Genex Communications Inc. v. Canada (Attorney General)

Genex Communications Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2005-09-01
Neutral citation
2005 FCA 283
File numbers
A-464-04
Notes
Reported Decision
Decision Content
Date: 20050901
Docket: A-464-04
Citation: 2005 FCA 283
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
GENEX COMMUNICATIONS INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
and
THE CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION (CRTC)
Respondents
and
THE CANADIAN CIVIL LIBERTIES ASSOCIATION
and
COGECO DIFFUSION INC.
and
CANADIAN ASSOCIATION OF BROADCASTERS
and
ASSOCIATION QUÉBÉCOISE DE L'INDUSTRIE DU
DISQUE, DU SPECTACLE ET DE LA VIDÉO (ADISQ)
Interveners
Heard at Québec, Quebec, on May 24, 25, 26 and 27, 2005.
Judgment delivered at Ottawa, Ontario, on September 1, 2005.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: RICHARD C.J.
NADON J.A.
Date: 20050901
Docket: A-464-04
Citation: 2005 FCA 283
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
GENEX COMMUNICATIONS INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
and
THE CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION (CRTC)
Respondents
and
THE CANADIAN CIVIL LIBERTIES ASSOCIATION
and
COGECO DIFFUSION INC.
and
CANADIAN ASSOCIATION OF BROADCASTERS
and
ASSOCIATION QUÉBÉCOISE DE L'INDUSTRIE DU
DISQUE, DU SPECTACLE ET DE LA VIDÉO (ADISQ)
Interveners
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Grounds of appeal
[1] Did the Canadian Radio-Television and Telecommunications Commission (CRTC) render an unlawful decision or err in law when it refused to renew the broadcasting licence of the French-language commercial radio station CHOI-FM Québec (CHOI-FM), owned by the appellant?
[2] Did the CRTC, in making its decision, fail to comply with the principles of natural justice, the rules of procedural fairness and its own rules of procedure?
[3] Those, in short, are the two major questions which, in this appeal, underlie the eleven grounds of appeal relied on by the appellant in order to have the CRTC decision set aside. Before embarking on a more detailed presentation of the grounds of appeal, I include, for reference and for the benefit of the parties, interveners and readers, a table of contents of the topics that will be discussed:
Table of Contents
Para.
Grounds of appeal 1
Purpose and limitations of the proceeding before the Court and definition of the issue 20
Applicable standard of review on an appeal in review of the CRTC's decision
not to renew the appellant's licence 47
1. Identification of the standard of review applicable to 48
intra-jurisdictional errors of the CRTC
2. Identification of the standard of review applicable to 55
the constitutional validity of the CRTC decision
Status and role of the CRTC in the present appeal proceedings 61
Facts and proceedings 68
CRTC decision 2004-271 104
1. Factors considered by the CRTC in the exercise of its 105
judicial discretion
2. CRTC's conclusions 111
3. Proceedings before the CRTC 112
Analysis of grounds of appeal 125
1. Parliament's jurisdiction to make laws governing broadcasting 129
2. Allegation that the CRTC unlawfully set itself up as a censor 144
of the content of the appellant's broadcasts
3. Violation of the principles of natural justice, the rules of 149
procedural fairness and the CRTC's rules of procedure
(a) hearing before an independent and impartial tribunal 153
(b) right to a hearing, procedural fairness and the CRTC's 155
rules of procedure
Did the CRTC err in law or make a jurisdictional error in its choice of the measure 176
to enforce compliance with the Act and the Regulations?
1. Breach of the principle of gradation of enforcement measures 181
2. Reasonable and legitimate expectation concerning the coercive 190
measure that would be applied and the failure to proceed accordingly
3. An unprecedented and extremely harsh measure 204
Did the CRTC exercise its discretion judicially? 210
1. No error of law in the consideration of factors relevant to 210
the exercise of the discretion
2. Nullity of paragraph 3(b) of the Regulations and the impact of 214
this nullity on decision 271
3. Constitutional invalidity of decision 271 223
Conclusion 225
Reconnecting the judicial respirator 227
[4] The appellant argues that at the heart of this case is the freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms (Charter), a freedom which, I hasten to point out, is not absolute, as is confirmed by section 1 of the Charter, which allows for the application thereto of reasonable limits prescribed by law and demonstrably justified in a free and democratic society: see R. v. Sharpe, [2001] 1 S.C.R. 45, at paragraphs 22 and 80. In the latter paragraph, Chief Justice McLachlin writes:
Section 1 of the Charter belies the suggestion that any Charter right is so absolute that limits on it can never be justified. The argument posits that some rights are so basic that they can never be limited as a matter of principle, precluding any evaluation under s. 1. This is both undesirable and unnecessary. It is undesirable because it raises the risk that laws that can be justified may be struck down on the basis of how they are characterized. It is unnecessary because s. 1 provides a basis for fair evaluation that upholds only those laws that do not unjustifiably erode basic liberties.
[5] More specifically, the appellant submits that section 3 of the Radio Regulations, 1986 (Regulations) and paragraphs 3(1)(g), 10(1)(c) and 10(1)(k) of the Broadcasting Act, S.C. 1991, c. 11 (Act), are unconstitutional by virtue of their incompatibility with paragraph 2(b) of the Charter and, in the case of section 3 of the Regulations, with subsections 92.13 and 92.16 of the Constitution Act, 1867.
[6] The constitutional invalidity under the Charter is alleged to lie, first, in the fact that the disputed provisions unduly, unlawfully and unjustly breach the freedom of expression guaranteed by the Charter.
[7] Second, these provisions are alleged to be too vague and imprecise for a person to understand their scope and the parameters of the obligations they contain - in short, to enable the person subject to those obligations or prohibitions to adapt his or her conduct to the standard and thus comply with it. They are therefore unjust because they punish the unknown and unforeseeable. They are also excessively broad, and thereby vulnerable to arbitrary application.
[8] Although I have managed, to this point, to focus the discussion around the two major issues defined above, it is useful nevertheless to indicate for the reader the eleven grounds of appeal submitted by the appellant in the form of questions, and authorized by this Court:
Question No. 1
[9] Should CRTC decision 2004-271 (hereinafter identified as decision 271) be declared of no force and effect by virtue of its inconsistency with paragraphs 2(b) and 1(b) [sic] of the Charter, entitling the appellant to an appropriate and just remedy under subsection 24(1) of the Charter?
Question No. 2
[10] Does the Act give the CRTC the power to rule on the content of broadcasting or to act as a censor of the content of radio broadcasts?
Question No. 3
[11] Accordingly, are section 3, and in particular its paragraph (b) of the Regulations, the Code of Ethics imposed by CRTC decision 2002-189 and CRTC decision 2004-271, dated July 13, 2004, of no force and effect?
Question No. 4
[12] In the alternative, is section 3 of the Regulations unconstitutional by virtue of its incompatibility with paragraph 2(b) of the Charter and subsections 92.13 and 92.16 of the Constitution Act, 1867?
Question No. 5
[13] In the further alternative, are paragraphs 3(1)(g), 10(1)(c) and 10(1)(k) of the Act unconstitutional by reason of their incompatibility with paragraph 2(b) of the Charter?
Question No. 6
[14] Did the CRTC violate subsection 5(2) of the Act by failing to display flexibility in its supervision of CHOI-FM?
Question No. 7
[15] Did the CRTC issue decision 271 without exercising its jurisdiction under paragraphs 5(2)(g), 3(1)(d) and 9(1)(d) of the Act?
Question No. 8
[16] Did the CRTC refuse or fail to exercise its jurisdiction by way of an order under section 12 of the Act?
Question No. 9
[17] Did the CRTC refuse or fail to exercise its jurisdiction by way of a penal proceeding pursuant to sections 32 and 33 of the Act?
