At all times material to this decision, Doc Mailloux was an open-line radio program hosted by psychiatrist Pierre Mailloux and his co-host Janine Ross; it aired weekdays on CKAC (Montréal) from 1:00 pm to 4:00 pm. The hosts and callers discussed topics related to psychology, sociology and similar disciplines, occasionally inspired by a current news story or social phenomenon.
The CBSC received complaints from two separate individuals about various episodes of the program that aired in October 2006. The first complainant identified the episode of October 5 and expressed concern about the host’s disrespectful treatment of a female caller. The second complainant provided a lengthy detailed list of offensive content of concern to him, including coarse language, sexual remarks, insults directed at individuals and discriminatory comments which occurred during the episodes that aired on October 25, 26, 27, 30 and 31 (the full text of their complaints, the broadcaster’s replies, and all other correspondence can be found in Appendix B). The station responded to the first complainant, suggesting that Doc Mailloux had simply offered his opinion. It responded to the second, saying that the station was taking measures to ensure that the language used by the host would be better controlled in future. Both complainants were dissatisfied with the responses they received from CKAC and filed their Ruling Requests with the CBSC.
As noted above, the episodes included numerous comments relating to different potentially problematic content categories. Since the transcribed content of the 18 hours is so lengthy, the CBSC is, on this occasion, departing from its customary expository practice of including all material broadcast elements in the factual section of its decisions; and dealing with every potentially offending comment in the decision rationale. As to the first departure, since the examples of relevance are so numerous, the Panel will limit its exposition to a limited number of examples, which can be found under the following headings, divided by category. In keeping with the importance of transparency, though, full transcripts of all six episodes can be found in Appendix A. It can also be expected that not every example of comments in the six episodes that would fall into one or another of the following categories will be identified. In the view of the Panel, that would constitute a form of overkill. As to the second departure, the Panel considers that its responsibility will be fulfilled if it deals with each genre of challenged comments, without necessarily identifying every instance of commentary in the 18 hours that would fall within each genre.
Mailloux frequently used words that are generally considered coarse language, in both French and English. Words uttered on the dates in question included the English word “fuck” and the francized variations “fucké” and “fuckailler”, as well as the French words “calice”, “chrisse”, “faire chier”, “hostie”, “sacrement”, “ciboire” and “tabarnac’”. The words were used in a variety of contexts; sometimes Mailloux used them as interjections to emphasize his surprise or disgust, while on other occasions they were directed in a more insulting manner towards a caller.
Given the nature of the program, namely, a phone-in in which callers offered their opinions and sought advice on matters relating to human relationships, issues of sexuality frequently entered into the conversations. In some cases, callers talked about their current sex lives or sexual abuses they had suffered in the past, which were negatively affecting their lives. It was not unusual for Mailloux to ask for very explicit descriptions of these events. For example, during the October 25 episode, Mailloux and Janine spoke with a woman, Isabelle, who told them she had been sexually abused by her father at the age of ten. The conversation then progressed as follows:
Isabelle: […]. But then my father acted in a certain way toward me, and well, it was incest.
Doc Mailloux: Meaning? Actions such as? It’s, it’s like. Look, don’t go too fast with this. He started, because, how this progressed is very important.
Isabelle: Well, he played with my hair, because I’ve always had long hair.
Doc Mailloux: So, he played with your hair, but in what manner? Educate the women out there a bit more.
Isabelle: But it wasn’t a, a touch, um, what would I call it, it wasn’t done in a parental manner. It was, it was more like what a partner or husband would do with his, with his partner’s hair.
Doc Mailloux: Yes. In what way? Describe the way your father touched your hair.
Isabelle: Well, with his hand, um, through the hair to feel my, like my, not my brain, but my head.
Doc Mailloux: Yes. Um, sitting down? What were the circumstances? Watching TV? Sitting beside you?
Isabelle: Well, often I was sitting at the kitchen table; I was doing my homework, things of that nature.
Doc Mailloux: Moving on to the next stage.
Isabelle: Then he very gradually began to address topics, and, um, it was always subjects like, um, um, “When you get older, how do you think, um, you’ll be with a man?”
Doc Mailloux: […]. For once we have a winner; a genuine pedophile. So, let’s address the topics, yes. Go on. Describe that for us.
