National Indian Brotherhood, Indian-Eskimo
Association, Union of Ontario Indians and
Canadian-Indian Centre of Toronto (Applicants)
v.
Pierre Juneau, H. J. Boyle, Mrs. P. Pearce, Hal
Dornan, R. Therrien, and the Canadian Radio -
Television Commission (Respondents)
No. 3
Trial Division, Walsh J.—Toronto, June 14;
Ottawa, December 3, 1971.
Judicial Review—Certiorari—Mandamus—Broadcast-
ing—CRTC—Refusal to order public inquiry of complaint
against proposed telecast—Whether reviewable by Court—
Broadcasting Act, R.S.C. 1970, c. B-11, s. 19(2)(c).
On May 26, 1971, the Executive Committee of the CRTC
passed a resolution that it was not satisfied it was in the
public interest to hold a public hearing on applicants' com
plaint that a film proposed to be telecast by the CTV
network was defamatory of Indians. Applicants applied to
this Court for certiorari to review the proceedings of the
CRTC concerning their complaint and for mandamus to
compel the CRTC to hold a public hearing on their
complaint.
Held, dismissing the application, the CRTC's decision not
to hold a public hearing into applicants' complaint was not
reviewable by the Court on an application for certiorari or
mandamus. A decision by the CRTC under s. 19(2)(c) of the
Broadcasting Act., R.S.C. 1970, c. B-11, as to whether it is
in the public interest to hold a public hearing on a complaint
is entirely within the discretion of the CRTC.
Pure Spring Co. v. M.N.R. [1946] Ex.C.R. 471; Gam-
ache v. Jones [1968] 1 Ex.C.R. 345, distinguished.
J. Kars wick for applicants.
Claude Thompson and J. D. Hylton for
respondents.
WALSH J.—This matter came on for hearing
before me in Toronto on June 14, 1971 on a
motion asking
(a) For an Order by way of Mandamus directed to Pierre
Juneau, H. J. Boyle, Mrs. P. Pearce, Hal Dornan, R.
.Therrien, all the members of the Executive Committee of
the Canadian Radio-Television Commission, to decide,
declare or state whether they are satisfied that it would be
in the public interest to hold a public hearing into the
complaint filed by the Applicants with respect to the film
"The Taming of the Canadian West",
And further, to decide, declare or state the basis for such
declaration or statement,
(b) In the alternative, for an Order for the issuance of a
Writ of Certiorari directing the Secretary of the Canadian
Radio-Television Commission, its members, officers and
directors to forthwith transmit to the office of the Regis
trar of the Federal Court of Canada all letters, memos,
papers, certificates, records and all proceedings had or
taken concerning the complaint filed with respect to "The
Taming of the Canadian West",
And further, for an Order by way of Mandamus directing
the Canadian Radio-Television Commission to hold and
conduct a public inquiry into the complaint filed by the
Applicants with respect to the film, "The Taming of the
Canadian West".
(c) For such further and other Order as may seem just.
In my judgment dated June 18, 1971 [see
page 66], I dealt with certain of the objections
raised by respondents to the proceedings but
withheld a decision on the merits as the appli
cants had also elected to proceed under the
provisions of section 28 of the Federal Court
Act before the Court of Appeal for an order to
set aside the decision of the Executive Commit
tee of respondents of May 26, 1971 that it
would not be in the public interest to hold a
public hearing on the complaint filed, and the
hearing of an application for directions under
the provisions of Rule 1403 in connection with
this application had been fixed for June 21,
1971 at Toronto. While I expressed doubt as to
whether the Court of Appeal could or would
accept jurisdiction under the provisions of the
said section 28(1) of the Act, especially in view
of the provisions of section 61(1) of the Act,
which reads as follows:
61. (1) Where this Act creates a right of appeal to the
Court of Appeal or a right to apply to the Court of Appeal
under section 28 to have a decision or order reviewed and
set aside, such right applies, to the exclusion of any other
right of appeal, in respect of a judgment, decision or order
given or made after this Act comes into force, unless, in the
case of a right of appeal, there was at that time a right of
appeal to the Exchequer Court of Canada.
it is clear that, according to section 28(3) of the
Act, which reads as follows:
28. (3) Where the Court of Appeal has jurisdiction under
this section to hear and determine an application to review
and set aside a decision or order, the Trial Division has no
jurisdiction to entertain any proceeding in respect of that
decision or order.
the Trial Division would have no jurisdiction in
the event that the Court of Appeal should
decide to hear and determine an application to
review and set aside the said decision. I there
fore indicated that as the Court of Appeal
would itself be deciding at an early date wheth
er or not it had jurisdiction, I would defer my
decision on the merits pending the outcome of
its findings.
