On December 2, 1999, between 11:30 a.m. and noon, CJMF-FM (Quebec City) aired a program hosted by André Arthur, during which the host treated the Péladeau family'sorganisation of a holiday fundraiser with sarcasm, adding that this family had a number of problems such as “psychologicalproblems, addiction problems and alcoholism problems.“ The host went on to describe the Péladeau family as a “familyof crooks“. The full text of the transcript containing his comments can be found in Appendix A of this decision.
Continuingalong the same vein, the host criticised welfare recipients in the province of Quebec, claiming that they “sleep“ and “burptheir beer“ at the end of the month, and that “inten days' time, they will be back putting themselves in debt at the expense of their children who won'tget lunch.“
A listener wrote to the CRTC Secretary General (the full text of this letter can be found in Appendix B of this decision), who, in the normal course, referred the complainant'sletter to the CBSC. The following is an excerpt from that letter:
Notsatisfied with defaming Pierre Péladeau'sdescendants, the host took it upon himself to ridicule the volunteers of the Pierre Péladeau fundraiser and those who plan to participate in the Saint-Vincent-de-Paul campaign on Sunday. Had he kept to this foolishness, there would have been no need to involve the CRTC, whose response to this type of pollution of the airwaves has always been tentative at best.
Inmy opinion, however, the program contained vicious and inflammatory comments against recipients of income security benefits as a whole (whom the host revels in repeatedly calling “B.S.“ [welfare recipients]). In listening to the tape, you will see for yourselves at what point the host'sdescription is fraught with intolerance towards the 400,000 Quebeckers in the grip of poverty. To claim that the “B.S.“ rush out to squander their cheques on the most frivolous expenses at the first of the month is to incite people to close their doors to the volunteers collecting donations to fight against poverty. It is also an attempt to disguise the fact that some of our fellow citizens must allot 50% of their monthly benefits to rent alone.
The station’s reply (the full text of which can also be found in Appendix B to this decision) states, among other things, that:
Withrespect to the comments for which you criticize the host, it would be advisable to place the discussion in the context in which it was presented. He questioned the merits of “fundraisers“ designed to assist the destitute in our society. He felt that, in spite of this worthy intention, it is unacceptable that so few of the disadvantaged invest their own time and efforts in collecting funds and that people belonging to associations, companies and/or various groups are the ones actually doing it for them. André Arthur describes them by using the term “B.S.“,which is an accepted popular expression referring to welfare recipients. He was expressing his opinion that too many welfare recipients complacently accept their lot and do not make enough effort to correct and/or improve their precarious condition.
Duringthat show, he did however take calls from anyone wishing to freely agree or disagree with his point of view on the air. You have opted to do so in writing rather than on our airwaves.
The complainant was not satisfied with the broadcaster'sreply. On January 25, 2000, he asked the CBSC to refer the matter to the appropriate Regional Council for adjudication.
The Quebec Regional Council considered the complaint under Clauses 2 and 6(3) of the Canadian Association of Broadcasters' (CAB) Code of Ethics. These provisions read as follows:
CAB Code of Ethics, Clause 2
Recognizingthat every person has a right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall endeavour to ensure, to the best of their ability, that their programming contains no abusive or discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, marital status or physical or mental handicap.
CAB Code of Ethics, Clause 6(3)
Itis recognized that the full, fair and proper presentation of the news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.
For its part, the French version of Clause 6(3) reads as follows:
estun fait reconnu que la tâche première et fondamentale du radiodiffuseur est de présenter des nouvelles, des points de vue, des commentaires ou des textes éditoriaux avec exactitude, d'une manière objective, complète et impartiale.
The Council members listened to a tape of the program which triggered the complaint and reviewed all the relevant correspondence. The Council determined that the host'scomments regarding the Péladeau family were in violation of Clause 6(3) of the Code; however, the Council concluded that Mr. Arthur'scomments with respect to welfare recipients did not contravene the human rights provisions of the Code.
