CANADIAN BROADCAST STANDARDS COUNCIL

QUEBEC REGIONAL COUNCIL

CIQC-AM re Galganov in the Morning

(CBSC Decision 97/98-0473)

Decided August 14, 1998

Y. Chouinard (Vice-Chair), R. Cohen (ad hoc), M. Gervais,
S. Gouin and P. Tancred

THE FACTS

At the time of this complaint, Howard Galganov, well-known political campaigner for the rights of English-language Quebeckers, hosted the morning show on CIQC-AM (Montreal) which ran from about 7:00 a.m., following the morning news, to 10 a.m. The first two hours of Galganov in the Morning consisted of chit chat between Mr. Galganov and his co-host, Jim Connell, various interviews and discussion of current affairs topics. This time slot also made room for a daily editorial by Howard Galganov. The last hour of the show was in an open-line format, dedicated to taking calls from listeners. A sampling of the broadcasts of November 17, 20 and 21, 1997 is provided below (more complete transcripts of these broadcasts are included in Appendix A).

Mr. Galganov’s editorial on November 17, 1997 dealt with a "graffiti incident" which had occurred in Montreal over the week-end:

To the victims of this graffiti and intimidation, I offer my sympathy for what you and your families are going through. But I also commend you and yours for the bravery it took and still takes to come forward and as much as I laud all of you for being brave and loyal Canadians, I equally hold all of our politicians, including the racist-separatist Parti Québécois government with the deepest of contempt for doing nothing to discourage this outrageous form of intimidation and to the Federal Government of Canada for its continuing acquiescence and gutlessness. If Canada is to be saved, it will be by the few and by the brave. With the determination of the so-called hard-liners who have the courage to come forward and state it like it is in spite of the kiss-ass leaders who have led us down the garden path. Canada will not be saved by the jelly-knees. I feel for you. For all of you who have been targeted by Québécois-nationalist scum. ... Bravo for your courage and a pox on all those responsible for this ethno-centric graffiti outrage, Anglo kiss-ass leaders included.

During the open-line portion of that same broadcast, Mr. Galganov took a call from someone who talked about how, in his view, the French press in Quebec skews facts to favour separatist policies. Mr Galganov responded as follows:

Howard Galganov: I think it is very important that the press has absolute freedom but I also think that it very important that there are people who are there to take on the press. I think it is important that there are shows such as Galganov in the Morning and the others that are going to sit down and shine a bright light upon lies and distortions and I think if anyone is getting screwed, it’s the Francophone people who are reading this crap because they are not getting the honest and the true picture.

Later that same day, Mr. Galganov took a call from a frequent caller to the show:

Howard Galganov: And, it if was the "faute du fédéral", then it’s gotta be Gérard. Good morning Gérard.

Gérard: Bonjour Monsieur Galganov. Bon matin à vous tous.

Howard Galganov: Thank you.

Gérard: Félicitations au maire nationaliste de Saint-Lazare et félicitations à tous mes braves qui font des graffiti nationalistes.

Howard Galganov: Okay, so, you’re congratulating the separatist piece of puke of St-Lazare because he spent $50,000 of taxpayers money to change some lousy street signs. This is money that should have gone into anything else, but no, you’re congratulating a separatist piece of work because he’s taking public money and putting it towards an ethnocentric cause. You know, you son-of-a-bitch, there are people out there, there are kids on the West Side who are going hungry every day because our separatist government, the government which you seem to love, is spending hundreds of millions of dollars, probably a billion dollars in ethnocentric projects at the expense of kids, at the expense of elderly people. You know, you got this woman Lorena Lafrance who’s an Italian woman who is feeding all these kids, half of them are Francophones, the other half of them are ethnics who have just come from other countries, none of them are Anglophones. You got Sid Stevens of Sun Youth whose [sic] 50%, I’m sorry, 70% of the people he takes care of are Francophones but he doesn’t care about that. He just cares that there are people out there who need help. You got Adrian Birkevicky of the Old Brewery Mission who feeds 70% of the people on the streets who are also French-speaking people, your people, Gérard. You’re a puke. You know something, I don’t want your 15 bucks anymore, you can’t come back on my show. Don’t call back.

