Judgments

A-464-04

2005 FCA 283

Genex Communications Inc. (Appellant)

v.

Attorney General of Canada and The Canadian Radio-television and Telecommunications Commis-sion (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)

Indexed as: Genex Communications v. Canada (Attorney General) (F.C.A.)

Federal Court of Appeal, Richard C.J., Létourneau and Nadon JJ.A.--Québec, May 24, 25, 26, and 27; Ottawa, September 1, 2005.

Broadcasting -- Appeal from decision of Canadian Radio-television and Telecommunications Commission (CRTC) not to renew appellant's broadcasting licence for French-language commercial radio station CHOI-FM Québec (CHOI-FM) -- Appellant's exclusive-use licence on FM frequency 98.1 expiring on August 31, 2002 -- Public complaints re: hosts making offensive, sexist, aggressive, degrading comments on air -- After public hearing, CRTC renewing licence for 24 months -- Imposing conditions designed to secure compliance with Broadcasting Act, Radio Regulations, 1986: compliance with Code of Ethics proposed by appellant to provide guidelines for spoken-word content of programming; establishment of Advisory Committee to examine complaints -- New complaints about spoken-word content by radio hosts made after licence renewed -- CRTC holding second public hearing before deciding not to renew licence -- (1) CRTC's judisdiction -- CRTC's statutory powers including implementation of Canadian broadcasting policy, exclusive power to issue licences, make regulations regarding program standards -- Broadcasting Act, ss. 3, 9(1)(b), Radio Regulations, 1986, s. 3 giving CRTC power to infringe freedom of expression to implement Canadian broadcasting policy while protecting other fundamental Charter rights -- CRTC must verify quality of programming, broadcasts to determine whether standards met -- In regulatory, supervisory function, CRTC also having duty to review complaints against licensees, examine, determine outcome of licence renewal applications -- CRTC also master of own procedure -- Under Act, s. 21, CRTC having power to make procedural rules for licence renewal applications, complaints, public hearings -- (2) CRTC's decision not violating principles of natural justice, rules of procedural fairness, own rules of procedure -- CRTC taking statutory restrictions (Broadcasting Act, ss. 3, 9(1)(b), Radio Regulations, 1986, s. 3) into account, exercising jurisdiction within statutory limits -- Following same prescribed procedure on second renewal application as on first renewal application -- Rejection of application justifiable given appellant's failure to comply with licence conditions imposed in public interest when licence initially renewed -- CRTC considering relevant factors, not considering irrelevant factors in exercising discretion -- CRTC's field of expertise dictating Court's deference -- CRTC not making error in law in decision, exercising discretion judicially.

Administrative Law -- Judicial Review -- Standard of review -- CRTC's decision not to renew appellant's broadcasting licence calling for two distinct review standards: administrative, constitutional -- As to former, CRTC entitled to curial deference on questions of law within area of jurisdiction and expertise, even in absence of privative clause, statutory right of appeal -- Same standard applying to licence renewal decisions whether review by way of judicial review, appeal -- Decision to renew broadcasting licence discretionary -- Questions of law pertaining to CRTC's competence, expertise to be reviewed on reasonableness standard -- As to standard of review concerning questions of law allegedly committed in process leading to CRTC's decision, constitutional validity of decision, Court only having power to examine manner in which CRTC's discretion exercised -- Required to ensure discretion so exercised as to keep limitation on freedom of expression within reasonable limits demonstrably justified in free, democratic society.

Constitutional Law -- Charter of Rights and Freedoms -- Fundamental Freedoms -- Appellant submitting CRTC's refusal to renew radio station's broadcasting licence violating right to freedom of expression under Charter, s. 2(b) -- CRTC's decision not constitutionally invalid -- Non-compliance with licence condition potentially warranting non-renewal of broadcasting licence without infringing freedom of expression -- Freedom of expression, opinion, speech not meaning freedom of defamation, oppression, opprobrium -- CRTC exercising discretion within parameters of Broadcasting Act, ss. 3, 9 -- Exercise of discretion not exceeding limitations on freedom of expression permitted by such statutory provisions within Charter, s. 1.

Practice -- Parties -- Standing -- Appeal from CRTC's refusal to renew broadcasting licence -- Status of parties to appeal governed by Federal Courts Rules, s. 338 -- CRTC adjudicative body in application for licence renewal -- Absent statutory exemption, body whose decision attacked not entitled to appear in appeal, review proceedings to defend, justify decision -- CRTC's interventions limited to objective description of jurisdiction, regulatory framework, procedure, licence renewal application proceeding.

This was an appeal from a decision of the Canadian Radio-television and Telecommunications Commission (CRTC) not to renew the appellant's broadcasting licence for the French-language commercial radio station CHOI-FM Québec (CHOI-FM). In February 1997, the appellant was awarded an exclusive-use licence on FM frequency 98.1, which expired on August 31, 2002, but which could be renewed. That licence was subject to conditions, including compliance with guidelines on non-sexist representation of individuals. The appellant's operation under this initial licence resulted in numerous public complaints that offensive, sexist, aggressive, discriminatory and degrading comments were made on air by the station's hosts. In 2002, the appellant applied for a renewal of its licence, and the CRTC held a public hearing with respect thereto. Despite serious reservations about the appellant's failures to meet the objective of high standard programming, the CRTC renewed the licence for a 24-month period, under special conditions designed to secure compliance with the Broadcasting Act and Radio Regulations, 1986. One such condition was that the appellant comply with the Code of Ethics it had itself proposed. Another condition was the establishment of an Advisory Committee to examine complaints against the appellant. After the CRTC renewed the licence, new complaints about the spoken-word content by the station's radio hosts were made, including some by the intervener Cogeco Diffusion Inc., a competitor of the appellant concerning derogatory comments made on air against Cogeco's employees and executives. There were also complaints that a radio host had incited the pirating of television signals, such as Bell ExpressVu. These complaints were later considered at the second public hearing on the appellant's application for licence renewal. Moreover, some of the hosts' degrading comments regarding a well-known Quebec weather presenter resulted in an action for damages against the appellant before the Superior Court of Québec, which ultimately awarded the plaintiff damages. The CRTC decided not to renew the appellant's licence (decision 2004-271).

The appellant submitted that the CRTC had violated its right to freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms and that the CRTC had made numerous errors in making its decision. The issues were whether the CRTC rendered an unlawful decision or erred in law when it refused to renew the appellant's broadcasting licence and whether, in making its decision, it failed to comply with the principles of natural justice, the rules of procedural fairness, and the CRTC's own rules of procedure.

Held, the appeal should be dismissed.

Given the appellant's allegations that the CRTC decision was unconstitutional or that it was vitiated by intra-jurisdictional errors of law, the analysis of the CRTC decision called for two distinct standards of review: one constitutional, the other adminstrative. With respect to the latter, case law has established that the CRTC is entitled to curial deference with respect to questions of law within its area of jurisdiction and expertise, even if there is no privative clause or a statutory right of appeal. The same standard of review applies, whether the CRTC's decision is reviewed by way of an application for judicial review or by way of appeal. The decision to renew a broadcasting licence is discretionary, and deals with a matter that lies at the very heart of the CRTC's expertise. Questions of law that pertain to its area of competence and expertise must be reviewed according to the reasonableness standard. The Court cannot intervene in regard to such a question unless the resulting conclusion or decision is at least unreasonable.

The standard of review applicable to the constitutional validity of the decision is determined according to different factors. Absent a power conferred either expressly or by necessary implication to infringe a protected right, a discretionary decision by the CRTC cannot be contrary to the Charter. The case at bar dealt with statutory provisions giving the CRTC the power to infringe freedom of expression by establishing restrictive licence conditions. Since the CRTC was simply exercising the discretion conferred on it by the Act, the Court could examine the manner in which the discretion was exercised, specifically to ensure that the exercise of that discretion kept the limitation on freedom of expression within reasonable limits that can be demonstrably justified in a free and democratic society.

The CRTC's status in the proceedings, or locus standi, involved its right to participate and its role if permitted to do so. The status of the parties to an appeal is governed by rule 338 of the Federal Courts Rules. In the application for renewal of the appellant's licence, the CRTC was not a party but the adjudicative body. Absent a statutory exemption, a body whose decision is attacked is not entitled to appear in the appeal or review proceedings. Whether in judicial review or appeal proceedings, the federal agency that made a decision is not authorized to defend its decision in Court, still less to justify itself. Accordingly, the CRTC's interventions were limited 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.

The Broadcasting Act and Radio Regulations, 1986 give the CRTC, an independent authority, all of its statutory powers. The CRTC is responsible for implementing the broadcasting policy for Canada and was given exclusive power to issue licences, make regulations regarding program and advertising standards, define classes of persons allowed to hold broadcasting licences, and prescribe conditions for the operation of broadcasting stations. Paragraphs 9(1)(b) and (d) of the Act give the CRTC the power to infringe freedom of expression by establishing restrictive licence conditions. Section 3 of the Act declares Canadian broadcasting policy, and paragraph 3(b) of the Radio Regulations, 1986 prohibits any abusive comment that is likely to expose an individual, group or class to hatred. These provisions give the CRTC the power to infringe freedom of expression for the purpose of implementing Canadian broadcasting policy while protecting other fundamental rights guaranteed by the Charter. In exercising its discretion not to renew the appellant's licence, the CRTC had to take into account these restrictions and exercise its jurisdiction within the limits prescribed by the Act and the Regulations. It is also the duty of the CRTC, in its regulatory and supervisory function, to review complaints brought against licensees. When a licence is being suspended, revoked or renewed, the CRTC's duty of surveillance implies a verification of the quality of the programming and broadcasts to determine whether they meet the standards established by the Act, the Regulations, the Codes of Ethics and licence conditions. This requires verification of allegations or complaints that these standards have not been met. In a licence renewal, suspension or revocation context, such verification is a manifestation of the CRTC's power of review and supervision. Finally, the CRTC is the master of its procedure. Under section 21 of the Act, it may make rules respecting the conduct of its business, notably the procedure for applications for renewal of licences, for making representations and complaints to the Commission and for the conduct of hearings.

The CRTC's decision 271 did not violate the principles of natural justice, the rules of procedural fairness or its own rules of procedure. The CRTC's decision was rendered after almost five months of deliberation and stated the reasons for dismissing the preliminary motion challenging its jurisdiction. The appellant's submissions and grievances regarding the breaches were based on the postulate that it was deprived of the opportunity to submit a full answer and defence. The appellant was amply informed of the issues and allegations on its record and was warned of complaints about the derogatory nature of its spoken-word programming. It was given notice of possible steps to be taken and was given an opportunity to explain itself at a public hearing, in accordance with the rules laid down by the CRTC. The procedure followed on the second renewal application was the same as that on the first renewal application. A similar procedure taken on a second licence renewal application involving the same general problem as the first cannot be considered fair or unfair depending solely on whether the ultimate conclusion is favourable or not to the appellant.