The Comments Concerning the Péladeau Family
Talk radio is a curious phenomenon. It has the potential to be the best in radio'sservice to democracy while, at the same time, being open to the worst of excesses. It is as close to the ancient city-square opportunity for face-to-face debate as we can hope to muster in the modern interactive arena. It brings participants from far-and-widewithin radio-wave earshot to a virtual electronic city-square. It offers a forum for the exchange of ideas and even for downright argument. Regrettably, though, when not managed well, it may lend itself to diatribe, to flirting with aggressive, even ugly, opinion, to catering to outrageous perspectives in the interest of ratings. It takes a responsible hand to guide the ship of talk through potentially turbulent waters. As the Ontario Regional Council stated in CKTB-AM re the John Michael Show (CBSC Decision 92/93-0170, February 15, 1994), “Itis that delicate role of weighing freedom and restriction, lively debate and imperturbable responsibility, which the host must play.“ Talk radio is not so purely democratic by its nature that absolutely any speech emanating therefrom could be seen to benefit from a total freedom of expression absolution.
One of the most significant limitations can be found in the wording of Clause 6(3) of the Code, which provides that any comment or opinion must be presented in a fair and proper manner. Given an error in the French translation of the original English version of Clause 6(3) (which renders the French version useless as explained in the Quebec Regional Council'sdecision in CFTM-TV re Galganov in the Morning (Invasion of privacy) (Decisions 93/94-0100, 93/94-0101 and 93/94-0102, December 5, 1995)), the Council relies on the English terms “full,fair and proper presentation of news, opinion, comment and editorial“ as a basis for its decision in this case (as well as all other decisions based on this section of the Code).
re In CIQC-AM Galganov in the Morning (Invasion of privacy) (CBSC Decision 97/98-0509, August 14, 1998), this Council had no difficulty in finding the broadcaster in violation of Clause 6(3) for having directly insulted a complainant on the air. The host had given the complainant'sname and had insulted her for filing a complaint with the CBSC. The Council concluded that:
Inthis case, however, the Council must deal, not with general comments directed at an ideological group, but with strong criticism directedat a specific, identified individual who does not benefit from the same access to the airwaves. The Council is of the opinion that the considerable power generated by the broadcast medium dictates that the person entrusted to wield this power will not abuse it by using it against relatively “defenseless“ individuals.
Itshould be remembered that the Council is not here dealing with defamation,a specific civil remedy with respect to which the Council has no jurisdiction. Success in a defamation case generally depends on the plaintiff'ssuccess in proving that the statements made were untrue. Given that the Council is not a fact-finding body, it would have no means to assess veracity. It is required neither to assess the truthfulness of statements nor the intention of their interlocutor in its areas of jurisdiction. It can, however, and must when requested to do so, assess the fairness and propriety of comments made on the airwaves about individuals. Looked at from the other side of the microphone, broadcasters are neither entitled to defame individuals nor to make unfair or improper comments about them which may violate private broadcast standards (or, it goes without saying, the Broadcasting Act or any of the Regulations adopted pursuant to it), even though any such offending statements may not constitute a breach of the civil law.
TheCouncil recognizes fully that critical comments can be made about individuals, particularly those in public life but also, in appropriate circumstances which it need not plumb here, with respect to private individuals. The question for the Council will always be the weighing of the statement and the circumstances. At its most basic level, the fairness requirement set out in the third paragraph of Clause 6 of the CAB Code of Ethics dictates that a balance must be struck between the type and extent of the criticism of an individual and the appropriateness or merit of any such criticism when measured against the individual'scriticized actions or behaviour. Propriety, a second requirement found in the same paragraph, dictates that the public airwaves will not be used for irrelevant or gratuitous personal attacks on individuals. The Council considers that Howard Galganov'sshow broadcast on December 9, failed on both these counts.
While it would not take a great deal of far-reaching imagination to conceive that a reasonable person could be drawn to consider the possibility of a lawsuit in defamation on the basis of such remarks as were made in this case, the Council itself takes no position on this point. Its responsibility in any such case is limited to the application of on-air statements to the Codes it applies. While persons, particularly well-known individuals, may be reluctant to be drawn into defamatory proceedings which cause irresponsibly raised issues to be further debated in a public forum with little or no perceived advantage to them as plaintiffs, that is of course a matter for them alone to consider. This Council must limit itself to its evaluation of the terms “full,fair and proper“ as these are used in Clause 6(3) of the CAB Code of Ethics.