Isabelle: Well that’s right. He very gradually began talking about, well, private parts, um, like he would talk about his penis; he talked about my vulva, and well he would say –
Doc Mailloux: Yes.
Isabelle: “You see, do you know the difference?”
Doc Mailloux: Yes.
Isabelle: I had never seen one before; I didn’t know. And then, well, he slowly began undressing in the house.
Doc Mailloux: Yes. Well yes, he had to show you the difference. You had never seen one.
Isabelle: Well, that’s right.
Doc Mailloux: Yes.
Isabelle: Then, well, that’s it, slowly. He would tell me that it’s important for a woman to smell good.
Doc Mailloux: Yes.
Isabelle: Then, well, that’s it; he touched my vulva with his fingers to see if it smelled good.
Doc Mailloux: Yes.
Isabelle: Then he told me to go wash myself and while I was doing that he was completely naked in his room, and I had a girlfriend with me. He had my girlfriend do the same thing too.
Isabelle: Then, well, um, when I came into the room, well he was completely naked. And I have such an image of that in my mind that, in any case.
Doc Mailloux: Describe the image you have in your mind.
Isabelle: Well, he was sitting down, with one leg bent and I could see his penis, and I said “What are you doing naked?” And he said, “Ah, we’re going to play a game.” But the game was that he would masturbate while we sat down and spread our legs and things of that sort. But I didn’t see it as –
Doc Mailloux: And for him, the game consisted of masturbating. So what happened next? How did things progress?
Isabelle: Then, um, but that’s it; he would masturbate and, um, once he was relieved, then everything was rosy, it’s as if –
Doc Mailloux: Once he came? He, did you see him ejaculate?
Doc Mailloux: O.K. Right.
Isabelle: When I asked him what that was, he said “Never mind what that is” and then he said “Now, you can get dressed.”
Doc Mailloux: How did things progress? Tell us about that. How did things progress? So for a year, if I understand correctly, he would masturbate while looking at you or what, did you masturbate him or what went on?
Isabelle: No, no. I never masturbated him. He always did it to himself because I thought that something might not be working quite properly in there.
Isabelle: I didn’t want to touch that.
Doc Mailloux: Ah. You didn’t want, you didn’t want to touch. Did he masturbate you?
Doc Mailloux: O.K., he masturbated and he made you undress, like the, the scene you described, but you were alone. […]
Isabelle: I always had my appointment. He would get home, well an appointment in a manner of speaking. He would get home from work, go into my room, take his change and put it in my little jar.
Doc Mailloux: Yes.
Isabelle: And then, whoops, he would start undressing and once he was completely naked, he would sit on my bed, and then well, he masturbated. And well, it flew everywhere.
Doc Mailloux: Yes.
Isabelle: And I was the one who cleaned up.
Doc Mailloux: Yes, yes. And okay, you were the one who cleaned up the sperm.
Isabelle: Yes, on my bed and on me.
Doc Mailloux: And while he was masturbating. Ah, there was some on you?
Isabelle: Yes, yes. Yes, yes. He was like close enough for some to, um, land on me.
Comments about Gender
Again, due to the program’s focus on human relationships, discussions of gender frequently occurred. Mailloux regularly made generalizations about both women and men. He often labelled women as “gonzesses”, “greluches”, “tartes” “folles” and “nouilles” [approximate English translations: “broads”, “wenches”, “tarts”, “crazies” and “simpletons”]. He also made comments about the proclivity of “feminine malice”, and blamed any number of societal problems on females and their “castrating” behaviour. As just one example of his views on women, his reaction to a female caller who was describing her difficulty in getting along with her step-children was to say [translation] “You have a Quebecois characteristic, a very female Quebecois characteristic. You don’t listen when you’re conversing with someone. So, you’ll never progress in life.”
Mailloux had similar negative comments to make about men. Any man who was described as kind or attentive or demonstrated any sort of willingness to care for children was accused of being “un bitte molle”, “un homme féminisé”, “un homme mou” or “un homme maternant” [approximate English translations: “a limp dick”, “a feminized man”, “a spineless man” or “a maternal man”]. Again, Mailloux identified as the root of numerous social and interpersonal problems on this tendency of men to take on more child-rearing responsibilities. For example, one male caller explained that he had raised his son as a single parent. Incredulous, Mailloux reacted with [translation] “You’re not serious? […] You played the broad? […] A man who raises a baby is a man who mothers a baby.” Later in the conversation, the man said his sex drive was very low and that he suffered from depression. Mailloux’s response was [translation] “I can well understand! Playing the broad. Okay? Having a broad’s attitude, mothering a child for 17 years, well there you go!” Mailloux and Janine referred to that call later in the program, with Mailloux commenting that women who are not maternally-inclined frequently rely on men to raise their children and that [translation] “it’s catastrophic for those men.”