Nor did the CRTC by its practices, conduct or representations, reasonably lead the appellant to believe that it would retain its licence. The issue of non-renewal per se was on the public hearing's agenda since the discretionary power to renew includes the power not to renew. The appellant's licence was a fixed-term licence and the appellant was not automatically entitled to the renewal, particularly in the circumstances.

The CRTC's choice of measure to enforce compliance with the Act and the Regulations did not amount to an error in law or a jurisdictional error. Failure to comply with a condition of licence imposed in the public interest constitutes conduct that may justify a refusal to renew a licence without such refusal infringing freedom of expression or the Charter. If the administrative measure adopted is authorized by the legislature, the Court should not interfere in the correctness or appropriateness of the measure taken, still less rule on the merits and appropriateness of selecting a particular measure. At most, the Court may satisfy itself that the CRTC, in the exercise of its discretion, considered the relevant factors and did not consider any irrelevant factors. The actual exercise of weighing these factors, which generally pertains to the CRTC's field of expertise, is a matter for the CRTC. The appropriate disciplinary sanction is the one that is justified by the facts and circumstances of the case. If the facts warrant a withdrawal of an operating licence rather than a mere suspension, then ordering the withdrawal involves no breach of the law.

The CRTC exercised its discretion on the renewal application judicially. It scrupulously examined and weighed all of the factors it considered relevant in making its decision. It dwelt at some length on the choice of the measure, the relative ineffectiveness of the measures adopted at the time of the first renewal, the appellant's attitude and the gravity and frequency of the offences noted. The CRTC's field of expertise dictated the Court's deference. Furthermore, decision 271 was not constitutionally invalid. Non-compliance with a condition of licence is conduct that may warrant non-renewal of a broadcasting licence without necessarily resulting in an infringement of freedom of expression and a Charter breach. Freedom of expression, freedom of opinion and freedom of speech do not mean freedom of defamation, freedom of oppression and freedom of opprobrium. The CRTC's decision 271 was based on a number of findings about the appellant's conduct, including the appellant's violations of its own Code of Ethics, and measures intended to ensure its compliance with the regulatory regime. The CRTC exercised its discretion within the parameters of sections 9 and 3 of the Act and the discretion it exercised did not go beyond the limitations on freedom of expression that these two statutory provisions themselves may allow constitutionally within the confines of section 1 of the Charter. The appellant was unable to demonstrate a jurisdictional error or such material error in law that would make decision 271 on non-renewal unreasonable and require that it be set aside.

statutes and regulations judicially

considered

Broadcasting Act, S.C. 1967-68, c. 25, ss. 2, 15, 16.

Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) "broadcasting", "broadcasting undertaking", "programming undertaking", (3), 3, 5(1),(2), 6, 9(1)(b),(c),(d),(e), 10(1)(c),(k), 12, 18(2), 21, 31, 32, 33.

CRTC Rules of Procedure, C.R.C., c. 375, ss. 32, 33, 34.

Canada Labour Code, R.S.C., 1985, c. L-2, s. 22(1.1) (as enacted by S.C. 1998, c. 26, s. 9).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b), 15, 24(1), 27.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 92(10),(13),(16), 93.

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 28 (as am. idem, s. 35).

Federal Courts Rules, SOR/98-106, ss. 1 (as am. by SOR/2004-283, s. 2), 2 "parties", 65, 70 (as am. by SOR/2002-417, s. 9), 104, 109, 303, 338.

Radio Regulations, 1986, SOR/86-982, s. 3 (as am. by SOR/91-586, s. 1).

cases judicially considered

applied:

Canadian Broadcasting Corp. v. Métromédia CMR Montréal Inc. (1999), 254 N.R. 266 (C.A.); Procureur général du Canada v. Compagnie de Publication La Presse, Ltée (La), [1967] S.C.R. 60; (1966), 63 D.L.R. (2d) 396; 66 DTC 5492; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; (1995), 125 D.L.R. (4th) 443; 31 Admin. L.R. (2d) 169; 183 N.R. 184; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 40 C.R.R. 100; 93 N.R. 183; Arthur v. Canada (Attorney General) (2001), 283 N.R. 346; 2001 FCA 223; 2636-5205 Québec Inc. (Re), [1993] R.J.Q. 2522; (1993), 58 Q.A.C. 81 (C.A.); 2620-5443 Québec Inc. c. Québec (Régie des alcools, des courses et des jeux), [1997] R.J.Q. 2059 (C.A.); Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42; (2003), 313 N.R. 363; 2003 FCA 454.

considered:

R. v. Sharpe, [2001] 1 S.C.R. 45; (2001), 194 D.L.R. (4th) 1; [2001] 6 W.W.R. 1; (2001), 88 B.C.L.R. (3d) 1; 146 B.C.A.C. 161; 150 C.C.C. (3d) 321; 39 C.R. (5th) 72; 86 C.R.R. (2d) 1; 2001 SCC 2; Short-term licence renewal for CHOI-FM (16 July 2002), Broadcasting Decision CRTC 2002-189; Genex Communications Inc. v. Canada (Canadian Radio-television and Telecommunications Commission) (2004), 329 N.R. 53; 2004 FCA 279; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; 2003 SCC 20; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; 2003 SCC 19; Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Chiasson c. Fillion, [2005] R.J.Q. 1066; [2005] R.R.A. 459 (Sup. Ct.); CHOI-FM re Le monde parallèle de Jeff Fillion, [2003] C.B.S.C.D. No. 21 (QL); Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commn., [1978] 2 S.C.R. 141; (1977), 81 D.L.R. (3d) 609; 36 C.P.R. (2d) 1; 18 N.R. 181; CKOY Ltd. v. Her Majesty The Queen on the relation of Lorne Mahoney, [1979] 1 S.C.R. 2; (1978), 90 D.L.R. (3d) 1; 43 C.C.C. (2d) 1; 40 C.P.R. (2d) 1; 24 N.R. 254; CRTC v. CTV Television Network Ltd. et al., [1982] 1 S.C.R. 530; (1982), 134 D.L.R. (3d) 193; 65 C.P.R. (2d) 19; 41 N.R. 271; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146; (2002), 210 D.L.R. (4th) 577; [2002] 6 W.W.R. 1; 1 B.C.L.R. (4th) 1; 1 B.C.L.R. (4th) 1; [2002] 2 C.N.L.R. 143; 165 B.C.A.C. 1; 2002 SCC 31; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 77 C.R.R. (2d) 189; 260 N.R. 1; 2000 SCC 44; Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884; (2003), 227 D.L.R. (4th) 193; [2004] 1 W.W.R. 1; 3 Admin. L.R. (4th) 163; 109 C.R.R. (2d) 65; 306 N.R. 34; 2003 SCC 36; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249; (2002), 245 N.B.R. (2d) 201; 209 D.L.R. (4th) 1; 36 Admin. L.R. (3d) 1; 281 N.R. 201; 2002 SCC 11; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; (2003), 226 D.L.R. (4th) 193; 50 Admin. L.R. (3d) 1; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29.

referred to:

Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644; (1995), 40 Admin. L.R. (2d) 40; 96 CLLC 210-010; 192 N.R. 148 (C.A.); VIA Rail Canada Inc. v. Cairns, [2005] 1 F.C.R. 205; (2004), 241 D.L.R. (4th) 700; 16 Admin. L.R. (4th) 55; 321 N.R. 201; 2004 FCA 194; Star Choice Television Network Inc. v. Canada (Customs and Revenue Agency), 2004 FCA 153; Acquisition of assets (26 February 1997), Broadcasting Decision CRTC 97-86; R. v. Latimer, [2001] 1 S.C.R. 3; (2001), 193 D.L.R. (4th) 577; 203 Sask. R. 1; [2001] 6 W.W.R. 409; 150 C.C.C. (3d) 129; 39 C.R. (5th) 1; 80 C.R.R. (2d) 189; 264 N.R. 99; 2001 SCC 1; Re C.F.R.B. and Attorney-General for Canada (1973), 38 D.L.R. (3d) 335 (Ont. C.A.); leave to appeal to S.C.C. refused 13/11/73; National Indian Brotherhood v. Juneau (No. 3), [1971] 1 F.C. 498 (T.D.); Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Therrien (Re), [2001] 2 S.C.R. 3; (2001), 30 Admin. L.R. (3d) 171; 155 C.C.C. (3d) 1; 43 C.R. (5th) 1; 84 C.R.R. (2d) 1; 271 N.R. 1; 2001 SCC 35; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; (1990), 68 D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38 O.A.C. 321; Complaints and the public examination files (18 May 1982), Public Notice CRTC 1982-36; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; (1990), 75 D.L.R. (4th) 385; [1991] 2 W.W.R. 145; 2 M.P.L.R. (2d) 217; 69 Man.R. (2d) 134; 46 Admin. L.R. 161; 116 N.R. 46; CJMF-FM Ltée v. Canadian Radio-television and Telecommunications Commission--CRTC, [1984] F.C.J. No. 244 (C.A.) (QL); Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; (2001), 200 D.L.R. (4th) 193; 36 Admin. L.R. (3d) 71; 271 N.R. 104; 2001 SCC 41; Coaticook FM Inc. (17 September 1987), Decision CRTC 87-756; CJMF-FM Ltée (29 February 1984), Decision CRTC 84-209; affd [1984] F.C.J. No. 244 (C.A.) (QL); Communications communautaires des Portages (17 September 1987), Decision CRTC 87-754; Félicien Messier, doing business under the name and style of "Cablo-Vision Saint-François-Xavier-des-Hauteurs Enr." and "Cablo-Vision Saint-Valérien Enr." (20 August 1991), Decision CRTC 91-610; Fundy Broadcasting Co. Limited, CRTC 77-148; Radio communautaire du Bas St-Laurent (17 September 1987), Decision CRTC 87-753; Riverport Satellite T.V. Limited (7 June 1995), Decision CRTC 95-296.

authors cited

Broadcasting Notice of Public Hearing CRTC 2001-14, December 14, 2001 (CRTC)

Broadcasting Notice of Public Hearing CRTC 2003-11, December 18, 2003 (CRTC).

Canadian Radio-television and Telecommunications Commission. Circular No. 444. "To all licensees of radio programming undertakings: Practices regarding radio non-compliance" (7 May 2001).

Nouveau Petit Robert: dictionnaire alphabétique et analogique de la langue française, Paris: Dictionnaires Le Robert, 2000, "censure".

Petit Larousse illustré. Paris: Larousse, 2000, "censure".

APPEAL from a decision of the Canadian Radio-television and Telecommunications decision (CHOI-FM--Non-renewal of licence (13 July 2004), Broadcasting Decision CRTC 2004-271) not to renew, under the Broadcasting Act, the appellant's broadcasting licence based on its failure to comply with licence conditions. Appeal dismissed.

appearances:

Guy Bertrand for appellant.

René LeBlanc and Bernard Letarte for respondent Attorney General of Canada.

Caroline Matte and Guy J. Pratte for respondent The Canadian Radio-television and Telecommuni-ations Commission (CRTC)

Frédéric Bachand for intervener Canadian Civil Liberties Association.

