CKAC-AM re an episode of Doc Mailloux

quebec regional panel
(CBSC Decision 05/06-0642)
M.-A. Murat (Chair ad hoc), L. Baillargeon, R. Cohen (ad hoc), B. Kenemy,G. Moisan, R. Parent

the facts 

Between 1:00 and 4:00 pm on weekday afternoons, CKAC-AM (Montreal) broadcasts the call-in current affairs discussion program Doc Mailloux (with Dr. Pierre Mailloux and his co-host Janine Ross).  During the episode of the show broadcast on November 4, 2005, a caller to the show, Michel, raised the subject of an advertisement on CBC television which included an individual afflicted with trisomy 21 (a condition often commonly called Down syndrome).  While the full dialogue with caller Michel troubled the complainant, it is too lengthy to be included at this point in the decision; however, the full transcript can be found in Appendix A (in French only).  The essential portions of the dialogue were as follows:

[translation]

Michel:              Um, last Monday, at the start of the program, you mentioned having seen an ad on CBC television concerning an individual with trisomy 21.

Doc Mailloux:    Well, yes, a young mongoloid woman, probably in her early twenties.

Michel:              That’s right.  Um, you described the situation very well at that time.  She was being compared, if I may use the term, to a very pretty lady.

Doc Mailloux:    Four, three or four, lovely young women in their early twenties.

Michel:              That’s right.  And, um, if I understand correctly, um, the following statement was made at the end of the ad:  They are genetically, um, different, but of equal value.

Doc Mailloux:    Yes, but I.

Michel:              And you found that very degrading for good-looking women.

Doc Mailloux:    Well, I’m, it’s not, I, I didn’t like that, because that’s no way to, you don’t elevate women with trisomy 21 by lowering normal women, for heaven’s sake!

Michel:              But, how do you see people being lowered in this, in this fashion?

Doc Mailloux:    Well, by, by telling them straight out:  ”You’re no better than a person afflicted with trisomy 21.”  If that’s, hey!  [Doc Mailloux laughs]

Michel:              Yes, but, um, I think the ad was much more oriented towards, that is, the fact that so-called mentally deficient individuals still have value, regardless, um, regardless.

Doc Mailloux:    No, listen, claiming, claiming that a mentally deficient woman has the same value as a lovely young female university student, just doesn’t hit the right note in my humble opinion.

[.]

Michel:              I think it was a very good ad because it was meant to convey the idea that people are, can be genetically different.  Obviously, an individual with trisomy 21, um, has certain physical characteristics that are, um, quite evident.  That being said, when you go beyond the physical aspect, like the very lovely other three young ladies, there is more, there is value.  I am convinced that this ad was based on that and not a comparison, um, of intellectual value.

[.]

Doc Mailloux:    So, that is your point of view.  Yet, you see, I have a different point of view.  I didn’t like it because I find it degrading for normal people to be told they have the same value as someone who is truly abnormal and handicapped.

[.]

Michel:              Um, I find that the term ”mongoloid” is no longer appropriate here in North America.  It is in Europe, but we don’t use it here.

Doc Mailloux:    No, Michel.  On that point I must once again, um, express an opinion that differs from yours.  The fact is that in Quebec, not many people know what trisomy 21 is, but just about all Quebeckers, or the vast majority of them, know what mongolism is.  Given that this program is based on the popularisation of issues, I don’t, I used both.  If you noticed, trisomy 21 – mongolism.

[…]

Janine:              But the point and that is the upsetting thing, Pierre, is that it is used.  It’s, it’s pejorative.  It’s been pejorative for a long time to say you’re mongoloid.  Do you understand?  A parallel was established and now it’s, it’s unfortunate.

Doc Mailloux:    Of course it’s unfortunate, of course it is.

Janine:              “Afflicted with mongolism” is good.

Doc Mailloux:    Well, yes. It has been used; it crept into the spoken language.  When someone was mentally deficient or not too bright, well we’d say listen, that’s a mongoloid attitude.

[.]

Michel:              [.] more and more, more and more, um, people, um, we rub shoulders with those individuals and it’s a good opportunity to tell people that well, those individuals have just as much value as others do.

Janine:              Yes.

Doc Mailloux:    No, well on that score, you see, that is what you claim.  And I say that it is dangerous, unhealthy and inappropriate to claim that gifted individuals have the same value as a severely handicapped individual.

Janine:              But from the point of view of life.

Michel:              That’s it exactly.

Doc Mailloux:    Oh, no.  Fuck life.  No, I won’t even get started on that.

Janine:              They are human beings who should be given respect.

Doc Mailloux:    No, no.  I recognize that they are living beings.  That doesn’t mean abusing them.  I welcome them when they come to my office, but don’t give me that hypocritical bull that they are individuals having the same value.

