CJCB-AM re TalkBack

ATLANTIC REGIONAL COUNCIL
(CBSC Decision 96/97-0065)
P. Schurman (Chair), R. Cohen (ad hoc), K. MacAulay, C. McDade, Z. Rideout, C. Thomas

The Facts

Mr. Donnie Graham, Program Director at CJCB-AM (Sydney), is one of the co-hosts of
TalkBack, an open line program broadcast by CJCB weekdays between 9:00 a.m. and
10:00 a.m. On the show of October 1, 1996, a caller outlined to him her problems with the
Children's Aid Society and Home Care Nova Scotia in extensive and personal detail. A
transcript of the broadcast is annexed hereto as an Appendix; however, little of it is directly
pertinent to the difficulties arising between the complainant and the station. The nub of
their difficulty relates to a brief portion of that call and the larger law-related issues flowing
therefrom.

After the caller presented the detailed background of her situation, the host permitted her
to discuss a meeting with her social worker which she had attended with her Regional
Councillor [no relation, of course, to the CBSC Atlantic Regional Council] in the hope, the
Atlantic Regional Council assumes, that the Councillor's more authoritative presence
would encourage the social worker to accede to the caller's request to return special needs
child from foster care. At this meeting, the caller reported that she had given her social
worker oral authority to discuss the details of her child's case. Despite that, the social
worker refused to discuss the details of the matter in the presence of the Councillor. The
host's response was to explain that the law in Nova Scotia did not allow the social worker
to do so, even with the parent's permission. That dialogue was as follows:

Caller: Well, I'm finding one thing, I had one, I had, uh, a meeting here a couple of weeks
ago and I had a Councillor in with me and we didn't get too far because they don't want to
speak about anything 'cause he was there. And I gave him, the Children's Aid notice he was
coming, and I gave Children's Aid permission to talk in front of him.

Donnie: Yeah but the law doesn't allow them to. I mean, that's, it's an unfortunate
situation, but the law does not, they are not legally allowed to do that. With your permission
or without it, the law in Nova Scotia does not allow them to do that.

Caller: Not even if I …

Donnie: No, not even with your permission.

Caller: No?!

Donnie: No.

Caller: But, see the thing…

Donnie: That, that's the law, that's what's on the books, that's what's passed in the
Legislature.

He closed this call with an offer to the mother to see if he could “make some phone calls
and find anything out.”

While some of the following details are conjectural in the sense that Regional Council
members did not hear them on the tapes to which they were personally able to listen, they
at least do not appear to be in dispute as between the complainant and the station. It
appears that the complainant subsequently called in to the program offering his opinion
and assistance on the subject raised by the caller. The complainant was, at that time, a
frequent caller who was well-known to the host. The host chose not to allow the
complainant caller to announce his group's telephone number on air, but rather offered to
provide it to the original caller off air in the event she wished to call the host again. It
appears that the original caller did not avail herself of the opporunity to contact the host
for this information.

The Complainant-Broadcaster Correspondence: The First Round

The complainant wrote to the Regional Office of the CRTC on October 2, 1996, alleging
that the host made “false statements on air concerning legal aspects of law which he has
not legal authority to do and has misinformed the listening public as to what their rights
are.” On the same date, the Vice-President and General Manager of the station
responded to the complainant in writing as he had apparently already done on the
telephone. In that letter, he refused to supply tapes of the program on the grounds that
there was, in his view, a “creditability [sic] factor” regarding the complainant's Family
Rights Association.

On October 11, 1996, the host responded to the complainant. He explained why he
believed that his on air interpretation of the social worker's position had been correct.

Having reviewed the comments made by myself and the caller on the talkback show in
question, I fail to see where a mistake was made on my part. The lady said she had her
regional councillor present with the social worker from Children's Aid, and told the social
worker he could give the details of her child's case. The social worker refused. I explained
the social worker couldn't give out the information because of confidentiality.

As you are well aware, the Social Work Code of Ethics says the information is confidential
and can only be released if the client authorizes in writing. This has been incorporated into
the policy and procedures handbook of the Provincial Children's Aid department, and they
have information release forms available which must be Filled out and signed. This was not
done, thus confidentiality exists. I also understand that legal advisors feel the social worker
should determine that the release of information will be to the benefit of the child before
they are required to follow this rule.