Question No. 10
[18] Has the CRTC mistakenly and absurdly interpreted paragraph 3(b) of the Regulations prohibiting the broadcasting of abusive comment?
Question No. 11
[19] Has the CRTC manifestly breached the principles of natural justice, the rules of procedural fairness and the CRTC Rules of Procedure before, during and after the public hearing on the renewal of the CHOI-FM licence?
Purpose and limitations of the proceeding before the Court and definition of the issue
[20] In order to dispel any possible ambiguity about this appeal, it is important to define and explain, from the outset, the purpose of the proceeding before us, its governing limitations and the real issue in dispute.
[21] Because the argument, in both the written and oral submissions, has broadened substantially, I must redefine its parameters. This is not a matter of mere caprice or an exercise in evasion. I am impelled to do so, as we will be able to see, by the purpose of the proceeding at issue, the nature of the decision that was made and the nature of the body that made that decision, in this case the CRTC.
[22] The appellant is seeking a number of remedies, including a declaration that decision 271 of the CRTC, dated July 13, 2004, is void and of no effect. However, it should be understood that this CRTC decision is a decision not to renew the appellant's licence, which has terminated through the passage of time alone.
[23] As I mentioned at the hearing, the appellant has functioned throughout the appeal on a judicial respirator as a result of what amounts in practical terms to a court licence following from this Court's decision to grant leave to appeal: see order 2004 FCA 279, dated August 26, 2004, in which the licence granted to the appellant is deemed to remain in force in order to enable it to exercise usefully its right of appeal to this Court and pending judgment therein on the merits. The rendering of the decision on the merits in this appeal brings the appeal to an end and is tantamount to disconnecting the respirator, irrespective of whether the decision is favourable or unfavourable to the appellant.
[24] The appellant is also asking this Court to order the CRTC to accept its application for a licence renewal for the period that the Court may wish to determine.
[25] In the alternative, the appellant asked in its written pleadings that the matter be sent back to the CRTC for a rehearing on and redetermination of the applicant's renewal application. This alternative remedy implicitly contains, I imagine, a request to be reconnected to the judicial respirator so that the judicial licence be extended to allow the appellant to operate throughout the redetermination proceeding.
[26] At the beginning of the hearing the appellant abandoned this alternative remedy, stating emphatically that it had completely lost confidence in the CRTC's capacity to act impartially in its regard, given the memorandum of facts and law submitted to the Court by the CRTC. It therefore asked that the Court grant it a broadcasting licence or, in the alternative, supervise the negotiations it would undertake with the CRTC and that the Court subsequently ratify any agreement that was reached. I can only express my astonishment at this position, according to which the appellant thinks the CRTC enjoys sufficient neutrality and credibility to negotiate a licence renewal but not enough of either to determine whether the licence should be renewed.
[27] That being said, faced with the lack of enthusiasm for its proposals, particularly the one pertaining to the negotiations period, the appellant fell back on its two original requests, contained in its written pleadings and which I set out earlier. It says it is prepared to go back to the CRTC as long as the hearing is held before a panel with a different composition than the earlier one.
[28] We can find, if the evidence takes us there, that the CRTC has erred in law or has failed to act fairly or judicially, or both. If the error in law or the departure from the principles of natural justice or the standards governing the exercise of judicial discretion are sufficiently serious to taint the CRTC decision, we may, at most, set it aside and order the CRTC to start over and arrive at a new decision that is not impaired by the irregularities affecting the previous one. In short, we are unable to renew the appellant's licence, and there are many reasons why we are unable or powerless to do so.
[29] In the first place, the power to issue, revoke or renew a licence has been expressly and exclusively given by Parliament to the CRTC, the only independent public authority to which Parliament has entrusted the regulation and supervision of the Canadian broadcasting system: see subsection 3(2) of the Act. We cannot appropriate that power to ourselves.
[30] Secondly, the exercise of this jurisdiction requires expertise and a knowledge of the communications environment and programming and broadcasting policies that this Court does not possess. In Canadian Broadcasting Corporation v. Métromédia CMR Montréal Inc. et al. (1999), 254 N.R. 266, this Court notes in paragraph 6 that an application for a licence, which is tantamount to an application for renewal, "involves economic and cultural policy considerations which come within the CRTC's expertise and for which the agency has discretion".
[31] Thirdly, this exercise must take into account the public interest, which is reflected in the numerous objectives of the Act and of Canadian broadcasting policy. Again, the definition of the public interest and the protection that Parliament wishes to give to it necessitate specialized knowledge in the area of communications and broadcasting policy. In this regard, the Court writes at paragraph 5 of the Canadian Broadcasting Corporation case:
... the Act (s. 3) identifies about forty sometimes conflicting objectives which must guide the CRTC in exercising its powers. This leads to a polycentric adjudication process, involving numerous participants with opposing interests, with a view to implementing the broadcasting policy set out in the Act.
[32] Fourthly, the renewal or refusal to renew a licence is the end result of the exercise of a discretionary power. The legal rule in such matters is unequivocal: the Court does not have the power to substitute its own discretion for that of the authority whose decision is being reviewed. I will return later and in greater detail to the legal standard of review of a discretionary decision.
[33] Finally (and I stop at this last reason for I think that the limitations on the powers of this Court both legally and in terms of appropriateness are fairly obvious), the CRTC decision was made at the conclusion of a hearing during which the appellant and other stakeholders were heard on the merits and the appropriateness of the renewal. The appeal in this Court did not and could not address these questions of appropriateness since the right of appeal of CRTC decisions is exercised only on questions of law. Section 31 of the Act limits judicial review of CRTC decisions and orders in the following words:
31. (1) Except as provided in this Part, every decision and order of the Commission is final and conclusive.
(2) An appeal lies from a decision or order of the Commission to the Federal Court of Appeal on a question of law or a question of jurisdiction if leave therefor is obtained from that Court on application made within one month after the making of the decision or order sought to be appealed from or within such further time as that Court under special circumstances allows.
(3) No appeal lies after leave therefor has been obtained under subsection (2) unless it is entered in the Federal Court of Appeal within sixty days after the making of the order granting leave to appeal.
(4) Any document issued by the Commission in the form of a decision or order shall, if it relates to the issue, amendment, renewal, revocation or suspension of a licence, be deemed for the purposes of this section to be a decision or order of the Commission.
31. (1) Sauf exceptions prévues par la présente partie, les décisions et ordonnances du Conseil sont définitives et sans appel.
(2) Les décisions et ordonnances du Conseil sont susceptibles d'appel, sur une question de droit ou de compétence, devant la Cour d'appel fédérale. L'exercice de cet appel est toutefois subordonné à l'autorisation de la cour, la demande en ce sens devant être présentée dans le mois qui suit la prise de la décision ou ordonnance attaquée ou dans le délai supplémentaire accordé par la cour dans des circonstances particulières.
(3) L'appel doit être interjeté dans les soixante jours suivant l'autorisation.
(4) Les documents émanant du Conseil sous forme de décision ou d'ordonnance, s'ils concernent l'attribution, la modification, le renouvellement, l'annulation, ou la suspension d'une licence, sont censés être, pour l'application du présent article, des décisions ou ordonnances du Conseil.
[34] The sole objective of the debate on appeal, which is much more limited than a debate on the appropriateness of a licence renewal, is to verify whether the CRTC erred in law in its analysis of the appellant's application for a renewal of its licence and in the exercise of its discretion while doing so.
[35] Simply stated, the most the appellant can hope for is that we will order a new hearing before the CRTC. So that is an initial limit on the remedy that can be sought. But there is another limit, just as important, regarding the appeal itself.
[36] This appeal is doubtless an important one for the appellant, its listeners and the communications milieu in general, for a host of reasons. But we should not lose sight of the purpose of the appeal. It must be clearly understood that this appeal, contrary to the apparent belief and desire of the appellant, does not give rise directly or in general to a comprehensive debate over freedom of expression. The issue is, and remains, whether the CRTC's discretionary decision not to renew the appellant's licence was made judicially and in compliance with the rules of natural justice, the standards of procedural fairness and its own procedures.
