The “N”-Word, Broadcasting Regulation and Freedom of Expression: Société Radio-Canada v. Canada (Attorney General), 2023 FCA 131

I recently had the considerable privilege of serving as amicus curiae to the Federal Court of Appeal in a fascinating, complex and controversial case about broadcasting regulation and free speech: Société Radio-Canada v. Canada (Attorney General), 2023 FCA 131.

In a majority decision, the Canadian Radio-television and Telecommunications Commission found that Radio Canada had breached the objectives of the Broadcasting Act by permitting the broadcast of the n-word (in French) repeatedly in the same segment without warning viewers. The CRTC majority described the facts as follows:

On 17 August 2020, in a segment called Actualité avec Simon Jodoin : Certaines idées deviennent-elles taboues? presented during the radio program Le 15-18 on ICI Radio-Canada Première, commentator Simon Jodoin and host Annie Desrochers discussed the launch of a petition to demand the dismissal of a Concordia University professor who quoted the title of Pierre Vallières’s book, Nègres blancs d’Amérique, in class. The commentator shared his opinion on the acceptability of naming the title of the book and, more specifically, the consequences stemming from the controversy surrounding its mention, claiming that it obscures the content of the work and the author’s thoughts. During the discussion, the host and the commentator used the “N-word” four times, three times in French and one time in English, in a segment of 6 minutes 27 seconds.

The complainant in the matter was a racialized person who was in the studio at the time of the segment. He brought a complaint alleging that Radio Canada had violated paragraph 3(b) of the Radio Regulations, 1986, SOR/86-982 and several objectives of the Broadcasting Act, S.C. 1991, c. 11. The CRTC majority made no finding that the Regulations had been contravened but concluded that the broadcast violated the objectives of the Act:

the Commission finds that the content broadcast during a segment of the SRC program Le 15-18 goes against the Canadian broadcasting policy objectives and values set out in paragraphs 3(1)(d), 3(1)(g) and 3(1)(m) of the Act. The Commission considers that the SRC did not implement all the necessary measures to mitigate the impact of the “N-word” on its audience, particularly in the current social context and given its national public broadcaster status. For these reasons, the broadcast of that program segment did not provide high-standard programming and did not contribute to the strengthening of the cultural and social fabric and the reflection of the multicultural and multiracial nature of Canada.

The CRTC majority located its jurisdiction in s. 5(1) of the Act, which provides that the CRTC “shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1)”.

The dissenting members of the CRTC took issue with their colleagues’ analysis, especially the majority’s failure to refer to the Charter protection for freedom of expression or the statutory protection to the same effect in s. 2(3) of the Act.

Radio Canada exercised its statutory right to appeal to the Federal Court of Appeal on a question of law or jurisdiction. Radio Canada’s grounds of appeal were (1) that the CRTC does not have jurisdiction to punish a broadcaster by reference solely to the broadcasting policy set out in the Act; (2) that the CRTC had not addressed the Charter issue; and (3) that the CRTC had failed to consider the complaint under the Regulations and the terms of Radio Canada’s licence. The Federal Court of Appeal granted leave to appeal.

At that point, the file took an unusual turn. First, the Attorney General of Canada, which is the respondent in CRTC appeals, brought a motion to have the appeal allowed on consent under rule 349 of the Federal Courts Rules, SOR/98-106. Second, the CRTC sought leave to intervene to defend its decision, but was refused, on the basis that its intervention would not comply with the principles on tribunal participation in appeal or review proceedings set out in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR 147.

At that point, the Court of Appeal exercised its inherent authority to manage its proceedings to appoint me as amicus curiae. I was appointed to ensure that the court had a full view of the legal arguments. Here are some of the relevant parts of the Court of Appeal’s order:

ATTENDU QUE la Cour n’est pas en mesure de trancher de manière éclairée les questions soulevées par la requête de l’intimé sur la base des seules observations de ce dernier et du consentement de l’appelante, ceux-ci faisant valoir le même point de vue;

ATTENDU QU’afin de disposer de la requête de façon éclairée, la Cour estime nécessaire de recevoir des observations écrites faisant valoir un point de vue indépendant de celui de l’intimé et de l’appelante;

ATTENDU QUE dans ces circonstances, la Cour a le pouvoir de nommer un amicus curiae ou « un ami de la Cour » et de lui attribuer le mandat d’éclairer la Cour quant à la question de savoir si les faits et le droit appuient l’accueil de l’appel comme le maintiennent l’intimé et l’appelante : Canada (Procureur général) c. Almalki, 2011 CAF 54;

…

CETTE COUR ORDONNE QUE :

Le professeur Paul Daly soit nommé par la Cour en tant qu’amicus curiae. Il déposera des observations écrites en réponse à la requête de l’intimé; en particulier, il fera valoir tout argument que le CRTC aurait été en mesure de présenter pour contrer la requête de l’intimé, et ce, sans égard aux contraintes jurisprudentielles qui s’imposent au CRTC. Il devra aussi traiter des mesures de redressement qui devraient être accordées dans l’hypothèse où la requête de l’intimé est accueillie.

I was given immunity from costs, and 20 days from reaching agreement on my fees with the Attorney General of Canada, to provide written submissions (in French, the language of the file).

Much of my month of February was devoted to identifying arguments in defence of the CRTC’s decision which I thought merited the court’s considered attention.

Ultimately, the Court of Appeal found that the CRTC had acted unlawfully, rendering an important decision about the scope of regulatory powers and the obligation to consider Charter rights in administrative decision-making.