On the hearing of the application for direc
tions by Jackett C.J. in Toronto on June 21,
1971, he rendered judgment from the Bench
[see page 73], considering the question of juris
diction and indicating his opinion that, in view
of the provisions of section 61(1) of the Federal
Court Act and that the decision was made on
May 28, 1971', the Court of Appeal is preclud
ed from having jurisdiction in the matter. His
judgment expressed the hope that, unless the
application was withdrawn, either the respond
ents or the Deputy Attorney General of Canada
would make a motion to quash under Rule
1100(1) so as to raise the matter of jurisdiction,
and stated that if no such motion was made
within ten days and the application was not
withdrawn, it was anticipated that the Court,
consisting of three judges, would then issue a
direction under Rule 1100(2) giving the parties
an opportunity to be heard on the jurisdiction
question 2 . After a brief discussion of what type
of decision or order may be brought within the
meaning of "a decision or order of an adminis
trative nature not required by law to be made
on a judicial or quasi-judicial basis" within the
meaning of section 28(1) of the Federal Court
Act, and raising, but expressing no opinion on,
the question of whether section 19 of the
Broadcasting Act does not make the question
as to whether a particular complaint should be
dealt with by "public hearing" or some other
way that complies with basic principles one of
absolute, unconditional discretion for the
Executive Committee, the judgment goes on to
state that in his view a judge of the Trial Divi
sion should not feel any reluctance to decide a
question concerning the jurisdiction of the
Court of Appeal when that question is inciden
tal to determining the jurisdiction of the Trial
Division as he has just as much right to decide
such a question when it arises before him as the
Court of Appeal has when it arises in that
Court.
Subsequently, an application for an injunc
tion was made by applicants herein against the
CTV Television Network Limited seeking to
restrain it from re-broadcasting the film com
plained of "The Taming of the Canadian West"
which was heard in Toronto on July 16, 1971
and judgment rendered from the Bench by Kerr
J. [see page 127], who, after expressing doubt
that in the Broadcasting Act Parliament intend
ed to give to the Federal Court of Canada, Trial
Division, jurisdiction to enjoin the CTV from
broadcasting a particular programme, as the
Court would then, in effect, be exercising func
tions of regulation and supervision of the
Canadian broadcasting system that Parliament
has seen fit to entrust to the CRTC, refused to
grant the injunction. I understand that the pro
gramme was then re-broadcast. Subsequently,
no further steps have been taken by either party
in the proceedings before the Court of Appeal,
whether by way of withdrawing the application
or by a motion to quash same for want of
jurisdiction, nor has the Court issued a direction
under Rule 1100(2) giving the parties an oppor
tunity to be heard on the jurisdiction question.
As several months have elapsed it now appears
unlikely that any further action will be taken
with respect to those proceedings. In view of
the re-broadcast of the offending programme,
despite all efforts taken by applicants to pre
vent same, the decision to be rendered on the
matter before me may now be merely of aca
demic interest, but as the right to a public
hearing, which applicants seek to force the
CRTC to hold with respect to the said pro
gramme, does not depend on whether or not it
was in fact re-broadcast, and since the question
of whether the decision of the CRTC not to
hold such a public hearing is subject to review
by the Court is one of considerable importance
with respect to possible future actions of a
similar nature, I believe it is now incumbent
upon me to render a judgment on the merits of
the motion before me.
In view of the provisions of section 61(1) of
the Federal Court Act and the fact that the
decision not to hold a public hearing was made
on May 26, 1971, that is to say before the
provisions of that Act came into effect on June
1, 1971, I have reached the conclusion that the
Court of Appeal does not have jurisdiction
under section 28(1) of the Act to review the
decision of respondents. Having reached this
conclusion it is unnecessary for me to deal with
the second question of whether it would, in any
event, lack jurisdiction because the decision or
order was of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis. It follows that sitting as a
judge of the Trial Division I have jurisdiction to
determine the merits of the motion before me
for a writ of mandamus and certiorari.
In order to do so it is necessary to go to some
extent into the factual background of the dis
pute. Some time in March 1970 the CTV Net
work screened the film entitled "The Taming of
the Canadian West" which, according to the
applicants, is blatantly racist, historically inac
curate, and slanderous to the Indian race and
culture. Applicants first communicated with the
Ontario Human Rights Commission which
arranged a private screening of the film but was
unable to arrange a meeting between represen
tatives of the CTV Network and the Indians to
discuss the areas of complaint and could not
compel any action by the CTV as this was a
matter within federal jurisdiction. A brief was
then prepared and supported by applicants' con
sultants, Dr. E. S. Rogers, Curator of Ethnolo
gy, Royal Ontario Museum, and Mrs. Norma
Sluman, an historical consultant, pointing out
the misinformation and historical inaccuracies
in the film and this brief was filed with the
Canadian Radio-Television Commission on
June 22, 1970. Despite repeated letters from
applicants' attorneys requesting the CRTC to
conduct a formal investigation, it was not until
September 24, 1970 that the General Counsel
of respondents wrote indicating that the produc
tion had been reviewed by the Programmes
Branch and that a report to the Commission had
been prepared. On October 14, 1970, appli-
cants' attorneys, having learned that a written
rebuttal to the brief had been prepared by Mr.