Eric Mongeau for intervener Cogeco Diffusion Inc.

No one appeared for intervener Canadian Association of Broadcasters.

Stefan Martin for intervener Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ).

solicitors of record:

Guy Bertrand et associés, Québec, for appellant.

Deputy Attorney General of Canada, for respondent Attorney General of Canada.

Borden Ladner Gervais LLP, Montréal, for respondent The Canadian Radio-television and Telecommunications Commission (CRTC).

Shadley Battista, s.e.n.c., Montréal, for intervener Canadian Civil Liberties Association.

Stikeman Elliot LLP, Montréal, for interveners Canadian Association of Broadcasters and Cogeco Diffusion Inc.

Fraser Milner Casgrain LLP, Montréal, for intervener Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ).

The following is the English version of the reasons for judgment rendered by

Létourneau J.A.:

Grounds of appeal

[1]Did the Canadian Radio-television and Telecom-munications 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 11 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 intra-jurisdictional errors

of the CRTC                                48

2. Identification of the standard of review

applicable to the constitutional validity

of the CRTC decision                            55

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 judicial discretion                        105

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 of the content of the appellant's

broadcasts                                144

3. Violation of the principles of natural justice,

the rules of procedural fairness and the

CRTC's Rules of Procedure                        149

(a) hearing before an independent and

impartial tribunal                            153

(b) right to a hearing, procedural fairness

and the CRTC Rules of of Procedure                    155

Did the CRTC err in law or make a jurisdictional error in

its choice of the measure to enforce compliance with the

Act and the Regulations?                            176

1. Breach of the principle of gradation of

enforcement measures                            181

2. Reasonable and legitimate expectation concerning

the coercive measure that would be applied and

the failure to proceed accordingly                        190

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 the exercise of the discretion                    210

2. Nullity of paragraph 3(b) of the Regulations

and the impact of this nullity on decision

CRTC 2004-271                                214

3. Constitutional invalidity of decision

CRTC 2004-271                                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 [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (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 [as am. by SOR/91-586, s. 1] of the Radio Regulations, 1986 [SOR/86-982] (Regulations) and paragraphs 3(1)(g), 10(1)(c) and (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 classes 13 and 16 of section 92 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]].

[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 11 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 [CHOI-FM-- Non-renewal of licence] (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 [Short-term licence renewal for CHOI-FM] 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 (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 [C.R.C., c. 375] 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 Genex Communications Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission) (2004), 329 N.R. 53 (F.C.A.), 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 appellant'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 Corp. v. Métromédia CMR Montréal Inc. (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."

[30]Deuxièmement, l'exercice de cette compétence fait appel à une expertise ainsi qu'à une connaissance du milieu des communications, des politiques de programmation et de diffusion que la Cour ne possède pas. Dans l'affaire Société Radio-Canada c. Métromédia CMR Montréal Inc., [1999] A.C.F. n^o 1637 (C.A.) (QL), cette Cour rappelle au paragraphe 6 qu'une demande d'attribution d'une licence, laquelle s'apparente à une demande de renouvellement, «  met en cause des éléments de politique économique et culturelle qui relèvent de l'expertise du CRTC et à l'égard desquels l'organisme possède une discrétion ».

[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 Corp. 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.

[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 (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.

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 the 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 (La), [1967] S.C.R. 60, where the Court writes [at page 76]: "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 Corp. case, this Court recognized in these words the need to show a great deal of deference toward decisions of the CRTC [at paragraphs 2-6]:

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. [Footnotes omitted.]

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 British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, the Supreme Court notes the principle at paragraphs 30-31:

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 [as am. by S.C. 2002, c. 8, s. 35] of the Federal Courts Act [s. 1 (as am. idem, s. 14)] or by way of appeal under section 31 of the Act.

[51]For example, in Dr. 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, [2005] 1 F.C.R. 205 (F.C.A.).

[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 (Customs and Revenue Agency), 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); [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., Mr. Justice Lamer [as he then was], 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., at pages 1080-1081, 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, section 303 of the Federal Courts Rules [SOR/98-106, s. 1 (as am. by SOR/2004-283, s. 2)] 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 section 109 of the Rules. 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 section 338 of the Rules. Under that section, an appellant shall include as a respondent every party in the first instance who is adverse in interest to the appellant in the appeal. Section 2 of the Rules 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 section 104 of the Rules 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) [as enacted by S.C. 1998, c. 26, s. 9] 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 section 109 of the Rules. 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. City of 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 12. 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 116-118 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 [Acquisition of assets], 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 Public 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 [R. v. Latimer, [2001] 1 S.C.R. 3], 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 652-654. 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: ibid.

[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 offences. 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 [2004-271], 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 Québec 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 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] 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] 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] 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?

[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 c. Fillion, [2005] R.J.Q. 1066. 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 licensee's reply to the complainant, as found at paragraphs 61-63 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; footnote omitted.]

[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 Quebec judgment in Chiasson c. Fillion.

[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 [Genex Communications Inc. v. Canada (Attorney General) (2005), 338 N.R. 268 (F.C.A.)].

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) of the Act (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 27-39 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 [CHOI-FM re Le monde parallèle de Jeff Fillion, [2003] C.B.S.C.D. No. 21 (QL)], 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 102-104 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- 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 111-124 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- 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] 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 lead to a loss of listeners. The licensee concluded by mentioning that it was a question of money.

The Commission considers that a suspension would only be effective if the evidence showed that the licensee's behaviour might change as a result. In the circumstances, however, there is no reason to believe that such a change would occur. The Commission is of the view that the problems identified in Decision 2002-189 and in this decision can reasonably be expected to persist, even if the licence were suspended for a period of time. The Commission considers that it cannot be concluded in this case that suspension of the licence would have the desired corrective effect of ensuring compliance with the Act and regulatory requirements. In fact, the statements made by Mr. Demers at the hearing, his reluctance and his apparent lack of understanding of his responsibilities under the Act lead the Commission to think the opposite.

The Commission acknowledges the concrete measures put in place by Genex to respond to other concerns raised in Decision 2002-189 with regard to the broadcast of short versions of musical selections, the broadcast of musical montages, incomplete logger tapes, the promotion of the consumption of alcoholic beverages, and the use of English on the air. It further recognizes the contribution the licensee makes to musical diversity through its alternative rock format and its contribution to the promotion of bands that play such music and the station's involvement in the community. The Commission also recognizes that the licensee provides employment for a number of people. Nevertheless, the Commission is of the view that these factors do not come close to outweighing the gravity of Genex's repeated violations of the Regulations and its condition of licence related to the spoken-word content, its inability to recognize or to accept responsibility for such violations and to implement the necessary corrective measures.

Ultimately, in view of the licensee's inflexible behaviour, its lack of acceptance of its responsibilities and the lack of any demonstrated commitment to rectify the situation, the Commission cannot reasonably conclude that Genex will comply with the Act, the Regulations and its Code of Ethics if its licence is renewed. The Commission also concludes that the measures available to it, such as another short-term renewal, the issuance of a mandatory order, or the suspension of the licence, would not be effective in overcoming the problems that have been identified. Consequently, the Commission denies the application by Genex Communications inc. for renewal of the licence of radio programming undertaking CHOI-FM Québec. Broadcasting by CHOI-FM must therefore cease by 31 August 2004.

In keeping with its mandate, the Commission must ensure the integrity of the licensing process and the public's right to programming that complies with the Act and the Regulations. It cannot permit the broadcast of abusive comments that contravene the Regulations, or programming that does not reflect the broadcasting policy set out in section 3(1) of the Act. Furthermore, the Commission cannot allow anyone to use the public airwaves to pursue his or her own agenda without regard for the rights of others. [Emphasis added; footnotes omitted.]

3. Proceedings before the CRTC

[112]Under subsection 18(2) of the Act, the CRTC shall hold a public hearing in connection with the renewal of a licence unless it is satisfied that such a hearing is not required in the public interest. In the case at bar, the CRTC concluded that it was in the public interest to hold one.

[113]As it was invited to do by the Notice of Public Hearing CRTC 2003-11 dated December 18, 2003, the appellant initially filed, on January 22, 2004, a 42-page written brief asking the CRTC to revise the findings of its staff in relation to Mr. R. Gillet's complaints. It asked that these complaints be dismissed, or, in the alternative, withdrawn from the public record of CHOI-FM and CKNU-FM: see the CRTC compendium in relation to the Appeal Record, Vol. 2, tab 35.

[114]The brief discloses that the appellant complained that the comments had been taken and analyzed out of context. The brief notes some criteria for analyzing a text or radio program, including the necessity to resituate comments in their context. It then explains the context of the comments made by the hosts and analyzes them, noting that, in good faith and in the public interest, the hosts were questioning the actions of older adults who were looking for sexual activities with persons of minor age.

[115]The brief goes about refuting each of the allegations made against the appellant and concludes that the appellant has complied with its Code of Ethics. The appellant alleges that the CRTC procedure deprives it of a fair trial and cites the rights of an accused under the Charter. Finally, the appellant cites the defences it intends to present, including that the hosts were justified in making the comments they did because they were based either on true facts or on an honest belief in the truth of these facts, and because the comments were made in good faith and in the public interest.

[116]By a letter dated February 3, 2004, the CRTC replied to the letter from the appellant's counsel dated January 16, 2004 and the brief dated January 24, 2004. It rejected the appellant's request to provide for two to three weeks of hearings in order to enable it to present a full answer and defence. It explained that the findings of its staff in relation to complaints are simply an opinion that is not binding on it.

[117]Concerning the criticisms that the CRTC does not have evidence pertaining to the context in which the alleged comments were made, the CRTC reminds the appellant that it had asked it to retain the logger tapes of the programs in question and that it is the appellant which erased them. Retaining the tapes was in fact a condition of licence: see the CRTC compendium in relation to the Appeal Record, Vol. 1, tab 3, Appendix I, paragraph 7. It refers to secondary evidence of hundreds of pages of transcripts by the Verbatim firm, which constitutes the best available evidence in the circumstances.

[118]Finally, the CRTC informs the appellant that if it thinks that certain matters should be considered by the CRTC in order to complete the analysis of Mr. Gillet's complaints, it can file this additional information in the public record. It was given until February 10, 2004 to do so. No information was filed by the appellant: see the CRTC Appeal Record compendium, Vol. 2, at tab 38, the letter of the CRTC of February 11, 2004, and paragraph 3991 of the transcript of the February 18, 2004 hearings.

[119]The CRTC hearings began on February 18, 2004. They were to last two days. At the opening of the hearings, the appellant filed a second brief of 23 pages with three appendices of approximately 20 pages: ibid., tab 41. Apart from an argument on the jurisdiction of the CRTC, this second brief repeats the points in the first brief on which the CRTC had already adjudicated.

