CKVL-AM re the André Arthur and Martin Paquette Show

QUEBEC ONTARIO REGIONAL COUNCIL
(CBSC Decision 98/99-1184)
P. Audet (Chair), G. Bachand, R. Cohen (ad hoc) and S. Gouin

THE FACTS

On July 15, 1999, CKVL’s (Montreal) broadcast of a morning showhosted byAndré Arthur and Martin Paquetteincluded a segment in which thehosts discussed the recent local murder of a black by a Hindu. In a not too lengthyexchange, the two hosts bantered about ethnic clashes in Montreal and, among other things,said the following (a full transcript of the dialogue can be found in Appendix A):

Martin Paquette: Ah ah ah. Bon, alors. Ungars de trente ans, un noir qui se fait ramasser par, semble-t-il, un hindou de 34 ans, enpleine rue coin Victoria, Côte des Neiges, enlèvement, des témoins…

André Arthur: C’est vrai que Montréal étantmaintenant une belle ville multi-ethnique, ça se tue entre ethnies.

Martin Paquette: C’est un peu comme lesmotards, je n’ai pas de problèmes avec ça, moi.

A listener wrote to the Secretary General of the CRTC (the full textof this letter can be found in Appendix B),who in turn forwarded the file to the CBSC:

La teneur générale des commentaires des deux animateurs étaitque, tant qu’ils – Hindous et Noirs, s’entretuaient entre eux, cela nedérangeait personne, pas plus que quand des motards criminalisés procèdent à desrèglements de compte. Il s’agit là, selon nous, d’un manque de respect pourdes communautés culturelles et d’une incitation à la haine raciale absolumentinacceptables de la part de CKVL.

The station’s response stated in part (the full text of thisresponse can also be found in Appendix B):

Les propos que vous évoquez dans votre plainte ne sont probablementpas les mieux choisis, mais il convient néanmoins de les situer dans le cadre d’uneémission d’opinions, en prenant bien soin de ne pas les extraire d’un contextequi peut, dans certaines circonstances, donner un éclairage plus tamisé ou nettementdifférent à des expressions qui, prises isolément, peuvent heurter certains auditeurs.

Nous sommes convaincus que, nonobstant un choix de mots et decomparaisons qui auraient pu être plus judicieux, ceux-ci n’avaient pas unevirulence telle qu’ils puissent inciter à la haine raciale.

The complainant was unsatisfied with the broadcaster’s responseand requested, on September 25, 1999, that the CBSC refer the matter to the appropriateRegional Council for adjudication.

THE DECISION

The CBSC’s Quebec Regional Council considered the complaintunder Clauses 2 and 6(3) of the CAB Code of Ethics. The members listened to a tapeof the program in question and reviewed all of the correspondence. In its view, thecomments of the hosts in this case are in breach of both clauses.

The Human Rights Provision of the Code of Ethics

The CBSC has frequently been called upon to evaluate programming onthe basis of the human rights provision of the Code. This has sometimes occurred in aserious context and occasionally in a comedic context. In any event, a not insubstantialjurisprudence has developed. While some may view this issue rather too simplistically as amatter of “political correctness”, its roots are rather deeper than that.

In an era in which broadcasting is as pervasive as it has become,Canada’s private broadcasters themselves developed a Code of Ethics bywhich they agreed their broadcasts ought all to be measured. In that Code, which predatesthe creation of the Canadian Broadcast Standards Council, they stated, in the firstsubstantive prohibitory clause of that Code, namely, Clause 2:

Recognizing that every person has a right to full and equalrecognition and to enjoy certain fundamental rights and freedoms, broadcasters shallendeavour to ensure, to the best of their ability, that their programming contains noabusive or discriminatory material or comment which is based on matters of race, nationalor ethnic origin, colour, religion, age, sex, marital status or physical or mentalhandicap.