Frank Rasky, who had written the book on
which the programme was based, requested a
copy of this rebuttal and by letter dated Octo-
ber 27, 1970 this was refused on the basis that
it was part of the Commission's material and
not in the public records of the Commission.
When applicants' attorneys pointed out to
respondents that at their request they had sent
the CTV a copy of their complaints, and that
therefore they could not understand why the
same courtesy and consideration was not
extended to them in connection with the reply,
they were then sent on November 17, 1970
what purported to be a copy of Mr. Rasky's
reply, allegedly with the consent of Mr. Rasky
for its release. This was a four page document
and it was not until May of 1971 that applicants
received from the CTV a complete copy of Mr.
Rasky's rebuttal which consisted of thirty
pages.
It was not until February 2, 1971 that appli
cants' attorneys received a letter from J. H.
McKernin, Acting Director of the Broadcast
Programmes Branch of respondents, indicating
that an examination of the matters surrounding
the programme had been concluded by the
Commission and that while it did raise certain
problems, it was not felt that it warranted fur
ther examination. The letter went on to recom
mend that applicants meet with representatives
of the CTV Network to discuss the problems
and through negotiations to reach an agreement
as to whether some editing would resolve fur
ther difficulties. In reply to this, by letter dated
March 3, 1971, applicants' attorneys again
requested a formal investigation into the matter,
and meanwhile requested that the CRTC
arrange a meeting between the CTV and
representatives of the Indian Group and the
officers of the CRTC to discuss the specific
complaints. Nearly one month later, on April 2,
1971, following a telephone call from appli
cants' attorneys, Mr. McKernin reiterated his
suggestion of a meeting between applicants and
CTV representatives, which meeting a represen
tative of the CRTC would attend as applicants'
attorneys insisted. Applicants then arranged a
meeting for May 6, 1971 and advised Mr.
Arthur Weinthal, Director of the CTV Televi-
sion Network of this by letter dated April 26
and on April 27 wrote respondents requesting
them to have a representative at the meeting.
On April 30, however, Mr. Weinthal wrote
them, enclosing a copy of Mr. Rasky's reply to
the complaint and indicating that since appli
cants had not reviewed Mr. Rasky's comments,
it seemed to him unnecessary to plan a meeting
until they had had an opportunity to make this
review. On May 3, applicants' attorneys replied
indicating the urgency of the meeting in view of
the expressed intention to telecast the movie
again in July, and again requested Mr. Weinthal
to attend the meeting on May 6. This was
followed by a telegram dated May 4, 1971 from
the CRTC to applicants' attorneys stating that
they were not attending the meeting on May 6,
since as Mr. Weinthal had stated in his letter of
April 30 that it seemed unnecessary to plan a
meeting until applicants had had an opportunity
of reviewing Mr. Rasky's comments, apparently
both parties were not ready to meet to resolve
the problem on May 6. On May 5 applicants'
attorneys sent a special delivery letter to the
CRTC expressing shock at this telegram, con
firming that they had studied Mr. Rasky's reply
and were prepared to outline their areas of
differences with the CTV at the meeting and
that they objected strongly to the meeting being
cancelled by the CTV or by the CRTC and
again reiterating their intention of holding the
meeting. A copy of this was sent to Mr. Wein-
thal of the CTV. Neither the CTV nor the
CRTC attended the meeting.
By letter dated May 7, 1971, applicants'
attorneys communicated with the Honourable
Gérard Pelletier, sending copies to the CRTC
and CTV, asking for his direction and guidance
and advising that they would have no alterna
tive but to commence court action against the
CRTC to compel them to discharge their statu
tory duties by conducting an inquiry against the
CTV and to ask for an injunction to stop the
re-screening of this movie if no response was
received within two weeks. Finally, on May 21,
1971, applicants' attorneys sent a letter to
Pierre Juneau, Chairman of the CRTC, confirm-
ing their intention of instituting proceedings and
asking for advice in the terms of section 19 of
the Broadcasting Act as to whether the Execu
tive Committee was satisfied that it would be in
the public interest to hold a public hearing. In
this letter it was indicated that if no reply was
received within three days it would confirm
their impression that the CRTC was avoiding
making the decision.
Presumably, as a result of this letter, the
Executive Committee of the CRTC met on May
26, 1971 and under the heading "Other Mat
ters" the Minutes of the Meeting state as
follows:
Letter received on May 26, 1971 from Mr. James Karswick
representing the Indian Group who has requested a public
inquiry on the programme "The Taming of the Canadian
West". It was resolved that the Executive Committee is not
satisfied that it would be in the public interest to hold a
public hearing on the complaints filed by Mr. Karswick's
client and asked the Chairman to send a telegram to Mr.
Karswick expressing the opinion of the Executive
Committee.
This decision was communicated to applicants'
attorneys by telegram dated May 28, 1971,
reading as follows:
ACCORDING TO WELL ESTABLISHED PRACTICE
AND TRADITION IN BROADCASTING IN CANADA,
THE LICENSEE OF A BROADCASTING UNDERTAK
ING IS RESPONSIBLE FOR THE PROGRAMMES HE
BROADCASTS. THIS POLICY IS REITERATED IN
SECTION 2 OF THE 1968 BROADCASTING ACT.
