THE FACTS
The City with Mayor Rob Ford is a talk show hosted by current Toronto Mayor Rob Ford and his brother Doug Ford, a city councillor. The Ford Brothers talk with guests and callers about Toronto politics and current events. The program airs Sundays from 1:00 to 3:00 pm on CFRB-AM NewsTalk 1010.
On May 6, 2012, freelance journalist David Menzies was a guest on the program. Menzies and the Ford Brothers discussed how certain media outlets seemed “out to get” Mayor Ford. In the context of that discussion, Menzies mentioned a couple of incidents that had occurred between Mayor Ford and members of the media. In one case, a male Toronto Star newspaper reporter had gone to Mayor Ford’s house to investigate the area for a story about the Mayor’s request to purchase some adjacent land. Mayor Ford had confronted the reporter. On this issue, Menzies commented, “I’ve been told the Star purposely assigned, uh, their most effeminate, uh, reporter there – I’m not taking shots at him for being that way – but just to make the ledger look all the more slanted if you did bring about any physicality.” The second incident that Menzies referenced involved the comedian/actress Mary Walsh from CBC’s political satire program This Hour Has 22 Minutes. One of her recurring characters on that program is “Marg, Princess Warrior” for which she dons a comical medieval dress and a sword and surprises politicians to ambush them with (sometimes ridiculous) questions. Walsh had approached Mayor Ford outside his home, but he did not recognize her and telephoned police. Menzies said, “CBC had Mary Walsh come out to you and ambush you early in the morning. And, I’m sorry, if I had, you know, a, a, an alcoholic woman with a sword in [sic] my property [Rob Ford snickers], I’m phoning the police too, Rob Ford.”
Menzies went on to talk about coverage Mayor Ford has received in the Toronto Star newspaper. He made the following statement, referring to the 2010 campaign for mayorship of the City of Toronto:
I remember an incident that happened in the campaign, which I think speaks so much of the double standard and the kind of personal brutality you have gone through. I remember, I believe it was a retired doctor, at one of the all-candidates meetings, who got up and he said words to the effect, Mayor, “Well, you know, I’m lookin’ at you and you’re obviously very overweight and I see sweat patches under your arms and your face is red and beads of perspiration. How do we know that, when you get the stressful mayor, er, stressful job of being the mayor of Toronto this won’t, you know, stress you out to such a degree you’ll have a heart attack?” Right? You know, so, the idea, yeah, see, folks? He, he, he’s too chubby a guy. We’re doin’ this for his own health, to keep him away, you know, from, from dying while he’s in office. Could you imagine, Mayor Ford and Councillor Ford, could you imagine if I was at that all-candidates meeting and I went to George Smitherman. And I said “You know what? You know, George, being a practising homosexual and being the fact that you’ve been involved with all kinds of illicit drug use, how do we know you won’t engage in high-risk sex and drug use that will bring about, uh, HIV leading to AIDS and you’ll die in office?” I would be run out of town on a rail, right?! You know, oh no, we can’t say that! But you know what? The mayor, fat guy? Let’s heap it on. Let’s bully this guy to death. And it is despicable and it speaks of the double standard with the left-wing media in this city, Mayor Ford.
Doug Ford responded by saying that he and his brother have been complimented for standing up to the Toronto Star and Menzies made negative comments about other city councillors who he said were “hostile” toward Mayor Ford. Mayor Ford’s response was “David, that’s, uh, phenomenal.”
Menzies’ comments about George Smitherman, an openly gay politician who ran for mayor of Toronto in 2010 and came in second after Rob Ford, generated some public controversy. That controversy was mentioned in CFRB’s news reports the following day. In those reports, the contentious remarks were repeated and reactions from Doug Ford were broadcast. Doug Ford stated that he and his brother did not agree with Menzies’ remarks and did not support “personally attacking anyone” because they understand how that feels. (Full transcripts of the The City segment and the news reports can be found in Appendix A).