I hope this letter clears up the misunderstanding.

On October 17, the Program Director wrote to the Senior Regional Officer of the CRTC for
the Atlantic Region, enclosing a copy of the station's “Guidelines for CJCB's TalkBack”,
which the CRTC representative in turn forwarded to the complainant. They read as
follows:

All callers to CJCB's TalkBack program are considered to be a part of CJCB's programming.
As such, number of appearances on the show, length of stay on the show and topics
discussed are at the sole discretion of the host.

TalkBack hosts are to be mindful of the laws regarding slander and libel. Special attention
is to be given to Public Notice CRTC 1988-213 concerning gratuitous personal attacks on
individuals or groups, as well as unresearched or inaccurate reporting. To knowingly allow
either is considered unprofessional and subject to discipline.

Although TalkBack's aim is to discuss a wide variety of issues of public concern allowing
exposure to various points of view, this should be done with the goal of having the public
reach better informed opinions and balance.

As per Public Notice CRTC 1988-213…. “equal time need not necessarily be given for each
point of view”. Rather, it is expected that in the programming offered by the undertaking
(CJCB), a variety of points of view will be made available to a reasonably consistent listener
over a reasonable period of time.

TalkBack hosts will not knowingly broadcast, or allow to be broadcast, comments that, when
taken in context, tends [sic] or is likely to expose an individual or a group or class of
individuals to hatred or contempt on the basis of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.

On October 28, 1996 the complainant wrote directly to the broadcaster in response to the
Program Director's letter. The complainant refused to accept the broadcaster's
interpretation and again alleged that the host had misled the caller and the complainant
on the legal issues. He said:

I do not accept your interpretation of what you feel the responsibilities and guidelines are
concerning confidentiality are [sic] and your letter does not clarify your statements on air to
both the caller nor the comments you made to me on a subsequent show. You very clearly
stated that there was a part of the Children's and Family Services Act relating to the social
workers [sic] obligation under the act to keep information confidential. You even requested
I tell you what year of the act I was referring to when I disagreed with you.

Also, in your explanination [sic] you neglect to mention that the caller could have written an
authorization at the meeting and also that written authorization would not be necessary with
the client present when the information is being released and agrees verbally in that
meeting.

You have clearly misled the caller and myself with what you call facts or law concerning the
person's ability to have a support person present with these meetings. If what you are
saying is correct than [sic] the person's lawyer would also have to have written authorization
to access information concerning the client and this is not done. As well if you did
investigate what is in the Children's and Family Services Act you would be aware that
section 93 of the act, making [sic] these children's aid matters open to the public. You did
not clarify this to the caller and I still feel misled. We should not forget the Mrs.'s X [sic]
case that prompted the changes in the Act to help achieve accountability in the system.

Finally, on November 22, 1996, in what is an unusually long delay in transferring a
complaint concerning a private broadcaster, the CRTC referred this matter to the CBSC
for consideration and resolution.

The Complainant-Broadcaster Correspondence: The Second Round

On November 28, 1996, the complainant wrote to follow up on his complaint, reiterating
his version of the facts, alleging that the host had misled the audience, and that

the host has a grudge against this organization and allows his personal feelings to cloud his
professional judgement both on and off air. This is clearly a personal attack on this
organization without any basis and if the host can show that this is not a reputable
organization then we at Family Rights Association will apologize to him, the station and
withdraw these complaints.

He also raised the issue of other statements made by the host on his program of that date
(November 28) but this decision will not extend beyond the point raised in the initial letter.
It is the view of the Atlantic Regional Council that, whatever its origins, whether on or off
the air, and without for these purposes assigning blame, a feud had developed between
the complainant and the station. To the extent that the November 28 letter constituted
another stage of the same disagreement, it is not the CBSC's intention to deal with the
program of that date as well.

On January 10, 1997, in response to the CBSC's standard request that the broadcaster
respond to a listener with a complaint, the General Manager wrote to the complainant
indicating that his review of the program revealed nothing which contravened the
broadcaster's internal guidelines. In that letter, the General Manager enclosed an internal
memorandum which had been written to him by the co-host of the TalkBack program. The
content of those letters is as follows. First, the letter of the General Manager to the
complainant:

I have reviewed the program in question, along with Mr. Dave Wilson, the co-host of the
Talk Back Program, and find nothing In the program that was in direct conflict with the
station's guidelines. You stated ” Public Notice CRTC 1988-213 – concerning gratuitous
attacks on individuals or groups as well as unresearched or inaccurate reporting.
Again, I
am at a loss to understand your reasoning for quoting this Notice, there is absolutely nothing
in the context of the program that even resembles a conflict of this particular Notice.