To all intents and purposes, this standard mirrors the substance, ifnot also in some cases the wording, of those found in the Canadian Charter of Rightsand Freedoms, the Radio Regulations, 1986, the Television BroadcastingRegulations, 1987, the Pay Television Regulations, 1990, the Canadian HumanRights Act, the CBC’s Journalistic Standards and Practices and the BritishBroadcasting Standards Commission’s Code on Standards, to name only some ofthose of which the Council is aware. The issue is a combination of respect for the rightsand freedoms of identifiable groups, as defined in laws, regulations and codes and theunfairness of the erosion of that respect by offending on-air statements which inevitablyresult in the desensitization of the public with respect to those groups. As the CBSCconcluded in CHOM-FM and CILQ-FM re The Howard Stern Show (CBSC Decision97/98-0001+, October 17-18, 1997), “every Canadian, regardless of nationality, isdiminished by abusively discriminatory remarks which are aimed at any identifiablegroup.”

As a result of the many cases in which the CBSC has dealt with thehuman rights provision, including CFTO-TV re “Tom Clark’s Canada”(CBSC Decision 97/98-0009, February 26, 1998), the following criterion for the applicationof Clause 2 has evolved:

Clause 2 of the CAB Code of Ethics requires a weighing ofcompeting values. In CFTO-TV re “Tom Clark’s Canada” (CBSC Decision97/98-0009, February 26, 1998) the Council noted that “it must balance the right ofaudiences to receive programming which is free of abusive or discriminatory material …with the fundamental right of free speech in Canadian society.” The application ofthis balancing act in various CBSC decisions evolved into an “abusivenesscriterion”; i.e. the establishment of a “test” whereby a comment must notmerely be discriminatory to constitute a breach of Clause 2, it must be abusivelyso.

Moreover, the Council has frequently been called upon to deal withthe special case of ethnic humour. It should be noted that, in the bulk of these cases,the Council has supported the on-air comments. See, for example, its decisions in CHTZ-FMre the Morning Show (CBSC Decision 92/93-018, October 26, 1993), CFOX-FM re theLarry and Willie Show (CBSC Decision 92/93-0141, August 30, 1993), CHOG-AM re theJessie and Gene Show (CBSC Decision 93/94-0242, November 15, 1994), CHUM-FM reSunday Funnies (CBSC Decision 95/96-0064, March 26, 1996), CHFI-FM re the DonDaynard Show (CBSC Decision 94/95-0145, March 26, 1996), Comedy Network re BillMaher Special (CBSC Decision 97/98-0560, July 28, 1998), TVA re Piment Fort(CBSC Decision 95/96-0211, August 14, 1998), Comedy Network re “Comedy Club54” (CBSC Decision 97/98-1242, February 3, 1999) and TQS re Dieu reçoit(CBSC Decision 98/99-0402+, June 23, 1999), among others. This does not, however, meanthat every comment made on a humorous basis cannot thereby be in breach of thehuman rights provision. For example, in CKTF-AM re Voix d’accès (CBSCDecision 93/94-0213, December 6, 1995), the Quebec Regional Council stated:

The question of course is to determine which “ethnic”jokes or comments will be understood as crossing the boundary of acceptability. There arethose which are sanctionable and those which, even if tasteless or painful to some, arenot. It would be unreasonable to expect that the airwaves be pure, antiseptic andflawless. Society is not. Nor are individuals in their dealings with one another.Nonetheless, the airwaves are a special and privileged place and those who occupy thatterritory are expected to play a more restrained and respectful social role.

That case concerned a “Newfie” joke for which the punchline described Newfoundlanders as “trous de cul” (“assholes” inEnglish). The Council found this to be in breach of Clause 2. In another more recent caseinvolving ethnic humour, namely, CHOM-FM and CILQ-FM re The Howard Stern Show (CBSCDecision 97/98-0001+, October 17-18, 1997), the host used expressions such as”scumbags”, “peckerheads” and “pussy-assed jack-offs” whenreferring to the French in France and in Canada. The Council found such expressionsabusively discriminatory.

