CIQC-AM re Galganov in the Morning

QUEBEC REGIONAL COUNCIL
(CBSC Decision 97/98-0473)
Y. Chouinard (Vice-Chair), R. Cohen (ad hoc), M. Gervais,S. Gouin and P. Tancred

THE FACTS

At the time of this complaint, Howard Galganov, well-known political
campaigner for the rights of English-language Quebeckers, hosted the morning show on
CIQC-AM (Montreal) which ran from about 7:00 a.m., following the morning news, to 10 a.m.
The first two hours of Galganov in the Morning consisted of chit chat between Mr.
Galganov and his co-host, Jim Connell, various interviews and discussion of current
affairs topics. This time slot also made room for a daily editorial by Howard Galganov.
The last hour of the show was in an open-line format, dedicated to taking calls from
listeners. A sampling of the broadcasts of November 17, 20 and 21, 1997 is provided below
(more complete transcripts of these broadcasts are included in Appendix A).

Mr. Galganov’s editorial on November 17, 1997 dealt with a
“graffiti incident” which had occurred in Montreal over the week-end:

To the victims of this graffiti and intimidation, Ioffer my sympathy for what you and your families are going through. But I also commend youand yours for the bravery it took and still takes to come forward and as much as I laudall of you for being brave and loyal Canadians, I equally hold all of our politicians,including the racist-separatist Parti Québécois government with the deepest of contemptfor doing nothing to discourage this outrageous form of intimidation and to the FederalGovernment of Canada for its continuing acquiescence and gutlessness. If Canada is to besaved, it will be by the few and by the brave. With the determination of the so-calledhard-liners who have the courage to come forward and state it like it is in spite of thekiss-ass leaders who have led us down the garden path. Canada will not be saved by thejelly-knees. I feel for you. For all of you who have been targeted byQuébécois-nationalist scum. … Bravo for your courage and a pox on all thoseresponsible for this ethno-centric graffiti outrage, Anglo kiss-ass leaders included.

During the open-line portion of that same broadcast, Mr. Galganov took
a call from someone who talked about how, in his view, the French press in Quebec skews
facts to favour separatist policies. Mr Galganov responded as follows:

I think it is very importantthat the press has absolute freedom but I also think that it very important that there arepeople who are there to take on the press. I think it is important that there are showssuch as Galganov in the Morning and the others that are going to sit down and shinea bright light upon lies and distortions and I think if anyone is getting screwed,it’s the Francophone people who are reading this crap because they are not gettingthe honest and the true picture.

Later that same day, Mr. Galganov took a call from a frequent caller to
the show:

And, it if was the “fautedu fédéral”, then it’s gotta be Gérard. Good morning Gérard.

Gérard: Bonjour Monsieur Galganov. Bon matin à vous tous.

Howard Galganov: Thank you.

Gérard: Félicitations au maire nationaliste de Saint-Lazare etfélicitations à tous mes braves qui font des graffiti nationalistes.

Howard Galganov: Okay, so, you’re congratulating theseparatist piece of puke of St-Lazare because he spent $50,000 of taxpayers money tochange some lousy street signs. This is money that should have gone into anything else,but no, you’re congratulating a separatist piece of work because he’s takingpublic money and putting it towards an ethnocentric cause. You know, you son-of-a-bitch,there are people out there, there are kids on the West Side who are going hungry every daybecause our separatist government, the government which you seem to love, is spendinghundreds of millions of dollars, probably a billion dollars in ethnocentric projects atthe expense of kids, at the expense of elderly people. You know, you got this woman LorenaLafrance who’s an Italian woman who is feeding all these kids, half of them areFrancophones, the other half of them are ethnics who have just come from other countries,none of them are Anglophones. You got Sid Stevens of Sun Youth whose [sic] 50%,I’m sorry, 70% of the people he takes care of are Francophones but he doesn’tcare about that. He just cares that there are people out there who need help. You gotAdrian Birkevicky of the Old Brewery Mission who feeds 70% of the people on the streetswho are also French-speaking people, your people, Gérard. You’re a puke. You knowsomething, I don’t want your 15 bucks anymore, you can’t come back on my show.Don’t call back.

