Federal Court of Appeal supports CRTC’s right to revoke Quebec radio licence

The Federal Court of Appeal has upheld the CRTC’s decision to revoke the licence of a Quebec City talk and alternative rock radio station for repeatedly airing offensive and abusive comments, and ruled the commission has the right to enforce broadcasting policies. But CHOI-FM is expected to remain on the airwaves until the case makes its way to the Supreme Court of Canada, as Patrice Demers, president of the radio station’s parent company Genex Communications Inc., has indicated he will seek leave to appeal the decision. The appeal court granted Genex 20 days from its September 1 ruling to obtain an extension of its judicial licence that would allow it to remain on the airwaves. The CRTC refused to renew CHOI-FM’s licence on August 31, 2004, a day before it expired, and ordered the station to cease operating. But the Federal Court of Canada ruled that August that CHOI-FM could continue to broadcast until the station’s appeal of the decision was heard (CCR Update, Sept. 1/04). Genex appealed the decision on a number of grounds, including that the CRTC had overstepped its jurisdiction in deciding not to renew the CHOI-FM – a contention that the court turned down. "In short, the appellant’s argument concerning the lack of jurisdiction of Parliament and the CRTC over the content of programs and the need to review the distribution of powers is out of place in the present context, and without merit," wrote Justice Gilles Létourneau in the unanimous decision that included the Federal Court’s Chief Justice John Richards and Justice Marc Nadon. As an intervener in the case, the Canadian Association of Broadcasters (CAB) took no stance on the Genex case, but argued that the CRTC must have jurisdiction over the broadcasting system (CCR, Sept. 29/04). Pierre Pontbriand, the CAB’s VP of communications, says the association will make no comments on the court decision, because it is likely to be appealed by Genex. The Federal Court of Appeal also ruled unfounded Genex’s arguments that the commission unlawfully set itself up as a censor of the content of the radio station’s broadcasts, and had violated principles of natural justice, the rules for procedural fairness and its own rules of procedure. The court also turned down Genex’s complaints that the CRTC had erred in the option – failure to renew the licence – that it chose to enforce compliance of the Broadcasting Act and the Radio Regulations. The Appeal Court ruled that the CRTC had not "unlawfully set itself up as a censor of the content of the appellant’s programs" as no censorship occurred. "Actually, there was no censorship since the remarks that were complained about were made and disseminated on public airwaves. They were not subject to any prior pre-broadcast authorization by the CRTC, as the modern meaning of the notion of censorship would imply…the modern meaning of the word is defined as the need to obtain prior authorization for broadcast, in comparison with the older meaning from the 16th century, which conveyed instead a notion after-the-fact criticism or condemnation of words uttered…," reads the decision. The federal appeal court also ruled that section 2(b) of the Charter of Rights and Fredoms that guarantees freedom of expression is not overriding. "I do not think I am mistaken in saying that freedom of expression, freedom of opinion and freedom of speech do not mean freedom of defamation, freedom of oppression and freedom of opprobrium," writes Judge Létourneau. "Nor do I think I am mistaken in saying that the right to freedom of expression under the Charter does not require that the State or the CRTC become accomplices in or promoters of defamatory language or violations of the rights to privacy, integrity, human dignity and reputation by forcing them to issue a broadcasting licence used for those purposes." CRTC chair Charles Dalfen views the ruling as supporting the commission’s right to police the airwaves against facts or remarks that contravene the requirements of the Broadcasting Act, the Radio Regulations, the licence conditions or, in this case, the station’s Codes of Ethics. "This is an important decision for Canadians," he said. "It confirms the CRTC’s approach in protecting Canadians against abusive comments and personal attacks on the airwaves." The court’s decision also notes that the "procedure followed by the CRTC is not sullied by any breach of the principles of natural justice, the rules of procedural fairness and its own rules of procedure. Genex was informed of the issues and allegations on the record, warned on more than one occasion of the derogatory nature of some of its programming, and was given notice of the possible consequences," notes the judge. The court also placed little faith in Genex’s attempt to transform the CRTC public hearing on its licence renewal into a criminal trial in which it could cross-examine witnesses and challenge each complaint on its merit. "The facts behind a complaint are generally conceded by the licensee or readily established and virtually undeniable based on the logger tapes or other forms of recording and preserving the remarks made on the public airwaves," writes the judge. "In this context, I do not see very clearly what the right to cross-examination, claimed so fiercely by the appellant, could actually contribute or accomplish, especially when the remarks are its own and it is acquainted with them. It can always correct them if the allegations are inaccurate." The court also found that the CRTC had the right to revoke the licence, despite Genex’s protests that it had breached the principle of gradation of enforcement measures. Referring to the Quebec Court of Appeal Régie des alcohols, des courses et des jeux v. 2620-5443 Québec Inc. case, judge Létourneau concludes, "If the administrative measure adopted is one that is authorized by the legislature, it is not the job of this court to interfere in the correctness or appropriateness of the measure taken, still less to rule on the merits and appropriateness of selecting this rather than that measure and vice versa." The Federal Court of Appeal dismissed the appeal with costs to the Attorney General of Canada, but with no costs to or against the interveners. The court considered the CRTC for this purpose an intervener, although the appellant made it a party to the appeal.

Federal Court of Appeal supports CRTC’s right to revoke Quebec radio licence

Broadcast | September 9, 2005

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