[120]Following a preliminary exchange of correspondence between the CRTC, the appellant and its counsel, the appellant informed the CRTC that at the hearing its participating group would be composed of three individuals: Mr. Demers, the controlling shareholder and sole director of the appellant, Mr. Dion, the director of legal services and Mr. Bertrand, the attorney retained for the defence of its interests. It also identified, in the list of persons supporting its renewal application, 15 favourable interveners that the CRTC was prepared to hear.

[121]At the commencement of the hearing, the CRTC invited the appellant's counsel to address the five members of the panel orally for 15 minutes, according to the usual practice of the CRTC. In fact, his remarks ran for 25 minutes: see the Appeal Record, Vol. 2, pages 199-209. After these submissions by the appellant's counsel, Mr. Demers made an oral presentation of 20 minutes during which he stressed the importance of freedom of expression and the fact that the appellant had demonstrated that it was a responsible licensee which had taken all of the steps demanded by the CRTC and had even gone beyond what was asked of it: ibid, at pages 211-215.

[122]He thanked the 7,000 or so listeners who had written to the CRTC in opposition to what he called censorship of on-air remarks. He criticized Genex's Code of Ethics, particularly article 4, which he considered subjective and consequently difficult to apply. He closed by emphasizing the importance and excellence of its alternative rock format, which encourages the development of rock in French and of young performers.

[123]The presentations by Mr. Bertrand and Mr. Demers were followed by an intensive question and answer period. The questions were put to Mr. Demers by the panel members, and Mr. Bertrand and Mr. Dion, as well as Mr. Demers, were allowed to answer. The hearing ended with the presentation of the interveners.

[124]For the moment, that is basically the summary, a bit succinct I will agree, of the proceedings before the CRTC. The time has come to address the grounds of appeal.

Analysis of grounds of appeal

[125]In his written submissions and at the hearing, the appellant's counsel grouped the issues into three different blocks:

(a) Block I, which deals with breaches of the principles of natural justice: it relates to question 11;

(b) Block II, pertaining to the intra-jurisdictional questions of administrative law; it encompasses questions 2, 6, 7, 8, 9 and 10; and

(c) Block III, which concerns the constitutional questions and tallies with questions 1, 4 and 5.

[126]I note that question 3 does not appear in any of the three blocks. However, the nature of its content (a declaration that section 3 of the Regulations and the Code of Ethics are void) indicates that it belongs in block III.

[127]At the hearing, some of the questions raised in the voluminous written brief of the appellant were not discussed directly or substantially, either because they had a rather subsidiary purpose or because they intersected with those already argued. I will concentrate, therefore, on the questions given particular emphasis by the appellant and which constitute the essence or foundation of its appeal.

[128]I think it is useful to begin the analysis of the grounds of appeal by disposing of those that clearly have little or no merit.

1. Parliament's jurisdiction to make laws governing broadcasting

[129]The appellant initially questioned Parliament's authority to legislate concerning the content of broadcasting, citing subsections 92(13) and 92(16) of the Constitution Act, 1867, in relation to the distribution of powers. According to the appellant, the CRTC has the power to regulate the nature and format but not the particular content of a program. For example, the CRTC could authorize a one-hour public affairs broadcast, but it lacks the statutory jurisdiction to--and I use the appellant's expression--"censor" the content of the program and the remarks made therein.

[130]In reply, the appellant softened its position and explained what it meant or, more accurately, what should be understood from what it had said. Programs and broadcasts often have a cultural content and the provinces, especially Quebec, have an interest in culture and its development, so there must be a division of powers. It is interesting to note that, although duly invited by the appellant to intervene in the proceedings and to participate in the constitutional argument on this issue of Parliament's lack of jurisdiction or division of powers, the Attorney General of Quebec declined the invitation.

[131]The appellant's contention that Parliament, and accordingly the CRTC, does not have jurisdiction to regulate and monitor broadcast content is without merit and does violence to the legislative intention and the courts' interpretation of the Act and the statutory provisions pertaining to the distribution of powers. In other words, Parliament's power to make laws concerning the content of radio programs is illustrated clearly in the Act and especially in the case law.

[132]In the first place, the Act, in subsection 2(1), defines a "programming undertaking" as an "undertaking for the transmission of programs." Also in that section, a broadcasting undertaking means a programming undertaking and therefore an undertaking for the transmission of programs. Subparagraph 3(1)(i)(iii) stipulates that, in the context of Canadian broadcasting policy (which the CRTC has an obligation to implement through the regulation and supervision of the Canadian broadcasting system), the programming provided should "include educational and community programs." How is one to find out whether a program is educational and community-oriented, and ensure that it remains so, without auditing and regulating the content?

[133]Furthermore, "broadcasting" is defined in subsection 2(1) of the Act as any transmission of programs. To regulate and supervise broadcasting is to exercise control over the transmission of programs. Paragraph 3(1)(g) requires that the programming originated by broadcasting undertakings be of high standard. How can one say that a broadcaster's programming is of high standard if the programs it contains and disseminates are obscene, worthless or inane? How can the CRTC monitor the standard of the programming without examining its content, which is composed of broadcasted programs?

[134]As mentioned earlier, section 3 contains a host of objectives for the implementation of Canadian broadcasting policy. Is it reasonable to think that Canada's broadcasting policy is addressed only to the container but not the content of the broadcasting? I think that to ask the question is to answer it.

[135]I could go much further and demonstrate more fully the lack of merit in the appellant's submission. I could review other provisions of the Act, the requirements in the Regulations and the various codes of ethics adopted by the broadcasting undertakings, all of which testify to the regulation and supervision of program content.

[136]The cases are clear, as well, that Parliament's legislative authority extends to the regulation of program content. In Capital Cities Communications Inc. et al. v. Canadian Radio-Television Comm., [1978] 2 S.C.R. 141, at page 162, Chief Justice Laskin writes, on behalf of a unanimous Court:

I am therefore in no doubt that federal legislative authority extends to the regulation of the reception of television signals emanating from a source outside of Canada and to the regulation of the transmission of such signals within Canada. Those signals carry the programmes which are ultimately viewed on home television sets; and it would be incongruous, indeed, to admit federal legislative jurisdiction to the extent conceded but to deny the continuation of regulatory authority because the signals are intercepted and sent on to ultimate viewers through a different technology. Programme content regulation is inseparable from regulating the undertaking through which programmes are received and sent on as part of the total enterprise. [Emphasis added.]

[137]CKOY Ltd. v. Her Majesty The Queen on the relation of Lorne Mahoney, [1979] 1 S.C.R. 2, at pages 12 and 13 (see also Re C.F.R.B. and Attorney-General for Canada (1973), 38 D.L.R. (3d) 335 (Ont. C.A.), at page 340, leave to appeal to the S.C.C. denied November 13, 1973), establishes unambiguously that programming includes content and that control over the quality of programming includes control of its content:

Moreover, the expressed policy is that "programming provided by each broadcaster should be of high standard . . .". With respect, I am not in agreement with Dubin J.A. who would confine that policy to the content of such programming or, to put it in another way, to the mere words which go out over the air.

. . .

That "an undesirable broadcasting technique" may well affect the high standard of programming is, I think, self-evident. I am in agreement with counsel for the respondent that the word "programming" extends to more than the mere words which go out over the air but the total process of gathering, assembling and putting out the programmes generally which is covered by the requirement of a high standard of programming. The Commission might well have concluded that the enactment of s. 5(k) was necessary to prevent development of programming which was the opposite of "high standard". [Emphasis added.]

This position taken by the Supreme Court concerning the regulation of content was reaffirmed in CRTC v. CTV Television Network Ltd. et al., [1982] 1 S.C.R. 530, at page 545, where Chief Justice Laskin wrote:

The CKOY case turned on other considerations, but in recognizing that standards of programs include program content it merely reflected the broad interpretation given to the Broadcasting Act and to the powers thereunder vested in CRTC and in the Executive Committee respectively under ss. 16 and 17. [Emphasis added.]

[138]This leads me to conclude with this part of the appellant's argument that legislative jurisdiction should be shared, given the important cultural element involved in broadcasting policy.

[139]The appellant is asking us to re-examine this previous case law, which I cited, in light of the Charter, subsections 92(10), (13), (16), section 93 of the Constitution Act, 1867 and the following underlying constitutional principles: federalism, democracy, constitutionalism and the rule of law and the protection of the rights of minorities.

[140]In support of this request, it cites the need to protect the Quebec nation against any form of interference, encroachment or invasion by the federal authority in its fields of jurisdiction. I reproduce the heading and paragraphs 672-674 of its memorandum of fact and law:

[translation]

THE QUEBEC NATION MUST BE PROTECTED AGAINST ANY FORM OF INTERFERENCE,

ENCROACHMENT OR INVASION BY THE

FEDERAL AUTHORITY IN ITS FIELDS

OF JURISDICTION

The Constitution, which includes the underlying constitutional principles, belongs to the citizens and it is the duty of the courts to protect them against any form of legislation that would infringe their fundamental rights.

The appellant submits that, in the circumstances, the courts have an obligation to protect and support the Quebec nation, not only in all of its cultural and linguistic claims, but also in its rights under the Constitution, particularly in ss. 92.13, 92.16 and 93 of the Constitution Act, 1867.

Any doubt in the interpretation of the Constitution Act, 1867 must be resolved in favour of the Francophone minority in Canada and, in particular, in favour of Quebec, which has consistently claimed jurisdiction over culture and communications.

[141]"The Constitution of Canada does not include an express grant of power with respect to `culture' as such": see Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, at paragraph 51. As Mr. Justice LeBel of the Supreme Court of Canada states, constitutional litigation on cultural issues has generally arisen in the context of other rights such as language and education rights. The Court notes that the federal government affects cultural activity in this country "through the exercise of its broad powers over communications." It concludes that "cultural issues must be analyzed in their context, in relation to the relevant sources of legislative power."

[142]With respect, I do not think the issue before us--the non-renewal of a licence for failure to comply with the Act, the Regulations, its conditions of licence and its Code of Ethics--is the appropriate vehicle, and that consequently this Court is the adequate forum, in which to redefine the distribution of powers between the federal and provincial authorities on the basis of culture.

[143]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.

2. Allegation that the CRTC unlawfully set itself up as a censor of the content of the appellant's broadcasts

[144]Given the CRTC's power of regulation and supervision over program content to ensure the implementation of broadcast policy in Canada, and given the constitutional validity of this power, it is false to contend that the CRTC has unlawfully set itself up as a censor of the content of the appellant's programs.

[145]When the appellant's licence was first renewed, the CRTC accepted as a corrective measure proposed by the appellant the Code of Ethics the appellant submitted and undertook to implement. The Code's provisions, which were proposed by the appellant, covered the content of programs and were meant to be a means for controlling this content to ensure that the appellant's spoken-word programming was of high standard. On the second licence renewal application, the CRTC simply ascertained to what degree the appellant had conformed to its own Code of Ethics and consequently complied with the conditions of its broadcasting licence. In doing so, it was not acting as a censor of the appellant's program content but as an agency monitoring compliance with the statutory and regulatory standards and the undertakings that had been made.