What a [unfinished sentence]. Unbelievable. This is [unfinishedsentence]. You know, I sit there and I listen [unfinished sentence]. I’m sorry,Henry, but I just saved you a whole bunch of money. This guy is unbelievable.”Bravo” he says to a separatist mayor because he spent $50,000 dollars changingstreet signs when we have kids going hungry to school, French kids. But then again, whatdoes Gérard care about somebody else’s kids, French, English or other? He’ssuch an ethnocentric piece of work. What would he know about this.? And “bravo”he says to people who write graffiti on people’s homes. How would he like a knock inthe middle of the night on his door? How would he think that’s so great? How would hethink if Francophones in other parts of the country were receiving the same kind oftreatment as Anglophones receive here? You know something, these people are just absolutesavages. Gérard, don’t call back my show anymore. You are persona non grata.I don’t want your hateful, venomous, ridiculous, God knows what.

Other callers piped in their acquiescence of Mr. Galganov’s
treatment of caller “Gérard”:

Ahhi, you know, I think Mr. Gérard is someone who is psychologically very mature, immature,and wants to get a little bit of attention and his life is so pathetic that [interrupted]

Howard Galganov: He’s going to have to call Schnurmacherfor attention and speak to him in English ’cause I don’t want to speak to himanymore.

On November 20, a veteran of World War II called the show stating that
he felt like a second class citizen because of the lack of recognition in Quebec, be it by
the simple wearing of a poppy, of the effort and sacrifice of Canadian soldiers overseas.
Mr. Galganov offered the following:

… I guarantee you Charlie,you’re every inch the first class citizen. It’s these separatist bastards.It’s these people who are cowards, who come in the middle of the night and spraypaint people’s homes. It’s the people who wear hoods and try to disruptlegitimate and democratic meetings. They’re the second class citizens, Charlie, notyou. You did it, you went there and paid your dues, and you helped to make sure that thisworld would be free from people like them.

You know, I was watching on t.v., a year and a half ago,they were celebrating the 50th anniversary of the liberation of the Netherlands and thereis this huge, huge outpouring of love, absolute love and adoration, admiration for theCanadian soldiers that liberated the Netherlands, and especially a place called Apeldoornwhere my father fought and was decorated, and I saw that cow Josée Legault giving her twocents on Sunday Edition and she says “Well, it’s not really a Quebecthing”. What a piece of garbage. Anyways, we’ll be back…

On December 1, 1997, a listener wrote a lengthy letter complaining of
Mr. Galganov’s use of foul language and hateful commentary. (This letter is included
in full in its original French in Appendix B.) In her letter, the complainant stated that
Howard Galganov’s show is a “[translation] sounding-board for disseminating his
hatred not only toward sovereignists but also any person or association who negotiates,
makes any deals or agreements, or even engages in simple dialogue with them.” She
also stated her view that “[translation] The choice of words and the frequency of the
insults makes Galganov in the Morning Montreal’s very own ‘trash talk
show’.”

No official response was received from the station within the
2-week time-frame allotted to broadcasters for responding to complaints. A response of
sorts was broadcast, however, on December 9th when Howard Galganov chose to
“discuss” the complaint on his show. This “response” led to another
complaint and a corresponding decision on that matter is also being released today.

On January 19, 1998, the President of CIQC responded to the complaint
as follows:

[Translation] I apologize for the delay in responding toyour letter; the delay was due to the Christmas season and the Ice Storm in early January.After having read your letter, we met with Mr. Galganov and came to an agreement to limithis participation in CIQC-AM’s programming.

As of January 19, Mr. Galganov no longer hosts the morning show as hehas been replaced by Jim Duff, formerly of the CJAD radio station. We hope that thisdecision will permit you to cancel your complaint lodged with the Canadian BroadcastStandards Council.

I thank you for your interest in CIQC-AM and hope that you willcontinue to tune in to our station.

Prior to receiving this response, the complainant requested, on January
5, 1998, that the CBSC refer the matter to the appropriate Regional Council for
adjudication. She also provided a rebuttal to CIQC’s response in a letter dated
January 30 (included in full in its original French in Appendix B).