THE COMMISSION FIRMLY BELIEVES THAT THIS
POLICY IS OF VITAL IMPORTANCE TO THE
MAINTENANCE OF THE RIGHT TO FREEDOM OF
EXPRESSION IN THE CANADIAN BROADCASTING
SYSTEM. A DECISION TO SUSPEND THE BROAD
CAST OF A PROGRAMME OR TO CONDUCT AN
INVESTIGATION INTO A SINGLE PROGRAMME
SUCH AS THE TAMING OF THE CANADIAN WEST IS
A MOST SERIOUS ONE.
YOUR LETTER OF MAY 21, 1971 IS THE FIRST
NOTICE TO THE CRTC THAT YOU WISH THE COM
PLAINTS OF YOUR CLIENTS TO BE CONSIDERED
UNDER SECTION 19 OF THE BROADCASTING ACT
AT A PUBLIC HEARING. IN LIGHT OF THE MAT
TERS RAISED ABOVE, AND THE WILLINGNESS
EXPRESSED BY CTV TO MEET TO DISCUSS THE
PROGRAMME, THE EXECUTIVE COMMITTEE IS
NOT SATISFIED THAT IT WOULD BE IN THE
PUBLIC INTEREST TO HOLD A HEARING ON YOUR
CLIENTS' COMPLAINT. THE COMMISSION HOPES
THAT YOUR CLIENTS AND THE CTV WILL PURSUE
THIS MATTER AND THAT YOUR CLIENTS WILL
AVAIL THEMSELVES OF THE OPPORTUNITY
OFFERED TO THEM TO HAVE ANY INACCURACIES
IN THE PROGRAMME CORRECTED OR SEEK OTHER
SOLUTIONS WHICH COULD RESOLVE THE DIFFER
ENCES. COPY OF THIS TELEX SENT TO CTV.
PIERRE JUNEAU CRTC
I have gone at some length into the factual
background of the present proceedings as it is
particularly indicative of the positions and atti
tudes taken by the various parties concerned,
and in my view justifies applicants' feelings of
frustration at the manner in which their com
plaints were being dealt with. In the first place,
although applicants' initial complaint was set
forth in detail in a brief filed with the CRTC on
June 22, 1970, it was not until eight months
later, and only after repeated urging by appli
cants' attorneys, that the examination of the
complaint was completed, as indicated by Mr.
McKernin's letter of February 2, 1971. This
letter merely expressed the hope that by meet
ing with representatives of the CTV Network
and negotiations with them an agreement could
be reached acceptable to all parties.
Secondly, although this reply was far from
satisfactory to applicants, they nevertheless
accepted the suggestion and endeavoured to
arrange a meeting with the CTV representa
tives. It soon became apparent that the latter
had no serious intention of meeting or negotiat
ing the problems and certainly not of refraining
from re-broadcasting the programme. The
CRTC indicated by letter dated April 2, 1971
that it would have a representative attend the
meeting since applicants insisted on this. On
April 26 applicants arranged the meeting for
May 6 but on April 30 Mr. Weinthal of CTV
made it very clear that he considered the meet
ing unnecessary, relying on the excuse that he
was only just sending a copy of Mr. Rasky's
reply to the criticism levelled by applicants and
that they would not have time to review it
before May 6. This is, to say the least, an
extraordinary position to take. Applicants
wanted to hold a meeting urgently in view of
the impending re-broadcast of the programme in
July, and the CTV in effect tell them that they
should not desire to hold it so soon because
they have not had time to study material which
the CTV are only then sending them. Surely
applicants are the best judges of whether or not
they would have time to review such material
and if any postponement of the meeting were to
be made as a result of such lack of time it
should be they who would request it and not the
CTV themselves. The fact that the CRTC had
taken eight months to examine material sent to
them and investigate the complaint does not
justify an assumption that applicants were inca
pable of perusing and studying Mr. Rasky's
thirty page submission in six days. Despite this
obviously flimsy excuse by the CTV to avoid
meeting with applicants, the respondent, CRTC,
adopted Mr. Weinthal's views and in the tele
gram dated May 5, 1971 indicated that in view
of Mr. Weinthal's letter apparently the parties
are not ready to meet to solve the problem on
May 6. Despite further letters from applicants'
attorneys protesting vigorously against this
postponement neither the CTV nor the CRTC
attended the meeting. In fairness to the CRTC it
must be pointed out that since they themselves
had not arranged the meeting, and apparently
were unwilling to do so or to bring any pressure
on the CTV representatives to attend, it would
obviously have been futile for them to have
sent a representative knowing that Mr. Weinthal
had no intention of attending the meeting on
behalf of the CTV. However, their ready
acquiescence to Mr. Weinthal's unilateral can
cellation of the meeting certainly indicates that
they had no intention of forcing him to meet
with applicants' representatives, even though
they had expressed the hope that such a meet
ing might prove useful.