First, the Court addressed the scope of the CRTC’s authority. The leading case is Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 SCR 489. Here, a majority of the Supreme Court held that when making regulations the CRTC could not rely directly on the objectives of the Act:

Policy statements, such as the declaration of Canadian broadcasting policy found in s. 3(1) of the Broadcasting Act, are not jurisdiction-conferring provisions.  They describe the objectives of Parliament in enacting the legislation and, thus, they circumscribe the discretion granted to a subordinate legislative body (Sullivan, at pp. 387-88 and 390-91).  As such, declarations of policy cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring provisions…In my opinion, to find jurisdiction, it was not sufficient for the CRTC to refer in isolation to policy objectives in s. 3…It is therefore necessary to consider the jurisdiction granted to the CRTC under ss. 9 and 10 of the Act to attach conditions to licences and to make regulations (at paras. 22-23).

Subsequently, the Federal Court of Appeal observed that “section 3 and section 5 of the Act are not attributive of jurisdiction and are not sufficient in and of themselves to justify the validity of … regulatory provisions” (TVA Group Inc. v. Bell Canada, 2021 FCA 153, at para. 35). Hence the Attorney General of Canada’s conclusion that a decision based on ss. 3 and 5 of the Act was outside the jurisdiction of the CRTC and thus indefensible.

I submitted that the decision in Cogeco (and TVA) spoke only to the CRTC’s regulation-making function. Here, the CRTC was engaged in its supervisory function, using the procedural powers set out (in very expansive terms) in paragraph 18(3) of the Act: “The Commission may hold a public hearing, make a report, issue any decision and give any approval in connection with any complaint or representation made to the Commission or in connection with any other matter within its jurisdiction under this Act if it is satisfied that it would be in the public interest to do so”. The expansive terms of paragraph 18(3) should be contrasted, I submitted, with the more restrictive wording — but more forceful potential consequences — of s. 12. Moreover, in Capital Cities Comm. v. C.R.T.C., [1978] 2 SCR 141, a decision that was not cited, still less overruled by the majority in Cogeco, the Supreme Court held that s. 5 of the Act did confer jurisdiction on the CRTC.

The Court of Appeal was unpersuaded:

Capital Cities is more in line with the Attorney General’s position that subsection 5(1) is no more attributive of jurisdiction than subsection 3(1) because both are aimed at guiding the CRTC in exercising the discretionary power conferred upon it, one under the guise of a policy and the other under the guise of objects. [S]ubsection 5(1), by its wording, provides that the objects to be pursued by the CRTC are to develop a regulatory framework and to supervise what is said over the air with the view of implementing the Canadian broadcasting policy. It follows that the argument advanced by the amicus according to which the CRTC may rely on this policy as though it was in and of itself a rule of conduct that forms part of the regulatory framework governing what can be said on the air must fail. Contrary to the Canadian broadcasting policy, which is intended to guide the exercise of the discretionary power conferred upon the CRTC, rules of conduct are put in place in order to delineate what can and cannot be said on the air. It follows that imposing sanctions on the sole basis of this policy, as if it were itself a rule of conduct, goes against the role that Parliament attributed to this policy (at paras. 51-53).

This is a very significant decision on the scope of regulatory powers. The central proposition, based on a broad reading of the majority decision in Cogeco is that a decision-maker cannot use general powers to impose sanctions when it has more specific powers available to it, even if those general powers are drawn in broad terms. This is an important change as far as the CRTC is concerned, as it has been sanctioning on-air speech on the basis of the objectives of the Act for many years (see para. 34) and may prove consequential for regulator and regulated in other fields.

Second, the Court addressed the obligation to consider the Charter when making administrative decisions. Here, I made an argument based on some unusual procedural features of the matter. For one thing, Radio Canada did not appeal on the basis that the decision violated the Charter, it only attacked the failure to consider the Charter. For another thing, this question arose on a statutory appeal, not on judicial review, so the applicable standard was the result-focused standard of correctness rather than robust Vavilovian reasonableness. I argued, therefore, that the CRTC only needed to demonstrate that it was “alive” to the Charter issue, which it accomplished by virtue of the presence of dissenting reasons (a point I made somewhat halfheartedly!) and the fact that the majority decision was, in substance, an attempt to justify an infringement on Radio Canada’s freedom of expression.

Here again the Court of Appeal was unpersuaded:

First, the decision makes no mention of the SRC’s freedom of expression. Its structure revolves exclusively around the issue as to whether the broadcast of the “N‑word” on the air is consistent with the Canadian broadcasting policy.

Second, this silence is not remedied by the record as constituted, which in no way suggests that the majority was “alive” to its duty to ensure that the SRC’s freedom of expression was not restricted more than necessary in order to attain the objectives contemplated by the Act (compare Trinity Western University, para. 55, where the evidence showed that the decision-makers were alive to the Charter issue for having debated it at length in the process leading to the decision).

Contrary to what the amicus asserts, the fact that the dissenting members addressed the SRC’s freedom of expression in detail makes the majority’s silence on this issue even more difficult to explain. These opinions are more in line with the Attorney General’s thesis that the majority was not alive to the issue pertaining to the SRC’s freedom of expression, which explains why it did not conduct the balancing exercise mandated by the Charter (at paras. 59-61).

The lesson here, clearly, is that an administrative decision-maker whose decision infringes upon a Charter right must openly acknowledge this fact and grapple with the fact of the infringement in its reasons. It does not seem — although the Court of Appeal did not decide the point conclusively — that the Doré duty functions any differently depending on the standard of review. In any event, the better course of action for a decision-maker is to face up squarely to a Charter argument and dispose of it as comprehensively as possible.

The matter was then remanded back to the CRTC for disposition on grounds other than the objectives of the Act (para. 62).

This content has been updated on June 17, 2023 at 03:57.