The CBSC’s Quebec Regional Council considered the complaint under
the Code of Ethics of the Canadian Association of Broadcasters (CAB). The relevant
clauses of this Code read as follows:

CAB Code of Ethics, Clause 2 (Human Rights)

Recognizing that every person has a right to full andequal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shallendeavour to ensure, to the best of their ability, that their programming contains noabusive or discriminatory material or comment which is based on matters of race, nationalor ethnic origin, colour, religion, age, sex, marital status or physical or mentalhandicap.

CAB Code of Ethics, Clause 6 (News)

It shall be the responsibility of member stations toensure that news shall be represented with accuracy and without bias. The member stationshall satisfy itself that the arrangements made for obtaining news ensure this result. Itshall also ensure that news broadcasts are not editorial. News shall not be selected forthe purpose of furthering or hindering either side of any controversial public issue, norshall it be designed by the beliefs or opinions or desires of the station management, theeditor or others engaged in its preparation or delivery. The fundamental purpose of newsdissemination in a democracy is to enable people to know what is happening, and tounderstand events so that they may form their own conclusions.

Therefore, nothing in the foregoing shall be understood as preventingnews broadcasters from analysing and elucidating news so long as such analysis or commentis clearly labelled as such and kept distinct from regular news presentations. Memberstations will, insofar as practical, endeavour to provide editorial opinion which shall beclearly labelled as such and kept entirely distinct from regular broadcasts of news oranalysis and opinion.

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

The Regional Council members listened to tapes of the programs in
question and reviewed all of the correspondence. The Council considers that the program in
question did not violate any of the aforementioned provisions of the CAB Code of Ethics.

There is no doubt that Howard Galganov's opinions are expressed
strongly, even vehemently, and, some might say, inflexibly, whether off or on the air. The
host might even wear any such characterization as a red badge of courage. The question for
the Council, though, is whether political views, even thus expressed, are subject
to curtailment or restriction. While freedom of expression is one of the fundamental
freedoms enumerated in Section 2 of the Charter, it is a freedom which was not
drafted as absolute. 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. The foregoing being said, it is
the view of the Council 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 all speech which can be
described as political will be free from any oversight but rather that such speech will be
most carefully protected in the face of that oversight.

Although, 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 September 1997 broadcasts of the Howard Stern Show
contravened the Code of Ethics and Sex-Role Portrayal Code, some of Stern's
comments were viewed as protected speech. On his September 2 show, his premier show in
Canada, 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 thiscase, the expressions “peckerheads”, “pussy-assed jack-offs”,”scumbags”, “pussies”, “Frig the French” and “Screw theFrench” are … abusive.”

That being said, some of Stern’s commentary was found to be
irreproachable. In its decision, the CBSC differentiated between insults aimed at
identifiable groups and Stern’s political or historical comments. Code breaches did
not include the latter.

Those comments relating to the state of radio in Canada,the use of English in Quebec, the value of French culture, Canada as an appendage of theUnited States, the role of the vanquished French in Vichy France, the issues relating toseparatism, and so on, are the host’s opinions and, unless utterly andirresponsibly uninformed … they are his to espouse. … It is the view of the RegionalCouncils that these political and historical comments fall squarely within the boundswhich freedom of expression is meant to protect.

As noted above, it is acknowledged that the host's views were strongly
held and vehemently expressed. The question for the Quebec Regional Council to decide is
whether the speech was political and not excessive or political but beyond the bounds of
protection for even such speech. The Council's answer to the first question is that the
speech was political and, as to the second, it does not consider that the speech
encountered on this date triggered the application of Clause 2 of the CAB Code of
Ethics
, the “human rights” provision, which prohibits abusively
discriminatory comment based on certain protected grounds, namely “race, national or
ethnic origin, religion, age, sex, [sexual orientation] marital status or physical or
mental handicap”. In the Council’s view, Mr. Galganov was extremely careful in
circumscribing his commentary to avoid discriminatory comment based on one of the
protected grounds, as evidenced by the following exchange on December 9th (see Appendix A
of CBSC Decision 97/98-0509 for a more complete transcript) between him and a caller who
was upset at the “French bastard separatists” who allegedly told her to take
down her Canadian flag:

Howard Galganov: Well that’s not right. French has nothingto do with it. Separatist is a different thing entirely.