I am also enclosing a memo from Mr. Wilson, to me with regard to this particular program.

Thank you for taking the time and trouble to convey your thoughts and opinion on this
matter.

Next, the internal memorandum of the co-host of the show to the General Manager:

Re [the] complaint to the C-R-T-C and Broadcast Standards Council: as the tape of the
program clearly shows the Family Rights Association was never named in a broadcast. The
caller who broached the subject of having difficulty with the legal system was encouraged
to follow through and did not call after the program looking for help or information. A
subsequent caller who tried to suggest what help is available was indeed [the complainant]
himself. When [the complainant] did call me off-air, I was neither ignorant nor rude. In my
opinion I have misled no one, have done nothing unprofessional and am not in a conflict
with our open line show guidelines.

On January 22, 1997, the complainant, dissatisfied with the response from the station, filed
a Ruling Request, asking that the matter be referred to the appropriate Regional Council
for resolution.

Subsequent Correspondence

On February 3, 1997, the complainant wrote again to the General Manager outlining his
recollection of the program, his concerns over two other incidents stemming from different
programs which were not named, and offering to “sit and discuss the matter.”

In two letters dated February 6, 1997 to the CBSC, the one from CJCB's Program Director
and first host complained about by the complainant in this matter and the other from
CJCB's News Director and Talkback co-host, the station provided a history of its collective
experience with the complainant. Although the letters were quite different, they revealed
a common theme which related to the question of the credentials of the complainant and
his organization. The collective result of the letters was that the station had resisted
saying “anything negative” about the complainant's organization but that they were wary
of providing him with a voice in circumstances where his credibility had not, in their view,
been established. The News Director's letter did in particular detail reasons for his view
of the complainant's lack of entitlement to appear on air as a guest of the show. It is not
the view of the Council that it would be either necessary or useful to make these details
public. In the Decision section below, the Atlantic Regional Council will integrate its views
on the station's decision with its own perspective on a broadcaster's role in such
circumstances.

The CBSCs Atlantic Regional Council considered the complaint under Clauses 6 and 7
of the Code of Ethics of the Canadian Association of Broadcasters (CAB). These read as
follows:

CAB Code of Ethics, Clause 6 (News)

It shall be the responsibility of member stations to ensure that news shall be represented
with accuracy and without bias. The member station shall satisfy itself that the
arrangements made for obtaining news ensure this result. It shall also ensure that news
broadcasts are not editorial. News shall not be selected for the purpose of furthering or
hindering either side of any controversial public issue, nor shall it be designed by the beliefs
or opinions or desires of the station management, the editor or others engaged in its
preparation or delivery. The fundamental purpose of news dissemination in a democracy
is to enable people to know what is happening, and to understand events so that they may
form their own conclusions.

Therefore, nothing in the foregoing shall be understood as preventing news broadcasters
from analyzing and elucidating news so long as such analysis or comment is clearly labelled
as such and kept distinct from regular news presentations. Member stations will, insofar as
practical, endeavour to provide editorial opinion which shall be clearly labelled as such and
kept entirely distinct from regular broadcasts of news or analysis 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 the broadcast publisher.

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 member stations 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 to the degree of public interest in the questions presented. Recognizing that
healthy controversy is essential to the maintenance of democratic institutions, the broadcast
publisher will endeavour to encourage presentation of news and opinion on any controversy
which contains an element of the public interest.

The Regional Council members listened to a tape of the October 1 program and reviewed
the voluminous correspondence. The Regional Council considers that the broadcaster has
not breached the provisions of the Code of Ethics.

The Issues

The Atlantic Regional Council considers that, while both Clauses 6 and 7 of the Code of
Ethics
apply to this matter, it is the issues raised by Clause 6 which are most pertinent to
its decision. While Clause 6 deals ostensibly with news, the CBSC has long since
understood its final paragraph to be of much broader scope and has regularly used this
provision to deal with issues related to talk radio and television, call-in shows and other
programming which deals in opinion and comment rather than formal news and public
affairs. In this regard, the Council relies on the operative words: “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. [Emphasis added.]”