On November 6, the complainant sent the following e-mail to the Canadian Radio-television and Telecommunications Commission (CRTC), which forwarded it to the CBSC in due course.  He said in part (the full text of the complaint and all other correspondence can be found in Appendix B, in French only):

[translation]

 Mr. Pierre Mailloux expressed his opinion on an ad comparing an individual with trisomy to three lovely young ladies.  He was answering a listener who was of the opinion that the purpose of this ad was simply to establish a positive parallel between an individual with trisomy 21 and these so-called ”normal” young women.  Mr. Mailloux expressed the opinion that it is insulting for a normal person to be compared to a person afflicted with trisomy 21. [.] 

While I understand that this gentleman makes his living dealing in controversy, he, like many of his ilk, end up not really knowing when not to cross the line or where that line is.  They are in a position to use a pre-eminent platform to broadcast their opinions coloured by current preferences.  I believe that what Mr. Mailloux expressed in that program is on the very edge of hateful comments with respect to individuals with trisomy 21.  This is not worthy of the social responsibility he must assume by virtue of the fact that he is at a microphone in a radio or television station. 

The station’s Director of Human Resources and Corporate Affairs replied on November 27 in part as follows: 

[translation]

As you know, CKAC-AM broadcasts service-type programs, as well as commentary and discussion programs on a variety of issues that may be of a more delicate nature in some cases.

CKAC broadcasts a vast array of styles and contents that are proportionally based on the preferences of a target audience we have been serving for many years.

In your letter, you refer to the content of a program that is a call-in show designed to provide answers and comments to listeners’ questions by a medical psychiatrist.

You raise a concern about content you find inappropriate and in bad taste.  We understand that certain topics and comments may not suit everyone’s tastes.  Taste is an extremely subjective aspect that varies according to the point of view of the individual.  [.]

With respect to the Doctor Mailloux program, the broad spectrum of topics addressed, as well as the evocation techniques used by this health professional, may sometimes be interpreted differently by some listeners and some of them may react with dislike.  Nevertheless, we are confident that the comments made by Doctor Mailloux during his program on CKAC are not based on latent hostility or discrimination and that they cannot be considered to be hateful or inciting hatred.

 We did, however, analyze your concerns internally and we hold regular discussions with our on-air staff on broadcast content.  We will continue to exercise the utmost vigilance where these matters are concerned.  We truly regret that this program offended you. [.] 

The following day, the complainant returned his Ruling Request, accompanied by the following observations: 

[translation]

I gather that I am to understand that Mr. Mailloux is entitled to state his preference for three normal young ladies over a young lady afflicted with trisomy 21, and that you accept that he would say so on your radio station.  I don’t have too much difficulty with that.  I find it cheap on the part of a psychiatrist and a human resources director, but what wouldn’t we do in the name of freedom of speech?

On the other hand, I believe there was evidence of contempt.  This case is not about good or bad taste.

My complaint focuses on Mr. Mailloux’s diatribe in which he mentions that it is insulting to a normal person to be compared to someone with trisomy 21.  That is no longer a question of taste; that is an affirmation of intolerance and nastiness on the part of an intermediary with respect to a group of handicapped individuals that does not, moreover, have the ability to defend itself.  The notoriety of the person making that affirmation and the harmful influence of such comments on his listeners’ judgement of that group compel me to react strongly.

I should point out, however, that I am neither offended nor scandalised by Mr. Mailloux’s comments.  On the contrary, I am rather frightened, as I do not believe that this health professional is fully conscious of the scope of his remarks.  You point out that his comments were not hostile towards people with trisomy 21.  I do not agree. It seems to me that Mr. Mailloux is a psychiatrist who is a master of controversy.  He works at a microphone serving a public that drinks in his teachings, like a third millennium guru seeking hard-hitting and inflammatory pronouncements, and that is what makes it all the more frightening.  I’m sorry, but I cannot witness this and stand by saying nothing.

[.] I believe that if we all strive, men and women, to erase prejudice concerning these individuals who are not the same as the majority of us, we will make headway in eliminating discriminatory, and it must be said, sometimes criminal, actions against handicapped people.  [.] I will object with all my might against actions that allow the promotion of any discrimination of handicapped persons.

I interact with hundreds of people, including numerous parents who get involved, year after year, in order to obtain better services for handicapped children.  They fight to have their rights respected and to foster awareness among the various organisations concerned in order to facilitate their integration into society, and that is why it is all the more distressing to come up against the narrow-mindedness of certain individuals, especially when it comes from well-known individuals.

