CRTC erred in its decision on Radio-Canada N-word broadcast, court finds

The CRTC's decision ruling against the CBC's French language arm made several mistakes, a federal court ruled. (CBC - image credit)
The CRTC's decision ruling against the CBC's French language arm made several mistakes, a federal court ruled. (CBC - image credit)

A federal court has ruled that the Canadian Radio-television and Telecommunications Commission (CRTC) erred in its decision penalizing Société Radio-Canada (SRC) for broadcasting the N-word.

In a unanimous decision released Thursday, the Federal Court of Appeal said that the broadcast regulator made several mistakes when it ruled against SRC in response to a complaint.

In particular, the court ruled, the CRTC cited sections of the Broadcasting Act which do not give it the authority to regulate speech on the airwaves. The court sent the decision back to the CRTC for reconsideration.

"The court has returned the matter to the CRTC. We will wait for their direction on next steps," a spokesperson for CBC/Radio-Canada said in a media statement.

"It is important to remember that this does not affect the policies we have already put in place to minimize the use of hurtful or offensive language."

In its ruling, the court agreed with arguments put forward by SRC, the French-language service of Canada's public broadcaster CBC/Radio-Canada, and the attorney general of Canada.

"The CRTC overstepped its jurisdiction by sanctioning the SRC on the sole basis that the content broadcast on the air was, in its opinion, inconsistent with the Canadian broadcasting policy," Federal Court of Appeal Chief Justice Marc Noel wrote in his decision.

At the centre of the case is an Aug, 17, 2020, segment on the radio show Le 15‑18. A segment on the show discussed a petition to fire a Concordia University professor who used the N-word in class. The professor was quoting the title of a book by journalist Pierre Vallières.

During the broadcast the title of the book, including the N-word, was mentioned four times — three times in French and once in English.

Ricardo Lamour, a Black Montreal resident told CBC News last year that he had been in the CBC/Radio-Canada building in Montreal, listening to Le 15-18 with headphones when the word was used. Lamour, a local artist and social worker, had been invited be a guest on the show to discuss a different topic.

Within two weeks of the show airing, Lamour filed a complaint with the CRTC and Radio-Canada's ombudsman.

In its June 2022 decision, the CRTC agreed with the complainant. The regulator said "the use and repetition of the 'N-word' on this program was inconsistent with these objectives of the [Broadcasting] Act" and that SRC "did not implement all the necessary measures to mitigate the impact of the 'N-word' on its audience."

The CRTC ordered SRC to apologize to the complainant and put in place better practices to address the issue going forward. SRC complied with the orders.

The CRTC cited S. 3(1) of the Broadcasting Act in its decision. The section says broadcast programming "should be of high standard" and should "serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada," and that CBC/Radio-Canada programming "should reflect the multicultural and multiracial nature of Canada."

But the Federal Court of Appeal said the CRTC misinterpreted the meaning and spirit of S. 3(1) by citing it in a disciplinary decision.

"Subsection 3(1) does not give the CRTC this power. The Supreme Court has repeatedly recognized that subsection 3(1) is not a jurisdiction-conferring provision. Instead, its purpose is to describe the broadcasting policy that Parliament was pursuing in adopting the Act," Justice Noel said in the decision.

CRTC to take another look at complaint

The court agreed that CRTC does have the authority to regulate broadcast speech and decided to send the complaint back to the CRTC for another review.

The court said the initial CRTC decision could have cited the Canadian Association of Broadcasters Equitable Portrayal Code, which says broadcasters should avoid derogatory or inappropriate language. Signing on to the code was a CRTC condition for granting SRC's broadcasting licence.

The court also took the CRTC to task for not considering SRC's right to freedom of expression under the Charter of Rights and Freedoms, and should take that right into account in any new ruling.

"Given that Parliament has mandated the CRTC to act as the initial decision-maker with respect to what can and cannot be said on the air, I would return the matter to the CRTC so that it may re-determine the merits of the complaint," Noel said.