What a [unfinished sentence]. Unbelievable. This is [unfinished sentence]. You know, I sit there and I listen [unfinished sentence]. I’m sorry, Henry, but I just saved you a whole bunch of money. This guy is unbelievable. "Bravo" he says to a separatist mayor because he spent $50,000 dollars changing street signs when we have kids going hungry to school, French kids. But then again, what does Gérard care about somebody else’s kids, French, English or other? He’s such an ethnocentric piece of work. What would he know about this.? And "bravo" he says to people who write graffiti on people’s homes. How would he like a knock in the middle of the night on his door? How would he think that’s so great? How would he think if Francophones in other parts of the country were receiving the same kind of treatment as Anglophones receive here? You know something, these people are just absolute savages. Gérard, don’t call back my show anymore. You are persona non grata. I don’t want your hateful, venomous, ridiculous, God knows what.

Other callers piped in their acquiescence of Mr. Galganov’s treatment of caller "Gérard":

Caller [woman, introduced as "Roy"]: Ah hi, you know, I think Mr. Gérard is someone who is psychologically very mature, immature, and wants to get a little bit of attention and his life is so pathetic that [interrupted]

Howard Galganov: He’s going to have to call Schnurmacher for attention and speak to him in English ’cause I don’t want to speak to him anymore.

...

Caller Raymond: Yeah, hi, Howard. You deserve the Canada Cross for saying to that guy in St.-Jean-sur-Richelieu, persona non grata. He’s a pig. If I put my hands on his collar I am going to send him to Charles De Gaulle country.

Howard Galganov: Anyways, Raymond, you are right, he’s a pig and he’s not coming back on this show. ...

On November 20, a veteran of World War II called the show stating that he felt like a second class citizen because of the lack of recognition in Quebec, be it by the simple wearing of a poppy, of the effort and sacrifice of Canadian soldiers overseas. Mr. Galganov offered the following:

Howard Galganov: ... I guarantee you Charlie, you’re every inch the first class citizen. It’s these separatist bastards. It’s these people who are cowards, who come in the middle of the night and spray paint people’s homes. It’s the people who wear hoods and try to disrupt legitimate and democratic meetings. They’re the second class citizens, Charlie, not you. You did it, you went there and paid your dues, and you helped to make sure that this world would be free from people like them.

...

You know, I was watching on t.v., a year and a half ago, they were celebrating the 50th anniversary of the liberation of the Netherlands and there is this huge, huge outpouring of love, absolute love and adoration, admiration for the Canadian soldiers that liberated the Netherlands, and especially a place called Apeldoorn where my father fought and was decorated, and I saw that cow Josée Legault giving her two cents on Sunday Edition and she says "Well, it’s not really a Quebec thing". What a piece of garbage. Anyways, we’ll be back...

The Letter of Complaint

On December 1, 1997, a listener wrote a lengthy letter complaining of Mr. Galganov’s use of foul language and hateful commentary. (This letter is included in full in its original French in Appendix B.) In her letter, the complainant stated that Howard Galganov’s show is a "[translation] sounding-board for disseminating his hatred not only toward sovereignists but also any person or association who negotiates, makes any deals or agreements, or even engages in simple dialogue with them." She also stated her view that "[translation] The choice of words and the frequency of the insults makes Galganov in the Morning Montreal’s very own ‘trash talk show’."

The Broadcaster’s Response

No official response was received from the station within the 2-week time-frame allotted to broadcasters for responding to complaints. A response of sorts was broadcast, however, on December 9th when Howard Galganov chose to "discuss" the complaint on his show. This "response" led to another complaint and a corresponding decision on that matter is also being released today.

On January 19, 1998, the President of CIQC responded to the complaint as follows:

[Translation] I apologize for the delay in responding to your letter; the delay was due to the Christmas season and the Ice Storm in early January. After having read your letter, we met with Mr. Galganov and came to an agreement to limit his participation in CIQC-AM’s programming.