[37] A discretionary power is exercised judicially when the holder of that power acts in good faith, in accordance with the law, does not take into account irrelevant factors and does not fail to consider relevant factors: see Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644 (F.C.A.).
[38] The rules of natural justice or standards of procedural fairness are breached when a party before a tribunal or administrative agency, whose interests will be affected by the decision that is to be made, is deprived of the right to be heard by an impartial and independent tribunal.
[39] Freedom of expression is, of course, a relevant consideration in the CRTC's exercise of its discretion. In fact, subsection 2(3) of the Act, which I reproduce, states that the Act is to be construed and applied in a manner that is consistent with freedom of expression:
2. (3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.
2. (3) L'interprétation et l'application de la présente loi doivent se faire de manière compatible avec la liberté d'expression et l'indépendance, en matière de journalisme, de création et de programmation, dont jouissent les entreprises de radiodiffusion.
But, I agree, it is one important factor among others, all equally objective, that must be taken into account.
[40] Among these other factors, we will note in particular:
(a) the notices and warnings given to the appellant to comply with the Act, the Regulations and its conditions of licence;
(b) the appellant's reaction to these notices and the efforts made to bring about remedial action;
(c) compliance with the undertakings made under the Act, the appellant's own Code of Ethics and the Regulations;
(d) the steps taken by the appellant to control and discipline its staff, for which it is responsible;
(e) the nature and gravity of the actions that were taken and of the comments that gave rise to the complaints;
(f) their frequency and repetition;
(g) the deliberate, intentional or grossly negligent nature of the alleged breaches;
(h) the appellant's acceptance of its statutory and regulatory responsibilities as a licensee and the cooperation offered and provided to the CRTC to comply with the prescriptive framework;
(i) the appellant's cavalier or defiant attitude, if applicable;
(j) the appellant's structural organization, as this organization may influence the willingness and capacity to take the appropriate remedial action; and
(k) the effectiveness of the alternatives to non-renewal that were or could be used by the CRTC.
[41] The very object of the CRTC's exercise of its discretionary power, i.e. the appropriateness in the circumstances of renewing the appellant's licence, defines the parameters of the appeal before us, which cannot be transformed into a crusade for freedom of expression without substantially distorting it.
[42] A third limit should also be noted: the CRTC's decision will not necessarily be set aside because one or more errors of law may have been committed by it in its exercise of the powers given to it under the Act. Those errors must, at a minimum, be material, that is they must have had an impact on the making of the decision and on the decision that was made. An error is material if the decision that was made would probably have differed absent that error or, in the context of applying the reasonableness standard, if those errors affect the decision as a whole: see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at page 270. Otherwise, the decision must be upheld. I will have occasion to return to this question later when I discuss the standard of review that is applicable to a review on appeal of a decision of the CRTC.
[43] Finally - and this is an extremely important consideration, as we will see later - the appeal before us is not challenging a CRTC decision that deprives or strips the appellant of a right. The appeal has to do with a decision not to renew a privilege that had been granted to the appellant. The obtaining or exercise of a privilege is generally accompanied by conditions with which the licensee undertakes to comply subject to penalties for non-compliance, including possible non-renewal or loss of the privilege. In other words, the appellant not only has no right to a broadcasting licence, it also has no vested interest in the fixed-term privilege that was granted to it: see Procureur général du Canada v. Compagnie de Publication La Presse, Ltée, [1967] S.C.R. 60, where the Court writes: "...there was no contractual relationship between the Crown and respondent, and the latter had no vested or property right in the licence which it held."
[44] However, I hasten to add that while the appellant has no entitlement to the renewal of the privilege that was granted, it is entitled not to be deprived of it arbitrarily or unfairly. "The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness": Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 20. The existence of this right conditions and structures the analysis of the appellant's recriminations against the CRTC's decision not to renew its licence.
[45] In conclusion, the real issue in this appeal proves to be much more concise and limited than it appears to be at first sight, and certainly much more limited than the questions that were proposed for our consideration by the appellant. It comes down to this: did the CRTC exercise its discretion judicially, in compliance with the rules of natural justice, the standards of procedural fairness and its own rules of procedure when it decided not to renew the appellant's licence? I have added, in the formulation of the question, compliance with the rules of natural justice, the standards of procedural fairness and the rules of procedure although this was not really necessary. To exercise a discretionary power in breach of those principles, standards and rules means not acting in accordance with the law and therefore judicially. However, since the appellant has made these three questions distinct grounds of appeal, I will address them together, but separately from the question of the judicial exercise of the discretion.
[46] This leads me to a discussion of the standard of review applicable to the appeal of this decision.
Applicable standard of review on an appeal in review of the CRTC's decision
not to renew the appellant's licence
[47] The appellant alleges that the CRTC decision is unconstitutional or, if it is not, that it is vitiated by intra-jurisdictional errors of law. In view of these allegations, the analysis of the CRTC decision calls for two distinct standards of review, one constitutional, the other administrative. I will begin with the latter.
1. Identification of the standard of review applicable to intra-jurisdictional errors of the CRTC
[48] In the Canadian Broadcasting Corporation case, supra, this Court recognized in these words the need to show a great deal of deference toward decisions of the CRTC:
The CRTC is a specialized, independent agency to which, precisely because of its expertise, Parliament has granted extensive powers for the supervision and regulation of the Canadian broadcasting system to allow it to implement the broadcasting policy set out in section 3 of the Broadcasting Act, S.C. 1991, c.11. It is settled that the CRTC has broad discretion in exercising its powers to issue or revoke licences.
Although CRTC decisions are not protected by a privative clause, the fact remains that the courts which are called upon to review these decisions must show a great deal of deference when the agency is acting within its field of expertise and specialized knowledge, it is required under the objectives of the Act which governs it to find a delicate balance between the competing interests of the parties and it rules on a question of fact related to its expertise. In our view, these three factors are present in the decision challenged by the appellant and it merits the required deference on our part.
First, the application submitted to the CRTC concerns the use of a radio frequency which falls under the powers of supervision and regulation which Parliament has granted to the CRTC (s. 5 of the Act) and for which the CRTC may issue licences (s. 9 of the Act).
Second, the Act (s. 3) identifies about forty sometimes conflicting objectives which must guide the CRTC in exercising its powers. This leads to a polycentric adjudication process, involving numerous participants with opposing interests, with a view to implementing the broadcasting policy set out in the Act.
Finally, the CRTC's decision concerns an application for a licence which essentially involves economic and cultural policy considerations which come within the CRTC's expertise and for which the agency has discretion.
The situation is no different in the case of licence renewals, which call for analogous if not identical considerations.
[49] The need for great deference toward the CRTC exists even where there is a right of appeal. In B.C. Telephone Co. v. Shaw Cable Systems, [1995] 2 S.C.R. 739, the Supreme Court notes the principle at paragraphs 30 and 31:
The case at hand concerns a specialized administrative tribunal, the CRTC, which possesses considerable expertise over the subject matter of its jurisdiction. However, despite the expertise of the CRTC, its decision in the case at hand is not protected by a privative clause and is, in fact, subject to an express statutory right of appeal. Nonetheless, it was clearly established in both Pezim, supra, and Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722, that a specialized tribunal such as the CRTC, acting within its area of expertise and jurisdiction, is entitled to curial deference, even in the absence of a privative clause and the presence of a statutory right of appeal.
[...]
Accordingly, I conclude that the CRTC is entitled to curial deference with respect to questions of law within its area of jurisdiction and expertise. However, as regards jurisdictional questions and questions of law outside the CRTC's area of expertise, the CRTC is entitled to no deference and is to be reviewed on a standard of correctness.