The comments of the hosts in this case are obviously “cheapshots” and tasteless, comments intended to make fun, and take advantage, of therelatively powerless position of the minorities in question. The comments in this case aresomewhat more subtle than usual as they involve the necessary intermediate step ofcomparing of ethnic minorities to a societally “undesirable” group of bikergangs (motards), known mostly for their participation in criminal and violent activities.This Council finds this comparison particularly problematic. In the Council’s view,while the hosts’ off-the-cuff quasi-comedic presentation of the facts surrounding themurder was extremely tasteless, the comparison of this murder to a settling of accountsbetween biker gangs was both derogatory and abusive. By making this comparison, the hostsachieved two results: they minimized the value of ethnic persons in society, taking themdown to the level of bikers/criminals and may even have left the implication that ethnicgroups, like bikers/criminals, are more prone to the commission of such violent acts.Accordingly, the Council finds that the comments of André Arthur and Martin Paquette wereabusively discriminatory vis-à-vis the black and Hindu communities and thus in breach ofClause 2 of the CAB Code of Ethics and, necessarily, of Clause 6, paragraph 3 ofthe same Code since the dialogue constitutes improper comment pursuant to that provision.

The Comedic Defence

Here, too, the Council has dealt with the defence often raised bybroadcasters that their on-air personalities were not intending to be taken seriously. Inmany of the decisions noted above, the Council has accepted that comments which wereadmittedly discriminatory were not abusively so. As the Councilput the point in one such case, namely, CHFI-FM re the Don Daynard Show (CBSCDecision 94/95-0145, March 26, 1996), the Jewish mothers light bulb joke,

while ethnically pointed, was neither demeaning nor abusive. It wastold in the context of a series of light bulb jokes aimed at feminists, Marxists,surrealists, accountants, etc. It poked fun but did not bludgeon. It tickled but was notnasty.

Where, however, the Council reads the discriminatory comments asabusive, it refuses the comedic justification. Thus, in CILQ-FM re The Howard SternShow (CBSC Decision 97/98-0487, 504 and 535, February 20, 1998), the Council stated:

The Ontario Regional Council acknowledges that the show purports to be comedy. It also acknowledges that there are listeners who view what Stern says asfunny, if not hilarious. That, however, is not the point. There are comments which,whether intended or not to be funny are in breach of the broadcaster’s ownCodes of conduct. What can be said in one’s living room or in the locker room doesnot automatically become eligible for over-the-air consumption.

In this case, although the hosts attempted to give the impressionthat their comments were meant to be humourous by saying “Ah! Mesdames, messieurs,c’était une blague”, and “Le CRTC est après nous encore”, theCouncil considers that the comments constituted a breach of the Code. In the end, thehosts’ intentions to be funny cannot be relevant. The Council has, after all, rarely,if ever, seen a purposeful example of malevolent intention in such cases. Absentsome clear intention to the contrary, the Council assumes good intention and thedesire to make people laugh. Where that result is achieved at the expense of anidentifiable group which is being abusively targeted, the comment will be in breachdespite the contrary intention of the host.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to thecomplaint, the CBSC always assesses the responsiveness of the broadcaster to thesubstance of the complaint. In this case, the Council considers that thebroadcaster’s letter responded to the issues raised by the complainant. Nothing moreis required. Consequently, the broadcaster has not breached the Council’s standard ofresponsiveness.

ANNOUNCEMENT OF THE DECISION

The station is required to announce this decision forthwith, in thefollowing terms, during prime time and, within the next thirty days, to provideconfirmation of the airing of the statement to the CBSC and to the complainant who filed aRuling Request.

The Canadian Broadcast Standards Council has found that CKVLbreached provisions of the Canadian Association of Broadcasters Code of Ethics inits July 15, 1999, broadcast of the morning show hosted byAndré Arthur and MartinPaquette. By comparing a murder of a black man by a Hindu to a settling of accountsbetween biker gangs, the Council considers that the hosts made abusively discriminatorycomments, contrary to the human rights provision of the CAB Code of Ethics.

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