Comments about Race or Nationality
Mailloux did not limit his negative generalizations to those based on gender; he also frequently targeted racial or ethnic groups. A case in point occurred during the broadcast of October 26. A female caller explained that her ex-husband was living in the United States with their 15-year-old son and was denying her access to their child. She mentioned that her ex-husband was “North African-Canadian” and that the man was unemployed. Mailloux sarcastically replied, [translation] “Such evil talk. Imagine telling us that a North African doesn’t like to work!” and then went on to make the following comments:
Doc Mailloux: What did Mailloux say concerning North African countries, the Arab countries, and countries here and there, in Africa, in Central America? The social status, the social status is determined by the enterprise displayed by the men!
Janine: But um, a lazy Quebecker, Pierre, would have you pushing the same buttons, isn’t that right?
Doc Mailloux: Well no, Janine, that’s not my point. All right, I’ll try again. There are certain cultures where manly enterprise is not inherent, embedded in the culture. So when I hear a woman, all North Africans are not lazy, but in their, Arab men don’t work. I am generalizing, but it is in fact true. What do you want me to tell you? Central Americans don’t work, Blacks in Africa don’t work and the Russians don’t work. So, that’s it, the men determine the social level. And she’s telling us “He didn’t want to go out and work”. Well yes, but in his culture, men work very little or not all. Now, continue.
Doc Mailloux: I’m not telling you there aren’t any in the States, that all Quebeckers are enterprising. In America, in Europe, the Scandinavian countries, the, the, those countries are much more advanced because the men have been enterprising; more than elsewhere.
Janine: Well, then, Pierre? [laughs]
Doc Mailloux: Well yes. Now the North Africans will be complaining to the CRTC. That’s fine, but at least I’ve had my say.
Christine: But continue warning women –
Doc Mailloux: Pardon?
Christine: Continue to warn people, the –
Doc Mailloux: Ah? So Madam, Madam is encouraging me to make degrading comments about certain groups. I see!
Mailloux went on to ask her about her son: [translation] “Does he have a North African temperament, does he, or does he have some heart?” In another part of the dialogue with his co-host, Janine Ross, he made the following comments about the Japanese: [translation] “The Japanese, I’m sorry, the Japanese do not cultivate excellence. They are the most submissive and obedient people in the world. […] They are the most conformist, the least, the least individually evolved. Personal development does not exist in Japanese society!”
Other Types Of Comments
Mailloux also made other potentially offensive comments that, while not falling into one of the above-mentioned categories, could still raise issues under the broadcast codes. For example, he sometimes made insulting remarks about callers or other third parties not present on the program. In dealing with caller Nicole, for example, he was particularly direct and insulting.
Doc Mailloux: But you’re backward and archaic, Nicole!
Doc Mailloux: You’re backward and archaic, with your thick stockings and clodhoppers –
Another instance was the conversation with the female caller that concerned the first complainant. That exchange occurred on October 5. After explaining that couples therapy had benefited her and her husband, the woman, Josée, mentioned that she tried to be very open with her children about matters relating to sexuality. She recounted the story of how she accompanied her 13-year-old daughter to the pharmacy to purchase tampons. Mailloux objected to the woman’s approach to the matter:
Doc Mailloux: You know, you know, Josée, I’m really bowled over by your ignorance.
Josée: Thank you.
Doc Mailloux: And it, it really doesn’t give you any credit.
Josée: No, you mean my ignorance because of the issue of tampons and the hymen? Otherwise, I don’t know –
Doc Mailloux: A special tampon, there are, there are girls, there is a percentage of teenaged girls, because of the hymen, who cannot use intravaginal tampons. I hope I’m teaching you something here. I’m a bit taken aback, Janine.
Doc Mailloux: Well no, but listen, it’s important for our listeners. Dang! I don’t know what level of common knowledge we’ve got here in Quebec.