Thirdly, although at the request of the CRTC
applicants had sent a copy of their brief com
plaining about the programme to the CTV, the
CRTC at first refused to give them a copy of
Mr. Rasky's reply to it, and it was only when
this discrepancy in the manner in which the two
parties were being treated was called to their
attention that they then released to applicants a
truncated version of this reply. As a result, it
was only in late May that applicants received
Mr. Rasky's full reply and the delay in furnish
ing this was then used by the CTV, with the
approval of the CRTC, as an excuse for not
attending the meeting which had been arranged.
Fourthly, the telegram from the CRTC to
applicants' attorneys on May 28, 1971 advising
them of the decision of the Executive Commit
tee of May 26 not to hold a public hearing
contains some extraordinary statements, to wit:
YOUR LETTER OF MAY 21, 1971 IS THE FIRST
NOTICE TO THE CRTC THAT YOU WISH THE COM
PLAINTS OF YOUR CLIENTS TO BE CONSIDERED
UNDER SECTION 19 OF THE BROADCASTING ACT
AT A PUBLIC HEARING.
While this may be technically true, certainly it
is abundantly clear by the correspondence over
a period of nearly a year that a hearing was
precisely what applicants were seeking and
which they felt they had not received. The
telegram goes on to state:
...IN LIGHT OF THE MATTERS RAISED ABOVE,
AND THE WILLINGNESS EXPRESSED BY CTV TO
MEET TO DISCUSS THE PROGRAMME, THE EXECU
TIVE COMMITTEE IS NOT SATISFIED THAT IT
WOULD BE IN THE PUBLIC INTEREST TO HOLD A
HEARING ON YOUR CLIENTS' COMPLAINT.
Again, it may be technically correct to say that
the CTV had expressed willingness to meet to
discuss the programme, but they had made it
clear that they considered such a meeting futile,
and it must certainly have been evident by this
time to all parties that the CTV had no intention
of voluntarily making any major changes in the
programme or withholding it from being re
broadcast, unless compelled to do so.
It seems evident that the CRTC, while con
stantly expressing the hope that the parties
could get together and adjust their differences
so that the matters in dispute could be buried
and forgotten, was unwilling to take any posi
tive action whatsoever beyond agreeing on
applicants' insistence to •send a representative
to such a meeting when and if same could be
arranged, nor was it willing, or perhaps able, to
bring any pressure whatsoever on the CTV Net
work to compel it to withdraw or make changes
in the said programme, or even to compel it to
attend a meeting to discuss same . The CTV, for
its part, having no doubt invested substantial
sums in the said programme which had proved
very controversial following its first broadcast,
was eager to reap the fruits of the controversy
which it had aroused and broadcast it again, and
while willing, if obliged to, to make minor
changes in questions of historical accuracy, it
had no intention whatsoever of making major
alterations or of withdrawing the film from fur
ther broadcast.
I am not of course dealing with the merits of
the programme, which question is not before
me, but merely with the attitude of the various
parties to the dispute as revealed by their corre
spondence and other communications. Neither
am I concluding that, merely because applicants
appear to have been dealt with rather harshly,
and their complaints, whether justified or not,
only examined after long delays and frustrating
obstructions, they necessarily have the right to
the relief they now seek, which is a matter of
law. It is now necessary therefore to examine
the Broadcasting Act to determine just what
powers it gives the CRTC to control the content
of programmes being broadcast by the networks
or individual stations.
Under the heading "Broadcasting Policy for
Canada" the Broadcasting Act R.S.C. 1970, c.
B-11 states in section 3(b) as follows:
(b) the Canadian broadcasting system should be effective
ly owned and controlled by Canadians so as to safeguard,
enrich and strengthen the cultural, political, social and
economic fabric of Canada;
Section 3(c) reads as follows:
(c) all persons licensed to carry on broadcasting undertak
ings have a responsibility for programs they broadcast but
the right to freedom of expression and the right of per
sons to receive programs, subject only to generally appli
cable statutes and regulations, is unquestioned;
Section 3(g)(iv) reads as follows:
(g) the national broadcasting service should
(iv) contribute to the development of national unity and
provide for a continuing expression of Canadian
identity;
Section 15, under the heading "Objects of the
Commission" reads as follows:
15. Subject to this Act and the Radio Act and any direc
tions to the Commission issued from time to time by the
Governor in Council under the authority of this Act, the
Commission shall regulate and supervise all aspects of the
Canadian broadcasting system with a view to implementing
the broadcasting policy enunciated in section 3 of this Act.
Under the heading "Powers of the Commission"
we find in section 16 the following:
16. (1) In furtherance of its objects, the Commission, on
the recommendation of the Executive Committee, may
(b) make regulations applicable to all persons holding
broadcasting licences, or to all persons holding broadcast
ing licences of one or more classes,
(i) respecting standards of programs and the allocation
of broadcasting time for the purpose of giving effect to
paragraph 3(d),
(c) subject to this Part, revoke any broadcasting licence
other than a broadcasting licence issued to the
Corporation.
