THE FACTS
Doc Mailloux et Josey is an open-line program hosted by Josey Arsenault and psychiatrist Pierre Mailloux. The hosts and callers discuss interpersonal relationships and social issues. The program is broadcast from 9:30 to 11:00 am, Monday to Friday. It is broadcast on the Cogeco radio network, including the stations CJMF-FM (FM 93, Quebec City) and CKOB-FM (106,9fm, Mauricie).
At the beginning and in the middle of the program, the broadcasters usually air the following advisory: [translation] “The following program is for adult audiences. Listener discretion advised.”
During the episode of October 25, 2016, Doc Mailloux and his co-host discussed the results of a study in which researchers asked men between the ages of 21 and 35 how they would react if a woman with whom they were making out refused to go as far as sexual intercourse. According to the study, 30% of the men admitted that they would go as far as assault if they were certain that the woman would not charge them with a crime or denounce them publicly. In addition, 50% of respondents stated that they would find ways to convince the woman, such as by continuing to arouse her or by offering her more alcohol. Doc Mailloux and Arsenault noted that the results of this study were [translation] “terrible”, but the psychiatrist insisted that he was not surprised because a certain percentage of men have no control over themselves when they are sexually excited, and nothing can be done to change their behaviour. He compared it to the animal kingdom, and stallions where some are gentle and some are more aggressive. Arsenault questioned whether young men cannot be taught to respect women, but Doc Mailloux responded that this characteristic is innate: [translation] “There is a percentage of men, when they’re horny, they lack judgement.” He added that girls must be taught to be careful and they should be warned that some men will not respect their refusal to consent.
Arsenault suggested that sometimes women consent to sexual activity for fear of their own safety and not because they actually want to engage in such activity. Listeners telephoned to share their own experiences and opinions. There were numerous comments about “penetration”, “intercourse”, “erections”, “horny” men, and, in a few instances, “fellatio”.
When a male caller asked how one can interpret a woman and determine whether she wants to have sex, Doc Mailloux replied: [translation] “Do you know what lubrification is? [...] You can gently put your hand between her legs.” Arsenault objected: [translation] “But the girl will object, if you put a hand down her pants, you’ll get a slap in the face pretty fast!” Mailloux also recommended that women test their male partners by arousing them to see if they can resist.
A listener who heard the program on CJMF-FM complained on October 27 about the comments. In her view, Mailloux [translation] “is justifying rape, pure and simple” by suggesting that men have no responsibility due to their instinctive urges. She characterized the comments as [translation] “violent, sexist and anti-feminist”. The broadcaster did not agree and argued that Mailloux was only giving his opinion about the study and that [translation] “at no time did he claim that the man has no responsibility”.
The episode of November 2, 2016 dealt with Safia Nolin’s speech at the awards gala of the Association québécoise de l’industrie du disque, de spectacle, et de la vidéo (ADISQ – Quebec Association for the Recording, Concert and Video Industries). The young singer attended the gala dressed in jeans and a shabby sweater. When she won an award, she came on stage and uttered the English word “fuck” to express her surprise, then used her acceptance speech as an opportunity to talk about bullying towards women. Doc Mailloux and Arsenault discussed the controversy that Nolin’s actions had generated and why the public had reacted so strongly. Public commentary had focused on the fact that Safia Nolin had opted not to wear a gown, that her speech had been peppered with coarse language, and that she had encouraged young women to [translation] “do what you want. [...] And your body belongs to you.” The two hosts broadcast an excerpt of Nolin’s speech multiple times; in it, “fuck” was uttered three times and the French expression “on s’en crisse” once.