Fair and Proper Presentation of Opinion and Comment

The question, therefore, for the Atlantic Regional Council is to evaluate the on air
comments of the host, Mr. Donnie Graham. In doing this, the Council has no hesitation
in finding that the host was absolutely fair and proper, if not also sympathetic, in his
approach to the caller, whose personal problems with her special needs child were
certainly complex. Moreover, in arriving at this decision, the Council is not required to
express its own opinion on the niceties of the legal point which faced the host. The issue
is not, after all, whether he was absolutely correct regarding his representation on the
requirement of a formal authorization to disclose in a pure legal sense or not. It is not his
responsibility to be a lawyer and he did not represent himself as such, although he was
firm on his understanding of the Nova Scotia law. Furthermore, there is always the
possibility that two lawyers might themselves have differing opinions on the very issue.

The host's duty was to be fair and responsible in expressing his opinion. If inaccuracy
there was, and the Atlantic Regional Council does not hereby express any opinion on this
issue, it was an error within the ambit of fairness and reasonableness. The role of the host
in this case stands in stark contrast with that of the host in CKTB-AM re the John Michael
Show
(CBSC Decision 92/93-0170, February 15, 1994), in which decision the Ontario
Regional Council stated that the host's

comments were riddled with a multiplicity of factual inaccuracies, many of which were of the
most elementary nature. They generally fell squarely within the CRTC's definition of what
does not constitute “high standard” as outlined in Public Notice CRTC 1988-121 (at p. 7):
“unresearched and inaccurate reporting and failure to meet professional standards.”

The Complainant's Entitlement to Access

As to the entitlement of the broadcaster to deny access to the complainant to provide his
phone number and the identity of his organization to listeners, the Council also finds that
the host was absolutely fair and proper. It appears from the extensive correspondence
that information was sought from the complainant regarding the credibility of his
organization. It also appears that satisfactory information of this nature was never
provided. There may, moreover, have been information of a doubtful nature regarding the
complainant's organization which would have required rebuttal by the complainant in order
for the broadcaster to acquit its own responsibilities to its listeners by permitting access
to the airwaves by the complainant as a source of advice to listeners. It should not be
forgotten that the broadcaster's first responsibility is to its audience and not to an
individual who wishes to be heard.

While balance and the presentation of a diversity of views fall squarely within the basket
of broadcaster responsibilities, the inclusion of a particular voice does not. Frequent
callers to open line shows become known to the program hosts and producers. Since
callers, as well as hosts, are the responsibility of the broadcaster, the station has a dutyto listeners to be careful in choosing those who will go to air, how long they will stay on air,
and so on. In Public Notice CRTC 1988-213, Policy Regarding Open-line Programming
(23 December 1988), the Commission put that position in these terms:

A licensee is responsible for the actions of its employees, including open-line hosts,
producers and programmers. A licensee is also responsible for comments made by guests
or callers during open-line programs.

The station's guidelines, which go a bit further, are themselves not inappropriate when
they say:

All callers to CJCB's TalkBack program are considered to be a part of CJCB's programming.
As such, number of appearances on the show, length of stay on the show and topics
discussed are at the sole discretion of the host.

For all of the above reasons, the Atlantic Regional Council concludes that there has been
no breach of Clause 6 of the Code of Ethics.

Controversial Issues

Although Clause 7 of the CAB Code of Ethics deals with controversial issues and differs
in much of its impact from the provisions of Clause 6, there is some overlap. To that
extent, however, the Atlantic Regional Council considers that their discussion of Clause
6 suffices. In the matter at hand, the issues of child care and welfare had already received
a full and open presentation by the mother who was experiencing difficulties with the
system and the host had given fair treatment to the issue itself. Moreover, the very terms
of Clause 7 require that the broadcaster “treat fairly all subjects of a controversial nature”
including the issues raised by the caller about her special needs child, as discussed
above. The broadcaster had no further obligation to its audience.

The Broadcasters Response

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, while the final letter by the broadcaster to the complainant was somewhat brief, there
had already been an unusually lengthy correspondence, in terms of the CBSC's
experience and the Council considers that the broadcaster's responses were more than
ample, despite the fact that its concerns regarding the credibility of the complainant and
his organization were never satisfied.

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.

Appendix