Vivian: Yeah, I told them these are separatists, they are askingme to take down my flag.

Howard Galganov: Yeah but Vivian, let me tell you something.There’s this guy who’s part of the Parti Québécois. What the hell is his name?Ah, he’s one of the right hand men to Bouchard and he’s of British origin and[unfinished sentence]. Geez, someone is going to have to call me and give me thisguy’s name because [interrupted]

Vivian: Yeah, I guess so because I don’t know either.

Howard Galganov: But he’s not French. He’s British.Look at this jerk, Richard Holden. He’s not French.

Vivian: No, he’s not French.

Howard Galganov: You take a look at [unfinished sentence]. Look,you can’t confuse, not even a little bit, French Quebeckers, French Canadians, withseparatists. You know, there are so many [interrupted].

Vivian: You know, I’m French.

Howard Galganov: You’re French on top of it?

Vivian: Yeah. Ha, ha, ha.

Howard Galganov: Jesus Murphy. Woof.

Vivian: I’m French but I will not speak unless I reallyhave to.

Howard Galganov: Ah? Je parle français toujours. I lovespeaking French. I feel so superior to those people who don’t want to speak Englishand either can’t or won’t. You know, the fact is that I can communicate in bothlanguages is a tremendous blessing. I love it. I think it is great. And those whodon’t, well tough on them. But remember, Vivian, even though you are French, this hasnothing to do with French, it has to do with ethnocentric racism.

This care in identifying the “brunts of his barb” as
political or ideological groups distinguishes Howard Galganov's comments from those of
Howard Stern, who excoriated the French on the basis of their national origin rather than
their political views.

One of the other limits to unfettered freedom of expression is found in
the third paragraph of Clause 6 of the Code of Ethics which requires “full,
fair and proper presentation of … opinion, comment and editorial”. Both the notions
of fairness and propriety of Mr. Galganov’s commentary are called into question by
the complainant. The issue of propriety is dealt with in the section below. As to
fairness, the Council notes that the complainant’s concerns are not related to balance
(one of the subsets of fairness) but rather to the vehemence of the expression of Mr.
Galganov’s views.

The complainant notes, and the Council has confirmed, one comment which
contains some violent overtones. On November 20th, Mr. Galganov made the following
comments to caller who had travelled outside of Quebec and become envious of his friends
who had moved to other parts of Canada:

Well, we can’t get out ofhere, Eddy. And I don’t think we should have to feel that we have to get out of here.What we have to do is beat the crap out of all these nationalistic ethnocentricQuébécois crapheads who are destroying what we’ve built over the years. You know,again, if you listened to the editorial this morning, I really remember Montreal in thesixties. I was born in 1950, in 1967 with Expo 67, I was 17 years old and what a place tobe. And it was bilingual. It was vibrant. We had everything. We owned it. We owned theworld. And look what these ethnocentric separatist asses have done to us.

Eddy: I wish I was older. I’m only 25 and I didn’t geta chance to see it. I’ve only seen the decline so [interrupted]

Howard Galganov: Eddy, stick around. The best is yet to comebecause these guys can’t last forever. Their own people are going to bury them.

Eddy: Let’s hope. Let’s hope.

Leaving aside for the moment the issue of vulgar language which is
dealt with below, the Council does not find the statement “we have to … beat the
crap out of all these … crapheads” to be in breach of the fairness requirement of
the Code. The Council does not view this statement as “[translation] a call to
violence”, as contended by the complainant. While the meaning sought to be conveyed
by Mr. Galganov in making this pronouncement is ambiguous, to say the least, the Council
does not consider this isolated comment to be more than an unpleasant, tasteless, juvenile
comment, but not a genuine pre-meditated attempt to encourage the commission of a criminal
offence.

The Council considers this example to be analogous, to some extent, to
the statements dealt with in CIWW-AM re the Geoff Franklin Show (CBSC Decision
92/93-0181, October 26, 1993). In that case, the Ontario Regional Council also dealt with
an allegation that the host of an open-line radio show was advocating violence. In that
case, the host had responded to a case of animal cruelty by encouraging callers to suggest
methods of “getting even” with the perpetrator of the crime. The Council did not
find any breach of a Code.