Section 3(d) reads as follows:
(d) the programming provided by the Canadian broadcast
ing system should be varied and comprehensive and
should provide reasonable, balanced opportunity for the
expression of differing views on matters of public con
cern, and the programming provided by each broadcaster
should be of high standard, using predominantly Canadian
creative and other resources;
Section 19 makes a public hearing mandatory in
connection with the issue of a broadcasting
licence or where the Commission or the Execu
tive Committee has under consideration the
revocation or suspension of a broadcasting
licence, and also makes it mandatory in connec
tion with the renewal of a broadcasting licence
unless the Commission is satisfied that such a
hearing is not required. Other uses of the public
hearing procedure are not mandatory, however,
and, in particular, section 19(2)(c) reads as
follows:
19. (2) A public hearing shall be held by the Commission,
if the Executive Committee is satisfied that it would be in
the public interest to hold such a hearing, in connection with
(c) a complaint by a person with respect to any matter
within the powers of the Commission.
While the Act sets out the procedure in connec
tion with such public hearing, it is silent as to
what action the Commission can take as a result
of such a public hearing save, of course, for the
revocation or suspension of a licence or refusal
to renew same when it comes up for renewal.
Section 14(4) dealing with the powers of the
Executive Committee reads as follows:
14. (4) For the purposes of this Act, any act or thing
done by the Executive Committee in the exercise of the
powers conferred on it by this Part shall be deemed to be an
act or thing done by the Commission.
Section 18(2) provides that the Executive
Committee may from time to time and shall, in
accordance with any direction to the Commis
sion issued by the Governor in Council under
the authority of the Act, require a licensee to
broadcast any programme deemed to be of
urgent importance to Canadians generally or to
persons resident in the area to which the notice
relates. It is significant that, although this sec
tion provides for an order to be issued under
certain conditions requiring a certain pro
gramme to be broadcast, there is no similar
provision whatsoever for an order to be issued
prohibiting the broadcast of any given
programme.
Section 64(3) of the Federal Court Act, when
read in conjunction with Schedule B of that
Act, which came into effect on June 1, 1971,
repeals subsections (1) to (4) of section 26 of
the Broadcasting Act and substitutes therefor
an appeal to the Federal Court of Appeal upon
a question of law or a question of jurisdiction
upon leave therefor being obtained. This would
appear to be in addition to the right to review
provided under section 28(1) of the Federal
Court Act but would also be subject to the
provisions of section 61(1) of that Act so that
the Court of Appeal would not have jurisdiction
to hear an appeal against the decision of May
26, 1971 even if such an appeal had been
sought by applicants. It is of interest to note
that subsections (3) and (4) of section 26 of the
Broadcasting Act which were repealed had
given the Exchequer Court of Canada exclusive
original jurisdiction over, among others, writs
of certiorari or mandamus relating to any deci
sion or order of the Commission or any pro
ceedings before the Commission but had pro
vided that such decisions or orders were not
subject to review or to be restrained by such
proceedings on the ground that the question of
law or fact was erroneously decided by the
Commission or that the Commission had no
jurisdiction to entertain the proceedings in
which the decision or order was made, or to
make the decision or order. As a result of this
repeal, such proceedings now come within the
less restrictive provisions of section 18 of the
Federal Court Act, and the fact that the motion
before me was filed on May 28, 1971 would not
affect this jurisdiction since it is not section
61(1) of the Act which applies but section
61(2), which section reads as follows:
61. (2) Subject to subsection (1), any jurisdiction created
by this Act shall be exercised in respect of matters arising
as well before as after the coming into force of this Act.
It is also of interest to note that sections 25 and
26(5) of the Broadcasting Act were not
repealed by the Federal Court Act. These sec
tions read as follows:
25. Except as provided in this Part, every decision or
'order of the Commission is final and conclusive.
26. (5) Any minute or other record of the Commission or
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 broadcasting licence,
be deemed for the purposes of section 25 and this section to
be a decision or order of the Commission.
The effect of the retention of these sections
would appear to be that since the decision or
order which is complained of does not relate to
the issue, amendment, renewal, revocation or
suspension of a broadcasting licence, it will not
be deemed to be a decision or order of the
Commission for the purposes of section 25 and,
hence, to be final and conclusive.
Reading the Act as a whole and in particular
the sections to which I have referred, I find it
difficult to conclude that Parliament intended to
or did give the Commission the authority to act
as a censor of programmes to be broadcast or
televised. If this had been intended, surely
provision would have been made somewhere in
the Act giving the Commission authority to
order an individual station or a network, as the
case may be, to make changes in a programme
deemed by the Commission, after an inquiry, to
be offensive or to refrain from broadcasting
same. Instead of that, it appears that its only
control over the nature of programmes is by use
of its power to revoke, suspend or fail to renew
the licence of the offending station.
