CKAC-AM re an episode of Doc Mailloux

QUEBEC REGIONAL PANEL
(CBSC Decision 03/04-0453)
G. Bachand (Chair), T. Rajan (Vice Chair), R. Cohen (ad hoc), B. Guérin, G. Moisan, M.-A. Murat

THE FACTS

CKAC (Montreal) broadcasts the open-line public affairs program Doc Mailloux weekdays from 1:00 pm to 4:00 pm. Its host, psychiatrist Doctor Pierre Mailloux, and his co-host, Janine Ross, discuss the issues of the day and take calls from listeners. The challenged episode was broadcast on December 2, 2003 and the principal subject of the day was immigration. Within the course of the discussion, Dr. Pierre Mailloux voiced his opinion on certain related issues which included the following (a fuller transcript of the episode can be found in Appendix A, available in French only):

Robert: Those people, when they immigrated here to Canada, personally I would be astounded to see an addendum to their immigration application saying, to our way of thinking and doing, that their purpose is to go to school armed with a knife because it’s their religion. They never asked for that when they asked to immigrate here. The man who joined the RCMP, when he requested his application to be an RCMP police officer, Madam, you will agree with me that he never asked, far less ever said, I’m warning you that if I’m a police officer that doesn’t paint a turban on my head.

Janine: No Robert. Robert, the only point I was attempting to make is that when the little boy who wore a turban in Denise’s school … when the parents learned of it, he came to school the next day without a turban. It was just meant to illustrate that the cultural communities are also doing their part in this. And that … and that I cannot … but Pierre …

Pierre: No, but you seem … no, no, now Janine, the way you’re saying this suggests that it is almost an obligation to respect that. Excuse me.

Janine: No, no, that’s not what I’m saying Pierre. I’m saying that … no.

Pierre: If. The cultural communities are doing their part. No. You cultural communities come from a wacko country. You live a wacko culture. Don’t bring it with you. That’s the message to convey.

Janine: OK, and we’re on that road, Pierre!

Pierre: That’s right, the hood, the knives, the veils, the – you know – the chasubles, the whole nine yards, you leave that at home.

Robert: I’ll tell you something. Look, if I compare immigration because our current governments, the way that, that, that we are governed, we lack, we aren’t even respected by the rest of the world. Because it makes no sense, the way we’re governed. And the immigration service gives them everything, they give in on everything. There are classes of immigrants who come in here, ethnic groups, that adapt to us. And then there are others who will absolutely not hear of it. Those people, well as far as I’m concerned, I’d rather not get into it …

Pierre: Robert, you cannot flee a wacko culture specifically because it is wacko, and bring that same culture with you.

Pierre: I flee northern India because the Sikhs are a gang, a gang of bozos, and then I bring all that with me. No, no, you really don’t get it. If you flee your country because it makes no sense, then don’t bring those senseless things with you.

Dino: There it is. My comment is addressed directly to Mr. … Dr. Mailloux, concerning … the comments he made about immigrants, people who come to live here to have children. I think it is Canada’s primary objective and if Dr. Mailloux is afraid … he says people will come, Muslims, Christians, Latinos, and they will have problems. I say to Dr. Mailloux that it is society, because the first, um, the first people to benefit are the children from whom the government benefits in turn. Their fathers, they come to work here in the factories, they work as cleaners, they do the menial jobs and it will be the poor children who will be in elementary school and daycare centres and who will grow up within Quebec society. They will speak French and go bowling. They will know the religious holidays of Quebec, not those from their country. By a certain age, they won’t even speak their own language. My children do not speak my mother tongue. I speak to them in French, otherwise they don’t understand. So, I don’t see where the problem is. Janine was right to say that the way to solve that problem is to import people, import people, people, bring over a relative …

Pierre: When you’re at the point where you consider that the government’s priority is to vote against the scarf in schools, to bring back lay schools, they’ve got a heck of a problem on their hands in France. So, Dino, I’m sorry, I’m not a racist I assure you, I’m not xenophobic, but resorting to immigration to solve a demographic problem isn’t the smartest move … there wasn’t much thought given to that.

