CKAC-AM re a Comedic Sketch by Michel Beaudry

QUEBEC REGIONAL PANEL
(CBSC Decision 01/02-0966)
R. Cohen (ad hoc), B. Guérin, R. Parent, T. Rajan (ad hoc) and P. Tancred

THE FACTS

Very early in the morning of June 3, 2002 (at approximately 4:30 am), CKAC-AM broadcast a comedic sketch performed by one of its radio hosts, Michel Beaudry. Imitating the well-known boxing promoter Régis Lévesque, Beaudry had a conversation with another host about promoting an event in Africa. Much of Beaudry's dialogue was peppered with the expressions “tabernac'”, “calice” and “hostie”.

The CBSC received a letter of complaint about the broadcast of the same date (the relevant text of all correspondence, in its original French, can be found the Appendix). In it, the listener expressed his dislike of the use of the above-mentioned words, stating that the broadcast “[translation] demonstrates an incredible lack of respect towards our population.”

The broadcaster responded on June 7, addressing the complainant's concerns about the use of swear words in the following terms:

[translation] According to Le Robert dictionary of contemporary French in Québec, the words “swearword” and “curse” have different meanings, one of which applies to the situation you describe. According to Le Robert, these words fall into the category of patois in Québec. We draw your attention to the fact that the edition of Le Petit Robert dealing with standard French defines the term patois as: a special language which is considered incorrect or incomprehensible. In our opinion, the language used by the person parodied by Michel Beaudry is clearly patois.

The complainant responded to the CBSC on June 24 and requested that the matter be sent for adjudication. He disagreed with CKAC's position that the words were clearly patois and made the following arguments:

[translation] In qualifying this type of language as such, the conclusion seems to be that it is completely acceptable to put it on the air.

I'm sorry, but I simply cannot accept such an opinion which is as bizarre as it is ridiculous. The words: CHRIST, CALICE, HOSTIE and TABERNACLE concern sacred things which must be treated with respect.

If the CBSC is serious about giving these words the respect they deserve, I hope you will make CKAC understand that classifying them as “patois” is unworthy and that it is rather blasphemous to use them in such a disrespectful fashion.

CKAC sent a further, considerably lengthier, reply dated July 8. In that letter, they cited CRTC and CBSC documents concerning the issue of “high quality” programming and mentioned the CRTC's acceptance of broadcasting content that makes fun of public figures. They provided the definitions of “langage grossier” and “langage injurieux” (coarse and offensive language) from the Larousse dictionary, stressing that the words in question have become part of popular Québec language. They also cited a previous CBSC decision where no Code violation was found for the broadcast of certain coarse words on radio under the CBSC's “broad social norms” test.

The complainant responded to that letter on July 30, indicating his disagreement with CKAC's position.

THE DECISION

The Québec Regional Panel reviewed the matter under Clause 6, paragraph 3 of the Canadian Association of Broadcasters' (CAB) Code of Ethics. It is this provision that the CBSC Panels have used to deal with complaints about offensive language:

CAB Code of Ethics, Clause 6, paragraph 3 :

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.

The Panel Adjudicators listened to a tape of the broadcast and reviewed all of the correspondence. The Québec Regional Panel concludes that there is no breach of the aforementioned Code provision.

Preliminary Issues: Which Code Applies and in Which Language?

The Canadian Association of Broadcasters (CAB) revised its Code of Ethics in the summer of 2002. It was introduced on July 6, 2002 but only applies to programming broadcast after August 1, 2002 (thus not to the broadcast which is the subject of this decision). Nonetheless, the revised Code of Ethics provides some insight into the perspective of the private broadcasters and is worth noting in the context of this decision, one of the very last to be rendered under the 1988 text of the CAB Code of Ethics. This new Code adds, among other things, a provision which deals specifically with the content of radio broadcasting. Clause 9 of the new Code states:

Recognizing that radio is a local medium and, consequently, reflective of local community standards, programming broadcast on a local radio station shall take into consideration the generally recognized access to programming content available in the market, the demographic composition of the station's audience, and the station's format. Within this context, particular care shall be taken by radio broadcasters to ensure that programming on their stations does not contain:

            (a) Gratuitous violence in any form, or otherwise sanction, promote or glamorize violence;
            (b) Unduly sexually explicit material; and/or
            (c) Unduly coarse and offensive language.