As of January 19, Mr. Galganov no longer hosts the morning show as he has been replaced by Jim Duff, formerly of the CJAD radio station. We hope that this decision will permit you to cancel your complaint lodged with the Canadian Broadcast Standards Council.

I thank you for your interest in CIQC-AM and hope that you will continue to tune in to our station.

Prior to receiving this response, the complainant requested, on January 5, 1998, that the CBSC refer the matter to the appropriate Regional Council for adjudication. She also provided a rebuttal to CIQC’s response in a letter dated January 30 (included in full in its original French in Appendix B).

THE DECISION

The CBSC’s Quebec Regional Council considered the complaint under the Code of Ethics of the Canadian Association of Broadcasters (CAB). The relevant clauses of this Code read as follows:

CAB Code of Ethics, Clause 2 (Human Rights)

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

CAB Code of Ethics, Clause 6 (News)

It shall be the responsibility of member stations to ensure that news shall be represented with accuracy and without bias. The member station shall satisfy itself that the arrangements made for obtaining news ensure this result. It shall also ensure that news broadcasts are not editorial. News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be designed by the beliefs or opinions or desires of the station management, the editor or others engaged in its preparation or delivery. The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.

Therefore, nothing in the foregoing shall be understood as preventing news broadcasters from analysing and elucidating news so long as such analysis or comment is clearly labelled as such and kept distinct from regular news presentations. Member stations will, insofar as practical, endeavour to provide editorial opinion which shall be clearly labelled as such and kept entirely distinct from regular broadcasts of news or analysis and opinion.

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.

The Regional Council members listened to tapes of the programs in question and reviewed all of the correspondence. The Council considers that the program in question did not violate any of the aforementioned provisions of the CAB Code of Ethics.

The Expression of Political Opinion, whether Calm or Vehement

There is no doubt that Howard Galganov's opinions are expressed strongly, even vehemently, and, some might say, inflexibly, whether off or on the air. The host might even wear any such characterization as a red badge of courage. The question for the Council, though, is whether political views, even thus expressed, are subject to curtailment or restriction. While freedom of expression is one of the fundamental freedoms enumerated in Section 2 of the Charter, it is a freedom which was not drafted as absolute. As Section 1 of the Charter provides, these freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Although the Codes administered by the CBSC are not subject to the application of the Charter, the Council has always proceeded with its deliberations on the basis that freedom of expression is fundamental to the rights of the broadcasters but that even they fully expect that the Codes they have created are of the nature of those reasonable proscriptions which ought to apply in the free and democratic society of which they are a part. The foregoing being said, it is the view of the Council that, of all of the categories of speech, none can be worthier of protection than that speech which can be described as political. After all, the freedom to express political views is at the very root of the need for a guarantee of freedom of expression in the first place. It is that speech which has historically been the bridge to democracy. This is not to say that all speech which can be described as political will be free from any oversight but rather that such speech will be most carefully protected in the face of that oversight.

Although, in CHOM-FM and CILQ-FM re Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997), the Quebec and Ontario Regional Councils jointly concluded that September 1997 broadcasts of the Howard Stern Show contravened the Code of Ethics and Sex-Role Portrayal Code, some of Stern's comments were viewed as protected speech. On his September 2 show, his premier show in Canada, Stern made several comments about the French in France and in Canada which outraged both Francophone and Anglophone complainants and were found to breach the CAB Code of Ethics.

The CBSC has no hesitation in finding that, in this case, the expressions "peckerheads", "pussy-assed jack-offs", "scumbags", "pussies", "Frig the French" and "Screw the French" are ... abusive."

That being said, some of Stern’s commentary was found to be irreproachable. In its decision, the CBSC differentiated between insults aimed at identifiable groups and Stern’s political or historical comments. Code breaches did not include the latter.

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 ... they are his to espouse. ... 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.

