CJKR-FM re Announcer Comments

PRAIRIE REGIONAL COUNCIL
(CBSC Decision 99/00-0130)
S. Hall (Chair), D. Braun (Vice-Chair), D. Dobbie, V. Dubois,R. Gallagher and D. Ish

THE FACTS

The following announcer comments and song were broadcast during theCJKR-FM (Winnipeg) Morning Show of November 2, 1999:

Wrapping up on this disturbingthought: it was sixteen years ago today the Chinese Government decided all family petsshould be killed because they were having an effect on the natural order of things.

It upset a lot of people livingthere, the Government taking food right out of their mouths, you know what I’msaying? Here’s the Bruskan [sp.] Band at 8:52, “Down at the Peking Moon”.

It ain’t pork or chicken but a fat siamese.
Yet the food tastes great so you don’t complain
But that’s not chicken in your chicken chow mein.
Seems to me I ordered sweet and sour pork
But Garfield’s on my fork.
He’s purring here on my fork.

The place that I ate every day at noon.
They can feed you cat and you’ll never know
When they wrap it up in dough, boy,
They fry it real crisp in dough.

As he was dialling up his buddy at the old pet store.
I said not today, I lost my appetite,
There’s two cats in my belly and they want to fight.
I was sucking on Rolaids and a Tums or two
When I swear I heard it mew, boy.
And that is when I knew.

I think I got to stop eating there at noon.
They say that it’s beef or fish or pork
But it’s purring there on my fork.
There’s a hair ball on my fork.

The complainant initially sent a letter to the CRTC on November 2,which he followed with a revised version on November 30. It is that revised edition whichthe CBSC is considering in this decision. In that letter (which is reproduced in full inthe Appendix hereto), the complainant said, in part:

I found this broadcast to be offensive. It was culturallyinsensitive and also served to dehumanize and perpetuate stereotypes. This process hasbeen recognized by social scientists as the first steps in promoting hatred.

What I will not sanction, however, is a broadcasting company that iscentred in my community promoting stereotypes and dehumanizing people as a moniker inpromoting an image that is ethnically intolerant.

The station’s Program Director responded with a short letter(reproduced in full in the Appendix), in which his principal position was as follows:

The comment referencing an historical action taken by the Chinesegovernment was intended as a humorous introduction to the parody song that followed. Therewas certainly no intent to be insensitive to Chinese people, or to dehumanize orperpetuate stereotypes. This song, which is provided by an international radio service,will no longer receive airplay on CJKR-FM.

On December 17, the complainant filed his Ruling Request and acovering letter in which he stated, in part (the full letter forming a part of thecorrespondence reproduced in the Appendix):

The following excerpts are taken off your web site from rulings thathave been made by your council relevant to this situation:

“The situation is different where the context is clearlycomedic. After all, where the audience is given no reason to expect that the substance ofthe comments made is serious, their attitude could reasonably be expected to be different.A remark which might reasonably be addressed as abusive in a serious context and thus inbreach of the Code of Ethics may not be so viewed in the comedic environment.”

Please note that the operative word above is remark… not remarksplural, dialogue, song, minutes of, etc.

“Furthermore, humour is commonly based on national, ethnic,racial or gender traits, as often as not related to background matters best known to thecomedian. Even stereotypes are not unknown in such a context. Such issues cannot alone bethe cause of a broadcast sanction. They must be coupled with another defining criterion;namely, they must be abusive or discriminatory.”

I sent this material to the CRTC which I understood to be thegovernment agency responsible for such matters. I find it strange that the matter would bereferred to the Canadian Broadcast Standards Council, an organization that is set up topolice the very members who fund it.

THE DECISION

The CBSC's Prairie Regional Council considered the complaintunder the human rights provision of the Canadian Association of Broadcasters (CAB) Codeof Ethics. Clause 2 of that Code reads as follows:

Recognizing that every person has a right to full and equalrecognition 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.

The Regional Council members listened to a tape of the relevantportion of the morning show and reviewed all of the correspondence. The Council is of theview that the program is not in breach of the CAB Code of Ethics.

A Preliminary Matter: The CBSC’s Mandate

The complainant expressed surprise in his second letter that thematter at hand should have been remitted by the CRTC, the Government agency responsiblefor the oversight of all broadcast matters in Canada, to the CBSC, a self-regulatoryagency, which, in the words of the complainant, is “an organization that is set up topolice the very members who fund it.” It is useful to take this moment to remindmembers of the public that, pursuant to the CRTC’s public notice entitled TheCanadian Broadcast Standards Council (P.N. CRTC 1991-90, August 30, 1991), except inunusual circumstances which are not at play in this case, the Commission as a matter ofpractice forwards to the CBSC any complaints relating to those broadcasters, conventionaland specialty, which are members of the CBSC. The opening comments of the Commission inthat Public Notice provide some of the rationale for the arrangement in theself-regulatory area.

