Each in their own way, the Government of Quebec and the Canadian Radio-television and Telecommunications Commission (CRTC) have ignored the requirements arising from the guarantees of freedom of expression set out in both the Canadian Charter and the Quebec Charter of Rights and freedoms.
In both situations, the authorities relied on their own understanding of general “principles” to suppress expressive activity. However, a decision by a public body which limits freedom of expression must be based on a rule of law, that is to say a rule which obliges, prohibits or punishes.
Observers, as well as the Quebec Human Rights Commission, have expressed their reservations about the Quebec government’s decision to force the Quebec City Convention Center to terminate a contract with an association hostile to fundamental rights women. The government claimed that the proposed demonstration was “against the fundamental principles of Quebec”.
For its part, the Federal Court of Appeal annulled last Thursday the decision of the CRTC blaming Radio-Canada for having broadcast a column mentioning the title of the book white niggers of america by Pierre Vallieres. This judgment illustrates how the decision of the Government of Quebec and the decision of the CRTC are draconian.
In June 2022, the majority of CRTC members dismissed the analysis of the Radio-Canada ombudsman, who had concluded that the broadcast of the column had not contravened the applicable journalistic standards. The CRTC had ruled that this column was “against the objectives and values of the policy set out in the Broadcasting Act”. He felt that its broadcast did not respect the principle of “high quality programming provided for by law” and “did not[vait] contributed to the strengthening of the cultural and social fabric and to the reflection of the multicultural and multiracial character of Canadian society”.
The Federal Court of Appeal overturned this decision, because the CRTC does not have the power to decree piecemeal that a segment of programming violates a principle of broadcasting policy. The CRTC cannot behave as if broadcasters had to guess its moods with regard to what constitutes high quality programming or which contributes to the “strengthening of the cultural and social fabric and the reflection of the multicultural and multiracial character” of Canadian society.
The organization certainly has the power to determine the limits of what can be said or shown on the airwaves. But to do so, it must issue regulations, orders or license conditions. It is in such texts that it can enact obligations or prohibitions which will be imposed on companies.
The only regulatory instrument the CRTC has put in place on these matters is a provision in the Radio Regulations, 1986 which prohibits the broadcast of language which, “taken in context, is likely to expose any person or group or class of people with hatred or contempt on grounds of race, national or ethnic origin, color […] “.
However, in the radio segment concerned, the CRTC itself recognized that the n-word had not been used in a discriminatory manner, but “rather to quote the title of a work which was at the heart of an issue of ‘news’. There was therefore no violation of the rules.
Importantly, the Court of Appeal found that the CRTC ignored its obligation under s. 2(3)(a) of the Broadcasting Act to interpret and apply the Act in a manner consistent with the freedom of expression and the journalistic, creative and programming independence enjoyed by broadcasters.
The judges recalled that if the CRTC considers that it is necessary to extend the bans on broadcasting certain content, it has the possibility of adopting regulations, orders or enacting conditions of licence. But then, he must ensure that such texts impose reasonable and justifiable limits on freedom of expression. It is one thing to claim that a statement contradicts vague principles, it is another thing to demonstrate that it is reasonable to censor it.
This decision is a reminder that a public body that takes a measure limiting freedom of expression must do so in the right way. It is not enough to brandish general principles, however legitimate they may be. When you limit a freedom, you have to rely on a rule that identifies what is allowed or what is prohibited. And such a rule can only impose reasonable and justifiable limits.
We readily agree on the need to protect women’s rights to choose freely. It is just as obvious that the use of certain words can be faulty. But the decisions which limit a fundamental freedom must be enacted in a sufficiently clear manner so that a person reasonably informed in the field of activity concerned is able to behave in conformity with the rule put in place. This applies to the CRTC, but also to other public authorities who, on the simple appeal of a minister or a complainant, consider banning an expressive activity.
Professor, Pierre Trudel teaches media and information technology law at the University of Montreal.