Sportsnet West re 2020 Stanley Cup Playoffs Game 7

English-Language Panel
CBSC Decision 20.2021-0044
2021 CBSC 2
February 17, 2021
S. Courtemanche (Chair), E. Faber, M. Galipeau, W. Gray,O. Mowatt, L. Nagel, C. Scott
THE FACTS

Sportsnet West is a discretionary television service devoted to sports programming. It has four regional feeds; Sportsnet West serves the Prairies, the Northwest Territories and Nunavut. It broadcast game 7 of the National Hockey League (NHL) Stanley Cup Playoffs on September 4, 2020. The broadcast began at 3:00 pm Central Time. The game was between the Dallas Stars and the Colorado Avalanche.

During a break in play, two commentators, David Amber and Brian Burke, discussed the game. The conversation went as follows:

Amber: We need your thoughts, Burkie, because you were getting a little upset with the lack of killer instinct, uh, from the Avalanche when they had that lead.

Burke: Yeah, I thought when they went up three-two they got complacent. And when a team you’re playing is flat, that’s when you gotta put a boot on their throat and put your full body weight on it. They had a chance to put the game away there. They looked lackadaisical. They looked like, okay we got a lead. And I sure hated the penalty call that put Dallas back in this game.

The CBSC received a complaint via its webform on September 7. The viewer was concerned that Burke’s comment about “a boot on their throat” “was ignorant and promotes hate and violence” because it indirectly referenced the widely publicized death of a Black man in the United States while in police custody. On May 25, 2020 in Minneapolis, Minnesota, a Black man named George Floyd died after a White police officer pressed his knee to Floyd’s neck for a reported eight minutes and 46 seconds during an arrest for allegedly attempting to pass a counterfeit $20 bill. The incident received much media coverage and led to demonstrations of the Black Lives Matters movement1 across the world protesting racism within police forces and general injustices experienced by people of colour.

Sportsnet replied to the complainant on October 23 and made the following comments about Burke’s remarks:

In the broadcast in question, Mr. Burke used a phrase that is commonly used in the context of sports, to describe a scenario in which a team or individual does not/should not relent when they have an advantage over the other team. While it may have been an unfortunate choice of words given the events and sensitivity surrounding the protests, Mr. Burke did not intend this phrase to reference the murder of George Floyd, or any of the events surrounding the Black Lives Matter protests. It was being used purely to make a comment about sports.

In regards to your concern that Mr. Burke’s comments promoted hate and violence, it is our belief that the comments made were not a call to violence towards a certain group or individual. Rather, it was used metaphorically towards the hockey team under discussion.

While arguably in bad taste, we do not believe that Mr. Burke’s comments have breached the Code, which would limit his right to freedom of speech and expression.

The complainant sent a letter to the broadcaster on October 28 and filed his CBSC Ruling Request on October 30. In both documents, he expressed his disagreement with Sportsnet’s position. He suggested that Burke’s remarks do not constitute a phrase commonly used in sports and that Burke had intentionally used a recent tragic event “for the purpose of gratuitously dramatizing and sensationalizing his statement in a sporting event context completely unrelated to hockey.” He maintained that the “boot to their throat” reference was “completely offensive, deliberate and inflammatory” and should not be protected under principles of free speech. (The full text of all correspondence is available in the Appendix to this decision.)

THE DECISION

The English-Language Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Violence Code, Code of Ethics and Equitable Portrayal Code:

CAB Violence Code, Article 1.0 – Content

1.1 Canadian broadcasters shall not air programming which:

(*“Gratuitous” means material which does not play an integral role in developing the plot, character or theme of the material as a whole).

CAB Violence Code, Article 8.0 – Violence Against Specific Groups

8.1 Broadcasters shall not telecast programming which sanctions, promotes or glamorizes violence based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability.

CAB Violence Code, Article 10.0 – Violence in Sports Programming

10.1 Broadcasters shall not promote or exploit violent action which is outside the sanctioned activity of the sport in question.

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 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.

The Panel Adjudicators read all of the correspondence and viewed a recording of the challenged broadcast. The Panel unanimously concludes that the broadcast violated Article 1.1 and a majority of the Panel concludes that the broadcast breached Article 10.1 of the CAB Violence Code. The Panel unanimously concludes that the broadcast did not violate any of the other aforementioned code provisions.