In this respect, the Council has no doubt. The inflammatory unjustifiable language of the host is a travesty and the worst type of journalistic excess to which talk radio can succumb. It adds absolutely nothing remotely worthwhile to public discourse. It is petty, scurrilous and hateful. It is not full, but empty; not fair, but the most unfair use of a one-way microphone; and not proper, but improper and inappropriate. Whether any one of the comments might have a ring of truth with respect to a single member of the family (and the Council does not suggest that this is at all the case), there is no doubt but that the host has tarred the entire family with the broad brushstrokes he has used, capping them all off with the linking conclusion that they are a “familyof crooks.“ Consequently, the Council has not the least hesitation in finding the broadcaster in breach of Clause 6(3) of the CAB Code of Ethics with respect to the challenged remarks.
The Comments Concerning Welfare Recipients
The Council has, in the past, examined the question of whether social condition constitutes a ground analogous to those enumerated in Clause 2 of the Code of Ethics. In TQS re Black-out(“FaringWell with Welfare“) (CBSC Decision 97/98-0009+, January 29, 1999), the Council determined that Clause 2 did not apply to the comments made concerning welfare recipients. The Council noted that:
Inthis case, the complainants would like the Council to sanction the broadcaster for discriminating against welfare recipients. In effect, the complainants contend that this group is one of the most disadvantaged of society and that, the Council conjectures, welfare recipients share many of the socio-economic disadvantages and prejudices faced by persons with physical or mental disabilities. Without suggesting for a moment that, as a group, social welfare recipients can be equated to either of the foregoing groups, it seems clear that there is no other analogous link for them to the protected grounds in Clause 2. Moreover, the Council is uncertain whether the socio-economic nature of social welfare can, at the end of the day, entitle this or any other group, on that basis, to protection under Clause 2. The issue becomes even more complicated, in the case of social welfare, when one considers that social welfare recipients themselves, as illustrated to some extent by this very program, are susceptible of division into two groups; namely, those who are voluntarily and those who are involuntarily on the social welfare rolls.
…the Council cannot comfortably come to the conclusion that the case of social welfare recipients can become a protected ground without the intervention of the codifiers. To borrow the words of Mr. Justice La Forest in Egan v. Canada, the Council must ask itself whether the nature of social welfare is so “unchangeable“ that it ought to fall within the enumerated grounds of Clause 2 of the Code of Ethics. In so doing, it does not conclude that this is the case. Except for those cases in which the presence of individuals on the welfare rolls results from some physical, mental or related inability of those individuals to fend for themselves (in which case they might, on those bases, avail themselves of the enumerated grounds in Clause 2), there is, in principle, an ability to change their status, likely at less than the “unacceptablepersonal costs“ noted by Mr. Justice La Forest in Egan. In such circumstances, the Council is unwilling to extend the enumerated grounds without the intervention of the codifiers.
While the argument was not raised by the complainant, the Council considered the fact that social condition is an enumerated ground protected against discrimination under the Quebec Charter of Human Rights and Freedoms. Section 10 of that Charter reads as follows:
Everyperson has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition,a handicap or the use of any means to palliate a handicap. [Emphasis added]
Itis well known, however, that this protection is not expressly provided in the majority of the other provincial human rights codes. Moreover, social condition is not included as a protected ground against discrimination in Section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court has yet to declare that social condition is an analogous ground to those expressly enumerated in Section 15.
Given the foregoing, the Council cannot find a violation of the human rights provision of the Code. The Council also considered whether the host'scomments criticizing welfare recipients could constitute a violation of Clause 6(3) of the Code. While the Council considers that the aggressive, mocking, arrogant style of the host does no justice to the medium of radio, it is of the view that the comments do not constitute a breach of the clause in question. In such circumstances, the Council is of the opinion that there is no violation and that freedom of speech must prevail.
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. The Council feels that, in this respect, the broadcaster'sletter replied to the questions raised by the complainant. No further action is needed in that area. The broadcaster did not therefore violate the CBSC standard in respect of broadcaster responsiveness.
CONTENTSOF THE ANNOUNCEMENT OF THE DECISION
The station is required to announce this decision forthwith, in the following terms, during prime time and, within the next thirty days, to provide confirmation of the airing of the statement to the CBSC and to the complainant who filed the Ruling Request.
The Canadian Broadcast Standards Council has found that CJMF-FM breached one of the provisions of the Canadian Association of Broadcasters’ Code of Ethics in its broadcast, on December 2, 1999, of the program L’heure de vérité,hosted by André Arthur. The Council considers that the comments made with respect to the Péladeau family during that program violate the terms of Clause 6(3) of the Canadian Association of Broadcasters’ Code of Ethics.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.