Doc Mailloux: The tampon saleslady, the one selling this to teenaged girls, isn’t there a warning on the box? I mean, really.
Josée: But, she, there was no problem there.
Doc Mailloux: Well, I’ll be darned! Well yes, okay, there is no –
Janine: There is no problem, and so there. It’s like the first –
Doc Mailloux: Women can really get your dander up!
Janine: Well, in any case. Because, there may not be any reason, Pierre –
Doc Mailloux: Hey, I think that instead of handing out money to those loud mouth women in Ottawa, we might set aside a bit to instruct teenaged girls on the use of tampons, young girls who have not yet had sexual relations! [laughs]
Josée: Listen, I’m not getting my say here, okay. A period –
Doc Mailloux: The lights are pretty dim in Quebec!
Doc Mailloux: – where, where sexual education is concerned, your daughter, I’ll tell you simply and respectfully this: she is absolutely right in not discussing these things with you. Let her get some books, ask other girls, but I think that as a counsellor in feminine sexuality… Oh boy! Pretty dismal, Josée! Bye!
Janine: If it doesn’t go in, you don’t force it, and you don’t insert it, that’s about all you can say! In any event, I see no drama here. In any case let’s move on. We were discussing couples therapy.
Doc Mailloux: “No drama” … Okay, fine.
Janine: But Pierre, I sincerely –
Doc Mailloux: Yes, I’m not being dramatic. What it boils down to is “We’re happy being dumb. We won’t make a big deal out of it.”
Janine: Tsss! It’s not being dumb, you can say, the lady pharmacist can say: “Don’t force it. If you do, you may have, you may have a bit of bleeding, it could hurt, so stop. End of story.”
Doc Mailloux: Well, it isn’t necessary to tear your hymen to insert a tampon, after all.
Janine: Well, I don’t think; I don’t think that teenaged girls would for that matter, Pierre.
Doc Mailloux: Well, listen –
Janine: If you tell her “Gently”. There is no huge deal there!
Doc Mailloux: Hey, you experienced women, you could; I think Raël is right, take a mirror and have a look at yourselves from time to time. You know? It’s, hey, geez!
The Quebec Regional Panel examined the complaints under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and the CAB Sex-Role Portrayal Code:
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:
(b) Unduly sexually explicit material; and/or
(c) Unduly coarse and offensive language.
CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation
It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.
CAB Sex-Role Portrayal Code, Article 4 – Exploitation
Television and radio programming shall refrain from the exploitation of women, men and children. Negative or degrading comments on the role and nature of women, men or children in society shall be avoided. Modes of dress, camera focus on areas of the body and similar modes of portrayal should not be degrading to either sex. The sexualization of children through dress or behaviour is not acceptable.
The Panel Adjudicators reviewed all of the correspondence and listened to recordings of the broadcasts. The Panel concludes that, with the exception of Clause 6 (for the reasons cited in the section on Insulting Comments below), each of the episodes violated one or another of the other above-mentioned Code provisions, and that, considered collectively, they violated them all (with the exception of Clause 6).
Panel Conclusion re Coarse Language
This issue has been dealt with on several occasions by this Panel. In CJMF-FM re comments made on an episode of Le trio de l’enfer (CBSC Decision 04/05-0761, October 24, 2005), for example, the Panel concluded that “Fuck off!” 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 has also dealt with that expression, or one of its related forms, in a series of decisions related to the radio host whose comments are at issue here. See CKAC-AM re an episode of Doc Mailloux (CBSC Decision 05/06-0642, February 3, 2006), CKAC-AM re an episode of Doc Mailloux (Adolescent Sexuality) (CBSC Decision 05/06-1104, June 30, 2006), CKAC-AM re an episode of Doc Mailloux (Money) (CBSC Decision 05/06-1379, December 11, 2006), CKAC-AM re an episode of Doc Mailloux (Financial Difficulties) (CBSC Decision 05/06-1405, December 11, 2006), and CKAC-AM re an episode of Doc Mailloux (Childless by Choice) (CBSC Decision 05/06-1671, December 11, 2006). The conclusion in all of those decisions is that the use of the f-word and/or any of its equivalent words, whether in English or French, such as the francized variations “fucké” and “fuckailler”, is in breach of Clause 9(c) of the CAB Code of Ethics.