Janine: We’re opening our borders to other people and that is the right thing. And without knowing where it will lead us, it is a human experience. That is what Dino is saying – that his kids will probably speak French eventually and as for us, that other culture will leave its mark on us as well. There is nothing wrong with that!

Pierre: Janine, you’re entitled to your opinion. I disagree, I disagree completely. Look at what is going on in France with the Muslims.

Janine: They went to colonize the Maghreb and those who collaborated with them, the others, were kicked out. They promised them the moon in France and then they dumped them in ghettos. It’s not so straightforward is it Pierre?

Pierre: So, the immigration issue is a meaty one!

Janine: We saw a turning point in history. You said so yourself, Pierre, at the top of the program. We have the choice not to have children. Some make that decision very early in their lives and never waiver from it. We have a birthrate of 1.5 per woman in Quebec and, well, that alarms a lot of people.

Pierre: Ah, yes, as far as that is concerned, and to those who want immigration I say open Quebec’s doors to Scandinavians, Western Europeans, individuals who come from relatively civilized countries. But now we’re opening our doors to individuals from backward countries, wacko countries, third world countries and so on … well first off you’ll have to civilize all those people. You’ll get your fill of different coloured skins.

Pierre: And opening our doors to immigrants from under-developed countries, now there’s a smart move! You don’t now what problems are, my dear!

Pierre: […] If we become more respectful towards them, the people, the adults, who are worthwhile, the parents who are worthwhile, who would like to reproduce. If we are much more respectful and supportive, we’ll have plenty of them and we won’t need to re-establish the demographic balance with … by opening our doors to the “muktuk” countries. (translation)

On December 17, a listener sent a complaint to the CRTC, which forwarded it to the CBSC in due course (the full text of all correspondence can be found in Appendix B, available in French only). The complainant expressed the following concerns:

[Translation] Doctor Mailloux made nasty comments, tainted with insulting racism of the first order. His slanderous comments were aimed in part at Algeria and at a certain number of Algerian nationals. He attacked people who live decent lives and harm no one, in a vulgar fashion and for no apparent reason.

On top of his manifest ignorance of Canada’s immigration policies and procedures, this person displays an unfit attitude deserving of an exemplary sanction. It seems to me that his insulting and racist behaviour is encouraged by the fact that this radio station appears unaware of the grave nature of Mr. [sic] Mailloux’s hatemongering.

The broadcaster responded to the complainant on January 26, 2004 with the following information:

[Translation] We listened carefully to the program of December 2 and more particularly to those program segments dealing with immigration – not only involving Algerian nationals, but also those coming from various Muslim, Sikh and Hindu countries. We noted that on several occasions Dr. Mailloux contradicted his co-host and callers from the public.

When Dr. Mailloux stepped in to contradict a speaker, he specifically mentioned that he has broad experience in behavioural analysis as it relates to the social effects of the arrival of large numbers of immigrants from various roots. It is clear that Dr. Mailloux does not share the opinion of those who have chosen to immigrate to Canada and who make no effort to integrate into Canadian society. It is also abundantly clear that he disagrees with the pro-natalist policies adopted by Canadian and Quebec political leaders responsible for immigration. It must however also be noted that the show’s co-host expressed various differing opinion on several occasions throughout the program.

It must be recognized that Dr. Mailloux expressed the opinion of many Quebeckers according to whom the massive arrival of immigrants from various ethnicities disturbs the social climate, particularly when the latter insist on keeping their practices and customs and believe that wearing the Islamic veil, the hijab, the turban or exhibiting the signs of the kirpan amount to a form of confrontation similar to that being currently staged in France. And, Dr. Mailloux’s observations did include an explanation of the current debate in France.