It determined that the host had, as a dog-lover himself, been motivatedby anger in marshalling the listeners’ calls but that he had not ever meant to betaken as a serious advocate of criminal activities. In the result, it considered Mr.Franklin’s comments to be in poor taste but not constituting a breach of any of theprovisions of the Code of Ethics.

It follows from the above conclusion regarding the complainant’s
example of “comments inciting hatred” that the Council is even less concerned
with other examples of name-calling and “unfair” comments cited by the
complainant, in particular the comment whereby Mr. Galganov insinuated that separatists
can’t or don’t read. In the Council’s view, such name-calling and branding
opposing political camps as intellectually inferior may not be the most mature or clever
manner in which to approach political debate, but the Council acknowledges that it is, for
some, at times, part and parcel of the expression of political convictions. It does not,
in and of itself, constitute a breach of the Code.

In the complainant’s view, “[translation] Use of words which
describe excrement or vomiting … is reprehensible. Use of words relating to private
parts of the human body … is completely unacceptable.” Concerns over vulgar and
crude language have been dealt with by various other Regional Councils before and it would
be helpful to review those decisions here.

The first time the CBSC was called to deal with the issue of vulgar
language was in CFRA-AM re Steve Madely (CBSC Decision 93/94-0295, November 15,
1994) in which the complaint was about use of the word “damn”. The Council found
no breach of the Codes, stating the following:

In its determination of what constitutes “obsceneor profane language”, Council considered that current broad social norms must beapplied. The Council also had to face the fact that some language which may at anothertime have been broadly considered obscene or profane had now slipped into common andmarginally acceptable usage. Terms formerly considered blasphemous or irreligious aretoday non-religious and inoffensive to the population as a whole, even if perhaps in poortaste. In general, the Regional Council concluded that there may be words which ought notto be used in the medium but whose use could not be raised to the level of profanity orobscenity. While the word “damn” gave the Council no difficulty by currentstandards, this was a case which fell into that middle ground insofar as the word”Goddammit” was concerned. In their view, the host used the term as an epitheticexpression of frustration but not in an intentionally irreverent, blasphemous orirreligious way. While good taste and judgment might have dictated the non-use of theexpression on the public airwaves, it was not a sanctionable usage.

In CHAN-TV re Sportscast (CBSC Decision 95/96-0108, December 18,
1996), the words “crap” and “ass” were used by an interviewee sports
expert in a description of a hockey team. A viewer felt that such “gutter words”
were completely unacceptable and were setting a very poor example to the younger
generation. The B.C. Regional Council applied “current broad social norms” and
concluded that this language, while not “attractive, articulate or perhaps even
appropriate to the airwaves,” nevertheless did not violate the Code.

They may even be, to use the characterization of thecomplainant, “gutter or crude” language. They are not, however, in the view ofthe B.C. Regional Council, either obscene or profane, which is ultimately the test whichthe Regional Council must apply.

In CJOH-TV re “White Men Can’t Jump” (CBSC
Decision 94/95-0060 March 12, 1996), the broadcaster had aired a feature film based on the
street life of California which, as the Ontario Regional Council observed, was
“replete with epithets and very coarse street language.” The broadcast began at
9:00 p.m., preceded by an oral advisory and an on-screen advisory, followed by three
further advisories during the first hour at each of the commercial breaks. The complainant
took offence to both the language and the time of day the film was broadcast. The Council
began by observing that the language was coarse:

The Council is entirely in agreement with thecomplainant that the language is coarse, even incessantly so for at least the first halfhour of the film. The Council is equally of the view that the language used is that of thestreets of California portrayed in the motion picture.

The Council did, however, conclude, in reliance on its earlier decision
in CFRA-AM re Steve Madely (CBSC Decision 93/94-0295, November 15, 1994), that it
fell within socially admissible norms.