This is also true of the words or expressions “calice”, “chrisse”, “faire chier”, “hostie”, “sacrement”, “ciboire” and “tabarnac’”, most of which have been dealt with in one or more of the following decisions of this Panel: CHOI-FM re Le monde parallèle de Jeff Fillion (CBSC Decision 02/03-0115, July 17, 2003), CJRC-AM re an interview by Daniel Séguin on L’Outaouais ce matin (CBSC Decisions 03/04-2082 and 04/05-0023, April 4, 2005), CKOI-FM re comments made on Y’é trop d’bonne heure (CBSC Decision 04/05-0891, September 9, 2005), and CJMF-FM re a commentary on Bouchard en parle (CBSC Decision 05/06-0326, February 3, 2006). On the issue of the host’s coarse language described in this and the previous paragraph, the Panel concludes that the broadcaster breached Clause 9(c) of the CAB Code of Ethics.
Panel Conclusion re Sexual Discussions
This issue has also been dealt with on several occasions by this Panel, as well as other CBSC Panels. As in the case of coarse language, the guiding principle for the Panel has been that explicitly sexual discussions or comments are inappropriate at times of the day when children could be expected to be listening to the radio. The Panel wishes to underscore the fact that it is the time of day, and not the sexual substance of the discussion, that is at issue. It presents, the Panel hastens to add, a choice for broadcasters to make. Based on the codified standards adopted by Canada’s private broadcasters, any given station must determine whether it wishes to place its broadcast emphasis on racy, adult matter rather than programming dealing with psychological, matrimonial, extra-marital, sociological, or general relationship topics (without such a racy, adult component). If the former content is considered essential to the programming, then the time frame must be late evening hours. If the emphasis is on the latter content and the adult element is not critical, then day part broadcasting is fine. The point is that explicit sexual content must, from a time perspective, be relegated to late listening hours.
In the matter at hand, there were explicit discussions dealing with copulation, the sexual experiences of a number of the callers, sexual abuse suffered by other callers (such as the conversation with Isabelle cited above), sexual compulsions and preferences, masturbation, and sexual relations between an adult woman and a 13-year-old boy. In the view of the Panel, these matters exceeded by a considerable extent the subjects which ought to be broadcast during the afternoon (or at other times when children are likely to be listening). Consequently, the Panel concludes that the broadcasts in question are in breach of Clause 9(b) of the CAB Code of Ethics. For some CBSC Quebec precedents, see CKAC-AM re an episode of Doc Mailloux (Adolescent Sexuality) (CBSC Decision 05/06-1104, June 30, 2006), CKAC-AM re an episode of Doc Mailloux (Money) (CBSC Decision 05/06-1379, December 11, 2006), and CKAC-AM re an episode of Doc Mailloux (Childless by Choice) (CBSC Decision 05/06-1671, December 11, 2006).
Panel Conclusion re Comments about Gender
In an earlier decision involving the same host, Mailloux used some of the same terms to describe women as he again employed in the broadcasts under consideration here, namely, “gonzesses” and “greluches” [“broads” and “wenches”]. To these he has added the words “tartes”, “folles” and “nouilles” [“tarts”, “crazies” and “simpletons”], as well as the generalized comment that [translation] “the reality [is] that the vast majority of women are not well schooled in respecting others.” The Panel considers the words or expressions to be of a similar nature, particularly in the collective use he makes of them. While there may be a future occasion when one or another of these is, on individual basis, not found in breach of the codified standard applied here, the cumulative effect of the terms is undeniably degrading, abusive and unduly discriminatory. In somewhat different circumstances, involving another group identifiable on the basis of its sexual orientation, the Atlantic and Ontario Regional Panels make an analogous point in CFYI-AM and CJCH-AM re the Dr. Laura Schlessinger Show (CBSC Decisions 99/00-0005+, February 9 and 15, 2000):
Although it is the view of the Councils that, when her positions are analysed one-by-one, most are not in breach of the Code, despite the fact that some of these may be unenlightened and anachronistic, the Councils are left with the uneasy sense that there is an understandable cumulative effect of Schlessinger’s positions on so many matters which concern the gay and lesbian communities.
Mailloux’s comments were not aimed exclusively at women; he did not spare the men. Here, too, there is a collective or cumulative abusive or unduly discriminatory commentary rendered against men. By referring to them as “un bitte molle”, “un homme féminisé”, “un homme mou”, “un homme maternant” [“a limp dick”, “a feminized man”, “a spineless man”, “a maternal man”] or as having an “attitude de gonzesse” [“a broad’s attitude”], he has breached the entitlement of the male gender to be free of degrading, abusive or unduly discriminatory characterization.