Through our review of the program we were able to determine that Dr. Mailloux’s rant may have affected honest immigrants who quickly integrated into their new communities and that these comments could aggravate the manner in which various categories of citizens behave towards ethnic communities. We agree with your comment that Dr. Mailloux displays a manifest ignorance of the immigration policies and procedures in Canada and Quebec on the air and that his comments can be interpreted as being unfit and having the potential to attack the dignity of certain people. That is why we have directed Dr. Mailloux to show more compassion and reserve concerning immigrants.

We care about our listeners’ concerns. That is why CKAC730 is very mindful of the quality of its programming going out to a large audience. CKAC730 is one of the largest radio stations in the Montreal market and we are truly distressed when comments made on our airwaves by our staff may have shocked members of our audience. (translation)

The complainant sent a Ruling Request dated March 2 to the CBSC. She also wrote a short note indicating that, in her opinion, the station’s arguments were “disingenuous and far form convincing.” (translation)

THE DECISION

The CBSC Quebec Regional Panel examined the complaint under the following provision of the Canadian Association of Broadcasters’ (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.

The Panel listened to a recording of the broadcast in question and reviewed all of the correspondence. The Quebec Regional Panel concludes that, while much of the Pierre Mailloux commentary falls within the category of protected political discourse, one of the comments, as indicated below, is in breach of the Human Rights Clause of the CAB Code of Ethics.

Political Commentary vs. Human Rights

In the skin of the person affected by words, there are sometimes stinging barbs that are, when viewed on a more detached and objective basis, only political observations or commentaries. Thus, for example, there may be comments made relating to overall Government immigration policy that understandably trouble immigrants, others relating to same-sex marriage that understandably trouble members of the gay and lesbian communities, still others relating to bilingualism, provincial rights, and other controversial issues, that identifiable groups understandably consider are targeted at them. Occasionally, therefore, comments about which “interested” groups are sensitive amount to no more than historical or political perspective. From time to time, though, there may, of course, be comments that, although prickling thinner skins, are abusive or unduly discriminatory and, consequently, do not meet the codified standards of Canada’s private broadcasters. The task for CBSC Panels faced with complaints about such matters is to separate the wheat from the chaff, in order to decide which comments fall into the first category and which into the second.

In CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997), a decision in which the Quebec and Ontario Regional Panels decided against the broadcasters, the Panels underscored

the importance of differentiating between insults aimed at identifiable groups and comments related to the political or historical environment in Canada and in France. The breach they find is limited to the comments mentioned in the foregoing section. Those comments relating to the state of radio in Canada, the use of English in Quebec, the value of French culture, Canada as an appendage of the United States, the role of the vanquished French in Vichy France, the issues relating to separatism, and so on, are the host’s opinions and, unless utterly and irresponsibly uninformed, as in the case of CKTB-AM re the John Michael Show (CBSC Decision 92/93-0170, February 15, 1994), they are his to espouse. […] In general, the Council’s review of the first two weeks of the Stern show discloses that the bulk of the commentary relating to Quebec, France and Canada following the September 2 debut was of this nature rather than of the abusive variety manifested in the comments directed at French-Canadians on the very first day. It is the view of the Regional Councils that these political and historical comments fall squarely within the bounds which freedom of expression is meant to protect.

Two subsequent CBSC decisions dealt more pointedly with the question of immigration. In the first of these, namely, CFUN-AM re the John and JJ Show (Immigration Policy) (CBSC Decision 97/98-0422, May 20, 1998), the Ontario Regional Panel was called upon to evaluate sarcastic comments of the hosts in their dealing with an aspect of the immigration issue. The Panel concluded that

[t]here was nothing unwelcoming or unaccommodating in the hosts’ attitudes. They were merely critical of Canada’s open-door policy. Their problem was with Mr. Hau and the Government policy which permitted him to remain in Canada, ultimately, it appeared, resulting in infanticide and grievous assault, not with the Chinese as an identifiable group or culture.

The related subjects of immigration and refugee policies are sensitive and provocative and the CBSC has occasionally found that broadcasters dealing with this area have overstepped the limits of the private broadcast standards which they administer. This is not such a case.