[146]It is also incorrect to state that by engaging in an examination of the complaints received concerning the appellant, the CRTC exceeded its mandate and had in fact and in law set itself up as a censor of the appellant's broadcasts. Legally speaking, this Court has previously held, in Arthur v. Canada (Attorney General), and I referred to this in the "Facts and proceedings" section, that it is the duty of the CRTC, in its regulatory and supervisory function, to review complaints brought against licensees. It may be relevant to recall the findings reached by this Court, which are found at paragraph 27 of that decision:

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. [Emphasis added.]

[147]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: see Le Nouveau Petit Robert: diction-naire alphabétique et analogique de la langue française, Dictionnaires Le Robert, Paris: 2000, where 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 of after-the- fact criticism or condemnation of the words uttered: see also Le Petit Larousse illustré, Paris: Larousse, 2000.

[148]When a licence is being suspended, revoked or renewed, the CRTC's duty of surveillance implies a verification of the quality of the programming and broadcasts to determine whether they meet the standards established by the Act, the Regulations, the Codes of Ethics and the conditions of licence. Needless to say, such verification requires verification of allegations or complaints that these standards are being diluted, distorted, ignored or flouted by a licensee. In a context of licence renewal, suspension or revocation, such verification is a manifestation of the CRTC's power of review and supervision: see National Indian Brotherhood v. Juneau (No. 3), [1971] F.C. 498 (T.D.), at page 513. Should such review prove to be excessive or arbitrary, it will be judged for what it is. But the actual nature of the function will not be altered, nevertheless: it remains one of review and economic regulation, accompanied by a system of measures and, if necessary, sanctions for the achievement of the legislative and regulatory objectives.

3. Violation of the principles of natural justice, the rules of procedural fairness and the CRTC's Rules of Procedure

[149]There is some contention in the cases and authorities as to whether the rules of procedural fairness are simply a component of the principles of natural justice or vice versa, or whether there is a distinction between the two. Originally, the distinction between them was significant, owing to the differentiation that was made between quasi-judicial decisions and decisions of an administrative nature: see Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.

[150]More recently, in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraph 106, Mr. Justice Bastarache recalled the comment by Dickson J. [as he then was] in Martineau, that "the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework."

[151]In Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, we can read at paragraph 21 that the "requirements of procedural fairness--which include requirements of independence and impartiality--vary for different tribunals."

[152]That being said, it is not necessary to decide this issue in order to dispose of the appellant's arguments. That is why I discuss both questions at the same time, along with the question of the CRTC's alleged breach of its own rules of procedure.

(a) hearing before an independent and impartial tribunal

[153]At the hearing in this Court, the appellant complained of the treatment it received from the CRTC, but it submitted no evidence that the agency was neither independent nor impartial, other than the fact that it thought the 35 minutes of deliberation on its preliminary motion was too short and indicated to observers of the process that the decision had been made in advance. I make no judgment on the adjudication process on this preliminary motion since the dispute today has to do with decision 271 refusing to issue a renewal of licence.

[154]Decision 271 came after deliberation of almost five months. The CRTC also indicated in its decision the reasons for dismissing the preliminary motion. One may disagree with and even be disappointed by these reasons and the dismissal of the motion, but one cannot, in the circumstances, infer from them any evidence, still less a finding of bias.

(b) right to a hearing, procedural fairness and the CRTC Rules of Procedure

[155]Sections 32-34 of the CRTC Rules of Procedure, state that witnesses at a public hearing may be examined orally upon oath or in such other manner as the Commission may direct. The CRTC may, where it deems it advisable to do so, direct that written briefs be submitted by the parties to a hearing in addition to or in lieu of oral argument. Evidence may be introduced at a public hearing in support of statements contained in an application, intervention or reply or in support of documents or material filed in support thereof.

[156]The nature and extent of an administrative body's duty to act fairly or in accordance with the principles of natural justice vary with the specific context and the various fact situations dealt with by the administrative body, as well as the nature of the disputes it must resolve: see Therrien (Re), [2001] 2 S.C.R. 3, at paragraph 82. They do not have a fixed content irrespective of the nature of the tribunal and of the institutional constraints it faces: see IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at page 324.

[157]In Arthur v. Canada (Attorney General), at paragraph 31, a case involving a licence renewal application, in which an issue was whether there had been a breach of the rules of procedural fairness in regard to an employee of a licensee, this Court described the following procedure as being consistent with those rules:

The hearing held by the CRTC was addressed to the renewal of the holder's licence and not the applicant. The licensee was properly summoned to the hearing. It was informed of the public's complaints against it. It was also notified in Notice of Hearing 1998-7 that the complaints against station CKVL would be discussed when the interventions that had been received were heard. The licensee, in writing prior to the hearing and orally at the hearing itself, supplied the explanations it considered appropriate. It was able to lay out the measures it intended to take in order to produce high quality programming that complied with the Act and the Regulations.

The procedure described above is exactly the same as the procedure that was followed in the case at bar. In the section "Facts and proceedings", I described the process involved in CRTC proceedings.

[158]Apologizing in advance for certain inevitable repetitions, while striving to limit them as much as possible, I think it is useful to reproduce, somewhat schematically, the following chronology of the events and how they unfolded. In my humble opinion, it illustrates compliance with the principles of natural justice, the rules of procedural fairness and the CRTC Rules of Procedure:

February 27, 1997: purchase of the radio station by the appellant

Period from 1999 to 2001: 47 complaints and four programming analyses

During this period, the CRTC received 47 complaints about the programming broadcast by CHOI-FM, which can be broken down into three main categories: spoken-word content (offensive remarks or language), offensive competitions held on air and personal attacks/harassment.

The appellant had an opportunity to respond to each of these complaints. It was notified that the complaints might be reviewed subsequently by the CRTC in light of, inter alia, its condition of licence in relation to the Sex-Role Portrayal Code for Television and Radio Programming and paragraph 3(b) of the Regulations.

During the same period, the CRTC carried out four programming analyses of the station during specific periods (from March 7 to 13, 1999, from July 2 to 8, 2000, from December 31, 2000 to January 6, 2001 and from January 21 to 27, 2001). The results of each analysis were communicated to the licensee, which was given an opportunity to comment on them.

The four analyses revealed offences of several kinds and raised some concerns for the Commission, regarding such things as the quality of spoken-word content of the programming, including the licensee's compliance with paragraphs 3(b) and 3(c) of the Regulations.

December 14, 2001: notice of public hearing CRTC 2001-14

The appellant was briefed on the complaints and informed that they would be discussed at the public hearing.

February 18, 2002: commencement of public hearings at Québec

The appellant made written and oral submissions to these hearings explaining the context in which the words complained about were made and the steps taken and that it intended to take to correct the situation.

July 16, 2002: short-term renewal of appellant's licence with a number of conditions and warnings

The appellant was warned that any violation of the conditions of licence, including the Code of Ethics, could result in the application of further coercive measures under the Act, including suspension or revocation of the licence.

Period from 2002 to 2004: 45 new complaints

September/October 2002: the appellant becomes a member of the Canadian Broadcast Standards Council (CBSC)

January 29, 2003: letter from CRTC to appellant concerning relationship between CRTC and CBSC

In this letter, the CRTC explains to appellant the relationship that exists between it and the CBSC concerning processing of complaints. The appellant is informed that the CBSC, and not the CRTC, is the agency responsible for analyzing complaints for breaches of the Code of Ethics.

March 6, 2003: letter from CRTC to appellant pursuant to latter's reply to a listener complaint

This letter warned appellant about a breach of condition of licence and informed it that the correspondence concerning the complaint would be placed in the public record for discussion during the next licence renewal.

I reproduce here the two paragraphs of the letter containing this warning and informing the appellant:

[translation]

In closing, we remind you that the Code of Ethics was imposed on you as a condition of licence when your licence was renewed (Broadcasting Decision CRTC 2002-189) and that any contravention of this Code could then constitute a breach of condition of licence.

The correspondence concerning this complaint will be placed in the public record of CHOI-FM to be consulted by any interested person and for subsequent discussion by the Commission during your next renewal of licence.

June 2, 2003: letter from CRTC to appellant concerning complaints that the appellant characterizes as anonymous

The CRTC informs the appellant of its position and the way in which it deals with complaints originating from "Hotmail" e-mail addresses. It draws its attention to article 9 of its Rules of Procedure and informs it that under this clause, the CRTC must know the name and address of the complainant so that he or she is informed of the reply by the licensee. The appellant is notified that a complaint filed with the CRTC under an e-mail address, including "Hotmail", which includes a name in the e-mail message, suffices to identify the complainant.

June 20, 2003: letter from CRTC to appellant concerning an incitement to pirate television signals

The appellant is reminded that a licence is a privilege that cannot be abused.

It is also warned that apologies do not suffice to remove a complaint and clear the conduct on which the complaint is based.

This letter contains the following two paragraphs:

[translation]

Although the staff were of the opinion that it was unnecessary to intervene in the circumstances, they wish to remind the licensee that holding a licence is a privilege and not a right and that this privilege should not be unreasonably abused. The staff are also of the opinion that CHOI-FM's hosts and journalists must not make inappropriate remarks on air in the belief that they will be exculpated subsequently by their apologies. Apologies are not in themselves sufficient to state that there is no reason to intervene in response to a complaint.

October 7, 2003: appellant's application for a renewal of licence

In this application, the appellant states that it believes it has complied with its conditions of licence since its renewal in 2002. It tells the CRTC not to concern itself with the content of the 45 complaints it has received.

It asks the CRTC to amend its licence to relieve it of the conditions concerning the Code of Ethics, the need to have an advisory committee and to retain the logger tapes for 90 days.

December 18, 2003: notice of public hearing

On this occasion the appellant is notified that 29 complaints will be reviewed during the hearing and that the CRTC staff believe that offences to clauses 2, 3, 6, 17 and 18 of the Code of Ethics may have been committed.

The appellant is also warned of the possibility that an order under section 12 of the Act will be issued against it or that its licence will be suspended or not renewed under sections 24 and 9 of the Act. The text of these warnings reads:

[translation]

The Commission expects the licensee to show cause at this hearing why a mandatory order under section 12 of the Broadcasting Act (the Act), requiring the licensee to conform to the Regulations and to the condition of licence that requires the licensee to comply with the CHOI-FM Code of Ethics should not be issued.

The Commission also expects the licensee to demonstrate at this hearing why the Commission should not suspend or refuse to renew the licence, under sections 24 and 9, respectively of the Act.

January 22, 2004: request by appellant

The appellant asks by way of written request to the CRTC to withdraw from the file the complaints of Mr. R. Gillet or to postpone the hearing.

It requests a hearing of two to three weeks in duration and it files a 42-page brief explaining its position, the context in which the comments complained of were made, and how they are justified and acceptable.

February 3, 2004: Five-page letter from CRTC rejecting the appellant's request

This letter informs the appellant that it may make additional representations if it so desires, and gives it until February 10 to comply. The offer goes unanswered.

February 18 to 20, 2004: public hearing on the renewal of the licence [Emphasis added.]