Basing himself on the generalized statements
in the Act under the heading "Broadcasting
Policy for Canada" and, in particular, sections
3(b) and 3(g)(iv) (supra), applicants' counsel
argued strongly that it was the duty of the
Commission to ensure that the Canadian broad
casting system should be effectively owned and
controlled by Canadians "so as to safeguard,
enrich and strengthen the cultural, political,
social and economic fabric of Canada" and that
the national broadcasting service should "con-
tribute to the development of national unity and
provide for a continuing expression of Canadian
identity". Even if one were to assume that the
programme in question was so offensive as to
constitute an infringement of these policies, it is
apparent that these sections are not intended to
apply to each and every programme but to
broadcasting policy as a whole. Section 3(b), for
example, refers to the ownership and control of
Canadian broadcasting system by Canadians so
as to safeguard the policies therein set out,
while section 3(g)(iv), stating that the national
broadcasting service should contribute to the
development of national unity and provide for a
continuing expression of Canadian identity,
appears to be referring to the service as a
whole. Even section 16 of the Act, dealing with
the powers of the Commission respecting the
issuing of licences, although it states in subsec-
tion (1)(b)(i) (supra) that the Commission may
make regulations respecting standards of pro
grammes and the allocation of broadcasting
time, limits this to the purposes of giving effect
to section 3(d), which is merely a section prov
iding that the programming should be varied
and comprehensive and provide reasonable
balanced opportunities for the expression of
differing views on matters of public concern
and be of high standard, using predominantly
Canadian creative and other resources. Here
again it is apparently the general programming
that is being referred to and not any individual
programme and, in any event, as already stated,
the only sanction provided would be the revoca
tion, suspension or refusal to renew the licence
if a programme did not comply with this
regulation.
Turning now to section 19 of the Act with
respect to which the decision of the Executive
Committee, which by virtue of section 14(4) is
equivalent to a decision by the Commission,
was made, the section clearly sets forth that a
public hearing shall be held if the Executive
Committee is satisfied that it would be "in the
public interest to hold such a hearing" in con
nection with a complaint by a person with
respect to any matter within the powers of the
Commission. The decision of the Executive
Committee made on May 26, 1971 on the
urging of counsel for the applicants, was to the
effect that it would not be in the public interest
to hold such a hearing. Applicants' counsel
argued that since the Minute recording this
decision referred only to his letter, it was made
without an adequate examination of the subject-
matter of the complaint and that in exercising
its administrative authority under section 19,
the Executive Committee was not acting in a
judicial manner. I cannot agree with this argu
ment. The members of the Executive Commit
tee, one of whom was Mr. Juneau himself, had
certainly participated in the lengthy discussions
which had been going on for nearly a year and
can be assumed to be aware of the contents of
the study made which had led to the report in
February, referred to in Mr. McKernin's letter
of February 2, and it is not necessary nor usual
to include in the Minutes recording a decision
reached at a meeting details of all the arguments
and information received which led to this deci
sion. Without expressing either approval or dis
approval of this decision, since I have neither
the authority to do so, nor all the information
which was before the Committee, nor have I
even seen the programme, I can nevertheless
state that it is even difficult to see what could
have been gained by a public hearing since
there is no provision in the Act to the effect
that, during such a hearing, the broadcast or
re-broadcast of a programme shall be prohibit
ed. While a public hearing would have enabled
the applicants to make their side of the question
known to the public, it would not apparently
have accomplished their primary objective
which was to prevent the offensive programme
from being televised again, nor perhaps even
their secondary objective of preventing further
programmes of a similarly allegedly offensive
nature from being produced. On the contrary,
the controversy aroused would have made the
public even more anxious to see the programme
complained of and played right into the hands
of the CTV who had every intention of televis
ing it a second time. Many a book or play has
owed its success to publicity resulting from the
banning of or controversy surrounding same.
Such an inquiry would have taken many months
to complete and, meanwhile, the programme
would have been broadcast again as, in fact, it
was.
Section 3(c) of the Act, under the heading
"Broadcasting Policy for Canada" sets forth:
3. It is hereby declared that
(c) all persons licensed to carry on broadcasting under
takings have a responsibility for programs they broadcast
but the right to freedom of expression and the right of
persons to receive programs, subject only to generally
applicable statutes and regulations, is unquestioned;
This seems to impose a sort of self-censorship
on the individual licensees which is, in practice,
not very effective and does not prevent them
from producing from time to time programmes
which are in poor taste or offensive to a sub
stantial number of viewers. So long as they do
not infringe on laws relating to slander, libel or
obscenity, they are apparently on safe ground
as there is nothing in the Act which gives the
CRTC the right to act as censor of the contents
of any individual programme. It is apparent in
the manner in which the Commission handled
this complaint that it does not intend to act as
such. The revocation, suspension or failure to
renew a licence is such a serious matter that it
is not a course the Commission is likely to
adopt save for grave and repeated offences, and
it would appear that it is reluctant to use this
power as a threat to compel the individual licen
sees or, in the present case, a broadcasting
chain, to alter or withhold a programme with
respect to which complaints have been
received. The most it was prepared to do in the
present case was to attempt to bring the parties
together in the hope that they, themselves,
might find a satisfactory solution to their con
troversy. I therefore find that under the existing
law the decision of the Executive Committee
that it would not be in the public interest to hold
a public hearing was an administrative one
which it was entitled to make. It is not for the
Court to comment on whether or not the CRTC
should be given more powers of control over
the subject-matter of programmes broadcast or
televised by its licensees as this is a decision
which Parliament alone can make but, at pres
ent, it is evident that the powers given to it in
this field are very limited and ineffective.