In CIRK-FM re T-Shirt Promotion Spot (CBSC Decision 96/97-0206,
December 16, 1997), the Prairie Regional Council had to deal with use of the phrases
“Life’s a Bitch” and “Kick ass” in a promotional announcement for
K-97 T-shirts. The Council’s evaluation in that case differed slightly from the cases
referred to above because the Council had to grapple with the “prevailing standards
of good taste”, the test set out in Clause 8 of the Code of Ethics, the
advertising provision of the Code.

Despite the CBSC’s general reluctance to deal withquestions of taste, the Prairie Regional Council acknowledges that the term “goodtaste” is actually used in Clause 8. This necessitates an explanation of theCouncil’s understanding of the term in that context.

The Council notes that the term “good taste” does not appearon an isolated basis. While the drafting of the paragraph is not the most felicitous, anexplanation, if not a definition, of the terms is provided in the closing words of thatparagraph. These are: “and shall not offend what is generally accepted as theprevailing standard of good taste.” It appears to the Prairie Regional Council thatthe drafters were explaining that “good taste” means that the advertisingcontent shall not offend prevailing standards of good taste. The Councilunderstands this to be a higher test than merely being characterisable as goodtaste. In a sense, the wording suggests that the material questioned must not be the oppositeof good taste to be in breach; it must actually offend prevailing standards to besanctionable. It may be that the “prevailing standards” test in Clause 8 couldbe more easily met than the general “taste” threshold which, as discussed above,the CBSC applies more generally. In any event, it is the view of the Prairie RegionalCouncil that the expressions “Life’s a bitch” and “Kick ass” donot breach the “prevailing standards” test and that it is not necessary toconsider the other issue at this time.

It is appropriate to provide a sense of the Prairie RegionalCouncil’s view of “prevailing standards” and how these are to be assessed.It is clear that it cannot be the function of the CBSC or the various Regional Councils toconduct surveys in order to determine what prevailing standards are; it is ratherthe function of the Councils to apply the reasoning and sense of a balanced group ofpublic and industry representatives to the programming under consideration. It is indeed areflection of that “balance” that has enabled the various Regional Councils toarrive regularly at conclusions in such matters without dissenting voices, whether theconclusions favour or run against the broadcasters.

It is the view of the Regional Council that, in general, for a matterto breach the “prevailing standards” test of Clause 8, it must extend beyond thelevel of offensiveness, if not even crudeness or vulgarity. This is not to suggest thatthe CBSC approves in any way of offensiveness, crudeness or vulgarity on theairwaves but rather that, in the interest of preserving a broad range of scope for freedomof expression, such matters of taste must be left to the marketplace.

.

[I]t is the view of the Prairie Regional Council in this case that theexpressions “Life’s a bitch” and “Kick ass”, while admittedlycrude, have fallen into more commonly acceptable usage than a number of the expressionsused in the decisions previously cited. In the circumstances, the Council can find nobreach of the Code.

When the Council considers the language which has offended the
complainant in this case, i.e. words such as “kiss-ass”, “son-of-a
bitch”, “puke” and “crap”, it is unable to determine that this
language is any worse, although certainly more repetitious, than the words used in the
matters considered above. Applying the “broad social norms” test, the Council
concludes that no Code has been violated. In coming to this conclusion, the Council has
taken into consideration the fact that Galganov in the Morning addresses primarily
an adult audience. Had the target audience been more youth-oriented, the Council’s
conclusion may have been different; however, it remains the case that the majority of
listeners to the show in question are adults. In the circumstances, the Council sees no
overriding societal interest in curtailing the broadcaster’s right to freedom of
expression and, therefore, considers that concerns about the crude and vulgar language in Galganov
in the Morning
should be “regulated” in the same way as other matters of
taste, i.e. via the on/off or dial button.

The Council has generally held to the principle that questions of taste
are left to the market place. In the more recent CBSC decision 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.
While acknowledging that there were parts of the show that could likely be classified as
being in bad taste, the two Regional Councils were unwilling to find the stations in
breach of the Codes with respect to issues of bad taste for the following reasons (the
stations were ultimately found in breach of the two Codes with respect to matters other
than bad taste).