The purpose of this public notice is to advise licensees and thepublic that the Commission fully supports the objective of the Canadian BroadcastStandards Council (the CBSC), which is to encourage high standards of professional conducton the part of private radio and television broadcasters by ensuring that social concernsand values are reflected in their programming decisions. The Council administers specificcodes of broadcast conduct and provides a means of recourse for members of the publicregarding the application of these standards.

As a means of demonstrating its confidence in the Council, the CRTChereby advises that it intends to refer complaints from members of the public aboutprogramming matters that are within the Council’s mandate to the CBSC for itsconsideration and resolution. The Council is committed to make every effort to resolvecomplaints at the level of the local broadcaster. If an issue is not settled to thesatisfaction of all parties, a subsequent review would be conducted by the Council at theregional level …

Over the course of the decade since that time, the Commission hasretained a self-regulatory approach high on its agenda, not only on the broadcast side ofits mandate. Self-regulation is, indeed, an approach used broadly in professions of allkinds, including doctors, lawyers and accountants, to name only a few of thoseassociations which have created bodies to police their members and ensure a high standardof service to their constituency. Moreover, this Council has no hesitation in observingthat it has rendered hundreds of decisions, all of which can be found on its web site andmany of which, having been rendered against broadcasters, clearly demonstrate theCBSC’s ability to render decisions without any interference on the part of those whofund the Council.

Another Preliminary Matter: The Meaning of “Remark”

It is not always the case that a complainant takes the time toreview previous CBSC decisions in order to attempt to assess the merit of his or hercomplaint. Since, in this case, the complainant has, the Council considers it important toaddress the observation he made regarding the Ontario Regional Council’s decision in CHUM-FMre Sunday Funnies (CBSC Decision 95/96-0064, March 26, 1996), namely, that thesentence in that decision “A remark which might reasonably be addressed as abusive ina serious context and thus in breach of the Code of Ethics may not be so viewed in thecomedic environment” must mean “remark” in the singular and could not applyto “remarks plural, dialogue, song, minutes of, etc.”

The Council respectfully disagrees with the complainant’sinterpretation. While the remark referred to in both the CHUM-FM decision and thosewhich gave rise to that conclusion in both CHUM-AM re Brian Henderson Commentary(CBSC Decision 95/96-0008, 0060 and 0061, March 26, 1996) and CFTR-AM re Dick SmythCommentary (CBSC Decision 95/96-0062, March 26, 1996) may have been a singleremark in each instance, the principle is one which is as applicable to a series ofremarks. The issue relates to the context and not to a word count and has, in manysubsequent decisions, been dealt with on that basis although there has not been any needto make this point on any such previous occasion. See CHOM-FM and CILQ-FM re the HowardStern Show (CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997), amongothers, as an example of a multi-remark application.

The Comments in this Case

The principal matter to resolve has to do with the characterizationof the comments made by the hosts and by the creator of the song lyrics. The Council doesnot interpret these as the complainant does. It rather considers that they constitute acommentary in small part on the Chinese Government and in larger part on Chineserestaurants. The Council does not view these as a commentary on the Chinese people at all.Fundamentally, the combination plays on the idea that, when you order a dish in a Chineserestaurant, you may get cat rather than chicken, beef, fish or pork.

The foregoing “humourous” suggestion may be outrageous orin bad taste. If the latter, it is, as the Council has often said,simply a choice for the listener with the on/off switch. If the former, though, theCouncil notes that there is no protection granted under the human rights provision of theCode for a profession or an occupation and being a Chinese restaurateur, or anyother type of business person of any other ethnic origin, will not entitle one toprotection any more than being a policeman did in the case of CKLZ-FM re AnnouncerComments (CBSC Decision 94/95-0113, December 18, 1996). In that matter, the B.C.Regional Council held:

This is, however, the first occasion on which a listener hascomplained of language used with respect to an occupation. The only previouscircumstance which has led the CBSC to broaden the interpretation of “matters ofrace, national or ethnic origin, religion, age, sex, marital status or physical or mentalhandicap” arose in CHQR-AM re Forbes and Friends (CBSC Decision 92/93-0187,August 8, 1994), in which the Prairie Regional Council ruled:

Although Clause 2 does not contain a specific reference to”sexual orientation the Regional Council considered that the term “sex”could reasonably be understood as being broad enough to include “sexualorientation”.

It is not the view of the B.C. Regional Council that it would bepossible by definition to extend “race, national or ethnic origin, religion, age,sex, marital status or physical or mental handicap” to include occupation orprofession. Such a change, were one merited, would require the intervention of thecodifiers.

CKNG-FMre “Blond Moments” (CBSC Decision 96/97-0060, December 16, 1997) byreference to the decision of the Supreme Court in Egan v. Canada [1995] 2 S.C.R.513, in which Mr. Justice LaForest explained the rationale for the extension of theprotected grounds in s. 15 of the Canadian Charter of Rights and Freedoms to sexualorientation. He said:

I have no difficulty accepting the appellants’ contention thatwhether or not sexual orientation is based on biological or physiological factors, whichmay be a matter of some controversy, it is a deeply personal characteristic that is eitherunchangeable or changeable only at unacceptable personal costs, and so falls within theambit of s. 15 protection as being analogous to the enumerated grounds.

