable group and/or presented an unduly negative stereotype of an identifiable group: CKVL-AM re the André Arthur and Martin Paquette Show (CBSC Decision 98/99-1184, February 21, 2000); CKAC-AM re an episode of Doc Mailloux (CBSC Decision 03/04-0453, February 10, 2005); CKAC-AM re an episode of Doc Mailloux (Money) (CBSC Decision 05/06-1379, December 11, 2006); CKAC-AM re an episode of Doc Mailloux (Financial Difficulties) (CBSC Decision 05/06-1405, December 11, 2006); CKAC-AM re an episode of Doc Mailloux (Childless by Choice) (CBSC Decision 05/06-1671, December 11, 2006); CKAC-AM re Doc Mailloux (six episodes) (CBSC Decision 06/07-0168 & -0266, August 23, 2007); CFRA-AM re an episode of the Lowell Green Show (Islam) (CBSC Decision 07/08-0916, October 22, 2008); and CFNY-FM re a “Spencer the Cripple” segment on the Dean Blundell Show (CBSC Decision 08/09-0650, June 25, 2009).

[v] For example, CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997); CFUN-AM re The John and JJ Show (Immigration Policy) (CBSC Decision 97/98-0422, May 20, 1998); and CFUN-AM re The Pia Shandel Show (Native Land Claims) (CBSC Decision 98/99-0147, October 14, 1999).