Application of the Political Speech Principles to this Case

As noted above, it is acknowledged that the host's views were strongly held and vehemently expressed. The question for the Quebec Regional Council to decide is whether the speech was political and not excessive or political but beyond the bounds of protection for even such speech. The Council's answer to the first question is that the speech was political and, as to the second, it does not consider that the speech encountered on this date triggered the application of Clause 2 of the CAB Code of Ethics, the "human rights" provision, which prohibits abusively discriminatory comment based on certain protected grounds, namely "race, national or ethnic origin, religion, age, sex, [sexual orientation] marital status or physical or mental handicap". In the Council’s view, Mr. Galganov was extremely careful in circumscribing his commentary to avoid discriminatory comment based on one of the protected grounds, as evidenced by the following exchange on December 9th (see Appendix A of CBSC Decision 97/98-0509 for a more complete transcript) between him and a caller who was upset at the "French bastard separatists" who allegedly told her to take down her Canadian flag:

Howard Galganov: Well that’s not right. French has nothing to do with it. Separatist is a different thing entirely.

Vivian: Yeah, I told them these are separatists, they are asking me to take down my flag.

Howard Galganov: Yeah but Vivian, let me tell you something. There’s this guy who’s part of the Parti Québécois. What the hell is his name? Ah, he’s one of the right hand men to Bouchard and he’s of British origin and [unfinished sentence]. Geez, someone is going to have to call me and give me this guy’s name because [interrupted]

Vivian: Yeah, I guess so because I don’t know either.

Howard Galganov: But he’s not French. He’s British. Look at this jerk, Richard Holden. He’s not French.

Vivian: No, he’s not French.

Howard Galganov: You take a look at [unfinished sentence]. Look, you can’t confuse, not even a little bit, French Quebeckers, French Canadians, with separatists. You know, there are so many [interrupted].

Vivian: You know, I’m French.

Howard Galganov: You’re French on top of it?

Vivian: Yeah. Ha, ha, ha.

Howard Galganov: Jesus Murphy. Woof.

Vivian: I’m French but I will not speak unless I really have to.

Howard Galganov: Ah? Je parle français toujours. I love speaking French. I feel so superior to those people who don’t want to speak English and either can’t or won’t. You know, the fact is that I can communicate in both languages is a tremendous blessing. I love it. I think it is great. And those who don’t, well tough on them. But remember, Vivian, even though you are French, this has nothing to do with French, it has to do with ethnocentric racism.

This care in identifying the "brunts of his barb" as political or ideological groups distinguishes Howard Galganov's comments from those of Howard Stern, who excoriated the French on the basis of their national origin rather than their political views.

One of the other limits to unfettered freedom of expression is found in the third paragraph of Clause 6 of the Code of Ethics which requires "full, fair and proper presentation of ... opinion, comment and editorial". Both the notions of fairness and propriety of Mr. Galganov’s commentary are called into question by the complainant. The issue of propriety is dealt with in the section below. As to fairness, the Council notes that the complainant’s concerns are not related to balance (one of the subsets of fairness) but rather to the vehemence of the expression of Mr. Galganov’s views.

The complainant notes, and the Council has confirmed, one comment which contains some violent overtones. On November 20th, Mr. Galganov made the following comments to caller who had travelled outside of Quebec and become envious of his friends who had moved to other parts of Canada:

Howard Galganov: Well, we can’t get out of here, Eddy. And I don’t think we should have to feel that we have to get out of here. What we have to do is beat the crap out of all these nationalistic ethnocentric Québécois crapheads who are destroying what we’ve built over the years. You know, again, if you listened to the editorial this morning, I really remember Montreal in the sixties. I was born in 1950, in 1967 with Expo 67, I was 17 years old and what a place to be. And it was bilingual. It was vibrant. We had everything. We owned it. We owned the world. And look what these ethnocentric separatist asses have done to us.

Eddy: I wish I was older. I’m only 25 and I didn’t get a chance to see it. I’ve only seen the decline so [interrupted]

Howard Galganov: Eddy, stick around. The best is yet to come because these guys can’t last forever. Their own people are going to bury them.

Eddy: Let’s hope. Let’s hope.