Doc Mailloux argued that Safia Nolin had elicited strong reactions because she had challenged the principles of the [translation] “Quebec matriarchy”, namely the established matriarchs of Quebec. He strongly criticized these feminists and characterized any men who share their point of view about Safia Nolin as [translation] “feminized men”. He accused these feminists of having bullied Safia Nolin: [translation] “The Quebec matriarchs want to shut her up by treating her with contempt”. He also said that to be a hardcore feminist, one [translation] “has to be sexually frustrated” and “the existing Quebec matriarchs overtly advocate for a dominant-dominated relationship with men. [...] That’s not how we’re going to create a society that’s more harmonious, less argumentative, with less depression, fewer suicide attempts. That’s not the right track, matriarchy leads to desperation, to stagnation”. When Josey responded “But patriarchy is no better”, Mailloux agreed: “It’s as bad, if not worse”. In response to a caller, Mailloux asserted that a girl [translation] “has the right, in a free and democratic society, to flaunt herself in her best attire. [...] And in her worst. She has that right too!”
The same listener complained about the November 2 episode that same day. She wrote that [translation] “Mailloux’s objective is to ridicule, denigrate and insult women. Mailloux has a masculinist agenda and it prepared to do anything to push it. And Josey Arsenault does nothing to stop him. She does the opposite.” In its response, the broadcaster noted that Pierre Mailloux had defended Safia Nolin and had targeted only the political viewpoints of the “matriarchy”, not of women in general. It also noted the fact that Mailloux had said that patriarchy was [translation] “as bad, if not worse”: “It is clear to us that Pierre Mailloux is not attacking women in general.” The listener filed her Ruling Request for the two episodes on November 27, arguing that [translation] “Mailloux’s hate and contempt towards women is obvious in his interactions with callers”.
Doc Mailloux et Josey presents topics under the banner “intimate Fridays”. This theme is presented every Friday and the hosts discuss subjects related to sexuality. The topic of the day on February 3, 2017 was women’s sexual satisfaction. According to Doc Mailloux, there are many women in Quebec who do not allow themselves to explore their own bodies in order to understand their own sexuality. Many women telephoned during the program to share their experiences in vivid detail. Mailloux himself also made comments, such as [translation] “take a handheld showerhead, point it towards your vulva and wait until it feels pleasurable. What percentage of women is able to take a handheld shower, to put it between their legs and enjoy the water spray?” There were also discussions about vaginal and clitoral orgasms, masturbation, penetration, and partners achieving simultaneous orgasms.
On February 4, 2017, a listener complained about the program on CKOB-FM, alleging that it was too sexually explicit at an hour when children can be listening. In a response of March 3, the broadcaster emphasized that it always broadcasts a warning before the beginning of the program and that, in any event, children are at school at the time the program is broadcast. With respect to preschool-aged children, the broadcaster argued that they [translation] “would absolutely not understand what was being discussed”. Nevertheless, the broadcaster committed to broadcast the warnings coming out of each commercial break. The complainant filed his Ruling Request on March 21 and attached a copy of an email exchange he had had with the broadcaster in which he argued that children are not always at school on Fridays due to holidays, that some “intimate Friday” episodes specifically targeted adolescents, and that it was not only the “intimate Friday” episodes that contained sexually explicit material, but rather the show in general. The broadcaster stated that it had met with Doc Mailloux and Josey Arsenault to inform them of the complaint and to encourage them to modify the program.
A complete transcript of the three broadcasts can be found in Appendix A. The full text of all correspondence can be found in Appendix B. Both appendices are available in French only.
THE DECISION
The French-Language Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Equitable Portrayal Code, Code of Ethics and Violence Code:
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 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 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 3 – Sex-Role Stereotyping
Recognizing that stereotyping images can and do have a negative effect, it shall be the responsibility of broadcasters to exhibit, to the best of their ability, a conscious sensitivity to the problems related to sex-role stereotyping, by refraining from exploitation and by the reflection of the intellectual and emotional equality of both sexes in programming. Broadcasters shall refer to the Sex-Role Portrayal Code for Television and Radio Programming [since March 17, 2008, replaced by the Equitable Portrayal Code] for more detailed provisions in this area.
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:
a) Gratuitous violence in any form, or otherwise sanction, promote or glamorize violence;
b) Unduly sexually explicit material; and/or
c) Unduly coarse and offensive language.