I am profoundly concerned that a health professional would make, what are at minimum, leading comments concerning individuals with trisomy 21.  Should we not be expecting compassion, if not empathy, on the part of this man towards these individuals?  Barring any help, it was to be hoped that he would use his judgment and avoid publicly declaring his discriminatory views.  I am old enough to note that our society has an increasing tendency to sanitize its members. [.]

[.] Mr. Mailloux has a great deal of influence and what he says to his listeners  can have a major negative impact to an extent that he does not appear to even suspect.

Finally, I believe you are mistaken to view the process I have undertaken with the Canadian Broadcast Standards Council as the mere comments of a listener.  I consider your reply to be contemptuously paternalistic.  Furthermore, your letter reveals a complete lack of understanding of this case; and, between you and I (and the CBSC) let me say that you regret nothing at all. 

 

 THE DECISION

The Quebec Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics. 

CAB Code of Ethics, Clause 2 – Human Rights 

Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability. 

CAB Code of Ethics, Clause 9 – Radio Broadcasting 

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:

[…]

 (c)                 Unduly coarse and offensive language. 

The Quebec Panel Adjudicators reviewed all of the correspondence and listened to a recording of the challenged broadcast.  The Panel concludes that the broadcast was in breach of both of the foregoing provisions. 

 

Abusive Comment 

The CBSC has consistently observed that it is not any mention of an identifiable group or even any discriminatory comment about such a group that will lead to a finding of a breach of the Human Rights Clause.  Any such comment must be abusive or unduly discriminatory to be in breach of that Clause.  The CBSC must always measure such commentary on the continuum that extends from harmless to harmful discriminatory mentions. 

In the matter at hand, the tone and nature of the dialogue announced itself by the counterpoint of the caller’s and host’s terminology.  It began with the careful reference by the caller to “an individual with trisomy 21”, which was followed by the host’s use of the term “a young mongoloid woman”.  The caller objected to the doctor’s use of what he considered devaluating language but Mailloux retorted that one does not elevate those afflicted with trisomy 21 by lowering normal women.  He clarified that proposition by implying that such women would be insulted to be told: “You’re no better than a person afflicted with trisomy 21.”  He added: “claiming that a mentally deficient woman has the same value as a lovely young female university student just doesn’t hit the right note.”  The host’s comparison continued throughout the balance of the call. 

When caller Michel also pointed out that the term “mongoloid” is not appropriate in North America, Pierre Mailloux defended his usage by alleging that, in Quebec, “The fact is that in Quebec, not many people know what trisomy 21 is, but just about all Quebeckers, or the vast majority of them, know what mongolism is.”  When co-host Janine interjected that the term was pejorative, Mailloux responded with another example of the adoption into the vernacular of a crude usage of the term “mongoloid”.  And then, in a particularly extreme example from the Panel’s perspective, the doctor asserted: “it is dangerous, unhealthy and inappropriate to claim that gifted individuals have the same value as a severely handicapped individual.” 

In the view of the Quebec Regional Panel, the foregoing dialogue reflects a disrespect for those afflicted with trisomy 21.  On the level of societal value, Mailloux is almost filled with contempt for the notion that a “normal” woman would be compared as equal to a trisomy 21-handicapped woman.  It is, he goes so far to say, “dangerous, unhealthy and inappropriate” to make such a suggestion.  And then, adding insult to injury, he insists on the use of the terms “mongoloid” and “mongolism”, despite the attempts on the part of his co-host, Janine, to make him understand that the terms are not only inappropriate in North America but also pejorative.  In the words of the Grand dictionnaire terminologique of the Office de la langue française, 

[translation]

The English term mongolism and the French term mongolisme were routinely used to designate this illness.  That usage is attributable to a bygone method of classifying mental retardation.  However, they are now considered obsolete and are not recommended by the majority of specialized sources. 

The Panel finds the attitude of Mailloux (even as mitigated by that of his co-host Janine) similar to that encountered by this Panel in its decision in CKAC-AM re an episode of Doc Mailloux (CBSC Decision 03/04-0453, February 10, 2005).  In dealing there with Mailloux’s comments on the issue of immigration and certain identifiable groups of immigrants in particular, this Panel concluded: 

When, however, he holds identifiable groups up to ridicule and disrespect by making abusive or unduly discriminatory comments, he crosses the line of entitlement and loses the benefit of the shield of free expression.  While the comments of his co-host Janine on the challenged program are far more generous towards immigrants and immigration and have the effect of balancing his rants, they do not have the effect of exculpating him from his specifically-focussed abusive and unduly discriminatory remarks. 

The Quebec Panel also finds the comments of the host similar to those encountered by the Canadian Radio-television and Telecommunications Commission (CRTC) in Complaint concerning the broadcasting of abusive comments on Bonjour Montréal, a program on Montréal radio station CKAC, Broadcasting Decision 2005-258 (although those were considered under Section 3(b) of the Radio Regulations 1986).  The Commission said in part: 

The Commission finds that Doc Mailloux’s comments about the intelligence and characteristics of Black persons are disparaging, insulting and abusive within the meaning of Section 3(b) of the Regulations.