[Emphasis added]
[50] The standard of review remains the same, whether the review of the CRTC decisions is conducted by way of an application for judicial review under section 28 of the Federal Courts Act or by way of appeal under section 31 of the Act.
[51] For example, in Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of Canada was confronted with the postulate that it was unnecessary to apply the usual principles of administrative law regarding the standards of review when, as in that case, a right of appeal is allowed from a decision by a tribunal or administrative agency.
[52] After rejecting this postulate as erroneous, the Supreme Court writes, at paragraph 21:
In a case of judicial review such as this, the Court applies the pragmatic and functional approach that was established by this Court in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and gained ascendancy in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The term "judicial review" embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach.
[Emphasis added]
[53] Obviously, it is not necessary to try to reinvent the wheel by devoting oneself to an exhaustive pragmatic and functional approach whenever the applicable standard of review is raised, if that standard has already been determined: see VIA Rail Canada Inc. v. Cairns, 2004 FCA 194.
[54] The decision whether or not to renew a broadcasting licence involves a question of appropriateness. It is a discretionary decision on a matter that lies at the very heart of the CRTC's expertise. Furthermore, questions of law that pertain to its area of competence and expertise must be reviewed according to the reasonableness standard. In other words, the Court cannot intervene in regard to such a question unless the resulting conclusion or decision is at least unreasonable. I repeat that the very question of the appropriateness of renewing the appellant's licence and the merits of the CRTC's decision in this regard are not questions that are before us on this appeal. Other than the allegation that the final and discretionary decision of the CRTC not to renew the licence is invalid because it is unconstitutional, the appeal has to do with errors of law that were allegedly committed in the process leading to that decision. These are questions of law that we must analyze on the basis of a standard of review that bears exclusively on questions of law: see Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, at paragraph 6.
2. Identification of the standard of review applicable to the constitutional validity of the CRTC decision
[55] The appellant submits that the CRTC's decision is void or invalid because it conflicts with or violates the prescriptions of the Charter. Absent a power expressly or by necessary implication conferred by law to infringe a protected right, I think there is no dispute that a discretionary decision by the CRTC cannot be contrary to the Charter: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. In this case the discretionary power is conferred by paragraphs 9(1)(b) and (d) of the Act, which read:
9. (1) Subject to this Part, the Commission may, in furtherance of its objects,
[...]
(b) issue licences for such terms not exceeding seven years and subject to such conditions related to the circumstances of the licensee
(i) as the Commission deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1), and
(ii) in the case of licences issued to the Corporation, as the Commission deems consistent with the provision, through the Corporation, of the programming contemplated by paragraphs 3(1)(l) and (m);
[...]
(d) issue renewals of licences for such terms not exceeding seven years and subject to such conditions as comply with paragraph (b);
9. (1) Sous réserve des autres dispositions de la présente partie, le Conseil peut, dans l'exécution de sa mission_:
[...]
b) attribuer des licences pour les périodes maximales de sept ans et aux conditions liées à la situation du titulaire qu'il estime indiquées pour la mise en oeuvre de la politique canadienne de radiodiffusion, et, dans le cas de licences attribuées à la Société, lui permettant, à son avis, d'offrir la programmation visée aux alinéas 3(1)l) et m);
[...]
d) renouveler les licences pour les périodes maximales de sept ans et aux conditions visées à l'alinéa b);
[Emphasis added]
These paragraphs expressly authorize the CRTC to determine the conditions that it deems appropriate for the implementation of Canadian broadcasting policy. Considered in isolation, it is not immediately apparent that they infringe or authorize the infringement of freedom of expression since, as mentioned earlier, the appellant has no inherent right to be given a broadcasting licence and it is not obvious that its freedom of expression is breached if, in compliance with the law, its licence is not renewed. However, when read bearing in mind other provisions of the Act and the Regulations, which the CRTC must take into consideration in the exercise of its discretionary power, as we will see later, it seems quite clear that these paragraphs give the CRTC the power to infringe freedom of expression by establishing restrictive licence conditions. So how and according to what standard is the validity of such a decision to be reviewed?
[56] In Slaight Communications Inc., supra, Mr. Justice Lamer, at page 1080, suggests an approach that varies according to whether or not the infringement of a Charter right is authorized by a statute that, either expressly or by necessary implication, confers the power to infringe that protected right. Where such power is conferred, it is then necessary to submit the text of the provision to the test set out in section 1 of the Charter by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.
[57] However, where the legal provision on which the impugned decision is based confers an imprecise discretion and does not, either expressly or by necessary implication, provide the authority to limit the rights guaranteed by the Charter, it is the decision itself that must be submitted to the section 1 test. If the decision does not meet this test, it must be concluded that the administrative tribunal has exceeded its jurisdiction. Conversely, if it is justified under the section 1 criteria, the tribunal has acted within the limits of its jurisdiction.
[58] In the case at bar, we are dealing with statutory provisions, in particular section 3 of the Act and paragraph 3(b) of the Regulations, which, for the purpose of implementing Canadian broadcasting policy while protecting other fundamental rights guaranteed by the Charter, give the CRTC the power to infringe freedom of expression. These statutory provisions lay down restrictive parameters to ensure that the content broadcast over publicly-owned radio frequencies is not incompatible with, for example, the right to privacy, human dignity and reputation, or does not infringe them outright.
[59] In exercising its discretion not to renew the appellant's licence, the CRTC had to take into account statutory and regulatory restrictions on the exercise of freedom of expression over publicly owned radio frequencies. In doing so, it exercised its jurisdiction within the limits prescribed by the Act and the Regulations. I take the liberty of quoting (with the necessary adaptations, i.e. replacing the word "adjudicator" with "CRTC") the following extract from Lamer J. in Slaight Communications Inc., supra, at pages 1080-81, which, I think, accurately summarizes what occurred in the instant case both factually and legally:
[The CRTC] derives all [its] powers from statute and can only do what [it] is allowed by statute to do. It is the legislative provision conferring discretion which limits the right or freedom, since it is what authorizes the holder of such discretion to make an order the effect of which is to place limits on the rights and freedoms mentioned in the Charter. The order made by [the CRTC] is only an exercise of the discretion conferred on [it] by statute.
[60] Since the CRTC was simply exercising the discretion conferred on it by the Act, the control that this Court may exercise in the course of its review consists in examining the manner in which that discretion was exercised. More specifically, since the provision conferring discretion limited freedom of expression, the task is to ensure that "the use made of the discretion has the effect of keeping the limitation within reasonable limits that can be demonstrably justified in a free and democratic society": Slaight Communications Inc., at page 1081. In other words, our task is to ascertain that the exercise of the discretion does not go beyond what the statutory provision may constitutionally limit without itself infringing the limits of section 1 of the Charter.
Status and role of the CRTC in the present appeal proceedings
[61] Before reciting the facts at the source of this litigation and analyzing the grounds of appeal, something should be said about the CRTC's status in these proceedings, what the appellant has called the locus standi of the CRTC. This question of locus standi involves the CRTC's right to participate in the proceedings and its role in doing so.
[62] In judicial review proceedings, rule 303 of the Federal Court Rules stipulates that an applicant shall name as a respondent every person affected by the order sought in the application, other than a tribunal in respect of which the application is brought. If these proceedings were by way of judicial review rather than by way of appeal, as is the case, it is clear that the CRTC would not be a respondent. However, it could request status as an intervener in the proceedings: see rule 109. The legal situation does not differ on an appeal. However, it is arrived at by a different route.
[63] In fact, the status of the parties to an appeal is governed by rule 338. Under that rule, an appellant shall include as a respondent every party in the first instance who is adverse in interest to the appellant in the appeal. Rule 2 defines a party in the first instance in an action as a plaintiff, defendant or third party. In the case of an application, such as an application for judicial review, the word "party" refers to an applicant or respondent.