The CBSC received a total of 64 complaints about the May 6 The City with Mayor Rob Ford broadcast. Complainants objected to Menzies’ comments about George Smitherman, Mary Walsh and the Toronto Star reporter. Of those complainants, 36 had the opportunity to request a CBSC ruling. Two complainants did so (their correspondence and all other correspondence relating to those two files can be found in Appendix B). CFRB responded to the complainants in June. The station pointed out that Menzies was “offering a strictly hypothetical situation [...] to express an opinion regarding his evaluation of the current political climate”. It suggested that the program in general allows for debate and the expression of varying viewpoints. It also noted that it broadcast Doug Ford’s statement to the effect that Menzies’ comment did not reflect the views of himself and the Mayor, nor did the comment reflect the views of the station.
THE DECISION
The Ontario Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Equitable 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 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 Equitable Portrayal Code, Clause 2 – Human Rights
Recognizing that every person has the right to the full enjoyment of 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, gender, sexual orientation, marital status or physical or mental disability.
CAB Equitable Portrayal Code, Clause 3 – Negative Portrayal
In an effort to ensure appropriate depictions of all individuals and groups, broadcasters shall refrain from airing unduly negative portrayals of persons with respect to race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability. Negative portrayal can take many different forms, including (but not limited to) stereotyping, stigmatization and victimization, derision of myths, traditions or practices, degrading material, and exploitation.
CAB Equitable Portrayal Code, Clause 4 – Stereotyping
Recognizing that stereotyping is a form of generalization that is frequently simplistic, belittling, hurtful or prejudicial, while being unreflective of the complexity of the group being stereotyped, broadcasters shall ensure that their programming contains no unduly negative stereotypical material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.
CAB Equitable Portrayal Code, Clause 5 – Stigmatization & Victimization
Recognizing that members of certain of the following identifiable groups face particular portrayal issues, broadcasters shall ensure that their programming does not stigmatize or victimize individuals or groups on the basis of their race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.
CAB Equitable Portrayal Code, Clause 10 – Contextual Considerations
Broadcasts may fairly include material that would otherwise appear to breach one of the foregoing provisions in the following contextual circumstances:
[...]
The Panel Adjudicators read all of the correspondence and listened to the challenged broadcast. The Panel concludes that the comments broadcast violated Clauses 2 and 6 of the CAB Code of Ethics, as well as Clauses 2, 3, 4 and 5 of the CAB Equitable Portrayal Code.
Comments about George Smitherman
The Panel Adjudicators recognize that this program is about politics, and that freedom of expression is a fundamental right in our society. That being said, freedom of speech or freedom of expression is not absolute, particularly in the Canadian broadcasting system where the Broadcasting Act grants the Canadian Radio-Television and Telecommunications Commission (CRTC) powers to limit freedom of expression through regulations. The CBSC, which is responsible for applying the codes of conduct developed by the broadcasters in which some of those regulations are reflected, has had multiple occasions to explain the fine line separating freedom of speech from abusive comments:
The CBSC has frequently observed that freedom of speech or expression is the basic rule which it applies in the rendering of its decisions but it believes that this principle is not absolute. It is and must be subject to those values which, in a free and democratic society, entitle all members of society both to speak and to be free from the abridgment of those other values in which they and other Canadians believe. Free speech without responsibility is not liberty; it is licence. The freedom to swing one’s arm ends where it makes contact with one’s neighbour’s nose. The length of that arc is what the CBSC determines from case to case.1
Justice Létourneau of the Federal Court of Appeal wrote the following in that regard with respect to a case involving CHOI-FM:
The appellant makes much of the guarantee of freedom of expression in paragraph 2(b) of the Charter and seems to want to treat it as unqualified, something that the courts have never recognized. I do not think I am mistaken in saying that freedom of expression, freedom of opinion and freedom of speech do not mean freedom of defamation, freedom of oppression and freedom of opprobrium. Nor do I think I am mistaken in saying that the right to freedom of expression under the Charter does not require that the State or the CRTC become accomplices in or promoters of defamatory language or violations of the rights to privacy, integrity, human dignity and reputation by forcing them to issue a broadcasting licence used for those purposes. To accept the appellant's proposition would mean using the Charter to make the State or its agencies an instrument of oppression or violation of the individual rights to human dignity, privacy and integrity on behalf of the commercial profitability of a business.2