The first two questions put to the Panel were:

1) Did Brian Burke’s comment sanction, promote or glamorize violence under Article 1.1 of the CAB Violence Code?

2) Did Brian Burke’s comment promote or exploit violent action outside the sanctioned activity of hockey under Article 10.1 of the CAB Violence Code?

The CBSC has examined the issue of sports commentary that references violence in previous decisions. In these decisions it is recognized that sports analogies are often aggressive and, in certain circumstances, they constitute a breach.

In CKVR-TV re Toronto Raptors Basketball Game (CBSC Decision 96/97-0063-May 8, 1997), complainants had contended that use of the phrase “Assassinate the Kings” during the broadcast of a Toronto Raptors basketball game against the Sacramento Kings was not “responsible broadcasting” as the words “King” and “Assassinate” in the same sentence are associated with the assassination of Dr. Martin Luther King. The Panel found no breach of either the CAB Violence Code or the CAB Code of Ethics for the following reasons:

The CBSC has, on previous occasions, observed that it always has an advantage vis-à-vis viewers or listeners in that the Council members have the opportunity to have the logger tapes in hand when they review the complaint files and arrive at their decisions. Audience members, on the other hand, watch (or listen to) a program once and are forced to attempt to catch a potentially offensive moment without the ability to rewind and review the material several times.

In this case, the ability to do that would have resolved the matter immediately. The viewers would have realized that, despite their (and society’s) tragic association of the word “assassination” with civil rights leader Martin Luther King, Jr., the explicit reference of the announcer 35 seconds earlier had been to the monarchy; ‘Bring down the Monarchy’ were the exact words used. Apart from the fact that the Raptors were playing the Kings of Sacramento, the only other “kingly” reference had been to the monarchy. […] The Ontario Regional Council members here believe that few persons would have made the association made by the complainants in the light of the references to the Sacramento Kings and the monarchy. However unfortunate the juxtaposition of the words “Assassination” and “King”, the Council does not consider it reasonable to hold the broadcaster liable for a breach of the Code.

Insofar as Article 10.1 of the Violence Code is concerned, the Council does not consider that the broadcaster was either promoting or exploiting violent action in any way, much less “violent action which is outside the sanctioned activity of the sport in question.”

In CHEX-TV re Sportscast (CBSC Decision 03/04-0926, October 22, 2004), the Panel dealt with a complaint about the promotion of violence in sports programming. A sportscaster during a 6:00 pm newscast stated that he was addressing the Peterborough Petes junior hockey players and said “when somebody takes a cheap shot at the heart and soul of your team, somebody has to and should’ve stepped up and, well, […] deliver a message, and I think you know what I mean by that.” A viewer felt that the sportscaster should not have encouraged young players to harm each other during the game. The Panel found a breach of the CAB Code of Ethics for improper comment, but did not find a breach of Article 10.1 of the CAB Violence Code:

If Gary Dalliday did not intend his comments to appear to encourage some form of retaliation, he could have chosen a more benign formula. [...] He might, for example, have said something like, “Play harder, guys. More determination. More resolution. Win one for the Gipper.” He did not do so. He left a different kind of message. [...] Moreover, it was a message targeted, he ought to have foreseen, at young players.

In Sportsnet Ontario re comments made on an episode of Prime Time Sports (CBSC Decision 07/08-1500, October 22, 2008) the Panel dealt with comments made on a sports talk program. The hosts and panellists were discussing a collision between two players that had occurred during the previous night’s NHL game. The debate was whether it had been an illegal and dangerous hit. When asked what he thought, one commentator on the program suggested that he “loved it” and “was waitin’ for his [the hockey player’s] head to roll all the way down the ice.” He went on to joke that the two goalies could then have curled with the players’ head and helmet. He said that it was a head blow, but such incidents would continue to be deemed a “legal hit” due to the mindset of the NHL on the issue and such hits would continue until such time as an injured player sued the League and won. A viewer complained that these remarks came “close to advocating violence” and “certainly glorifie[d] it”. The Panel did not find, amongst other potential breaches, a breach of the Sports provision of the CAB Violence Code:

The Panel has no doubt but that the invocation of violence in the matter at hand would have been beyond the pale, if seriously intended, but the Panel is equally sure that it was not in any way, shape or form a sincere suggestion.