Leaving aside for the moment the issue of vulgar language which is dealt with below, the Council does not find the statement "we have to ... beat the crap out of all these ... crapheads" to be in breach of the fairness requirement of the Code. The Council does not view this statement as "[translation] a call to violence", as contended by the complainant. While the meaning sought to be conveyed by Mr. Galganov in making this pronouncement is ambiguous, to say the least, the Council does not consider this isolated comment to be more than an unpleasant, tasteless, juvenile comment, but not a genuine pre-meditated attempt to encourage the commission of a criminal offence.

The Council considers this example to be analogous, to some extent, to the statements dealt with in CIWW-AM re the Geoff Franklin Show (CBSC Decision 92/93-0181, October 26, 1993). In that case, the Ontario Regional Council also dealt with an allegation that the host of an open-line radio show was advocating violence. In that case, the host had responded to a case of animal cruelty by encouraging callers to suggest methods of "getting even" with the perpetrator of the crime. The Council did not find any breach of a Code.

It determined that the host had, as a dog-lover himself, been motivated by anger in marshalling the listeners’ calls but that he had not ever meant to be taken as a serious advocate of criminal activities. In the result, it considered Mr. Franklin’s comments to be in poor taste but not constituting a breach of any of the provisions of the Code of Ethics.

It follows from the above conclusion regarding the complainant’s example of "comments inciting hatred" that the Council is even less concerned with other examples of name-calling and "unfair" comments cited by the complainant, in particular the comment whereby Mr. Galganov insinuated that separatists can’t or don’t read. In the Council’s view, such name-calling and branding opposing political camps as intellectually inferior may not be the most mature or clever manner in which to approach political debate, but the Council acknowledges that it is, for some, at times, part and parcel of the expression of political convictions. It does not, in and of itself, constitute a breach of the Code.

The Issue of the Vulgarity of the Language

In the complainant’s view, "[translation] Use of words which describe excrement or vomiting ... is reprehensible. Use of words relating to private parts of the human body ... is completely unacceptable." Concerns over vulgar and crude language have been dealt with by various other Regional Councils before and it would be helpful to review those decisions here.

The first time the CBSC was called to deal with the issue of vulgar language was in CFRA-AM re Steve Madely (CBSC Decision 93/94-0295, November 15, 1994) in which the complaint was about use of the word "damn". The Council found no breach of the Codes, stating the following:

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

In CHAN-TV re Sportscast (CBSC Decision 95/96-0108, December 18, 1996), the words "crap" and "ass" were used by an interviewee sports expert in a description of a hockey team. A viewer felt that such "gutter words" were completely unacceptable and were setting a very poor example to the younger generation. The B.C. Regional Council applied "current broad social norms" and concluded that this language, while not "attractive, articulate or perhaps even appropriate to the airwaves," nevertheless did not violate the Code.

They may even be, to use the characterization of the complainant, "gutter or crude" language. They are not, however, in the view of the B.C. Regional Council, either obscene or profane, which is ultimately the test which the Regional Council must apply.

In CJOH-TV re "White Men Can’t Jump" (CBSC Decision 94/95-0060 March 12, 1996), the broadcaster had aired a feature film based on the street life of California which, as the Ontario Regional Council observed, was "replete with epithets and very coarse street language." The broadcast began at 9:00 p.m., preceded by an oral advisory and an on-screen advisory, followed by three further advisories during the first hour at each of the commercial breaks. The complainant took offence to both the language and the time of day the film was broadcast. The Council began by observing that the language was coarse:

The Council is entirely in agreement with the complainant that the language is coarse, even incessantly so for at least the first half hour of the film. The Council is equally of the view that the language used is that of the streets of California portrayed in the motion picture.

The Council did, however, conclude, in reliance on its earlier decision in CFRA-AM re Steve Madely (CBSC Decision 93/94-0295, November 15, 1994), that it fell within socially admissible norms.

In CIRK-FM re T-Shirt Promotion Spot (CBSC Decision 96/97-0206, December 16, 1997), the Prairie Regional Council had to deal with use of the phrases "Life’s a Bitch" and "Kick ass" in a promotional announcement for K-97 T-shirts. The Council’s evaluation in that case differed slightly from the cases referred to above because the Council had to grapple with the "prevailing standards of good taste", the test set out in Clause 8 of the Code of Ethics, the advertising provision of the Code.