CAB Violence Code, Article 7.0 – Violence against Women
7.1 Broadcasters shall not telecast programming which sanctions, promotes or glamorizes any aspect of violence against women.
The Panel Adjudicators read all of the correspondence and listened to the broadcasts in question. The Panel concludes that CJMF-FM breached Clauses 9(b) and (c) of the CAB Code of Ethics and that CKOB-FM breached Clause 9(b) of that code, but that neither of the stations breached the articles relating to the portrayal of identifiable groups.
Comments about Sexual Assault
The October 25 episode consisted of commenting on the results of a study conducted in Quebec of 150 men aged 21 to 35. The study was sponsored by the criminology school of the Université de Montréal, among others, and concluded that 30% of men would sexually assault the women with whom they were out on date if they refused to have sex, if there were no consequences.
The complainant’s primary concern about this episode was that Mailloux minimized rape by claiming that men are not responsible for their aggressive sexual instincts and that it is incumbent on women to be warned about and cautious of men’s nature.
In its review of the broadcast, the Panel considers that Mailloux attempted to offer an explanation for the study results based on his experience as a psychiatrist. Mailloux’s views about the nature of some men is open for debate, as is his suggestion that women “test” their prospective male partners. Whether or not this is sound advice is not for the CBSC Panel to assess. Its role is to assess the comments as broadcast, and it finds that Mailloux was entitled to offer his opinions on this subject. He did not justify, condone or sanction sexual assault under Article 9(a) of the CAB Code of Ethics or Article 7.0 of the CAB Violence Code.
Human Rights and Stereotyping based on Sex
With respect to the October 25 episode, the Panel observes that much of Mailloux’s commentary gave the impression that men are prone to sexual violence or, at the very least, coercion. However, it was reasonably clear that his comments were limited to the subject of the day, namely the 30% of study participants who replied in the affirmative to the questions relating to forced sexual activity. Mailloux repeated frequently throughout the episode that “one third” of men do not have any discernment when they are sexually excited. By restricting his comments in this manner, Mailloux ensured that he did not generalize about all men, thus preventing a breach of the clauses cited above relating to Human Rights and Sex-Role Stereotyping.
Panel Adjudicators then considered the complaint about the November 2 broadcast, which was about Safia Nolin’s appearance at the ADISQ gala. The complainant argued that Doc Mailloux’s comments were part of [translation] “his hateful campaign against women”. Among other criticisms of feminists, Mailloux said that feminists were “sexually frustrated” and that men who support them are “feminized men”.
While Mailloux did not mince words with his criticisms of Quebec feminists, it was again clear that his comments were directed only at “feminists”, not at women in general1, and even then only at a particular sub-set of feminists (and their male supporters) who had denounced Safia Nolin. At one point in the program, they even named three well-known feminists who had publicly expressed their disapproval of Nolin’s actions at the ADISQ gala.
In contrast, Mailloux expressed his approval of Nolin’s message to her fellow young women, especially when he said that Nolin [translation] “has the right, in a free and democratic society, to flaunt herself in her best attire [or] in her worst. She has that right too!” Furthermore, Mailloux declared that a patriarchy is as bad, if not worse than a matriarchy. The Panel, therefore, finds no evidence of “a masculinist agenda” as alleged by the complainant.
The Panel Adjudicators note that Doc Mailloux’s remarks about feminists were certainly provocative, outrageous, aggressive and lacking in subtlety, but they targeted a group with specific political or social ideas, which does not equate to an identifiable group.
The Panel therefore concludes that there is no discrimination towards women or men under Clauses 2 and 3 of the CAB Code of Ethics, nor under Clauses 2 or 4 of the CAB Equitable Portrayal Code.
Sexually Explicit Content
Under Clause 9(b) of the CAB Code of Ethics, broadcasters shall not air unduly sexually explicit material. The CBSC has interpreted the word “unduly” to relate to the time of day that the content is aired, finding that sexually explicit commentary shall not be aired during daytime or early evening hours, while more mild or vague sexual references are acceptable at any time of day2.