[…]

In the matter at hand, the mitigation was clearly present, within seconds of the original challenged words. The commentator, Jim Kelley, was expressing his frustration with the sport, and with the fact that, until a player dies or the National Hockey League is successfully sued for billions of dollars, “you cannot change the mindset of hockey on this.” The Panel is comfortable that anyone who listened to the 240 words of the entire comment would not likely have believed that Kelley loved the hit, as he began his observation. Indeed, he did appear to the Panel to have hated the illegal elbow to the head. It is fair to observe that he might have chosen less graphic language to make his point, but there is no breach resulting from that editorial choice. In the end, the Panel believes that this was a strong anti-violence statement.

In CJAY-FM re a Sports Report (CBSC Decision 02/03-0234), February 5, 2003), the on-air personality reported a sports score with the information that one team “got bent over and fisted” by the other. He followed that statement with “Can you feel that?! Can you baby?!” A listener complained that the reference to “fisting” was offensive. The Panel found a breach of Clause 9 (Radio Broadcasting) of the CAB Code of Ethics due to the sexually violent and explicit nature of the remarks:

The suggestion that one team “got bent over and fisted” by another is obviously metaphorical, but it nonetheless creates an image of sexual violence. While an intent to convey dominance in reporting a sports score is understandable, the linking of such dominance to a sexual scenario in this context is both unnecessary and unjustifiable.

[…]

The CBSC acknowledges the desire of broadcasters to find creative, unique and entertaining phrases and analogies for use in their programming and the CBSC has consistently stated that the principle of freedom of expression will prevail in cases of merely unpleasant or distasteful content. The CAB Code of Ethics, however, sets limits concerning the nature of violent and sexually explicit content which will be considered acceptable on Canadian airwaves. The Prairie Regional Panel finds that the combined effect of the sex and violence in the CJAY-FM sports report, particularly for the time of day at which it was aired, amounts to a breach of Clause 9 of the CAB Code of Ethics.

In CKVX-FM re morning show comments (CBSC Decision 01/012-0059, January 23, 2002), the Panel dealt with a complaint about the use of the term “bitch slapped” during a sports report. The announcer said something to the effect of “the Seattle Mariners bitch-slapped their opponents last night.” The complainant was concerned that this comment condoned violence against women. The Panel found a breach of four code provisions:

While the expression “bitch-slap” may have more than one meaning, the B.C. Panel understands its use here to have been that identified by both the complainant and the broadcaster in its replies; in that usage, the Panel finds a remarkable resemblance to the wording that was the subject of the CIOX decision, namely, “I reached back like a pimp and I slapped the ho.” While not extreme, the violent domination which is the essence of the term is unacceptable on the public airwaves.

In CKAC-AM re a segment on Bonsoir les sportifs (CBSC Decision 06/07-0441, April 7, 2008), the Panel dealt with a complaint about comments made on a sports talk show. The host was speaking with his co-host about the meagre reaction of the Montreal Canadiens to opponents’ interference with their goalie in a recent game. The host suggested that, on the first two instances of goalie interference, the team should approach the referee, but, on the third occasion, [translation] “you break your stick on the back of the player’s neck and he’s on the ground!” The host went on to say that “You cross-check him in the back of the head and he ends up […] with his face in the glass enclosure or in the ice!” The CBSC received a complaint from a listener who was concerned about the message this broadcast sent to young people about using violence in hockey games. The station argued that the host had not intended to incite violence and the comments were made in the context of a specific hockey game. The Panel found a breach of Clause 9(a) of the CAB Code of Ethics:

The issue for the Quebec Panel in interpreting the above-cited provision of the CAB Code of Ethics centres on the meaning of the words “sanction” and “promote”. The Panel understands the verbs to be the equivalent of “endorse”, “encourage”, “approve”, “support” and the like. It does not consider that there is a need to provide a “how-to” manual, although it does acknowledge that Ron Fournier has come very close to delivering that very formula.