[159]At the commencement of the hearing the appellant brought a motion in writing challenging the CRTC's jurisdiction to deal with complaints, including those of Mr. R. Gillet and Cogeco Radio-Télévision Inc. The motion also reiterated all the submissions made in the brief of January 22, 2004 that had been rejected by the CRTC.

[160]As mentioned previously, a second brief of 23 pages and three appendices of about 20 pages were also filed by the appellant at the hearing.

[161]The appellant's counsel and Mr. Demers, the principal shareholder and sole director of the appellant, were each heard in turn. And, let it be recalled, there were two days of discussion with Mr. Demers, the appellant's counsel at the hearing, its director of legal services and the interveners concerning the appropriateness of renewing the appellant's licence and, if so, on what conditions.

[162]As we will see in the analysis of the appellant's submissions, all of its grievances concerning breaches of natural justice, procedural fairness and the CRTC's rules of procedure converge toward and are based on a single postulate: the appellant is entitled to a full answer and defence and was deprived of the time and the opportunity needed to submit it.

[163]In fact, the appellant sought to transform the public hearing on the renewal of its licence into a criminal trial in which it could have cross-examined witnesses and challenged each complaint on its merit, calling the hosts and several witnesses who endorse the remarks in question. It criticizes the CRTC for not laying penal charges against it, as allowed by sections 32 and 33 of the Act, and makes this an independent ground of appeal that I will have an opportunity to consider when discussing the hierarchy of enforcement measures under the Act.

[164]As an integral part of its full answer and defence, the appellant sought to present a defence of truth or honest belief in the truth, that is, to establish that the remarks were true or that it believed them to be true and that consequently they were justified.

[165]The CRTC is the master of its procedure. Under section 21 of the Act, it may make rules respecting the conduct of its business, notably the procedure for applications for renewal of licences, for making representations and complaints to the Commission and for the conduct of hearings. It would be total anarchy if each licensee could dictate to it, as it wished, the procedure that was most convenient to it. In Baker v. Canada (Minister of Citizenship and Immigration), at paragraph 27, Madam Justice L'Heureux-Dubé restates the principle applicable to the duty of procedural fairness:

Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J. [Emphasis added.]

[166]A public hearing on the renewal of a licence and the procedure governing it takes place in an administrative and regulatory law context where the purpose of the exercise is not to determine for punitive purposes whether a licensee has committed one or more offences but to find out whether, in the public interest, and in compliance with Charter values and the implementation of broadcasting policy in Canada, it is appropriate to continue to provide a radio frequency to a licensee. In the case at bar, this issue was posed in a particularly striking way in regard to a licensee on whom conditions of licence had already been imposed on a previous renewal because it was not complying with or adhering to those criteria. This was an opportunity to assess the overall performance of a licensee: see Public Notice CRTC 1982-36, a copy of which was given to the appellant, entitled Complaints and the public examination files, where the objective in processing complaints is explained: CRTC compendium respecting Appeal Record, Vol. 2, tab 36. In other words, the purpose of the public hearing is not to examine the complaints one by one to determine whether the licensee has committed a penal offence, but to discuss the complaints overall and find out whether, in the context in which the alleged remarks were made and repeated, it is appropriate to renew a licence that would have the effect of allowing such remarks to be made, endorsing them and, for all practical purposes, promoting them on the airwaves.

[167]The procedure followed by the CRTC provides that complaints are analyzed as a group. The appellant would like to have a trial on each complaint with a corresponding right of appeal. The CRTC processes 2000 broadcasting licences and some 800 applications for amendment of licences per year. One need not be particularly foresighted to predict the paralysis entailed by the procedure advocated by the appellant. The more complaints there were against a licensee, the more trials there would be and the more delays in the decision on the appropriateness or not of renewing the licence while awaiting a final decision on these trials. Meanwhile, the licensee, whose licence would have expired by lapse of time, would continue to operate under its licence with some judicial stays, as in the present case. The same system would then have to be applied to licence suspension or revocation proceedings. This is tantamount to saying that these measures to enforce compliance with the Act, the Regulations, the conditions of licence and the other Charter values become a dead letter.

[168]I am far from being persuaded--this euphemism denotes understatement on my part--that the CRTC's procedure in the treatment of complaints on a renewal of licence is a breach of the rules of natural justice or procedural fairness.

[169]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. 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. In that case we are not talking about cross-examination but about representations and, if necessary, testimony by it to explain them. It is then up to the CRTC to determine whether these facts or remarks meet the requirements of the Act, the Regulations, the conditions of licence or the Codes of Ethics.

[170]For that purpose, the licensee is invited to explain how and why these facts or remarks, when resituated in context, are not, for example, degrading personal attacks, obscene remarks, defamatory, invasive of privacy or integrity, or remarks that might expose a person or class of persons to hatred or contempt on grounds of discrimination prohibited by the Charter or the Codes of Ethics. The licensee is fully able to express its point of view on the context, the nature of the remarks, their meaning, the scope and lawfulness of the applicable legal standards, its good faith, the efforts made to comply with the Act and other legal provisions.

[171]Actually, in this case, that is precisely what the appellant did, both in writing and orally. To do so, it elected to resort to the services of its president, its counsel, its director of legal services and some favourable interveners.

[172]The appellant is attempting to develop an argument from criminal law based on the expression "apparent failure of the licensee to comply" in the Notice of Public Hearing CRTC 2003-11 dated December 18, 2003, in which the CRTC says it "notes the apparent failure of the licensee to comply with section 3 of the Radio Regulations, 1986". This is a standard formula used by the CRTC to inform a licensee of the nature of the offences alleged against it and the fact that this issue will be discussed at the public hearing. For example, on the appellant's first application for licence renewal, the apparent failure had to do with the logger tapes. The Notice of Public Hearing [CRTC 2001-14] of December 14, 2001 stated: "The Commission notes the apparent failure of the licensee to comply with the Radio Regulations, 1986 concerning the provision of logger tapes."

[173]The complainant argues that the CRTC, through its use of these terms, has convicted it and put the onus on it to come and prove the contrary, which, it says, violates the Charter and criminal law rules that an accused is presumed innocent and the prosecution has the burden of proving guilt beyond a reasonable doubt.

[174]It is really scraping the bottom of the barrel to make such an argument. I agree, the expression is an unfortunate one and should refer instead to an alleged failure to comply. But it is obvious, when the expression is resituated in its context, as the appellant asks be done when the issue is its own on-air remarks, that the expression is not a presumed finding of guilt, does not convert the forthcoming public hearing into a criminal trial and does not turn the appellant into an accused with the burden of exculpating itself. We are talking about information in a Public Notice intended to inform the appellant more clearly so that it can prepare adequately for an administrative and regulatory hearing on the renewal of its privilege. The appellant is not an accused and the rules governing the burden of proof in criminal proceedings do not apply in this case. It is necessary to bear in mind the purpose and nature of the public hearing: it is a hearing, at the appellant's request, on its own application for renewal of its broadcasting licence.

[175]In conclusion, 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. The appellant was amply informed of the issues and allegations placed on its record. It was warned on more than one occasion of the derogatory nature of its spoken-word programming. It was given notice of possible steps to be taken, including non-renewal of its licence. It was invited to explain itself in accordance with the rules laid down by the CRTC and it availed itself of this invitation by filing written briefs, making submissions and having its own lawyers and favourable interveners make submissions. It did not consider it advisable to avail itself of the invitation made to it by the CRTC, in its letter of February 3, 2004, to file additional information concerning the analysis of the complaints filed by Mr. R. Gillet. The procedure followed on this second renewal application was the same as the one that prevailed on the first application for renewal and which ended in favour of the appellant through a conditional renewal of licence. A similar procedure taken on a second licence renewal involving the same general problem as the first cannot be considered fair or unfair on the basis of whether the ultimate conclusion of the proceeding is favourable or unfavourable to the appellant.

Did the CRTC err in law or make a jurisdictional error in its choice of the measure to enforce compliance with the Act and the Regulations?

[176]The CRTC has a number of means or measures to get licensees to comply with the Act, the Regulations, its decisions and its orders: establishing conditions for operating under the licence issued (paragraphs 9(1)(b) and (c)), suspending or revoking licences (paragraph 9(1)(e)), issuing orders to enforce compliance with the obligations under the Act, its orders, decisions, or regulations or the licences issued, prohibiting the doing of anything in contravention thereof (subsection 12(2)), refusing to renew licences (paragraph 9(1)(d)), initiating penal prosecutions (sections 32 and 33) and making regulations respecting such other matters as it deems necessary for the furtherance of its objects (paragraph 10(1)(k)).

[177]At the hearing the appellant submitted three arguments to establish that the CRTC had either erred in law in the exercise of its jurisdiction or had refused to exercise its jurisdiction.

[178]First, by refusing to renew the appellant's licence, the CRTC had failed to comply with the principle of gradation of measures. It should have renewed the licence with some conditions, issued an order to comply with the Act or resorted to penal proceedings. It could not, the appellant says, impose the death penalty on it as it did in not renewing its licence.

[179]Second, the CRTC did not live up to the reasonable and legitimate expectation it had created that it would issue a mandatory order under subsection 12(2) of the Act.

[180]Finally, the measure chosen was, in the appellant's view, extremely harsh and unprecedented. I will discuss these arguments in that order.

1. Breach of the principle of gradation of enforcement measures

[181]The appellant raised the issue by speaking about the principle of gradation of sentences and referring us to some principles of criminal law and disciplinary law. With respect, I do not think the analogy is appropriate and completely accurate.

[182]I agree with the representatives of the Attorney General of Canada that the decision not to renew a licence cannot, strictly speaking, be considered a disciplinary or penal sanction. The context, need it be recalled, is an administrative and regulatory one in which the issue is the appropriateness from the standpoint of the public interest of renewing a licence. In that context, failure to comply with a condition of licence imposed in the public interest, as this Court has previously held, constitutes conduct that may justify a refusal to renew a licence without such refusal infringing freedom of expression or the Charter: see CJMF-FM Ltée v. Canadian Radio-television and Telecommuni-cations Commission--CRTC, [1984] F.C.J. No. 244 (C.A.) (QL). If we are to talk about sanctions, we must then talk about an administrative sanction and apply the appropriate legal regime which, as we know, is different from the legal regime applicable to penal or disciplinary sanctions.

[183]In 2636-5205 Québec Inc. (Re), [1993] R.J.Q. 2522 (C.A.), where the appellant was summoned to appear before the Commission des transports du Québec to justify the renewal of its transportation licence, the Quebec Court of Appeal, at pages 2542, 2560 and 2561, notes, as we did in the CJMF-FM Ltée case, that a licensee must always comply with the conditions of issuance and use of its licence.

[184]Furthermore, in reply to the appellant's argument that other sanctions, less costly to it, ought to have been imposed, the Court, first, restates the importance of the fact that the legislature had delegated to the Commission [translation] "the responsibility to assess the needs of the public and how to meet them, to the exclusion of all other tribunals or agencies": idem, at page 2548.