Many of the complaints received regarding the HowardStern Show related to questions of taste. Stern was accused of being offensive, vulgar,adolescent, rude, unsuitable, outrageous, sick, tasteless and so on. … The Quebec andOntario Regional Councils are, however, agreed that, under the present Codes, matters oftaste must be left to be regulated by the marketplace. Such choices remain those of thelistener. This is the time when the on/off switch is the listener’s coping mechanism.Unless comments made by a broadcaster are of a nature to breach provisions of one or moreof the Codes, the CBSC will not judge them one way or the other.

In the CIRK-FM case referred to above, the Council summarized
its position regarding having to determine matters relating to good or bad taste as
follows:

In other words, the CBSC will be reluctant to interferewith a programming or advertising matter unless there is a clear breach of a provision ofone of the Codes. In general, it has long considered that questions of bad taste alonewill not be sufficient to result in a breach of a provision of one of the Codes.

The Council further noted:

Broadcasters are, however, generally members of the communities inwhich they function and will regularly attempt to respond to the concerns of theirlisteners or viewers, even on matters of taste which do not fall within the purview of theCodes. That, though, is a matter for the determination of each station and the broadcasteris under no compulsion in this regard.

In her letter dated December 1, 1997, the complainant stated that
“[translation]… my research did not take into account the comments of listeners who
called the show. CIQC does not use time-shifting to filter calls and the host gives free
rein to the hateful commentary and threats of physical violence directed towards
sovereignists made by callers.” The Council considers it appropriate to note, as a
point of information for the complainant and possibly as a reminder for the broadcaster,
that broadcasters are responsible for all material aired on their station,
regardless of its origin or source.

In CHOG-AM re Connections (CBSC Decision 96/97-0040, May, 8,
1997), the Council dealt with a complaint regarding comments made by a caller to an
open-line show. Referring to the CRTC’s Policy Regarding Open-Line Programming,the Council held that broadcasters are responsible for the content of all material aired,
including comments made by guests or callers during open-line programs. The Council did
not consider that the broadcaster could avoid responsibility by dissociating itself from
the comments made

… the Ontario Regional Council does not find that its decision is atall affected by the fact that Dr. Green stated “Those are your words… Iwouldn’t be as nasty [Emphasis added].” The broadcaster is as responsible forthem as if they had come from Dr. Green’s mouth.

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 the broadcaster’s response to be
less than adequate. The Council notes that the poorly explained tardiness of the response
created additional aggravation for the complainant. Moreover, the response did not address
any of the issues raised by the complainant.

As stated in CIII-TV (Global Television) re an episode of Seinfeld
(CBSC Decision 96/97-0074, May 8, 1997):

The process by which the CBSC becomes involved inadjudicating a dispute between a broadcaster and a listener/viewer places reasonable, butnot insignificant, demands on the complainant. A simple phone call is not enough totrigger the process. The CBSC procedures require that a complainant must take the time toput his/her concerns in writing, and while no knowledge of broadcast codes isrequired of the complainant, the concerned individual must outline why he or she believesthat the content of the broadcast was not appropriate. Often, in the experience of theCouncil, the letters provide lengthy explanations of the reason for the complainant’sconcern.

There exists a corresponding demand upon the broadcaster to treat thecomplaint with respect. Ideally, the station’s reply should reflect its own review ofthe challenged program in light of the concerns of the complainant and explain in a clearand direct fashion why the program does not violate any of the industry Codes andstandards to which the station has agreed to adhere. At the very least, it ought to beresponsive to the concerns of the complainant. The CBSC does understand that, from time totime, large numbers of complaints make it difficult to provide individually composedletters to each complainant but it has been the experience of the Council that, insuch cases, few though they have been, the broadcasters have gone out of their way to tryto encompass the issues raised collectively by the complainants.

In this case, the complainant has gone to great lengths to document her
concerns. The Council would have expected a more thoughtful response from the broadcaster
in return.

In the circumstances, however, given that the Council is of the view
that the question of broadcaster responsiveness in this case is intrinsically
linked to the substance of the second complaint, it reserves its findings on this
issue for the accompanying decision CIQC-AM re Galganov in the Morning (CBSC
Decision 97/98-0509, August 14, 1998). Nothing more is required as a function of this
decision.