[64] In the application for renewal of the appellant's licence before the CRTC, the latter was not a party in this first instance; it was the adjudicative body. Furthermore, it is not a person who, in the appeal, has interests adverse to those of the appellant. In fact, the appellant should not have made the CRTC a respondent in its proceedings. The appellant no doubt mistakenly thought it was necessary to make it a party to the appeal in order to ensure that all matters in dispute in the proceeding could be effectually and completely determined. That is the test laid down in rule 104 in order to obtain from the Court an order either to add a party to the proceeding or to remove it. Furthermore, the appellant probably thought that it was necessary to name the CRTC as a party, given the injunctive nature of the conclusion it was seeking against it, i.e. that this Court order it to issue a licence to the appellant.
[65] Irrespective of the reasons that led the appellant to name the CRTC as respondent on appeal, this act was a source of confusion since, as a general rule, the rights of a respondent on appeal are different from and much more extensive than those of an intervener. Failing a statutory exemption, as in the case of the Canada Industrial Relations Board (see subsection 22(1.1) of the Canada Labour Code, R.S.C. 1985, c. L-2), a body whose decision is attacked is not entitled to appear in the appeal or review proceedings. Were it not for the fact that it was implicated as a party to the appeal by the appellant, the CRTC would have had to make a motion for leave to intervene under rule 109. Its status would then have been clear and spelled out in the Order authorizing it to intervene, as was the case for the interveners Cogeco Diffusion Inc., the Canadian Association of Broadcasters, the Association québécoise de l'industrie du disque, du spectacle et de la vidéo and the Canadian Civil Liberties Association.
[66] Whether in judicial review or appeal proceedings, the federal agency that made a decision is not authorized to come and defend the decision it made, still less to justify itself. As Mr. Justice Estey said in Northwestern Utilities Ltd. et al. v. Edmonton, [1979] 1 S.C.R. 684, at page 709 (where the agency had presented on appeal detailed and elaborate arguments in support of its decision), "[s]uch active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties." The agency is entitled to be represented on appeal, but its submissions must in principle be limited to an explanation of its jurisdiction, its procedures and the way in which they unfolded.
[67] Although the CRTC had the status of a respondent in the proceedings, this Court has at all times considered it as an intervener. At the hearing, at the request of the appellant and with the concurrence of the CRTC's counsel, we accordingly agreed to limit the CRTC's interventions to an objective description of its jurisdiction, the regulatory framework in which it operates, its procedure and the facts indicating how the proceeding before it had unfolded.
Facts and proceedings
[68] The CRTC's decision not to renew the appellant's licence is based on a set of facts and circumstances the genesis of which should be indicated.
[69] Because of interference that could make the radio broadcasting system cacophonous, not to say unworkable and useless, the number of broadcasting frequencies in the Québec City region is limited to twelve. The shortage of frequencies is a physical phenomenon to which no radio broadcasting system is at this point immune. The Québec City region is no exception to this rule.
[70] Due to the shortage of frequencies and the importance of communications, the government intervened early on during the development of communications to give broadcasting systems the characteristics of both public property and an essential service. A procedure for supervising the use and allocation of this limited resource was therefore established in the collective interest.
[71] The CRTC, which came into being in 1968 through the Broadcasting Act, S.C. 1967-68, c. 25, as a successor to a series of regulatory agencies, was given the responsibility of implementing the broadcasting policy for Canada. Section 2 of the Act stated, for example, that radio frequencies are public property, that broadcasting undertakings have a responsibility for the programs that they broadcast, that the programming provided by each broadcaster should be of high standard, and that the objectives of the broadcasting policy for Canada can best be achieved by providing for the regulation and supervision of the system by "a single independent public authority". These pronouncements are found in the Act.
[72] This independent authority, the CRTC, was required by section 15 to regulate and supervise all aspects of the Canadian broadcasting system. Thus, in the performance of its duty of supervision and regulation, it was given exclusive power by Parliament to issue licences, to make regulations respecting standards of programs and advertising, to define the classes of persons who could be allowed to hold broadcasting licences and to prescribe the conditions for the operation of broadcasting stations as part of a network and the conditions for the broadcasting of network programs: see section 16 of the Act and paragraphs 66 and 116 to 118 of the affidavit of Mr. Pierre Trudel.
[73] The broadcasting policy enunciated by the Act was also addressed to a number of issues of public interest including the language of broadcasting, the need for a national public broadcasting service, diversity and quality of programming, and recognition and supervision of broadcasting undertakings, to mention only a few of these issues.
[74] It was in this essential and inevitable prescriptive context that the appellant was awarded a broadcasting licence, in February 1997, after acquiring the assets of the radio programming undertaking CHOI-FM Québec, owned by Les Entreprises de Radiodiffusion de la Capitale Inc. (see CRTC decision 97-86, dated February 27, 1997). This decision allowed it to operate a French-language FM radio station with commercial programming (CHOI-FM). It was an exclusive-use licence on FM frequency 98.1.
[75] The licence had a limited duration: it expired on August 31, 2002, but it could be renewed on application, which the appellant did. It was also subject to some conditions, including compliance with the guidelines on the non-sexist representation of individuals set out in the "Sex-Role Portrayal Code for Television and Radio Programming" of the Canadian Association of Broadcasters (CAB). The appellant was also to comply with the provisions of the "Broadcast Code for Advertising to Children". This Code was published by the CAB.
[76] The appellant's operation under this initial licence was not without problems. From 1999 to December 2001, 47 complaints had been brought against the appellant by the public concerning its programming on CHOI-FM. The subject matter of the complaints was consistent: making comments considered by the complainants to be offensive, sexist, aggressive, surly, degrading, discriminatory, harassing and hateful and contemptuous, holding offensive contests and making on-air personal attacks against individuals and groups.
[77] In 2002, the CRTC held a public hearing on the appellant's application for a renewal of its licence. A Notice of Public Hearing was sent to the appellant informing it that the CRTC was concerned by the numerous complaints received, the apparent failure to comply and the content of the spoken-word programming in light of the high standard objective stipulated in the Act. This Notice of Hearing CRTC 2001-14, dated December 14, 2001, also informed the appellant that these issues would be discussed at the hearing and it was invited to participate in these discussions.
[78] The appellant was also warned, through this Notice, to show cause at the hearing why an order should not be issued against it, requiring it to comply with the Regulations to which it had agreed to submit when applying for a licence.
[79] As it was required to do, the CRTC, during this public hearing, reviewed all of the complaints in light of the objectives of the Act, the undertakings made by the appellant and the programming authorized by its licence. In doing so, it was complying with the Act and the decision of this Court in Arthur v. Canada (Attorney General) (2001), 283 N.R. 346, at paragraph 27, where the following passage describes the role and responsibility of the CRTC when confronted with complaints brought against a licensee:
In fact, it is inevitable that, in the licence renewal context, the CRTC will be sensitive to the public's complaints and to the licensee's reaction to those complaints that allege an abuse of rights. The CRTC would not be playing its role and would be abdicating its responsibilities if it were indifferent to the public interest or to allegations that a licensee is compromising the public interest by its deeds and actions or its excessive passivity or tolerance. In this context of a licence renewal in the best interests of the public, it must be able to report abuses that the public complains of and to verify whether the licensee has complied with the Act, the Regulations, its conditions of licence or any specific undertakings it may have made.
[80] At the conclusion of its review, after having heard the representations of the appellant, the CRTC said it was extremely concerned by the remarks that had been broadcast concerning women, aboriginal peoples and disabled persons.
[81] For example, in the context of one discussion, the host employed by the appellant, Mr. Fillion, compared disabled children to animals without a conscience or emotion. Referring to the Latimer case, in which a father had put to death his daughter with disabilities, the host said on air, referring to the child:
[translation] But in any case, she was just a garbage can that was spitting shit from both ends and it was costing a lot to maintain a person like that; basically, that kid doesn't even know she exists, all she does is eat and shit! And when you discover a problem with a foetus, you save the shrimp!