[…]

In the matter at hand, the Quebec Panel considers that the sportscaster’s words exceeded by a considerable measure those of Gary Dalliday in the CHEX-TV decision. There was nothing subtle or equivocal about his advice. […] The Quebec Panel considers that the foregoing words not only “endorsed”, “encouraged”, “approved” and “supported” such violent acts, they recommended such a course of action to protect a goaltender.

On the matter of Article 1.1 of the CAB Violence Code, the Panel understands the role of a sports commentator and, in particular, a colour commentator such as Brian Burke. In a sport such as hockey where fighting and physical checking is allowed, one can expect that there would be a number of metaphors used by a colour commentator including possibly violent metaphors. Metaphors such as “Stake or dagger to the heart”; “Go for the jugular”; “Put them out of their misery”; “Take off their heads”; and “Annihilate”; are all metaphors that are likely to have been used in sports programming by a variety of commentators or public figures and would clearly be understood as metaphors that simply encourage a team to do better than their opponents.

As for the metaphor “boot to their throat”, the CBSC acknowledges that it can be used in other non-sports contexts to mean forcing an intractable partner to do something they would not otherwise do2. Similar to “Feet to the fire”, these metaphors are used in situations where one wants to express the need for accountability.

The Panel is also mindful that the broadcasting codes administered by the CBSC have always been interpreted against the fundamental right to freedom of speech contained in the Canadian Charter of Rights and Freedoms. In the broadcaster’s reply it was noted that “we do not believe that Mr. Burke’s comments have breached the Code, which would limit his right of freedom of speech and expression. The sanctioning of bad taste, unpalatable as it may be, does not fall within the ambit of the CBSC’s mandate under the Code.”

In some of the previous CBSC decisions noted above, Panels have drawn a line with comments that sexualize violence such as “bitch-slap” and when one team “got bent over and fisted” by another. Accordingly, the CBSC has through various of its decisions, found breaches to various broadcast codes and this, notwithstanding the fact that freedom of expression is a fundamental right under the Canadian Charter of Rights and Freedoms.

The comment by Brian Burke went further than the metaphor “boot to their throat” described earlier. He said “when they got up 3-2, they got complacent and when a team you’re playing is flat, that’s when you gotta put your boot on their throat, and put your full body weight on it.”

In the complainant’s ruling request he argued that:

Mr. Burke’s remarks do not constitute “a phrase commonly used in the context of sports” nor are they “acceptable to describe a scenario relating to sports”.

Mr. Burke’s choice of words were chosen to deliberately and intentionally use a recent tragic event and the death of a black male in a police related altercation for the purpose of gratuitously dramatizing and sensationalizing his statement in a sporting event context completely unrelated to hockey.

The Panel is of the view that the expression “you gotta put your boot on their throat, and put your full body weight on it [emphasis added]” is not one that is commonly used in sports or otherwise. However, the Panel does not consider, in the circumstances, that Mr. Burke deliberately and intentionally used his comment to highlight or relate in any way to the tragic events of George Floyd’s death. Mr. Floyd died while in police custody after a White police officer knelt on his neck for more than eight minutes. Notwithstanding that Mr. Burke’s comments did not directly reference George Floyd’s death, the fact remains that the logical consequence of putting a boot to the throat of an individual and then putting your full body weight on it constitutes a graphic and violent act that could severely harm someone and even possibly lead to their death. This type of graphic, troubling and violent act should not be endorsed or promoted on air. Moreover, Mr. Burke did not mitigate in any way his comment, which is not an expression that is commonly used.

Accordingly, the Panel unanimously considers that Mr. Burke’s comment promoted violence contrary to Article 1.1 of the CAB Violence Code.

As noted earlier, there are plenty of other metaphors that could have been used in the circumstances. Although the Panel does not consider that Mr. Burke’s comment directly referenced the George Floyd incident, it is clear that recent incidents such as George Floyd’s death, the Black Lives Matter movement and even the Me Too movement3 have made us all re-examine terms or expressions that may have been used in the past and whether in today’s environment they are appropriate or acceptable to use. In any event, the promotion or glamorization of violence should simply not occur whether it is done in the context of a sports program or not.

