During its morning show on
In support of this point, Fillion provided his audience with pseudo headlines such as “Comment s'installer sur le carpet du salon avec son chum dans le vagin et son amant dans le derrière” and presented made-up articles such as the following (a more complete transcript is available in Appendix A to this decision):
He states that these are all articles about “Des gens inventés. Y'ont tout le temps de grosses jobs, sont tout le temps wild, wild, wild, y'ont tout le temps quatre, cinq chums. Ah oui, garde-là, un dans bouche, l'autre dans l'oreille, l'un dans le derrière. Envoye, ça
A listener sent a complaint to the station with a copy to the CBSC stating that “the discussion was “de la pornographie auditive”. The complainant also took issue with the host's “criticism” of the magazines in question. His letter stated in part (the full text of all correspondence from the parties related to this matter may be found in Appendix B to this decision):
CHOI-FM's Legal Counsel replied to the complainant on September 29. His response stated in part:
The complainant was dissatisfied with the broadcaster's response and stated (in part) in an e-mail to the CBSC on October 1:
The CBSC's Quebec Regional Panel considered the complaint under the Canadian Association of Broadcasters' (CAB) Code of Ethics, the relevant provisions of which read as follows:
Clause 9 – Radio Broadcasting
The Quebec Regional Panel reviewed all of the correspondence and listened to a tape of the program. It considers that the discussion was unduly sexually explicit for broadcast as part of CHOI-FM's morning show.
Sexually Explicit Humour
The complainant states that the segment in question was “de la pornographie auditive” which would have “fait tourner dans sa tombe le Marquis de Sade”. While the Panel makes no determination with respect to pornography, which is a criminal matter, and does not adopt the complainant's colourful description, it does agree that the concocted headlines and articles presented by Fillion on the morning of September 3 were unduly sexually explicit. There was nothing equivocal about the broadcast; there was neither the innuendo nor the double-entendre such as were present in the cases of CFMI-FM re Brother Jake Morning Show (Wake Up Contests) (CBSC Decision 01/02-0875, Janaury 14, 2004), CFRQ-FM re Morning Show (“Faking It” Contest) (CBSC Decision 01/02-1137, March 7, 2003) or CIGL-FM re a song entitled “The Bad Touch” (CBSC Decision 99/00-0654, October 12, 2000). Nor could it be said that the comments were understated or subtle in any way. They were plainly and simply explicit, and unduly so. Indeed, the made-up material was at least as explicit as the content which was found in breach of applicable standards relating to unduly sexually content on radio by the B.C. Regional Panel in CFMI-FM re Brother Jake Morning Show (CBSC Decision 00/01-0688, January 23, 2002). In that case, the B.C. Panel agreed with the complainant that the dialogue where the host explained how he was “givin' it to her” on a workbench and “she's goin' nuts grabbin' my nuts” and the audio comedic sketch of a woman crying out in the throes of passion “Oh, the tongue!“ and “Oh, the finger!” were unduly sexually explicit for radio. This case warrants a similar finding.
The broadcaster contends that a critique using the rhetorical tools of humour, irony, exaggeration and caricature justifies the broadcast of the sexual content in this case. The Panel disagrees. The position put forth by the broadcaster in this case is a variation of the so-called “Comedic Defence”, which was first dealt with and rejected in CHOM-FM and CILQ-FM re Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997). That defence is usually proposed by a broadcaster in an attempt to justify some form of commentary, frequently discriminatory matter, which would not, but for its intended humorous nature, be at all justifiable. The comedic defence appears to have grown out of the CBSC's decision in CHUM-FM re Sunday Funnies (CBSC Decision 95/96-0064, March 26, 1996), where the Ontario Regional Panel stated:
That a comedic environment may create a different atmosphere where comments may, exceptionally, be acceptable is the first level of principle. At a secondary level, there will be an assessment of the nature and extent of those comments. The Panel will assess whether they are likelier to “tickle” than be “nasty”, to “poke fun” rather than to “bludgeon” (CHFI-FM re The Don Daynard Show (CBSC Decision 94/95-0145, March 26, 1996). In other words, the comedic intention of the broadcaster does not inevitably lead to the conclusion that “anything goes”. As aptly stated in the decision of the Prairie Regional Panel in CJAY-FM re Forbes and Friends (Multiple Choice “Quiz”) (CBSC Decision 02/03-0638, December 15, 2003), “Comedic intention is not [.] a defence to a broadcast that would otherwise breach the Human Rights Clause of the CAB Code of Ethics. Comedic intention does not, in other words, sanitize or rehabilitate material that is unduly discriminatory under that provision.” Put in other terms, intention, whether to be comedic, satiric or analytical, does not change the characterization of what was actually broadcast. That a host, or a broadcaster, “intended” to be funny, or to be presenting a critique, is no justification. In the application of broadcast standards, purpose and intention do not outweigh execution. It was on that rock that the broadcaster foundered in CFRA-AM re The Lowell Green Show (
Nor is the subjectivity of humour the issue, as the broadcaster contends in its response. That one person might be amused when the complainant is not is scarcely the issue. The CBSC administers standards and these are not subjective. Indeed, in the case at hand, Fillion could, in fact ought to, have made his point without going so far as to include the unduly sexually explicit content. Contrary to what is argued by the broadcaster's Legal Counsel in this case, it is the view of the Panel that the context of Fillion's remarks exacerbates rather than justifies the inappropriateness of the sexually explicit descriptions.
Disparaging the Reputation of the Magazines in Question
The complainant makes general allegations that the host has ridiculed politicians, merchants and artists. His only support for this position, however, is the reference to the discussion of the magazines indicated above. The Panel understands the complainant's comments to be related to the broader reputation of the host as the on-air source of nasty and mean personal attacks of both public and private figures [see for example the Quebec Regional Panel's decision in CHOI-FM re Le monde parallèle de Jeff Fillion (CBSC Decision 02/03-115, November 19, 2003)]. It is not, however, of the view that the comments were out of order in this respect on this occasion.
The requirement that a broadcaster be responsive to the letter of complaint sent by a member of the public is considered by the Adjudicating Panels to be a significant part of the membership requirements of the CBSC. Such responsiveness is an essential component of the dialogue by which the CBSC considers that matters that trouble members of the public sufficiently to compel them to write are often successfully resolved. When accomplished in thorough and sensitive ways, such correspondence is also a way of letting the public know that broadcasters care about their audience's concerns. In this case, while the lengthy letter from the broadcaster's Legal Counsel did not satisfy the complainant, it did address all the issues and provided the broadcaster's perspective on the matter. It amply fulfilled the requirement of responsiveness. Nothing further is required in this regard.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.