[Emphasis added]
The host added, so he would be understood clearly, that he meant to say the foetus when referring to the shrimp: see the transcript of the CRTC hearings, February 20, 2002, volume 3, pages 652 to 654. The content of the remarks was such that the CRTC considered them offensive and inciting to hatred and contempt.
[82] At paragraph 60 of his memorandum of facts and law, the CRTC's counsel recounts in these words a finding made by the CRTC in relation to some broadcast comments that were said to be in contravention of the Sex-Role Portrayal Code. This finding is located at paragraph 29 of CRTC decision 2002-189:
The Commission finds that some of the remarks referred to in the complaints and found during the Commission's analyses violate the Sex-role Portrayal Code and therefore constitute a breach of CHOI-FM's condition of licence. The Commission notes in particular the complaints about women being reduced to sex objects by the host regularly inquiring about their weight and the size of their chest, the complaints about fellatio and sex contests, and the very graphic descriptions of pornographic images the host allegedly found on the Internet.
[83] The appellant admitted that the remarks did not comply with the Sex-role Portrayal Code's guidelines, and undertook to refrain from airing offensive or degrading sexual contests: ibidem.
[84] Finally, the CRTC said it had "serious reservations about the flagrant failures to meet the objective of high standard programming as evidenced by the remarks made on air at CHOI-FM, many of which the licensee also acknowledged during the hearing".
[85] The appellant's first licence renewal application led on July 16, 2002 to a renewal for a limited duration of 24 months, accompanied by a number of special conditions. One of these conditions was that the appellant would comply with the Code of Ethics it had proposed in order to provide clearer guidelines for the spoken-word content of its programming and the work of its hosts and producers. Compliance with the principles contained in this Code was imposed as a condition of renewal and use of the licence. In its decision CRTC 2002-189, the CRTC informed the appellant that it expected that a copy of what was referred to as the Code of Ethics would be given to each of the station's program hosts and producers and to anyone who requested a copy: see the CRTC compendium in the appeal record, vol. 1, page 81.
[86] The appellant had also proposed, as a remedy to the situation, the establishment of an Advisory Committee which would examine complaints made against the appellant and provide opinions concerning the application of the Code of Ethics. The establishment of such a committee was also required as a condition of licence.
[87] The CRTC thought that, during the public hearing, it perceived an intention by the appellant to comply with its obligations in the future. That is why, after imposing conditions of licence designed to secure compliance with the Act and the Regulations, it said it was prepared not to use its power to issue an order under subsection 12(2) of the Act or to resort to further enforcement measures in the Act such as suspension or revocation of the licence.
[88] The CRTC did inform the appellant, however, that if these conditions of licence, the Act or the Regulations were breached, it might be called again to a public hearing to answer for its conduct. This warning met with little response, to put it mildly.
[89] From September 1, 2002 to January 2004, 45 new complaints were received concerning the spoken-word content of the appellant's broadcast programming. Twenty-nine of these complaints were considered at the public hearing of February 18, 2004 on the application for renewal of licence made by the appellant.
[90] Overall, these complaints against the licensee alleged the making of comments that were defamatory, offensive, vulgar, blasphemous, malicious, false, discriminatory and demeaning of individuals. Once again, they complained of personal attacks. Some of the comments, it appears, were actual incitements to the commission of offenses. All of the complaints were in relation to the program of Mr. Jeff Fillion, broadcast Monday to Friday, entitled "Le monde parallèle de Jeff". This program was aired at peak listening hours in the morning, from 6:00 to 10:00. During a segment of about one-half hour, the host, Mr. Fillion, was joined by another host, Mr. André Arthur, from radio station CKNU-FM, Donnacona.
[91] It is not my intention to repeat the content of each complaint. But in order to put the dispute in perspective, I must refer to some of them. I will do so by reproducing, in most cases, the comments put in evidence before the CRTC.
[92] One complaint, dated May 8, 2003, concerns the comments made about psychiatric patients who had been mistreated in a hospital. At paragraph 49 of the CRTC decision, we can read:
Commenting on a news story about the mistreatment of a patient in a psychiatric hospital, host Fillion stated the following on CHOI-FM on 8 May 2003: "[translation] Why don't they just pull the plug on him? He doesn't deserve to live. The guy's a freaking burden on society." A few minutes later, a worker from the treatment centre called the host and said that the wing in which the serious cases, like the one being discussed, [were kept] was referred to by staff as "the zoo." After that call, Mr. Fillion added, "[translation] What I think they should do in the zoo is fill up the rooms, and then there'd be a switch, and once every four months, they press the button and just a little bit of gas comes out, and then you go in and pick it all up and put it in bags."
[Emphasis added]
[93] The complaint from Laval University concerned the following comments made by the co-host, Mr. André Arthur, on November 3, 2003, on CHOI-FM. They are found at paragraph 56 of the decision:
[translation] All that aside, we're always saying how global we are and taking in foreign students in Québec at the university, especially students from North Africa. Laval University is one of the biggest universities in North Africa.
The problem is, people forget that in Africa, in Muslim countries and countries in Black Africa, the ones who are sent abroad to study are the sons of people who are disgusting, the sons of the people who own the country so that they can govern it better. They're the sons of plunderers, cannibals who control certain Third World countries and can afford to send their children to Quebec to go to school, if it's not outright corruption by companies that want to get access to natural resources in Africa and will pay to have the sons of the disgusting people who govern those countries study in Québec.
But they're still proud in Laval to accept foreign students. They forget to say that those foreign students, by definition, with some exceptions, are all children of the most disgusting political leaders in the world, people who are sucking their countries dry, people who kill to gain power and torture to keep it. People we call cannibals, people who are extremely cruel.
[Emphasis added]
[94] On November 1, 2002, Mr. Fillion, as host, urged people in the Saguenay to commit suicide at home instead of in Québec, by throwing themselves from the Quebec bridge [translation] "because when they get to the bottom on the pavement, it creates 'shit' and we're fed up with picking up their 'shit'".
[95] On the programs on February 18 and 19, 2003, the same host urged people to pirate Bell ExpressVu signals:
[translation]
February 18, 2003 It's a good thing to pirate Bell ExpressVu, you show the cable companies and the CRTC... that you are disgusted with being scammed. The message is loud and clear.
Someone this week was telling us that in Beauce, whenever you see a Bell ExpressVu antenna, you know that every second one is pirated. Well, they sell them by the ton. That's one of the ways you show the CRTC that you are being scammed.
So keep on scamming the system by pirating. Me, I pay Star Choice, I'm an idiot. I took the wrong system, they can't be pirated. But those who have Bell ExpressVu, look, they still haven't understood your heartfelt cry. They haven't understood that you are fed up with paying for things you don't want, they haven't understood that we... the basic service we pay for through our taxes, no one listens to it.
February 19, 2003 Listen, I'm going to tell you again what I told you yesterday: Keep on scamming the system and pirating signals, either Vidéotron or Bell ExpressVu.
[Emphasis added]
[96] The CRTC also upheld a complaint by Cogeco Diffusion Inc., a radio broadcaster competing with the appellant. It considered the comments broadcast on CHOI-FM repetitive and relentless personal attacks and unwarranted insinuations of grave misconduct against Mr. Gillet, a host employed by Cogeco, and certain shareholders, executives and employees of Cogeco, including CJMF-FM's general manager, Mr. Geoff Brown, and Cogeco Radio-TV's president. These comments, motivated in the CRTC's view by a spirit of vengeance, went on for several weeks. Here is an extract, taken from paragraph 79 of the decision:
[translation] Another question for the executives at Cogeco, whether it's little Mr. Brown or Mr. Carter, his Mormon priest boss, or the Audet family, why not ask them this: since most people in the community know that Robert [Gillet] has problems, why was he so staunchly defended ¼ Did anyone in the chain of command owe him anything? Did anyone in the chain of command go on trips with Robert?