After having carefully listened to the audio file and read the transcipt of the program, the Panel members conclude that the comparison made by Menzies to attack George Smitherman and homosexuality was not a random choice. He used a news item about an incident dating back two years that took place not on the air, but during an all-candidates meeting at the time of the City of Toronto mayoralty campaign, to emphasize that personal attacks were being directed against Mayor Ford concerning his excess weight and the associated risks to his health. He then added, “Could you imagine, Mayor Ford and Councillor Ford, could you imagine if I was at that all-candidates meeting and I went to George Smitherman. And I said ‘You know what? You know, George, being a practising homosexual and being the fact that you’ve been involved with all kinds of illicit drug use, how do we know you won’t engage in high-risk sex and drug use that will bring about, uh, HIV leading to AIDS and you’ll die in office?’” The Panel is of the view that Menzies set the stage to blast the former Ontario MPP and Minister, who was the first openly gay man at Queen’s Park, and to associate his sexual orientation with high-risk sexual activities and the spread of HIV and AIDS. By expressing himself in this manner, Menzies violated the provisions of Clause 2 of the CAB Code of Ethics regarding Human Rights, as well as Clauses 2 (Human Rights), 3 (Negative Portrayal), 4 (Stereotyping) and 5 (Stigmatization and Victimization) of the CAB Equitable Portrayal Code. Although the program was arguably of a journalistic genre, as mentioned in Clause 10 c) of the CAB Equitable Portrayal Code, the comments were abusive and unduly discriminatory and therefore not acceptable, even in light of the contextual considerations provided for in that Clause. In addition, Menzies breached the provisions of Clause 6 of the CAB Code of Ethics regarding full, fair and proper presentation3 by making personal attacks on George Smitherman.
The Panel also learned of the statement made on the air the following day by one of the co-hosts, city councilor Doug Ford, when he declared that the analogy Menzies made between the health risks associated with the Mayor’s excess weight and those linked to George Smitherman’s homosexuality reflected neither his opinion, nor that of the Mayor. The Panel concludes that Ford attempted to disassociate himself after the fact from Menzies’ comments, since he could have, and should have, put an end to them during the program itself.
Comments about Media Personalities
The Panel also carefully reviewed Menzies’ comments regarding, in the first instance, Mary Walsh of the CBC program This Hour Has 22 Minutes who, disguised as a warrior princess, had ambushed Mayor Ford early in the morning, and secondly Daniel Dale, the Toronto Star reporter who was caught watching Mayor Ford’s residence. Although the remarks were in poor taste in both instances, with Menzies calling Mary Walsh an “alcoholic” and Daniel Dale “effeminate”, they were not as abusive in nature as those directed at George Smitherman and homosexuals in the other portion of the program. Therefore, the Panel concludes that Menzies’ comments concerning Walsh and Dale did not violate the Codes.
Broadcaster Responsiveness
In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner. In this case, CFRB provided a reply to the complainants, outlining its view of the broadcast. The broadcaster fulfilled its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required in this regard in this instance.
ANNOUNCEMENT OF THE DECISION
CFRB 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 The City with Mayor Rob Ford was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainants 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 CFRB.
The Canadian Broadcast Standards Council has found that CFRB NewsTalk 1010 breached the Canadian Association of Broadcasters’ Code of Ethics and Equitable Portrayal Code in its broadcast of The City with Mayor Rob Ford on May 6, 2012. A guest on the program made negative and stereotypical comments about homosexuality contrary to Clause 2 of the Code of Ethics and Clauses 2, 3, 4 and 5 of the Equitable Portrayal Code. The comments also insulted an individual, contrary to Clause 6 of the Code of Ethics.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.
1 CHOM-FM and CILQ-FM re The Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997).
2 Genex Communications v. Canada (Attorney General) (F.C.A.), 2005 FCA 283, [2006] 2 F.C.R. 199 at 221.
3 See the following decisions in which the CBSC dealt with negative comments made about individuals: CJMF-FM re the program L’heure de vérité avec André Arthur (CBSC Decision 99/00-0240, August 29, 2000); CILQ-FM re John Derringer’s “Tool of the Day” (CBSC Decision 02/03-1465, February 10, 2004); and CHRB-AM (AM 1140) re an episode of Freedom Radio Network (CBSC Decision 05/06-1959, January 9, 2007).