On the issue of whether Brian Burke’s comment promoted or exploited violent action outside the sanctioned activity of hockey contrary to Article 10.1 of the CAB Violence Code, a majority of the Panel has determined that the remark did breach this provision of the Code.

The majority of the Panel is of the view that even though Mr. Burke’s comment was made in the context of a particular hockey game, the fact is Mr. Burke was suggesting that it is acceptable to deal with complacency through a violent and graphic act. NHL hockey games reach a national audience of all ages including many young viewers. The majority of the Panel considers that to suggest using a boot to the throat and putting your full body weight on it is a violent act that can cause serious harm especially when the suggestion is made in the context of how to deal with complacency. While the Panel understands that the statement could be intended as a metaphor, it describes an action which is not particularly relevant to hockey since there is no play in that sport which would involve a boot or a throat. Encouraging rough play would be acceptable or even encouraging an aggressive act that might lead to a penalty could still reasonably fall within the limits of Article 10.1. However, the type of action described is clearly one that is not within the sanctioned limits of hockey. Even if understood as a metaphor, it promotes a level of aggression and violence that could be fatal and well exceeds the customary rough-and-tumble of a hockey game. In addition, complacency is not a concept restricted to hockey. It is something that occurs each and every day in a multitude of life situations. Therefore, although Mr. Burke’s comment was made in a hockey context and was not intended to be a literal call to action, it could be interpreted as promoting such action outside of hockey in order to deal with complacency. This type of action should simply never be promoted or endorsed in any life situation.

Moreover, the majority considers that commentators can still use colourful expressions to make their point. There are numerous expressions that could vividly portray the message a commentator wishes to make. However, the use of colour commentary should be done with care and within the limits set out by the various broadcast codes.

Dissenting Opinion of E. Faber, O. Mowatt and M. Galipeau

The dissenting Panel members do not believe that Mr. Burke was promoting or exploiting any violence outside the sanctioned activity of hockey contrary to Article 10.1 of the CAB Violence Code. They consider that, based on CBSC precedents, the comments would have to promote some type of retaliatory action in order to breach that provision. Although Mr. Burke used an inappropriate metaphor, it does not constitute a call to action. The dissenting Panel members also took into consideration the context in which this metaphor was used. It was in response to a comment made by the host of the program segment (David Amber) in which he stated that Burke was “getting a little upset with the lack of killer instinct, uh, from the Avalanche when they had that lead.”

Moreover, the dissenting Panel members are concerned that a finding of breach in the circumstances would create a chill for colour commentators leading some of the other metaphors cited above to be interpreted as contrary to Article 10.1 of the CAB Violence Code. Hockey is a sport in which there is often violence. Unless the metaphor is a clear call to action, it should not be considered a breach of this code provision especially in the case of an editorialist such as Brian Burke.

The third and fourth questions put to the Panel were:

3) Did Brian Burke’s comment sanction, promote or glamorize violence based on race, under Article 8.1 of the CAB Violence Code?

4) Did Brian Burke’s comment constitute abusive or unduly discriminatory content on the basis of race, under Clauses 2 of the CAB Code of Ethics and Equitable Portrayal Code?

The CBSC has consistently said that, in order to breach the Human Rights clauses of the CAB Code of Ethics and Equitable Portrayal Code, the comments must make extremely negative generalizations about a specific identifiable group. Even comments about “immigrants” or other catch-all terms that might imply people of colour are not considered specific enough to breach the codes4.

The Panel unanimously considers that, in this case, given there is no actual mention at all of race or colour in Mr. Burke’s comment, there is no breach of Article 8.1 of the CAB Violence Code or Clauses 2 of the CAB Code of Ethics and the Equitable Portrayal Code.

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, Sportsnet West provided a substantive reply to the complainant, outlining the relevant code provisions and the reasons it believed the remarks were acceptable. The broadcaster fulfilled its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required on this occasion.

DECISION ANNOUNCEMENT

Sportsnet West is required to: 1) announce the decision, in the following terms in audio and video format, once during prime time 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 this Stanley Cup 2020 playoff game 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 Sportsnet West.