The context in which the comments were uttered makes the matter all the more serious because the program in question was a morning public affairs program, on which a reasonable listener can expect that the topics of discussion will be serious.  For that reason, a listener might take exchanges of this kind quite seriously and give them more credibility than he or she would if they took place in a different context. 

To all of the foregoing, the Panel wishes to add the expression of its concern about the danger of public desensitization which may result from such comments.  The host with a microphone is, by definition, a powerful figure.  He or she is in a position of credibility, underscored in this case by the professional qualification of Doctor Pierre Mailloux.  Comments of this kind are at risk of “sticking”, that is, of leaving audience members with a sense of accuracy or legitimacy, which represents a danger for the identifiable group being disparaged, if not reviled.  All in all, the Quebec Regional Panel finds that Doc Mailloux’s characterization of persons afflicted with trisomy 21 constitutes abusive and unduly discriminatory comment on the basis of a mental and physical handicap and is in breach of the Human Rights Clause of the CAB Code of Ethics

 

Coarse Language 

The use of coarse language, notably the f-word and its derivatives, on radio in English Canada has been fairly consistently defined to be inappropriate at times of the day when children could be expected to be listening.  Thus, in CHOM-FM re the song “Locked in the Trunk of a Car” by the Tragically Hip (CBSC Decision 04/05-0324, April 4, 2005), this Panel so concluded in the case of the use of the words “fucked up” in a song lyric.  In its review of the principles surrounding the broadcast of the f-word, this Panel said, 

The CBSC has dealt on numerous previous occasions with the broadcast of the f-word and its variations on radio at times of the day when children could reasonably be expected to be listening.  Most of those previous decisions have involved the presence of the f-word in songs, while a smaller number have dealt with the use of the f-word during on-air discussions.  The CBSC has consistently ruled that broadcast of the f-word on radio during daytime and early evening hours constitutes a breach of the CAB Code of Ethics.  The Quebec Panel is aware of the fact that language usage is constantly in a state of evolution, both on the French and English sides of Canada’s heritage.  Formerly unacceptable language gradually but invariably insinuates itself into more common usage and a review of the old and new practice is merited from time to time.  That is likely the case with respect to the f-word and its derivatives, which, after all, appear in noun, verb, adjective, adverb and interjection forms in English.  Some of those forms are more aggressive and some are more benign but all are undoubtedly extremely offensive to certain sectors of Canadian society.   

Then, in CJMF-FM re comments made on an episode of Le trio de l’enfer (CBSC Decision 04/05-0761, October 24, 2005), the use of the following language was also found in breach of the Radio Broadcasting Clause of the Code: “Fuck off!  It’s all about the money for cripes sake.”  In that instance, this Panel said: 

The Panel also finds that the use of the English expression “Fuck off!” by host Louis Lacroix was, on this occasion, also in breach of the same Code provisions, although not for the same reason.  The language was unduly coarse and offensive and was used at a time of day (the after-school period) when children could be expected to be listening to the radio. 

The Panel finds the use of the f-word in the broadcast under consideration to be equally inappropriate, given its use at a time of the day when children could be listening.  It concludes that its broadcast constitutes a breach of the prohibition against the broadcast of unduly coarse or offensive language envisaged in Clause 9(c) of the CAB Code of Ethics. 

 

Broadcaster Responsiveness 

It is the practice of all CBSC Adjudicating Panels to assess the broadcaster’s responsiveness to the complainant.  Although it is, of course, the case that the broadcaster need not agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant’s concerns in a thorough and respectful manner.  In the matter at hand, the Panel considers that the response of the Directeur des Resources Humaines et des Affaires corporatives to the complainant was acceptable.  The Panel finds no breach of the broadcaster’s obligation of responsiveness on this occasion. 

 

announcement of the decision 

CKAC is required to: 1) announce the decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which Doc Mailloux was broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CKAC. 

The Canadian Broadcast Standards Council has found that CKAC has breached the Canadian Association of Broadcasters’ Code of Ethics in its broadcast of the Doc Mailloux episode of November 4, 2005.  By making pejorative comments about persons with trisomy 21, the host breached the Human Rights provision of the Code of Ethics, which prohibits abusive or unduly discriminatory comments on the basis of the mental or physical handicap of an identifiable group.  By broadcasting coarse and offensive language during the course of that episode, CKAC has also breached the provisions of Clause 9(c) of the Code of Ethics which prohibits the broadcast of such language.

 

This decision is a public document upon its release by the Canadian Broadcast Standards Council.