In the second matter, namely, CILQ-FM re the Howard Stern Show (CBSC Decision 99/00-0717, -0739, June 28, 2001), the host declared his position on immigration, namely, that he was against all immigration in “this country” (which, in his case, was, of course, the United States). The Ontario Panel noted that the host

is utterly clear in his position when he says “I am against all immigration into this country.” That may be an unpopular position or one unpalatable to the complainant or others; however, that is not the issue. Everyone has the right to express unpopular political positions on the airwaves provided these are not in reality unduly discriminatory commentary, which is prohibited under the human rights provision of the CAB Code of Ethics. This has always been the position of the Council.

[…] Stern’s expression of opinion […] is nothing more or less than a political perspective regarding both the issue of immigration and, it appears, the question of assimilation. He has made no comment whatsoever suggesting that American citizens of other national or ethnic groups be stripped of their citizenship and returned to their countries of origin. He does not wish new immigrants. It is a defensible view in terms of the freedom of expression.

Within the foregoing context, the Panel fully appreciates that Pierre Mailloux holds a strong opinion on the question of immigration and that he is prepared to share it readily and in forceful terms with his listeners. It also acknowledges that, as unpleasant as the host’s attitudes may be to some members of various immigrant communities (as well as the many more generous and receptive Quebeckers and Canadians), by virtue of the principle of freedom of expression, he is entitled to speak against the prospect of wide-ranging immigration. He is entitled to be xenophobic (that he denies that he is appears disingenuous to the Panel) and to favour the fullest form of assimilation of immigrants into Quebec society. He is entitled to prefer that they leave their religious and cultural traditions, practices and vestments in their country. He is even entitled, within limits, to be ungenerous vis-à-vis foreigners. As an example, “If you flee your country because it doesn’t make sense, then don’t bring those senseless things with you” (translation). The implication is that someone leaving a country is doing so because that nation is not of interest and that, in such circumstances, a person should not bring along anything associated with the former country because nothing associated with it could be of interest. It is a black-and-white, narrowly xenophobic approach to immigration, denying the prospect of any benefit that could be accrued by Quebec and Canadian society from the richness of extra-national cultures.

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 bottom line is that the Panel considers that the host is entitled to espouse his chauvinistic intolerance until such time as his disrespect leaks into individual races and nationalities, as it did when he referred to the Sikhs as “a gang of bozos” (translation). It is the view of the Quebec Panel that that allegation is abusive and unduly discriminatory and is in breach of Clause 2 of the CAB Code of Ethics.

Broadcaster Responsiveness

There is a CBSC membership requirement that emphasizes the importance of the broadcaster’s role in dialoguing with the complainant. When an individual takes the time to put pen to paper or fingers to keyboard, the CBSC recognizes the effort and considers that it merits the time and thoughtfulness of a broadcaster in replying. In this case, the President-directeur general provided a thorough and extremely thoughtful reply, carefully analyzing the nature and scope of the host’s comments and their possible effect on listeners, from the conflicting sides of the “honest immigrant” and the unreceptive corner of the Quebec population. Moreover, he acknowledged the fact that the host delivered on-air confirmation of a manifest ignorance of the Canadian immigration policies and processes and he explained that the station had required Dr. Mailloux to show more compassion to immigrants in future. The broadcaster’s reply was, in many senses, a model response. Nonetheless, it appears not to have resolved the complainant’s issues. In the circumstances, the CBSC had no choice but to proceed with its adjudication, which does not, in any way, reflect on the excellent fulfilment by the broadcaster of its obligation of responsiveness.

ANNOUNCEMENT OF THE DECISION

CKAC-AM is required to: 1) announce this 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 this episode of 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 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 December 3, 2003. By insulting an identifiable group during the course of a discussion on the subject of immigration, the host breached the Human Rights provision of the Code of Ethics, which prohibits abusive or unduly discriminatory comments on the basis of the national or ethnic origin of the group.

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