In a decision handed down on June 29, the Canadian Radio-television and Telecommunications Commission (CRTC) concludes that a segment of the program 15-18 broadcast on August 17, 2020 on the French-language airwaves of Radio-Canada in Montreal “runs contrary to the objectives and values of Canadian broadcasting policy set out in section 3 of the Broadcasting Act”. The reason: it quotes the title of a book by Pierre Vallières published in the 1960s which includes a word now deemed unacceptable. The CRTC therefore orders Radio-Canada to apologize.
This decision, challenged by two dissenting commissioners, has significant shortcomings. It is so inconsistent with the provisions of the Broadcasting Act, which the CRTC is responsible for enforcing, that it should be subject to the assessment of the courts.
In particular, it departs from the precautions that the Council usually takes when it addresses a reproach to a broadcaster. In particular, the majority decision fails to set out the rules that should have been followed by the broadcaster. On the contrary, it recognizes that the remarks and the use of the word which is the subject of the complaint were not used in order to discriminate or insult. We are therefore not here in a situation prohibited by the regulations in place.
The Radio Regulations, 1986 prohibit Radio-Canada from broadcasting comments which, “taken in context, are likely to expose any person or group or class of persons to hatred or contempt on grounds on race, national or ethnic origin, colour”. But the CRTC decision itself recognizes that the word vilified was not used in the context of discriminatory remarks. In other words, there is no demonstration of the existence of a fault. Rather, the reproach seems to stem from the fact that, when translated, the title of Vallières’ book includes a word that is considered forbidden in English, regardless of the context.
The pejorative connotation of the word used by the author is more evident in English than it is in French. In French, it seems clear that the word can be used unless it is part of a malicious narrative. In the present situation, the word was pronounced solely to name the title of a work published several years ago and which still holds an important place in the history of Quebec today. However, the law specifically requires the CRTC to apply the law taking into account the different characteristics of the Anglophone and Francophone communities.
Rather, the Council’s decision seems to affirm that the pejorative charge of the word in English is identical in French. In this, she ignores a whole section of French-speaking history and lexicon. She orders to apologize for having expressed in French the French title of a book which contains a word which is reprobate in English. We are almost in a process that comes to punish the fact of speaking French!
But above all, the CRTC’s decision does not explain how requiring an apology for a statement that is not in itself wrongful is reconciled with the obligation set out in section 2(3) of the Broadcasting Act. This provision requires that the law be applied “in a manner consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting companies”.
In Canada, freedom of expression enjoys constitutional protection: it can only be restricted by a rule of law. To constitute a valid limit on freedom of expression, a standard must be reasonably foreseeable. In the fall of 2021, the Supreme Court of Canada also recalled that freedom of expression is opposed to an interpretation of the law which would establish a “right not to be offended”. These arguments are very well presented by the two dissenting commissioners.
These are the reasons that justify the courts being called upon to determine how a standard such as that invented by the CRTC in its decision of June 29, which amounts to prohibiting the free use of a word even in a context that is perfectly recognized legitimate, constitutes a reasonable limit on freedom of expression.
A broadcaster must apologize for his faults. But there still has to be a fault somewhere! Here we are in a situation where the word has been used in an eminently legitimate context.