The Canadian Broadcast Standards Council has found that Sportsnet West breached the Canadian Association of Broadcasters’ Violence Code in its broadcast of Game 7 of the 2020 Stanley Cup Playoffs on September 4, 2020. A commentator used an expression that sanctioned and promoted violence, contrary to Articles 1.1 and 10.1 of the code.

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

1 Black Lives Matter is a decentralized social movement which advocates against police brutality and general discrimination committed against Black people.

2 For example, in May of 2010, members of the Obama administration used the metaphor “boot to the throat” when informing the American public about how they would ensure that British Petroleum (BP) took all necessary steps to clean the 130 million gallons of crude oil that leaked into the Gulf of Mexico following an explosion at BP’s Deepwater Horizon oil rig.

3 Me Too is a decentralized social movement which denounces sexual harassment and sexual violence.

4 CILQ-FM re the Howard Stern Show (CBSC Decision 99/00-0717 & -0739, June 28, 2001); CKAC-AM re an episode of Doc Mailloux (CBSC Decision 03/04-0453, February 10, 2005); CKNW-AM re episodes of Bruce Allen’s Reality Check and the Christy Clark Show (CBSC Decision 07/08-0127 & -0469, November 27, 2007)

APPENDIX

The Complaint

The CBSC received the following complaint via its webform on September 7, 2020:

Name of Television or Radio Station: Sportsnet

Program Name: NHL Payoffs

Date of Program: 04/09/2020

Time of Program: 5:00PM

Specific Concern: Commentary by Brian Burke regarding Vegas Golden Knights and Vancouver Canucks game. Made reference to using violence and specific details which indirectly referenced the death of George Floyd in Minneapolis which is the source of unrest, rioting and Black Lives Matter protests in the US and Canada. His comment: "When a team your [sic] playing is flat, that's when you gotta put your boot on their throat and put your full body weight on it" was ignorant and promotes hate and violence. I shared a copy of the video clip on Facebook and Instagram where I tagged #sportsnet, #NHL, and also on Twitter where I tagged Brian Burke (@burkie2020).

CBC were quick to fire Don Cherry for referencing the term "you people" so I'd imagine this is far worse and specific to the actions of police officers and the recent death of George Floyd and needs to be addressed immediately.

Broadcaster Response

The broadcaster responded to the complainant on October 23:

We have received your complaint regarding commentary made during the NHL Playoff games broadcast on Sportsnet West on September 4, 2020 at approximately 5:00 PM CT.

In your complaint, you object to a comment made by on-air host Brian Burke that you believe referenced the recent Black Lives Matter protests in a way that was “ignorant and promotes hate and violence”.

As you may be aware, the Canadian Broadcast Standards Council (CBSC) is an independent organization that administers codes and standards proposed by the Canadian Association of Broadcasters (CAB) and approved by the Canadian Radio-television and Telecommunications Commission (CRTC). Sportsnet is owned and operated by Rogers Media Inc. (Rogers) and is an associate in good standing with the CBSC.

The codes and standards administered by the CBSC include the CAB Violence Code, the CAB Code of Ethics and the CAB Equitable Portrayal Code (the “Code”). Based on your complaint, we believe the following clauses are applicable to the broadcast in question, and will be relevant for determining whether a breach of the Code occurred:

CAB Code of Violence

Clause 2- Content

1.1 Canadian broadcasters shall not air programming which:

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, color, religion, age, sex, sexual orientation, marital status or physical or mental disability.

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, color, religion, age, gender, sexual orientation, marital status or physical or mental disability.

We have reviewed the logger for the broadcast in question, and can confirm Mr. Burke made the following comments:

David Amber: We need your thoughts Burkie, because you were getting a little upset over the lack of killer instinct from the Avalanche when they had that lead.

Brian Burke: Yeah, I felt when they got up 3-2, they got complacent and when a team you’re playing is flat, that’s when you gotta put your boot on their throat, and put your full body weight on it.

While we understand your position and that you took offence to these comments, we do not believe they breached the above-noted Codes.