[185]Turning to the question of the Commission's choice of measures, the Court writes, at page 2548:

[translation]

The question is not whether other sanctions could have been imposed but whether the one that was imposed by the Commission members is one that is provided by law.

Having held in fact that the appellant had itself, without prior authorization, ceased to provide the services covered in its licences, the Commission held that the appellant no longer merited its confidence as a carrier serving that region and revoked its licences.

The law provides for such sanctions. This Court does not have authority to assess the correctness of the sanction, as in criminal matters. [Emphasis added.]

[186]Similarly, in 2620-5443 Québec Inc. c. Québec (Régie des alcools, des courses et des jeux), [1997] R.J.Q. 2059 (C.A.), where a liquor permit was revoked for failure to respect public tranquillity, the Quebec Court of Appeal rejected the licensee's contention that the Régie's decision to revoke its permit violated the principle of gradation of sentences, which would require that the power of revocation or suspension of a permit be used only in case of extreme necessity. At page 2064, after criticizing the Trial Judge's approach of engaging in a comparison of the various penalties imposed in a number of cases, the Court writes that [translation] "any difference in penalties between the cases is dependent on the facts of each case; and the assessment of those facts by the specialized tribunal is first and foremost a matter for its discretion."

[187]I agree with these conclusions of the Quebec Court of Appeal. 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. At most, the Court may satisfy itself that the CRTC, in the exercise of its discretion, considered the relevant factors without adding to them any irrelevant factors. The actual exercise of weighing these factors, which generally pertains to the CRTC's field of expertise, is a matter for the CRTC. "It is not normally the business of a reviewing court to substitute its view of the relative weight to be attributed to various factors considered in the exercise of discretion for that of the specialist administrative agency to which Parliament has entrusted the task": Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42 (F.C.A.), at paragraph 14 (per Evans J.A.).

[188]Even in disciplinary law, to which the appellant refers us, the principle remains that the appropriate disciplinary sanction is the one that is justified by the facts and circumstances of the case. If the facts warrant a withdrawal of an operating licence rather than a mere suspension, then ordering the withdrawal involves no breach of the law. For example, in Law Society of New Brunswick v. Ryan, where Ryan, a lawyer, was disbarred by a discipline committee of the Law Society, the Supreme Court writes, at paragraph 59:

There is nothing unreasonable about the Discipline Committee choosing to ban a member from practising law when his conduct involved an egregious departure from the rules of professional ethics and had the effect of undermining public confidence in basic legal institutions.

[189]The appellant's argument has no legal basis in the present context and must be rejected.

2. Reasonable and legitimate expectation concerning the coercive measure that would be applied and the failure to proceed accordingly

[190]The appellant submits that the CRTC, through Notice of Hearing CRTC 2003-11, dated December 18, 2003, and particularly through Circular No. 444, dated May 7, 2001, led it to believe that the appropriate measure in its case would be a renewal of licence accompanied by an order to comply with the Act, the Regulations and its Code of Ethics.

[191]It is well known that the doctrine of reasonable expectations is procedural and does not create any fundamental rights: it is simply an extension of the principles of natural justice and the rules of procedural equity: see Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, at page 1204; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249. "The doctrine can give rise to a right to make representations, a right to be consulted or perhaps, if circumstances require, more extensive procedural rights. But it does not otherwise fetter the discretion of a statutory decision-maker in order to mandate any particular result" (emphasis added). See Moreau-Bérubé, at paragraph 78. The expectation must not conflict with the public authority's statutory mandate and substantive relief is not available under this doctrine: see Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, at paragraphs 29, 32 and 38.

[192]In the case at bar, the choice of enforcement measures lies with the reviewing agency and it is discretionary: see section 9 of the Act. The doctrine of reasonable expectations cannot, therefore, force it to renew a licence with, in support, an order to comply with the law. That would suffice to dispose of the appellant's argument. But there is more.

[193]For the doctrine to operate, the agency's conduct in the exercise of its discretion "including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified" must have induced in the complainant a reasonable expectation that it will retain a benefit or be consulted before a contrary decision is taken (emphasis added): see C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 131. Furthermore, "[t]o be `legitimate', such expectations must not conflict with a statutory duty."

[194]In the case at bar, I do not think it is possible to conclude that, by its practices, conduct or representations, the CRTC could reasonably have led the appellant to believe that it would retain its licence. On the contrary.

[195]The Notice of Public Hearing of December 18, 2003, which the appellant cites in support of its contention, is quite far from creating the reasonable expectation that it claims. The most that can be said in its favour is that the Notice is ambiguous and does not contain a clear, unambiguous and unqualified represen-tation that the appellant will retain its licence but will be issued an order to comply with the law. At worst, it clearly, unambiguously and specifically states that all of the options are open in regard to enforcement measures. Let us see what this Notice contains.

[196]First, the Notice makes an explicit reference to the CRTC decision on the first renewal of the appellant's licence, in which the CRTC informs it that if in the future there is a contravention of the Regulations or the conditions of licence, it could be called to a public hearing "to show cause why the Commission should not issue such an order or apply any of its enforcement measures including revocation or suspension of the licence" (emphasis added): see the CRTC compendium in regard to the Appeal Record, Vol. 1, tab 19.

[197]After referring the appellant to the numerous complaints received concerning the spoken-word content of its programming and informing it that there appeared to be a violation of section 3 of the Regulations and sections 2, 3, 6, 17 and 18 of its Code of Ethics, the Notice contains the following two paragraphs:

The Commission expects the licensee to show cause at this hearing why a mandatory order under section 12 of the Broadcasting Act (the Act), requiring the licensee to conform to the Regulations and to the condition of licence that requires the licensee to comply with the CHOI-FM Code of Ethics should not be issued.

The Commission also expects the licensee to demonstrate at this hearing why the Commission should not suspend or refuse to renew the licence under sections 24 and 9, respectively of the Act. [Emphasis added.]

[198]At the public hearing, the appellant, in accordance with the Notice, was invited to discuss non-renewal in view of the violations of the Act, the Regulations and its conditions of licence.

[199]It should be kept in mind that the hearing occurred pursuant to the appellant's application for renewal of its broadcasting licence. The issue of non-renewal per se was already on the agenda of the public hearing since the discretionary power to renew includes the power not to renew.

[200]Circular No. 444 is a directive or information of a general nature concerning the practices pertaining to non-compliance of a radio station. Dated May 7, 2001, it is addressed to all licensees of radio programming undertakings. I reproduce it for consultation and analysis, while underlining certain passages:

CIRCULAR No. 444

Ottawa, 7 May 2001

To all licensees of radio programming undertakings

Practices regarding radio non-compliance

Each year, the Commission processes numerous licence renewal applications, including those relating to radio stations. This circular clarifies how the Commission deals with the licence renewals of radio stations that have been found in apparent non-compliance with the provisions of the Broadcasting Act, the Radio Regulations, 1986 or the conditions of their licence.

1. The Commission assesses the compliance of radio licensees with requirements set out in the Broadcasting Act (the Act), the Radio Regulations, 1986 (the regulations) and in conditions of licence through the complaints process or on its own initiative pursuant to its compliance monitoring plan. The compliance record of each station during a licence period is usually reviewed at the time that the Commission considers the renewal of the station's licence. When a station is found to be operating in compliance, the Commission normally renews the licence for a term of seven years, subject to its regional licence renewal plan and considerations related to its workload.

2. Non-compliance most often occurs with respect to requirements regarding logger tapes, the level of Canadian music broadcast and, for French-language stations, the level of French-language vocal music selections. Requirements related to logger tapes are set out in sections 8(5) and 8(6) of the regulations, while those related to levels of Canadian and French-language vocal selections are found within section 2. Stations can, however, be in non-compliance with other requirements.

3. When analyses of stations are performed, the Commission affords each the opportunity to comment in writing on the preliminary results. When apparent non-compliance is observed for the first time in relation to a station, the Commission notes that observation in the Public Notice that calls for public comment on the renewal of the licence. Since the licensee has been given an opportunity to comment on the findings of apparent non-compliance through correspondence and to specify the measures that will be put into place to ensure future compliance, the licensee is usually not asked to appear at a public hearing. The station normally is granted a short-term licence renewal, generally for four years, to permit a further review of its compliance within a reasonable period of time.

4. The procedure is different where a licensee is already operating under a short-term renewal due to non-compliance during the previous licence term and is found to be in apparent non-compliance during the current licence term, or where a licensee is found in apparent non-compliance twice during a full licence term. In these situations, the Notice of Public Hearing calling for public comment on the renewal of the licence mentions the nature of the non-compliance and generally specifies that the licensee is expected to show cause why a mandatory order should not be issued pursuant to section 12(2) of the Act. As well, the licensee is generally called to appear at a public hearing to discuss the problem.

5. Based on the evidence filed or heard, the Commission may issue a mandatory order requiring the fulfilment of any requirement after it has considered an instance of apparent non-compliance with that requirement. A mandatory order may become an order of the Federal Court or any superior court of a province when the Commission files the order with the court. The mandatory order then becomes enforceable in the same manner as orders of the Court. According to the Federal Court Rules, anyone who disobeys an order of the Court may be found guilty of contempt of court, and may be subject to a financial penalty.

6. If the Commission is fully satisfied with the measures that the licensee has taken and is satisfied that non-compliance is not likely to recur, it generally does not impose a mandatory order but renews the licence for a term not exceeding two years. Where the Commission is not satisfied that the licensee has taken all necessary measures to ensure that non-compliance will not recur, and where it considers that a short-term renewal may not in itself correct the non-compliance situation, it may also issue a mandatory order.

Secretary General [Emphasis added.]

[201]Circular No. 444 indicates in a general way the process that is followed when a radio station does not comply with the statutory and regulatory requirements. It is not intended to solve individual cases. It does not have the effect of binding the CRTC's exercise of its discretion in the choice of enforcement measures to ensure the implementation of Canadian broadcasting policy. Section 6 of the Act expressly provides that the CRTC is not bound by the guidelines or statements it issues:

6. The Commission may from time to time issue guidelines and statements with respect to any matter within its jurisdiction under this Act, but no such guidelines or statements issued by the Commission are binding on the Commission.

[202]If this general circular of 2001 may, by its general nature, have created some doubt in the appellant's mind, or even a legitimate expectation of favourable treatment at the time of renewal, I think the Notice of Public Hearing and the exchanges between the appellant and the CRTC, before and during the hearing, should have dispelled that doubt and indicated to the appellant that its expectation was neither legitimate nor reasonable in the circumstances. It would be extremely naive to think that the possibility of a licence non-renewal was not a contemplated option and conceivable when an initial renewal was for a short term (two years instead of seven) in order to ensure compliance with the regulatory system and monitor the licensee's compliance within a reasonable period, when this initial renewal had been made subject to significant conditions of licence, when an Advisory Committee and a Code of Ethics had been imposed, when 47 new complaints had been filed within the following year and a half, and when the appellant was informed more than once that non-renewal was an option being contemplated.