Despite the CBSC’s general reluctance to deal with questions of taste, the Prairie Regional Council acknowledges that the term "good taste" is actually used in Clause 8. This necessitates an explanation of the Council’s understanding of the term in that context.

The Council notes that the term "good taste" does not appear on an isolated basis. While the drafting of the paragraph is not the most felicitous, an explanation, if not a definition, of the terms is provided in the closing words of that paragraph. These are: "and shall not offend what is generally accepted as the prevailing standard of good taste." It appears to the Prairie Regional Council that the drafters were explaining that "good taste" means that the advertising content shall not offend prevailing standards of good taste. The Council understands this to be a higher test than merely being characterisable as good taste. In a sense, the wording suggests that the material questioned must not be the opposite of good taste to be in breach; it must actually offend prevailing standards to be sanctionable. It may be that the "prevailing standards" test in Clause 8 could be more easily met than the general "taste" threshold which, as discussed above, the CBSC applies more generally. In any event, it is the view of the Prairie Regional Council that the expressions "Life’s a bitch" and "Kick ass" do not breach the "prevailing standards" test and that it is not necessary to consider the other issue at this time.

It is appropriate to provide a sense of the Prairie Regional Council’s view of "prevailing standards" and how these are to be assessed. It is clear that it cannot be the function of the CBSC or the various Regional Councils to conduct surveys in order to determine what prevailing standards are; it is rather the function of the Councils to apply the reasoning and sense of a balanced group of public and industry representatives to the programming under consideration. It is indeed a reflection of that "balance" that has enabled the various Regional Councils to arrive regularly at conclusions in such matters without dissenting voices, whether the conclusions favour or run against the broadcasters.

It is the view of the Regional Council that, in general, for a matter to breach the "prevailing standards" test of Clause 8, it must extend beyond the level of offensiveness, if not even crudeness or vulgarity. This is not to suggest that the CBSC approves in any way of offensiveness, crudeness or vulgarity on the airwaves but rather that, in the interest of preserving a broad range of scope for freedom of expression, such matters of taste must be left to the marketplace.

...

[I]t is the view of the Prairie Regional Council in this case that the expressions "Life’s a bitch" and "Kick ass", while admittedly crude, have fallen into more commonly acceptable usage than a number of the expressions used in the decisions previously cited. In the circumstances, the Council can find no breach of the Code.

When the Council considers the language which has offended the complainant in this case, i.e. words such as "kiss-ass", "son-of-a bitch", "puke" and "crap", it is unable to determine that this language is any worse, although certainly more repetitious, than the words used in the matters considered above. Applying the "broad social norms" test, the Council concludes that no Code has been violated. In coming to this conclusion, the Council has taken into consideration the fact that Galganov in the Morning addresses primarily an adult audience. Had the target audience been more youth-oriented, the Council’s conclusion may have been different; however, it remains the case that the majority of listeners to the show in question are adults. In the circumstances, the Council sees no overriding societal interest in curtailing the broadcaster’s right to freedom of expression and, therefore, considers that concerns about the crude and vulgar language in Galganov in the Morning should be "regulated" in the same way as other matters of taste, i.e. via the on/off or dial button.

The CBSC and Matters of Taste

The Council has generally held to the principle that questions of taste are left to the market place. In the more recent CBSC decision in CHOM-FM and CILQ-FM re Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997), the Quebec and Ontario Regional Councils jointly concluded that the September 1997 broadcasts of the Howard Stern Show contravened the Code of Ethics and Sex-Role Portrayal Code. While acknowledging that there were parts of the show that could likely be classified as being in bad taste, the two Regional Councils were unwilling to find the stations in breach of the Codes with respect to issues of bad taste for the following reasons (the stations were ultimately found in breach of the two Codes with respect to matters other than bad taste).