All in all, the Quebec Panel finds that the series of anti-female and anti-male comments made during the various challenged episodes of the Doc Mailloux program constitute a breach of Clause 2 of the CAB Code of Ethics and of Article 4 of the CAB Sex-Role Portrayal Code.
Panel Conclusion re Comments about Race or Nationality
The host was equally acerbically candid about different identifiable groups on the basis of their race or ethnicity. In the single exchange with co-host Janine and caller Christine cited above, the host managed to aim his discriminatory barbs at North Africans, if not Arabs in general, Central Americans (without focussing on any of the individual seven countries of that small continental bridge), African blacks, and Russians. The common generalized insult was that none of the identifiable races or nationalities liked to work. He began with a sarcastic, [translation] “Imagine telling us that a North African doesn’t like to go to work!” He followed that with [translation] “Arab men don’t work” and similar references to the other racial, national or geographic groups mentioned in this paragraph. The observations of this Panel in CKAC-AM re an episode of Doc Mailloux (CBSC Decision 03/04-0453, February 10, 2005) are apt:
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. […] 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.
The host even acknowledged that he was generalizing, but it did not prevent him from carrying forward with his discriminatory assertion: [translation] “I am generalizing, but it is in fact true. What do you want me to say?” His generalities about the Japanese people cited above are correspondingly discriminatory. It is clear to the Panel that all of the described comments are in breach of Clause 2 of the CAB Code of Ethics.
Panel Conclusion re Insulting Comments
The Panel understands that some talk show hosts operate on a caller-treatment continuum that ranges from the polite at one end to the grossly insulting at the other. To be fair, there may be a listening market for each of the styles on the continuum, as there are audiences for radically different styles of music. That different audiences may have differing levels of tolerance is not, however, the issue. There are also codified broadcaster standards that must be respected, and this Panel, as well as others, has tackled the issue previously.
In CHOI-FM re Le monde parallèle de Jeff Fillion (CBSC Decision 02/03-0115, July 17, 2003), for example, Jeff Fillion and his co-host responded to remarks made during the course of a television interview the previous night by rival Quebec City radio host Jacques Tétrault (who had himself commented on a defamation lawsuit lost by Fillion and another Quebec City radio host). Fillion referred to Tétrault and the television news host as [translations] “conceited asshole”, “that worthless piece of trash”, “shit disturber”, and “a tree with rotten roots.” A listener complained about Fillion’s general treatment of individuals who disagreed with his opinions, as well as his use of aggressive and coarse language. The Quebec Regional Panel reviewed the complaint under Clause 6 of the CAB Code of Ethics, which requires full, fair and proper presentation of opinion, comment and editorial. The Panel elaborated on the CBSC’s view of opinion-based talk shows:
Private radio tends to be a very local medium, focussing on matters of relevance and importance to the community. Depending, of course, on the particular station format and market, the morning drive period often includes what we describe as talk shows, and frequently within that broad genre, the provocative opinions of an outspoken host. Talk shows are themselves a relatively recent creation and the most controversial of these tend to be a yet more recent phenomenon. At its best, talk radio is as close as populous modern cities can hope to come to the ancient city-state open square expression of the divergent points of view that are the basis of democracy. At its worst, talk radio becomes a form of squabbling or worse and meaningless grabbing for attention and audience share. That it is entertainment is fair enough. When, however, it becomes shrill, brash, unpleasant, nasty insults, without substance, it may overreach the broadcasters’ own standards. While talk shows, particularly those of a true interactive nature, are rightfully regarded as a bastion of freedom of expression, the Canadian airwaves are not a free-for-all.
After all, underlying such restrictions is the recognition that the airwaves are the property of the Canadian people. They are only available to those licensees which satisfy the CRTC that they will exercise that licence responsibly and subject to the criteria and conditions established by the regulator.
There is, in a sense, a hand-in-glove relationship between the broadcasters and their audiences. Because the relationship is, in some senses, disproportionate (in the sense that the microphone and camera are powerful tools on the airwaves), broadcasters must be commensurately conscious of, and responsible to, the public they are licensed to serve.