The prohibition against “unduly coarse and offensive language” fills in the void that was left in the old Code.

Prior to the application of the above-quoted provision, the CBSC has had to rely on the wording of the third paragraph of Clause 6 of the old Code in order to deal with concerns relating to coarse and offensive language. While this provision has not been as precise a tool for that purpose as the revised Code of Ethics will be, it has served as the basis for several decisions, all of which have dealt with coarse language in the context of English-language radio programming. This is the first occasion on which a Panel has been asked to address the issue of such language aired within a French-language broadcast.

In the circumstances, a few words with respect to the translation of the 1988 Code are needed in order to explain how Clause 6, paragraph 3 has been applied to coarse and offensive language. The CBSC has noted on a few occasions in the past the discrepancy between the French and the English versions of the Code. While the English text provides that “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”, the French text uses the words “d'une manière objective, complete et impartiale” to translate “full, fair and proper”. Without getting into the problems created by the introduction in the French version of the notion of impartiality in regards to opinion and editorial (for that discussion see e.g. TVA re Mongrain (CBSC Decision 93/94-0100, -0101 and -0102, December 6, 1995)), the translation issue of concern here is that the word “proper” (in any of its remotely relevant meanings) is simply not present in the French text. The CBSC does not believe that French-language broadcasters should be held to a different, in this case lower, standard than their English-language counterparts. As stated in the TVA decision cited above:

Council members attribute this difference in emphasis to the particular translator(s)'s choices in the adaptation of the English text to French. This is, after all, a case in which the English text was the original text and the French version a translation of that document. In the circumstances, while the Council believes that there may be aspects of the Clause which apply similarly to the French and English broadcasters, such as the Ajuste@ presentation Ades nouvelles, des points de vue, des commentaires ou des textes éditoriaux@, those aspects which cannot be so applied must be considered in the sense in which other Regional Councils have interpreted the English-language version of the Clause. It goes without saying that Canadian broadcasters cannot be held to different levels of responsibility as a function of the language in which they broadcast.

Accordingly, the Panel considers that the meaning attributed to the word “proper” in the English text, which has enabled the CBSC to render decisions on the subject of coarse and offensive language, applies in this case.

Blasphemy and Coarse and Offensive Language

The complainant states that “[translation] The words: CHRIST, CALICE, HOSTIE and TABERNACLE concern sacred things which must be treated with respect.” The Panel does not dispute the etymology or strict definition of the words presented by the complainant. Nor does it dispute the fact that their use in the broadcast at hand technically constituted blasphemy, at least in the sense of the historical meaning of the term. According to the Shorter Oxford Dictionary, blasphemy is defined as “Profane talk of something supposed to be sacred” and profane is stated to be “characterized by disregard or contempt of sacred things”.

That being said, blasphemy per se is not the standard applied by the CBSC Panels in determining what is acceptable on Canadian airwaves. As stated in the Ontario Regional Panel's decision The Comedy Network re a Bill Maher Special (CBSC Decision 97/98-0560, July 28, 1998), which dealt with a complaint about the “blasphemous” nature of certain jokes,

It may be that the Church has a strict and conservative view or definition of the foregoing words but it is not such definitions which the CBSC considers applicable in defining broadcast standards. For that purpose, the Council begins, as always, with the principle that freedom of expression is the basis of broadcaster entitlements. Indeed, since the adoption of the Charter of Rights and Freedoms, it is at the root of all Canadian speech. Article 2(b) of the Charter provides that freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication are fundamental attributes of Canadian society.