[203] The appellant's contention that it believed in the existence of a reasonable expectation that its licence would be renewed with an order has no factual or legal basis.

3. An unprecedented and extremely harsh measure

[204]It is false to say that the non-renewal of the appellant's licence is unprecedented. The following decisions are cases in which the CRTC, in the public interest, did not renew a broadcaster's licence: CJMF-FM Ltée, CRTC 84-209, upheld by this Court, [1984] F.C.J. No. 244 (C.A.) (QL); Coaticook FM Inc., CRTC 87-756; Communications communautaires des Portages, CRTC 87-754; Félicien Messier, doing business under the name and style of "Cablo-Vision Saint-François-Xavier-des-Hauteurs Enr." and "Cablo-Vision Saint-Valérien Enr.", CRTC 91-610; Fundy Broadcasting Co. Limited, CRTC 77-148; Radio communautaire du Bas St-Laurent, CRTC 87-753; and Riverport Satellite T.V. Limited, CRTC 95-296. It is true that there are not many cases, but this indicates two things: that broadcasting undertakings, as a general rule, act in a responsible way, and that the CRTC is parsimonious in its exercise of this coercive measure, using it when the public interest so requires and other measures prove ineffective.

[205]The appellant's counsel compared the non-renewal of the appellant's licence, on a scale of severity, to a death sentence. It is a striking image, but the factual and legal reality is somewhat different.

[206]Legally, as I said earlier, the appellant's licence was a fixed-term licence and the appellant was not automatically entitled to the renewal, particularly in the circumstances.

[207]Factually, the term has expired and the licence has come to an end. Non-renewal in these circumstances means that the radio frequency becomes available and will be offered on the market. The appellant is not excluded from the bidding process that normally follows. If it offers the necessary guarantees, it may be awarded the licence again.

[208]There is no doubt that the decision not to renew a licence is a serious measure and a source of inconvenience. However, the issue for the CRTC was not whether the decision would have some detrimental consequences for the appellant, but whether it was appropriate and justified in the circumstances.

[209]The time has now come to consider the nub of the question, the CRTC's exercise of its discretion, to determine whether it was lawfully exercised.

Did the CRTC exercise its discretion judicially?

1. No error of law in the consideration of factors relevant to the exercise of the discretion

[210]An analysis of the CRTC decision reveals that the agency scrupulously examined and weighed all of the factors it considered relevant in making a decision on a renewal of licence. I listed them at the very beginning of these reasons and in the part dealing with decision 271. I have no intention of repeating them.

[211]The appellant has not denied that these factors were relevant. It wanted them to be weighted differently, but it was unable to demonstrate that the CRTC had committed any error of law in the weighting exercise in which it engaged. Similarly, it was unable to identify any relevant factors that the CRTC had supposedly failed to consider and that would have affected its decision-making and its decision.

[212]As one can read in the conclusions and reasons of its decision, the CRTC dwelt at some length on the choice of the measure, the relative ineffectiveness of the measures adopted at the time of the first renewal, the appellant's attitude and the gravity and frequency of the offences noted, to recall only a few of the grounds. Again, the appellant is unable to criticize it for anything, other than the question of the appropriate weight to be given to the factors considered. That is the CRTC's field of expertise, which dictates deference on our part.

[213]That being said, it is necessary to consider, in this context, the appellant's argument that paragraph 3(b) of the Regulations is unconstitutional and that decision 271 is also unconstitutional.

2. Nullity of paragraph 3(b) of the Regulations and the impact of this nullity on decision 271

[214]Paragraph 3(b) of the Regulations imposes a limitation on the broadcasting of any abusive comment that incites hatred or contempt on the basis of prohibited grounds of discrimination. For greater accuracy, I reproduce the full text of the paragraph:

3. A licensee shall not broadcast

(a) anything in contravention of the law;

(b) any abusive comment that, when taken in context, tends to or 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;

[215]The appellant is asking that paragraph 3(b) be declared of no force and effect because it is in breach of the freedom of expression guaranteed by paragraph 2(b) of the Charter.

[216]The appellant is also asking that its own Code of Ethics be likewise declared of no force and effect. This is the Code that it developed and undertook to comply with during its first renewal of licence. The CRTC made it a condition of licence. I do not think it is necessary to decide this question. The appellant's licence has ended, and to the degree that the Code was made a condition of licence, it too has ended with the licence, other than for the duration of the present proceedings pursuant to the order of this Court. If the matter were to be sent back to the CRTC for re-adjudication on the issue of renewal, it would be up to the CRTC to make a decision on whether or not to impose a Code of Ethics and to determine the content thereof.

[217]With respect, I do not think it is possible to find that the CRTC failed to exercise judicially its discretion not to renew the appellant's licence, even if I were to declare paragraph 3(b) unconstitutional.

[218]The CRTC found violations by the appellant of clauses 2, 3, 6, 17 and 18 of its Code of Ethics. Under clause 2 of this Code, the appellant undertook to make every effort to ensure that its programming is of high standard and not an instigation to contempt or hatred. It acknowledged the right to privacy (clause 3). It undertook that its hosts and journalists would not use the airwaves to launch personal attacks (clause 6). It agreed that participants in a program or an open-line program, public figures, listeners, and formal or informal groups are entitled to respect and should not be harassed, insulted or ridiculed (clause 17). Finally, it recognized that coarse or vulgar remarks have no place in programming (clause 18).

[219]As mentioned previously, compliance with this Code became a condition of use of the licence, and it was simply not respected. Non-compliance with a condition of licence is conduct that may warrant non-renewal of a broadcasting licence without necessarily resulting in an infringement of freedom of expression and a breach of the Charter: see CJMF-FM Ltée v. Canada. A finding that such a case produces an infringement of freedom of expression or a breach of the Charter would lead to forced or automatic renewals of licences, even when confronted with egregious violations of the policies and objectives of the Act or of other Charter rights.

[220]Simply stated, the CRTC's decision 271 is based on a number of findings about the appellant's conduct and the measures that were to ensure its compliance with the regulatory regime: the ineffectiveness and obsequiousness of its Advisory Committee, a breach of the Act and the Codes of Ethics concerning the quality of spoken-word programming, a violation of the rights to privacy and human dignity guaranteed by the Charter and the Codes of Ethics, a violation of the rights to psychological integrity and reputation also guaranteed by the Charter, unjustified personal attacks, insults, and vulgar and crude comments in contravention of the conditions of licence. Even if the consideration of paragraph 3(b) of the Regulations is excluded from the decision, and even admitting for the sake of argument that it was an error to refer to that paragraph, this error in no way affects the decision as a whole and cannot warrant any intervention on our part: see Law Society of New Brunswick v. Ryan, at page 270.

[221]The appellant makes much of the guarantee of freedom of expression in paragraph 2(b) of the Charter and seems to want to treat it as unqualified, something that the courts have never recognized. 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. 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. To accept the appellant's proposition would mean using the Charter to make the State or its agencies an instrument of oppression or violation of the individual rights to human dignity, privacy and integrity on behalf of the commercial profitability of a business.

[222]In view of the conclusion I have reached concerning the lack of impact of paragraph 3(b) of the Regulations on decision 271, it is unnecessary to rule on its constitutional validity.

3. Constitutional invalidity of decision 271

[223]The appellant's argument that decision 271 of the CRTC is constitutionally invalid appears to me to be without merit, essentially for the reasons given in the preceding paragraphs.

[224]The CRTC exercised its discretion within the parameters of sections 9 and 3 of the Act. I am satisfied that this exercise of discretion does not go beyond the limitations on freedom of expression that these two statutory provisions themselves may allow constitutionally within the confines of section 1 of the Charter: see Slaight Communications Inc., at page 1081. This conclusion is also compatible with this Court's conclusion in CJMF-FM Ltée.

Conclusion

[225]The appellant attempted, but without success, to demonstrate that the CRTC failed to exercise judicially its discretion on renewals of licences. It was unable to establish a breach of the principles of natural justice, the standards of procedural fairness and the CRTC's own rules of procedure, which would amount to an error of law warranting our intervention. It was also unable to demonstrate a jurisdictional error or such material error in law as would make decision 271 on non-renewal unreasonable and require that it be set aside.

[226]Consequently, I would dismiss the appeal with costs to the Attorney General of Canada, but without costs to or against the interveners. I would include the CRTC for this purpose in the category of interveners, notwithstanding that the appellant made it a party to this appeal.

Reconnecting the judicial respirator

[227]It now remains for me to examine the issue of reconnecting the judicial respirator, which allowed the appellant to continue operating its radio station pending the outcome of the appeal until a judgment of this Court is rendered.

[228]At the hearing, the parties were questioned about the appropriateness of reconnecting the judicial respirator if the appeal were dismissed and the appellant wished to appeal to the Supreme Court of Canada. The appellant, of course, asked that its judicial licence be extended. The respondents, for their part, preferred to study the judgment and the reasons before determining and stating their position. I think that is a legitimate preference. In any case, no agreement was possible at that time on the duration of this extension, even if the appropriateness of granting such an extension had been conceded.

[229]If, once they have examined the judgment, the appellant and the Attorney General of Canada were to agree on the question of an extension and its duration, the appellant could, within 20 days of the date on which it was informed of the judgment, present to the Court, by a letter addressed to the Registrar of the Federal Court of Appeal, in Ottawa, a request for extension under the terms of the consent and attach that consent to it. It is clear that the Court is not bound by a request on consent and may deny it or amend its terms.

[230]Should there be no agreement between the appellant and the Attorney General of Canada, I would order that the appellant, if it wishes to obtain an extension of its judicial licence, serve and file, within 20 days of the date on which it is informed of this judgment, a motion in writing to that effect. The motion shall be served on the Attorney General of Canada.

[231]As under the principles applicable to a stay of execution of a judgment, the appellant would have to establish that its application for leave to appeal to the Supreme Court of Canada raises a serious question for determination, that it will suffer irreparable harm that cannot be compensated monetarily if there is no extension and that the balance of convenience favours it.

[232]Within 20 days of the date on which he is served with the motion and motion record, the Attorney General of Canada shall serve and file his record in reply.

[233]The written submissions of the appellant/ applicant and of the respondent on the motion shall not exceed 30 pages each and must be consistent with sections 65 and 70 [as am. by SOR/2002-417, s. 9] of the Federal Courts Rules, or they will be rejected.

[234]The decision on the motion will be made on the basis of the written submissions by the parties.

[235]The appellant's licence will be deemed to remain in force, in accordance with all of its terms and conditions, including compliance with all the regulatory requirements imposed under the Act and the regulations pertaining thereto, until the end of the 20th day from the date on which the appellant was informed of this judgment, if no motion for extension is served and filed or if no request for extension on consent is sent to the Registrar within this period.

[236]Should any such motion be filed or any such request be sent, the licence will be deemed to remain in force on the same conditions and in accordance with the same terms until a decision is made by this Court on the motion or on the request.

Richard C.J.: I agree.

Nadon J.A.: I agree.