With respect to the specific comments made by Fillion on the challenged episode, the Panel found a breach of Clause 6:
The Quebec Panel considers that host Fillion was anything but deft. He was crude and offensive. He spouted ugly and generalized epithets, comprehensible only in their flailing nastiness and not because a serious listener might have actually understood what his competitor did, if anything, to merit criticism. Thus, for example, the Quebec Panel finds that “conceited asshole”, “that worthless piece of trash”, “a “loser”, a “piece of vomit”, a “shit disturber” and a “tree with rotten roots” fall into this category, whereas focussed comments such as the accusation that Tétrault was “a poor communicator” who had lost most of his listeners are fair game.
Fillion demonstrated an utter lack of respect, not only for the competitive host, but also, more important, for the audience he ought to serve. The public interest is in no way served by such shallow grandstanding from the safe side of the microphone.
In contrast, in another decision of this Panel, namely, CJMS-AM re comments on two episodes of Le p’tit monde à Frenchie (CBSC Decision 04/05-0939, October 24, 2005), a listener complained, among other things, about the assertion that a caller was “déconner” [translation: “a pain in the neck”]. This Panel disagreed that the insult constituted a breach of Clause 6 of the CAB Code of Ethics. In a similar vein, in CKNW-AM re an episode of Adler on Line (CBSC Decision 05/06-0539, May 9, 2006), the B.C. Regional Panel dealt with a complaint about an open-line talk show. The topic of the day was a teachers’ strike then occurring in British Columbia. In reacting to the refusal of the teachers to return to work in the face of government back-to-work legislation, host Charles Adler strongly expressed his opinion that the teachers’ action was illegal and morally reprehensible. He took calls from listeners, some of whom were more sympathetic to the teachers’ position or who were teachers themselves. Adler raised his voice with some of those callers, interrupting them. He called two of them “stupid” and told another to “get a life”. A listener complained that Adler had “verbally abused” these callers just because they expressed an opinion different from his. The Panel found the host’s remarks and behaviour to be close to the line, but not over it:
In the matter at hand, Charles Adler expressed a point of view on the B.C. teachers’ strike that could be characterized […] as unequivocal and aggressive. Fair enough. The host is also undeniably clever. His stated belief in the rule of law and clear disdain for strikers disregarding the Legislative Assembly’s back-to-work legislation were forcefully put. The Panel is, however, at a loss to understand why he descended to the level of personal insult, using words like “stupid” to characterize Brent and Braeden. […] Adler could have characterized ideas as stupid but people? No need. Not right. It was, in the Panel’s view, unnecessary to pander to the bleachers. It is fine to disagree with the callers and to argue with them but to be rude and insulting to them to that extent was unnecessary. The deft gave way to the blunt. On balance, the Panel concludes that the broadcast came close to the edge but did not, on this occasion, go over it. While the Panel does not find that those insults constituted a breach of Clause 6 of the Code, it does regret that they were used.
In applying the foregoing jurisprudential principles to the Mailloux comments, the Panel considers that the host has not stepped over the line. His words were admittedly aggressive, blunt and insensitive. Accusing Nicole of being “backward and archaic” and Josée of “ignorance” was excessive. That said, the Panel does not consider that the comments exceed those of Charles Adler and, although it does regret that they were used on the Doc Mailloux program, it concludes that they are not in breach of the terms of Clause 6 of the CAB Code of Ethics.
In CKAC-AM re an episode of Doc Mailloux (Childless by Choice) (CBSC Decision 05/06-1671, December 11, 2006), this Panel observed that the broadcaster had breached specific codified standards on several previous occasions. In that decision, the Panel reviewed some of the relatively infrequent circumstances in which a broadcaster had breached any standards with sufficient frequency to attract a CBSC order for future compliance. The subject was dealt with in that decision because CKAC itself had breached the following standards on three or four previous occasions: making abusive or unduly discriminatory comments contrary to Clause 2 (the Human Rights clause); using coarse or offensive language contrary to Clause 9(c); and airing explicit sexual content contrary to Clause 9(b). Due to the timing of the various broadcasts in breach of the foregoing Code provisions that preceded the Childless by Choice decision, the CBSC imposed the following requirement with respect to the first two areas of breach, but not with respect to the third, namely, the broadcast of explicit sexual content (the timing issues are not relevant to the matter at hand but can be reviewed by accessing the Childless by Choice decision text).