On Fridays, Doc Mailloux et Josey usually covers a sexual theme, under the banner “intimate Fridays”. For example, the episode of February 3 was about female sexual satisfaction and the “P.I.P.E” programme invented by Doc Mailloux. Some listeners attempted to find the meaning of the acronym and sent their guesses to the show. Josey read some of the responses on air: [translation] “share [partage in French], intimacy, partner, ejaculate” or “pleasure, intimacy, penetration, ejaculation”, before Mailloux revealed what he had in mind: permission, intimacy, practice and exploration. Both Mailloux and his callers described sexual scenarios. For example, Mailloux suggested: [translation] “take a handheld showerhead, point it towards your vulva and wait until it feels pleasurable. What percentage of women is able to take a handheld shower, to put it between their legs and enjoy the water spray?”
Comments of a sexual nature, however, were not limited to “intimate Fridays”. Sexual topics arose on other occasions, such on October 25 when discussing sexual assault and consent. If the hosts had limited themselves simply to read the results of the study, there would probably have been no problem, but when they chose to comment on the results, the discussion veered into inappropriate territory.
They spoke bluntly about penetration, fellatio, erections, masturbation, etc. Doc Mailloux even went so far as to say, when a caller asked him how to tell if a woman desired sexual relations: [translation] “Do you know what lubrification is? [...] You can gently put your hand between her legs.”
The remarks mentioned above, made by Doc Mailloux and his co-host Josey during the October 25 and February 3 broadcasts, are, without a doubt, sexually explicit in the view of the Panel Adjudicators.
The Panel Adjudicators also note that Doc Mailloux et Josey is broadcast from 9:30 to 11:00 am, Monday to Friday. Although the concept of a watershed hour does not exist in radio, as noted above the CBSC has established in its jurisprudence that sexually explicit comments have no place on radio in the middle of the day.
The Panel recognizes that the broadcaster aired an advisory at the beginning and at least one time in the middle of each of the episodes examined for this decision. In contrast to television, there is no code provision that requires advisories on radio. Although the CBSC commends Cogeco for taking this initiative, it reminds the broadcaster that a warning does not excuse the broadcaster from airing sexually explicit content during daytime hours:
Thoughtful broadcasters have, in the experience of the CBSC, introduced listener advisories from time to time when they wished to assist their audiences in avoiding potentially problematic material. It is a practice that the Council applauds. Such warnings are not generally, however, a defense for the broadcaster against the airing of otherwise inappropriate programming, as they may be in post-Watershed television broadcasting3.
The Panel Adjudicators unanimously conclude, therefore, that the broadcasters violated Clause 9(b) of the CAB Code of Ethics by allowing the broadcast of sexually explicit content during daytime hours.
Coarse Language
As with sexually explicit content, broadcasters shall not air unduly coarse language at times when children could be listening, that is to say, during daytime or early evening hours.
In the November 2 episode, the hosts repeatedly played the excerpt from the ADISQ gala in which Safia Nolin said the following:
[translation]
Hello. Aye, oiye this is weird. That’s twice I’ve said this is weird. Fuck. Fuck, I said “fuck”! Uh, thanks, first of all. Secondly, I’d like to say quickly, uh, to all the girls in Quebec, uh, you have the right to do what you want. Make music. Do guys’ work, don’t give a shit. And also your body belongs to you. Uh, thank you to Céline. I don’t want to forget her.
Then they mimicked her words themselves, colouring their own remarks with “fuck” and “crisse”, not to mention “calice” and “sacrement”.
The Panel Adjudicators note that recent CBSC jurisprudence has allowed, in some circumstances, the use of the word “fuck” in a French-language program because this vocabulary does not have the same pejorative connotation as it does in English. The CBSC has, however, explained that the use of the word must be infrequent and not used as an insult.4 In this case, the Panel Adjudicators conclude that the repeated use of the word “fuck” does not meet the criteria established in MusiquePlus re CTRL (CBSC Decision 15/16-0367, October 19, 2016).