For its purposes, however, the CBSC considers that blasphemy alone would not be sufficient to constitute a violation of the CAB Code of Ethics. It would need to be hateful, not merely irreverent, comment, abusively discriminatory, not merely impious or irreligious. At this point in the 20th century, the CBSC expects that comedians are entitled to question tradition and to tickle formal and possibly outdated values without finding themselves, for that reason alone, exceeding Canadian broadcast standards.

This case is farther removed from the Bill Maher case quoted above as the skit in question did not in any way target the Catholic religion or Church. The words quoted above were merely used as expletives without any intended reference to things religious.

There remains then only the question of whether the use of the words exceeded the level of tolerance for offensive language. The CBSC has previously dealt with such issues and, in CFRA-AM re the Steve Madely Show (CBSC Decision 93/94-0295, November 15, 1994), established a “broad social norms test” to deal with such complaints. In that case, the host of an open-line radio program used the words “damn” and “Goddammit”. The Ontario Regional Panel found no violation of Clause 6 and explained:

In its determination of what constitutes obscene or profane language, Council considered that current broad social norms must be applied. The Council also had to face the fact that some language which may at another time have been broadly considered obscene or profane had now slipped into common and marginally acceptable usage. Terms formerly considered blasphemous or irreligious are today non-religious and inoffensive to the population as a whole, even if perhaps in poor taste. In general, the Regional Council concluded that there may be words which ought not to be used in the medium but whose use could not be raised to the level of profanity or obscenity. While the word damn gave the Council no difficulty by current standards, 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 epithetic expression of frustration but not in an intentionally irreverent, blasphemous or irreligious way. While good taste and judgment might have dictated the non-use of the expression on the public airwaves, it was not a sanctionable usage.

The “broad social norms” test established in the above quoted CFRA decision was applied to such other words and expressions as “Life's a Bitch”, “Kick Ass”, “kiss-ass”, “son-of-a-bitch”, “puke” and “crap” without any finding of a breach of the Code. [See CIRK-FM re T-Shirt Promo (CBSC Decision 96/97-0206, December 16, 1997) and CIQC-AM re Galganov in the Morning (CBSC Decision 97/98-0473, August 14, 1998).] In those cases, the various CBSC Panels concluded that the words and expressions were not so coarse as to amount to a breach of the CAB Code of Ethics and that, in such cases, listeners must “regulate” their own radio consumption via the radio dial or on/off switch.

The line was drawn, however, with respect to the use of the f-word or its derivatives at times when children were likely to be listening. In CIOX-FM re the songs “Livin' It Up” by Limp Bizkit and “Outside” by Aaron Lewis and Fred Durst (CBSC Decision 00/01-0670, June 28, 2001), the Ontario Regional Panel determined that, given the recognized severity of those words in English-speaking countries, material containing such language is in breach of the Code when aired at times of the day when children are likely to be listening to the radio. This principle with respect to the f-word has since been applied by other Panels in other cases.

In the case at hand, the Québec Regional Panel agrees with the broadcaster that the words in question have slipped into common and marginally acceptable usage, whether or not the broadcaster's characterization of them as “patois” is justified. The Panel notes that “Christ”, “tabernac'”, “calice” and “hostie” were employed in the context of a parody of a public figure, namely Régis Lévesque, who is not unknown to use such language himself.

The Panel understands, and is sensitive to, the perspective of the complainant. It concludes, however, that, while the words may be unacceptable in some households and are certainly not tasteful, they are not today so severe as to restrict their usage on radio, especially in the very early hours of the morning, namely between the hours of 4:00 and 5:00 am. Accordingly, the Québec Regional Panel does not find any breach of Clause 6, paragraph 3 of the CAB Code of Ethics.

Broadcaster Responsiveness

It is a fundamental obligation of broadcasters to be responsive to complainants who take the time to express in writing their concerns about programming they have heard or seen on the airwaves. It is the duty of the CBSC Panels to assess the thoughtfulness of the broadcaster replies on each occasion that they adjudicate a file. In this case, the broadcaster responded to the complainant on two occasions, both letters eloquently and fully addressing the complainant's specific concerns. Nothing more is required of CKAC-AM in this respect on this occasion.

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.