[translation] Look, is there someone at FM 93 who didn't know that Robert [Gillet] made, and still makes, regular trips to two of the most popular places for child prostitution in the world? Namely Thailand, where Robert goes regularly, and Czechoslovakia, Prague.
[translation] [Mr. Gillet couldn't] get it up with an adult woman any more?
[translation] Who is protecting Robert Gillet at FM 93? Is it Brown? Is it Carter? Who at FM 93 is unable to say no to Robert?
[translation] ¼ to tell Geoff Brown: you're good looking, you're tall, you're great, you smell good, and I don't notice when you scratch your ass in front of everyone?
[translation] ¼ everyone knows that if Geoff Brown farts while he's walking down a gravel road, it makes a little puff of smoke, it makes a little cloud of dust, because his ass is dragging, you see.
[translation] Should it have come as a surprise to the people at FM 93? I don't think so. They knew that he [Robert Gillet] was going to Thailand; they went with him.
[translation] ¼ second, Prague is the world capital, the European capital, for young girl prostitutes. Did the Québec police or the journalists go to Voyages Paradis and say, were there FM 93 executives on Robert Gillet's trips? Were there any other accused? ¼
[translation] And my question to journalists now is, how come Charles Paradis, who arranged the trips to Prague, was never asked by other journalists about Robert Gillet's role? Was Robert bringing in customers? Did he get a commission when he brought someone in? Did he take anyone there personally? Did any FM 93 executives go on those trips to Thailand or Prague? And did any sales representatives or business managers from FM 93 or Cogeco go on those trips?
[translation] Oh, I don't know. I think there are personal connections. I think there are true friendships, but there's also the fact that there are executives at FM 93 who went to Thailand with Robert Gillet. I know things are said ... that they were allowed to advertise trips to Prague, with Voyages Paradis on FM 93, trips to the European capital for young girl prostitutes. I know that Robert was drumming up business for Voyages Paradis, which was his job. I don't know, but I ask Québec journalists: when are you going to do your job? When are you going to go to FM 93? When are you going to go to Voyages Paradis and ask, who here went on trips with Robert? But I know that there were Cogeco executives who went to Thailand with Robert Gillet. Child prostitution is more widespread in Thailand, Bangkok, than in any other country in the world.
[Emphasis added]
[97] The host, Mr. Fillion, asked CHOI-FM listeners on air for personal information that could identify two female persons who had participated, with their faces hidden, in a televised report about an "erotic golf tournament". Once the necessary information was obtained, he disclosed, on air, their names and e-mail addresses.
[98] CHOI-FM also organized and held a broadcast competition inviting people to denounce on air neighbours who were "disgusting" and did a poor job of maintaining their property. A family was denounced by some neighbours. CHOI-FM went to visit this family, while not disclosing to them the real purpose of its visit. A direct broadcast was made from there during which, unknown to this family, both the hosts and some listeners calling the station were ridiculing them and their way of life.
[99] I will close, finally, by noting the defamatory remarks broadcast by CHOI-FM about a complainant, Ms. Sophie Chiasson. These comments resulted in an action for damages against the appellant, Mr. Patrice Demers, the principal shareholder and sole director of the appellant, in his personal capacity, Mr. Fillion, and certain hosts on his program.
[100] At the civil trial, the defamatory nature of the comments and consequently the civil wrong giving rise to civil liability was admitted by all the defendants other than Mr. Demers. More specifically, they acknowledged that certain comments were insulting and likely to offend the dignity, honour and integrity of Ms. Chiasson: see the judgment of the Superior Court of Québec in Chiasson v. Fillion, Genex Communications Inc. (CHOI-FM), Demers, Gravel, Landry and Saint-Laurent et al., [2005] J.Q. No. 3004, No. 200-17-003269-032, April 11, 2005. Because of these comments, they were jointly and severally ordered by the Superior Court of Quebec to pay $340,000, including $100,000 in "moral" damages, $200,000 in punitive damages and $40,000 in out-of-court fees. This judgment has been appealed as to the amounts awarded.
[101] Here is an extract from the words uttered and from the licencee's reply to the complainant, as found at paragraphs 61 to 63 of the CRTC decision:
The complainant is a television host on the TVA television network and the two specialty services, MétéoMédia and Canal Vie. In her complaint, she alleged that numerous personal attacks were made against her during the licensee's morning show on 10 September 2002 and 8 October 2002. After listening to the recordings containing the remarks made by on-air personalities on 10 and 27 September and 8 October and reading the stenographic notes, the Commission identified several remarks about the complainant related to her physical attributes, and sexual attributes in particular. There are multiple references to the size of her breasts; [translation] "her incredible set of boobs" and suggested that "the size of the brain is not directly proportional to the size of the bra" and that, "in her case, it might actually be inversely proportional." The participants even wondered about the texture of the complainant's breasts and whether anyone has asked the gropers about them, and whether they "[translation] defied gravity." The host said, "[translation] it's all in the breasts" and that that pair of breasts "did the job on Alexandre Daigle," which is why the host said Daigle chose the complainant over Sheryl Crow.
The participants also referred to the complainant as "[translation] a consummate liar," "a cat in heat" and "a leech on Alexandre Daigle" and "an airhead; it's all well and good to have big boobs, a tiny waist and a tight ass, but it doesn't mean a thing," "there are some seriously sick people at MétéoMédia;" "the girls that are attractive and look good, are always idiots" and "an idiot could do the weather." They also said that the complainant "[translation] had been around" and that "it happens behind the scenes" and made a number of remarks which suggested that she used personal relationships and even sex to land contracts as a television host.
In response, the licensee alleged that the remarks were an aside in a program on "showbiz" that it always treated as comedy, and that since everything was done in a humorous way that used imagery, the remarks were not personal attacks. According to the licensee, critiquing the body and presentation of a weather channel host is permitted in the context of a public debate because that is the way the person earns a living, before the public.
[Emphasis added]
[102] In relation to the allegation that the complainant was using her physical attributes to obtain contracts, I would add that the host had also, during the year 2000, alluded to the way in which she obtained them. He stated that during interviews the complainant might, in some cases, go down on her knees in front of her interlocutors to give them sexual favours. He then characterized her as "a vacuum cleaner" and said she was "great at vacuuming": see paragraph 27 of the Superior Court of Québec judgment in Chiasson v. Fillion, supra.
[103] It was in this context that the decision not to renew the appellant's licence was made on July 13, 2004. Leave to appeal that decision was granted on August 26, 2004 and the appeal was heard from May 24 to 27, 2005.
CRTC decision 2004-271
[104] The CRTC decision is substantial and well documented. It contains 144 paragraphs. I have no intention of repeating it other than to reproduce the findings, identify the factors the CRTC considered in the exercise of its judicial discretion not to renew the operating licence, and describe the process it followed in reaching that conclusion.
1. Factors considered by the CRTC in the exercise of its judicial discretion
[105] As its duties require, the CRTC, for the purposes of the renewal application, considered the statutory and regulatory framework and the conditions of licence governing the appellant's use of its licence. To that end, it referred to subsections 5(1) (CRTC's duty of regulation and supervision), 3(1) (policy and objects of the Canadian broadcasting system), 2(3) (construction and application of the Act in a manner that is consistent with freedom of expression), 3(2) (the singularity of the Canadian broadcasting system), 9(1) (its powers to issue, suspend, revoke and renew licences), and 10(1) (its power to set standards for programs and to take such other steps as it deems necessary for the furtherance of its objects) of the Act and paragraph 3(b) of the Regulations (prohibition on any abusive comment that is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability).