Many of the complaints received regarding the Howard Stern Show related to questions of taste. Stern was accused of being offensive, vulgar, adolescent, rude, unsuitable, outrageous, sick, tasteless and so on. ... The Quebec and Ontario Regional Councils are, however, agreed that, under the present Codes, matters of taste must be left to be regulated by the marketplace. Such choices remain those of the listener. This is the time when the on/off switch is the listener’s coping mechanism. Unless comments made by a broadcaster are of a nature to breach provisions of one or more of the Codes, the CBSC will not judge them one way or the other.

In the CIRK-FM case referred to above, the Council summarized its position regarding having to determine matters relating to good or bad taste as follows:

In other words, the CBSC will be reluctant to interfere with a programming or advertising matter unless there is a clear breach of a provision of one of the Codes. In general, it has long considered that questions of bad taste alone will not be sufficient to result in a breach of a provision of one of the Codes.

The Council further noted:

Broadcasters are, however, generally members of the communities in which they function and will regularly attempt to respond to the concerns of their listeners or viewers, even on matters of taste which do not fall within the purview of the Codes. That, though, is a matter for the determination of each station and the broadcaster is under no compulsion in this regard.

Responsibility for All Material Aired

In her letter dated December 1, 1997, the complainant stated that "[translation]... my research did not take into account the comments of listeners who called the show. CIQC does not use time-shifting to filter calls and the host gives free rein to the hateful commentary and threats of physical violence directed towards sovereignists made by callers." The Council considers it appropriate to note, as a point of information for the complainant and possibly as a reminder for the broadcaster, that broadcasters are responsible for all material aired on their station, regardless of its origin or source.

In CHOG-AM re Connections (CBSC Decision 96/97-0040, May, 8, 1997), the Council dealt with a complaint regarding comments made by a caller to an open-line show. Referring to the CRTC’s Policy Regarding Open-Line Programming, the Council held that broadcasters are responsible for the content of all material aired, including comments made by guests or callers during open-line programs. The Council did not consider that the broadcaster could avoid responsibility by dissociating itself from the comments made.

... the Ontario Regional Council does not find that its decision is at all affected by the fact that Dr. Green stated "Those are your words... I wouldn’t be as nasty [Emphasis added]." The broadcaster is as responsible for them as if they had come from Dr. Green’s mouth.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to the complaint, the CBSC always assesses the responsiveness of the broadcaster to the substance of the complaint. In this case, the Council considers the broadcaster’s response to be less than adequate. The Council notes that the poorly explained tardiness of the response created additional aggravation for the complainant. Moreover, the response did not address any of the issues raised by the complainant.

As stated in CIII-TV (Global Television) re an episode of Seinfeld (CBSC Decision 96/97-0074, May 8, 1997):

The process by which the CBSC becomes involved in adjudicating a dispute between a broadcaster and a listener/viewer places reasonable, but not insignificant, demands on the complainant. A simple phone call is not enough to trigger the process. The CBSC procedures require that a complainant must take the time to put his/her concerns in writing, and while no knowledge of broadcast codes is required of the complainant, the concerned individual must outline why he or she believes that the content of the broadcast was not appropriate. Often, in the experience of the Council, the letters provide lengthy explanations of the reason for the complainant’s concern.

There exists a corresponding demand upon the broadcaster to treat the complaint with respect. Ideally, the station’s reply should reflect its own review of the challenged program in light of the concerns of the complainant and explain in a clear and direct fashion why the program does not violate any of the industry Codes and standards to which the station has agreed to adhere. At the very least, it ought to be responsive to the concerns of the complainant. The CBSC does understand that, from time to time, large numbers of complaints make it difficult to provide individually composed letters to each complainant but it has been the experience of the Council that, in such cases, few though they have been, the broadcasters have gone out of their way to try to encompass the issues raised collectively by the complainants.

In this case, the complainant has gone to great lengths to document her concerns. The Council would have expected a more thoughtful response from the broadcaster in return.

In the circumstances, however, given that the Council is of the view that the question of broadcaster responsiveness in this case is intrinsically linked to the substance of the second complaint, it reserves its findings on this issue for the accompanying decision CIQC-AM re Galganov in the Morning (CBSC Decision 97/98-0509, August 14, 1998). Nothing more is required as a function of this decision.



This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.