With respect to the words “crisse”, “calice” and “sacrement” and their derivatives, the Panel reiterates that this type of language is banned during the day on radio.5
The Panel therefore concludes that the broadcaster breached Clause 9(c) of the CAB Code of Ethics in the broadcast of November 2, 2016 by permitting the repeated use of the words “fuck”, and “fuck you” and the words “crisse”, “calice” and “sacrement” during daytime hours.
The Panel Adjudicators also note that the phrase “Je suis fucké” (“I am fucked”) was used twice in the February 3 episode. In this case, the Panel Adjudicators conclude that the use of this expression was sufficiently limited as to satisfy the criteria established in the aforementioned decision.
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, CJMF-FM and CKOB-FM, under their owner Cogeco, sent detailed and relevant responses to the two complainants. The broadcasters fulfilled their obligations of responsiveness and, subject to the announcement of this decision, nothing further is required in this regard in this instance.
DECISION ANNOUNCEMENTS
CJMF-FM 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 et Josey 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 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 CJMF-FM:
The Canadian Broadcast Standards Council has found that CJMF-FM breached the Canadian Association of Broadcasters’ Code of Ethics in its broadcasts of Doc Mailloux et Josey on October 25 and November 2, 2016. CJMF-FM broadcast unduly sexually explicit comments and unduly coarse language contrary to Clauses 9(b) and (c) of the code.
CKOB-FM 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 et Josey 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 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 CKOB-FM.
The Canadian Broadcast Standards Council has found that CKOB-FM breached the Canadian Association of Broadcasters’ Code of Ethics in its broadcasts of Doc Mailloux et Josey on February 3, 2017. CKOB-FM broadcast unduly sexually explicit content contrary to Clause 9(b) of the code.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.
1 See CHOG-AM re the Shelley Klinck Show (CBSC Decision 95/96-0063, April 30, 1996) and CFRA-AM and CHRO-TV re The Lowell Green Show (CBSC Decision 98/99-0157+, June 17, 1999) for similar situations.
2 CKVX-FM re comments made on the Pepper and Crash Show (CBSC Decision 02/03-0237, July 22, 2003); CHOI-FM re Le monde parallèle de Jeff Fillion (Sexual comments) (CBSC Decision 03/04-0018, April 22, 2004); 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 (Childless by Choice) (CBSC Decision 05/06-1671, December 11, 2006); CKAC-AM re Doc Mailloux (six episodes) (CBSC Decision 06/07-0168 & -0266, August 23, 2007)
3 CKVX-FM re comments made on the Pepper and Crash Show (CBSC Decision 02/03-0237, July 22, 2003)
4 MusiquePlus re CTRL (CBSC Decision 15/16-0367, October 19, 2016) and CKOI-FM re comments broadcast during Les poids lourds du retour and Radio P-Y (Décision CCNR 16/17-1283, 7 novembre 2017)
5 CKAC-AM re Doc Mailloux (six episodes) (CBSC Decision 06/07-0168 & -0266, August 23, 2007); CKRB-FM re Prends ça cool ... and Deux gars le midi (CBSC Decision 08/09-0689 & -1228, August 11, 2009); CHOI-FM re Dupont le midi (suicide) (CBSC Decision 08/09-2041 & 09/10-1462, September 23, 2010); CHOI-FM re Dupont le midi (community organizations) (CBSC Decision 08/09-1506, September 23, 2010); CHOI-FM re Dupont le midi (Haiti) (CBSC Decision 09/10-0854, September 23, 2010); CHOI-FM re Dupont le midi (figure skating) (CBSC Decision 09/10-1257 & -1260, September 23, 2010); CHOI-FM re Dupont le midi (police) (CBSC Decision 13/14-1582, May 14, 2014)