[106] The CRTC also recognized the need to establish and maintain a balance between freedom of expression and the other values mentioned in the Charter and its enabling legislation: see paragraphs 27 to 39 of the decision. It referred to the freedom of expression in paragraph 2(b) of the Charter and to section 15 of the Charter, which grants the right to equality without discrimination on the enumerated grounds. It also considered section 27 of that document, which requires that the Charter, including therefore freedom of expression, be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. Finally, it also drew on the values that are acknowledged in section 1, which provides that the fundamental rights in the Charter may be limited by law. The values that are relevant and important in these proceedings are the protection of human dignity, physical and psychological integrity, privacy, honour and reputation.
[107] The CRTC spent some considerable time on the complaints received and the contextual explanations provided by the appellant for the comments made and criticized. It analyzed them in light of the Act, the Regulations and the appellant's Code of Ethics, compliance with which, we repeat, was a condition of CHOI-FM's operating licence.
[108] It also took note of a decision made by the Canadian Broadcast Standards Council (CBSC) on July 17, 2003, in which the CBSC concluded that the appellant had acted in violation of paragraph 9(c) of the CAB Code of Ethics. The CBSC had found that the expressions "conceited asshole", "that worthless piece of trash", a "loser", a "piece of vomit", a "shit disturber" and a "tree with rotten roots" used to describe a competitor were coarse, injurious and offensive and thus in violation of the requirements of the Code of Ethics. The appellant said it disagreed with this conclusion of the CBSC: see paragraphs 102 to 104 of the decision.
[109] The CRTC continued its analysis of the situation by examining the appellant's responsibility as a person licensed to carry on broadcasting undertakings. Under paragraph 3(1)(h) of the Act, the appellant has a responsibility for the programs it broadcasts. The CRTC compiled the explanations of the appellant, which, in relation to the broadcast in which listeners were urged to pirate Bell ExpressVu's signals, amounted to saying that this was not what the host had intended to say. It also examined this responsibility in light of the obligations imposed by the Act and the Regulations, as it had done for obligations under the Charter: see paragraphs 105 to 110 of the decision.
[110] Finally, the CRTC discussed the record of the remedial measures imposed in the past and not complied with, the importance and frequency of the repeat offences and the appellant's conduct at the hearing when it argued that the comments made were appropriate and justified. It also reviewed the remedial measures proposed by the appellant in order to guarantee greater control over its hosts and the spoken-word content of the programs. Some of these proposed measures would dilute the requirements of its Code of Ethics and reduce its obligations: see paragraphs 111 to 124 of the decision.
2. CRTC's conclusions
[111] To facilitate understanding of the discussion of certain grounds of appeal, I reproduce in full the CRTC's conclusions, which appear at paragraphs 125 to 142 of the decision:
The spoken-word content aired on CHOI-FM since its licence was last renewed in 2002, together with the licensee's conduct with respect to its regulatory obligations during the licence term, and throughout this current proceeding to renew its broadcasting licence, leave the Commission with few options.
The Commission notes that it took measures to give Genex numerous warnings of the possible consequences of its actions. Firm, unequivocal notices of regulatory measures that might be taken were included in Notice of Public Hearing 2001-14. In Decision 2002-189, the Commission renewed CHOI-FM's licence for only two years, far short of the maximum seven-year term allowed under the Act. The Commission stated that it was deeply concerned about the licensee's repeated failure to comply with the Act, the Regulations and its conditions of licence. The Commission added that, during the two-year renewal period, it would closely monitor the licensee's fulfilment of its obligations, in particular its compliance with the Code of Ethics, which was appended to Decision 2002-189 as a condition of licence. As noted earlier, the Commission warned Genex that if it committed further breaches, the Commission might call it to a public hearing to show cause why it should not issue a mandatory order or apply any of its enforcement measures, including revocation or suspension of CHOI-FM's licence.
After receiving a large number of complaints in the first 17 months of the short renewal period established in Decision 2002-189, and observing new apparent failures to comply regarding the spoken-word content broadcast by CHOI-FM, the Commission decided to call Genex to the public hearing held in Québec in February 2004. In Notice of Public Hearing 2003-11, the Commission again warned the licensee that it would have to show cause at the hearing why the Commission should not issue a mandatory order or suspend or refuse to renew CHOI-FM's licence.
The Commission also notes that, in the correspondence with Genex during the current licence term, there were several apparent failures to comply and the licensee was warned, that, in keeping with the Commission's long-standing practice for handling complaints, Genex should be prepared to discuss the complaints at the hearing.
The Commission notes that the spoken-word content, that was the subject of the complaints received, does not reflect isolated incidents, but appears to be part of a pattern of behaviour by the licensee that continued and even grew worse, over the course of two consecutive licence terms despite clear, unequivocal warnings from the Commission, the CBSC and even, on occasion, its own advisory committee.
After a comprehensive review of the licence renewal file and all of the circumstances surrounding the programs that gave rise to the complaints, the Commission concludes that the remarks made on CHOI-FM during the morning show constituted new serious, repeated failures to comply with the Act, the Regulations and one of the licensee's conditions of licence.
The Commission also cannot rely on the licensee's good will to implement other proposed measures, such as adherence to the revised Code of Ethics, some of the requirements of which it proposed to dilute, or a delay mechanism, which the licensee itself considered would not be effective.
The Commission notes that, barely a month after the release of Decision 2002-189, in which the Commission expressed serious concerns and warned the licensee that new violations could lead to its licence being suspended or revoked, Genex signed an agreement with Mr. André Arthur to have him co-host CHOI-FM's daily morning show. This decision by Mr. Demers was discussed on CHOI-FM on 16 August 2002. Asked to explain Genex's actions, Mr. Demers specifically stated on air on CHOI-FM:
[translation] ¼ I think that the ratings that André Arthur has drawn through his career and the ratings that CHOI generates are what really count.
The Commission considers that all of the above calls into question the credibility of Genex and its controlling shareholder, sole director and chief executive officer, Mr. Patrice Demers, regarding Genex's ability to understand and exercise its responsibilities under the Act as the holder of a broadcasting licence. The seriousness and frequency of the violations noted, the fact that they were not first violations, the licensee's general attitude of denial, and the stall tactics that the licensee used in dealing with complaints throughout the current licence term have persuaded the Commission that Genex does not accept its regulatory obligations and is not committed to meeting them.
The Commission has reviewed the various measures it could adopt to ensure that broadcasting licensees meet their obligations where it finds that they are in repeated non-compliance. Those measures range from a short-term licence renewal, to the issuance of a mandatory order, to the suspension, revocation or non-renewal of the licence. The latter measures are rarely used, and in the Commission's view, should generally be confined to cases where it is satisfied that none of the other available measures would be effective.
When questioned at the hearing about the additional measures the Commission might take to ensure that Genex fulfils its obligations in the future, Genex maintained that it had done everything it could and that the corrective measures it had put in place or proposed were sufficient. As to the prospect of a mandatory order, the licensee stated, "[translation] whether you issue a mandatory order or not won't change our view of the equation, which is that we're making every effort to comply with our conditions of licence."
The Commission notes that the only purpose for issuing a mandatory order would be to ensure that the licensee complies with what is already required of it by the Regulations and its conditions of licence. For this measure to be effective, however, the Commission must be satisfied that the licensee understands its obligations and is committed to meeting them. The Commission considers that, in this case, Genex has not shown that it understands its obligations, or that it is committed to meeting them, and has not demonstrated any real desire to change. The issuance of a mandatory order would not, in the Commission's view, be an effective measure to fulfil the objective in the circumstances.
The Commission issued only a short-term renewal to Genex in Decision 2002-189. This measure was ineffective in compelling the licensee to take the necessary measures to rectify the violations contained in the spoken-word content of the programming broadcast by CHOI-FM. The failure by the licensee to establish sufficient parameters for its hosts and the ineffectiveness of the proposed new corrective measures lead the Commission to conclude that another short-term renewal of CHOI-FM's licence would not attain the intended objective either.
Suspension of the licence would be another option. The licensee stated at the hearing that a licence suspension would have an immediate impact on several employees. It added that a suspension during a ratings period would have a negative long-term impact on the station and would lea