In sum, the Quebec Regional Panel requires that CKAC must, within the thirty days following its receipt of the text of this decision, provide the CBSC with concrete indications of the measures which it intends to put in place in order to: a) avoid the broadcast of abusive or unduly discriminatory material; and b) avoid the broadcast of coarse or offensive language. Failing the receipt of such written assurance of the steps CKAC plans to take and the satisfactory timing of their implementation, the CBSC will determine whether there is any reason for which CKAC should be entitled to remain a member of the CBSC benefiting from the operation of the self-regulatory mechanism.
Since the Childless by Choice decision, taken on December 11, 2006, was not released to the public until April 12, 2007, CKAC’s 30-day delay only began to run from the April date. A slight extension having been granted, the Vice President, Government Relations of the parent company of CKAC, Corus Entertainment Inc., filed the statement of its intended remedial measures on May 23. It should incidentally be noted that the Corus letter made it clear that its proposed eight-point program voluntarily applied to all fifty of its radio properties, English and French, across Canada. The CBSC considered the broadcaster’s proposed steps entirely satisfactory, indeed well beyond the Council’s requested compliance level, and in fullest possible, and commendable, accord with CKAC’s (and Corus’s) obligations of membership in the CBSC.
The broadcasts that are at issue in the matter at hand were all aired in October 2006, which is to say, following the broadcasts in the Childless by Choice decision, but prior to the date of the decision and well before the CBSC admonition published April 12, 2007. The point is that the broadcasts under consideration here are in no way in breach of the CBSC’s injunctive determination published April 12, 2007.
Moreover, in April 2007, Corus Radio announced that it had changed the format of CKAC-AM from a news-talk to a sports station. In terms of the challenged program, this had the effect of removing the challenged Doc Mailloux program from the airwaves. As Corus specifically noted, in the May 23 letter, [translation] “Airing of the Doc Mailloux program ceased at the end of March 2007, and since that time the host in question has no longer had access to Corus’ call-in shows”. Corus went beyond that step, repeating its earlier commitment (to the CRTC during the hearings on the acquisition of the station assets, including CKAC) that, “CKAC will no longer broadcast any call-in shows on controversial subjects dealing with political news.”
In the circumstances, the Quebec Regional Panel does not consider that any additional commitment is required from CKAC regarding the issue of repetitive breaches. The broadcaster has more than conformed to any requests that the CBSC made in the previous Childless by Choice decision.
On the level of broadcaster responsiveness, a matter treated in every CBSC decision, the CBSC considers that the broadcaster has replied thoughtfully and in sufficient detail to the expressed concerns of the complainants. In the case of the first complainant, the letter of October 30 from CKAC’s Director of Human Resources and Business Affairs was full. In the case of the second complainant, while the letter of December 14 from the station’s General Manager was shorter, it was part of a much lengthier ongoing correspondence that was a part of earlier CKAC files which this complainant had already brought to the attention of the CBSC, and which had been dealt with by the Quebec Panel. In the circumstances, particularly taking into consideration the remedial steps subsequently taken by the parent company, Corus Entertainment, the Quebec Panel considers that the broadcaster has more than adequately fulfilled its membership obligation of responsiveness.
ANNOUNCEMENT OF THE DECISION
CKAC-AM 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 broadcasts 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 violated provisions of the Canadian Association of Broadcasters’ Code of Ethics and Sex-Role Portrayal Code during its broadcasts of episodes of Doc Mailloux on the afternoons of October 5, 25, 26, 27, 30 and 31, 2006. By broadcasting degrading, abusive or unduly discriminatory comments about women and men, CKAC breached Clause 2 of the CAB Code of Ethics and Clause 4 of the CAB Sex-Role Portrayal Code, which prohibit the broadcast of such comments about persons on the basis of their gender. By broadcasting unduly discriminatory comments about North Africans, Arabs, Central Americans, African blacks, Russians, and Japanese persons, CKAC also breached Clause 2 of the CAB Code of Ethics, which prohibits the broadcast of such comments on the basis of race, national or ethnic origin or colour. By broadcasting unduly sexually explicit content and coarse and offensive language, CKAC also breached Clauses 9(b) and 9(c) of the Code, which prohibit the broadcast of such content at a time of the day when children can be expected to be listening to the radio.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.