It was quite clear to the Council in that case that one’s haircolour would not be a protected ground under the Charter or, indeed, under the CABCode of Ethics and it is quite clear to the Council in this case that the principleestablished in the CKLZ-FM decision regarding occupation would be supported underthe Egan decision. There is not, in other words, any more reason to protect theoccupation here than there was in the CKLZ-FM case. Nor is it the view of theCouncil that there can be any reasonable inference that the announcer comments or thelyrics can be said to be directed at the Chinese people generally in such a way that theprotection which is unquestionably extended to them under the human rights provision wouldcome into play. In a not fundamentally dissimilar situation, an

magazine,which featured photographs of folksinger k.d. lang and model Cindy Crawford together. Theannouncer then aired a spot featuring an endorsement of “The VegetableInstitute”, supposedly by k.d. lang. The item was narrated by a male voice, whichadvised children to eat their vegetables and stay away from red meat. The voice said thateating vegetables would “put hair on [their] chests too”.

A listener wrote to the station to complain about this segment. Shefelt that the spot was “obviously referring to lang's sexual orientation and thestereotype that all lesbians are masculine”. The listener argued that “suchhomophobia is loathsome and the promotion of such stereotypes unacceptable”. Sheconcluded by saying that “it is one thing to make light of her political stance oneating meat, but quite another to mock her sexual orientation”.

(CBSCDecision 92/93-0187, August 8, 1994), this Council also disagreed with thecomplainant’s characterization of the spoof, concluding that

the spot was directed primarily at k.d. lang's vegetarianism ratherthan her sexual orientation. In any event, to the extent that the spot might reasonably beunderstood as a spoof of her sexual orientation, the Regional Council did not considerthat it could be interpreted as discriminatory in terms of Clause 2 of the Code of Ethics.The segment had, after all, been prompted by a Vanity Fair article in which Ms.lang had chosen to present herself in masculine clothing beside one of the most adulatedof female models. This, Regional Council members felt, was an unequivocal indication ofMs. lang's ability to joke about her own sexuality. In the context of the Vanity Fairarticle, Ms. lang's own public declarations regarding her sexual orientation and thetiming of the spot, the Regional Council considered that the spot was intended to behumorous in a way which did not constitute a breach of Clause 2 of the Code.

one could conclude in this case thatethnic or national origin played a part in the humour in this case, the Council considersthat the principle laid down in CHFI-FM re the Don Daynard Show (CBSC Decision94/95-0145, March 26, 1996) would be applicable here.

Similarly, in the case at hand, the Council considers that theJewish mothers light bulb joke, while ethnically pointed, was neither demeaning norabusive. It was told in the context of a series of light bulb jokes aimed at feminists,Marxists, surrealists, accountants, etc. It poked fun but did not bludgeon. It tickled butwas not nasty. It touched on what some might view as stereotypical characteristics as didthe Polish humour in the CHUM-FM case and perhaps the Irish humour in the CFOX-FMcase but was not ugly as in the “Newfie” humour in the CKTF-FM case. TheCBSC does not expect that the airwaves will be pure, antiseptic and flawless when societyis not.

The Council’s duty is to put a potentially offensive ethnicjoke on its societal scale and determine whether it could reasonably be viewed ashaving gone too far.

To conclude, the Council also considers the words of the OntarioRegional Council in Comedy Network re “Comedy Club 54” (CBSC Decision97/98_1242, February 3, 1999) to be applicable here.

While the humour in question was pointed and may even have beentasteless, the Council does not find that any of the “jokes” overstepped theboundaries in this case. In its words earlier cited here, “It poked fun but did notbludgeon. It tickled but was not nasty.” By not finding it in breach of the Code, theCouncil should not be understood as supporting the humour in question and broadcasterswhich are concerned by audience reaction are always free to take steps to comply withaudience concerns even when there is no Code breach involved. They may do so but they neednot. It is their choice in the end just as viewers may choose to go elsewhere whenprogramming offends them.

There is not, in other words, any ground on which the Council canfind the comments in the case at hand to be in breach of the human rights provision of theCAB Code of Ethics.

The Broadcaster's Response

In addition to assessing the relevance of the Codes to thecomplaint, the CBSC always assesses the responsiveness of the broadcaster to thesubstance of the complaint. In this case, the Council considers the broadcaster’sresponse to be brief but otherwise responsive to the complainant’s letter. Byagreeing not to broadcast those lyrics again, even if they were ultimately not found to bediscriminatory and in breach of the Code, the broadcaster has taken an extra very positivestep in terms of resolving listener discontent for the future. Nothing more couldreasonably be required or expected.

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