The CBSC has previously explained that almost all matters of public interest, “are subject to becoming fodder for the pen, keyboard or microphone of the social commentator or satirist.”1 In other words, matters open to the public are subject to comment and criticism. In line with his role as a sports commentator, Mr. Burke’s comments are protected by the basic rights of freedom of expression and freedom of speech, which the CBSC has upheld in their decisions, so long as the comments are not unduly abusive, discriminatory or offensive in nature.2

In the broadcast in question, Mr. Burke used a phrase that is commonly used in the context of sports, to describe a scenario in which a team or individual does not/should not relent when they have an advantage over the other team. While it may have been an unfortunate choice of words given the events and sensitivity surrounding the protests, Mr. Burke did not intend this phrase to reference the murder of George Floyd, or any of the events surrounding the Black Lives Matter protests. It was being used purely to make a comment about sports.

In regards to your concern that Mr. Burke’s comments promoted hate and violence, it is our belief that the comments made were not a call to violence towards a certain group or individual. Rather, it was used metaphorically towards the hockey team under discussion.

While arguably in bad taste, we do not believe that Mr. Burke’s comments have breached the Code, which would limit his right to freedom of speech and expression. The sanctioning of bad taste, unpalatable as it may be, does not fall within the ambit of the CBSC’s mandate under the Code.3

Notwithstanding our position, it is clear from your complaint that you were upset by Mr. Burke’s comments, and for that, we sincerely apologize. We have raised your complaint with the VP of Sportsnet Programming and asked that he relay your concerns to Mr. Burke.

Thank you for taking the time to express your thoughts about our programming. We value the opinion of our viewers and appreciate the opportunity to respond to your complaint directly.

1 CTV re an episode of Open Mike with Mike Bullard, CBSC Decision 01/02-0783+, January 15, 2003.

2 CFRB-AM re comments made on The City with Mayor Rob Ford, CBSC Decision 11/12-1881 & -1942.

3 CHTZ-FM re the Morning Show, CBSC Decision 92/93-0148, October 26, 1993

Additional Correspondence

The complainant sent a letter to the broadcaster on October 28 and filed his Ruling Request on October 30. Both included the following comments:

I would like to express my displeasure and non agreement with your findings and the suggested explanations for the comments made by Mr. Burke which I referenced in my CBSC complaint.

First off, Mr. Burke’s remarks do not constitute “a phrase commonly used in the context of sports” nor are they “acceptable to describe a scenario relating to sports”.

Mr. Burke’s choice of words were chosen to deliberately and intentionally use a recent tragic event and the death of a black male in a police related altercation for the purpose of gratuitously dramatizing and sensationalizing his statement in a sporting event context completely unrelated to hockey.

Mr. Burke’s offensive choice of words was far more than unfortunate, however it does in fact prove his own prejudice as his awareness of the hockey fan demographics created a sense of security that the context of his statement would likely go unchallenged or ignored as it clearly has, unlike the statement of “you people” made by Don Cherry which lead to his termination of employment from CBC.

Having been a peace officer for 27 years and working in law enforcement the last 35 years, my greatest concern for the law enforcement community and the people we serve is to provide a safe and harassment free and respectful work environment.

I feel that Mr. Burke’s deliberate and intentional choice of words only served to replenish the tolerance and propensity to violence expressed in encounters with law enforcement and in this very specific case referred to Mr. George Floyd who for all accounts was killed in a police encounter which remains unproven and before the courts to this day. To reference any aspect of that encounter whether in a sporting context, in jest, or intentionally is completely offensive, deliberate and inflammatory to all involved, and in no way does it fall under freedom of speech or to “purely to make a comment about sports”. Placing a boot on a person’s throat and your full body weight on it does not fit any context of hockey, soccer, tennis or any other sport and is also not an approved control technique in the use of force continuum in a law enforcement capacity during an arrest. To suggest that Mr. Burke’s choice of words are simply in bad taste, unpalatable or his right to free speech is ridiculous and incorrect.

I would like to give you the opportunity to please forward my complaint to the following group and to the Floyd family civil rights attorney to perhaps see if they have a comment or differing opinion about my complaint and your handling of the matter.

info@blacklivesmatter.ca

https://bencrump.com/contact/

Please ensure you include video of Mr. Burke’s commentary in the event either the BLM group or the Floyd family were not watching the NHL playoff game at the time, as I’m certain their perspective may provide some insight into your decision and lack of clarity on how to proceed going forward.