Full speed backward: Woke Puritanism has now penetrated even the CRTC to the point the CRTC thinks it can tell Radio-Canada (and CBC) what to say and what not to say down to a single word. This is a CRTC attitude that the law ruled out thirty years ago.

Pierre Trudel, Le Devoir July 5^th, 2022

In a decision rendered on June 29, the Canadian Radio-television and Telecommunications Commission (CRTC) concluded that a segment of the program Le 15-18 broadcast on August 17, 2020 on Radio-Canada’s French-language network in Montreal “is contrary to the objectives and values of Canadian broadcasting policy as set out in section 3 of the Broadcasting Act. The reason: the title of a book by Pierre Vallières published in the 1960s is quoted, which includes a word (“nègres”) considered unacceptable today. The CRTC therefore ordered Radio-Canada to apologise.

This decision, which was challenged by two dissenting commissioners, has major flaws. It is so inconsistent with the provisions of the Broadcasting Act, which the CRTC is responsible for enforcing, that it should be subject to review by the courts.

In particular, it departs from the precautions that the Commission 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 acknowledges that the words and use of the word complained of were not used to discriminate or insult. We are therefore not in a situation prohibited by the regulations in place.

The Radio Regulations, 1986 prohibit the CBC from broadcasting comments that, “when taken in context, are likely to expose a person or a group or class of persons to hatred or contempt on the basis of race, national or ethnic origin or colour. But the CRTC decision itself acknowledges that the hated word was not used in the context of discriminatory speech. In other words, there is no demonstration of wrongdoing. Rather, the criticism seems to stem from the fact that, when translated, the title of Vallières’ book includes a word that is considered prohibited in English, regardless of the context.

The pejorative connotation of the word used by the author is more obvious 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 used only to name the title of a work published several years ago and which still holds an important place in Quebec history. The law requires the CRTC to apply the law in a manner that takes into account the different characteristics of the English- and French-speaking communities.

Instead, the Commission’s decision seems to assert that the pejorative charge of the word in English is identical in French. In so doing, it ignores an entire part of the history and lexicon of the French language. It orders an apology for having expressed in French the title of a book that includes a word that is reprehensible in English. This is almost like punishing the fact that we speak French!

More importantly, the CRTC decision does not explain how demanding an apology for a statement that is not in itself wrongful can be 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 the journalistic, creative and programming independence enjoyed by broadcasting undertakings”.

In Canada, freedom of expression enjoys constitutional protection: it can only be restricted by a rule of law. To be a valid limit on freedom of expression, a standard must be reasonably foreseeable. In the fall of 2021, the Supreme Court of Canada reiterated that freedom of expression precludes an interpretation of the law that would create a “right not to be offended”. These arguments are very well presented by the two dissenting Commissioners.

These are reasons why the courts should be called upon to determine how a standard such as the one invented by the CRTC in its June 29 decision, which amounts to prohibiting the free use of a word even in a context that is recognized as perfectly legitimate, constitutes a reasonable limit on freedom of expression.

A broadcaster must apologise for its mistakes. But there must be a fault somewhere! Here we have a situation where the word was used in an eminently legitimate context.

Note that the author of these lines is one of the signatories of a letter gathering heavyweights from the Quebec media community who are asking Radio-Canada to contest the CRTC’s decision. Read it here.

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Pierre Trudel is a columnist at Le Devoir in Montreal and an expert in matters of free speech.

Translated by Michel Virard with the amazingly competent help of DeepL