In paragraph (a) of their notice of motion,
applicants ask for an order by way of man-
damus calling on the Executive Committee of
the CRTC to decide, declare or state whether
they are satisfied that it would be in the public
interest to hold a public hearing into the com
plaint filed by the applicants. Apparently, at the
time this motion was drawn applicants were not
aware that the Executive Committee had
already reached this decision at a meeting on
May 26. Up until that date the Executive Com
mittee had not made any decision under section
19(2)(c), which is the section in question,
allegedly because it had not specifically been
asked to do so. Had it refused to apply this
section and made a decision as to whether or
not in its view it would be in the public interest
to hold a hearing in connection with the com-
plaint, it might well have been in order for
applicants to seek a mandamus and compel it to
make such a decision. However, as this decision
had already been made by the time the motion
was filed, no order can be made for the relief
requested in the said paragraph (a).
Had the Commission decided to hold a public
hearing and had then conducted same in a non-
judicial manner or refused the right to 'appli-
cants to have their witnesses heard at such a
public hearing or had otherwise impeded the
presentation of their case there might then poss
ibly have been ground for the issuance of a writ
of certiorari, but since the decision of the
Executive Committee was merely to the effect
that it would not be in the public interest to hold
a public hearing, I am not of the opinion that it
was necessary for the Executive Committee to
conduct some sort of a hearing before reaching
this decision. The Executive Committee, as I
have already indicated, can be presumed to
have had all pertinent information before it,
even though same is not specifically referred to
in the Minute recording its decision, and in
reaching a conclusion as to whether or not it
would be in the public interest to hold a public
hearing it was certainly not necessary for it to
go into all the evidence which would be present
ed if such a public hearing were held or attempt
to determine whether the complaint was justi
fied or not. This was an administrative decision
and the right to make it has been conferred by
Parliament on the Executive Committee of the
CRTC. There is nothing to indicate that it was
ever intended that it could or should be
reviewed by the Court, nor does the law relating
to prerogative writs permit judicial review of a
decision of this nature.
The same reasoning applies to the second
prayer in paragraph (b) of the motion asking for
a mandamus directing the CRTC to hold and
conduct a public inquiry into the complaint. It
was not, in my view, ever intended that the
Court should substitute its discretion for that of
the Executive Committee, and much less that
the Court should be drawn into acting as a
censor of the programme itself and be required
in any way to go into the merits of the com
plaint with a view to determining whether in its
view a public inquiry into it is in the public
interest or not.
I find support for this view in the judgment of
Thorson P. in Pure Spring Co. v. M.N.R. [1946]
Ex.C.R. 471, which dealt with the discretionary
powers of the Minister of National Revenue
under what was then section 6(2) of the Income
War Tax Act to determine what is reasonable or
normal expense of the business carried on by
the taxpayer and what is in excess thereof.
Although more recent jurisprudence, and in fact
the prior Supreme Court case of Wrights'
Canadian Ropes Ltd. v. M.N.R. [1946] S.C.R.
139, which Thorson P. discusses at length in his
judgment, would extend the right of the Court
to review the exercise of Ministerial discretion
much further than he does, I nevertheless
believe that the statement he makes in his judg
ment at page 503 when he says:
... the Minister's discretionary determination depends, not
on an issue of fact, but on his opinion in a matter of
administration and definition of a difficult public policy for
which Parliament holds him responsible; it has not sought
the opinion of the Court or its aid in the administration or
definition of such policy; with such matters the Court is not
concerned and ought not to interfere; its duties are solely
judicial. The Court is concerned only with the question
whether the Minister has actually exercised the discretion
that Parliament has vested in him.
is still valid and applies in the present case.
Under the present Act the decision under sec
tion 19(2)(c) on a complaint as to whether a
public hearing on the complaint would be in the
public interest seems to be a matter entirely
within the discretion of the Executive Commit
tee of the CRTC.
Reference was made by applicants' counsel
to the judgment of Noël J., as he then was in
Gamache v. Jones et al. [1968] 1 Ex.C.R. 345,
which, inter alia, dealt with the application of
the Canadian Bill of Rights, section 2(e) of
which reads as follows:
2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or infringement
of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be
construed or applied so as to
(e) deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for
the determination of his rights and obligations;
to the case where an administrative decision
involved the downgrading and reclassifying of a
pilot without giving him a hearing. It was held
that although the decision to demote the plain
tiff was an administrative one, it entailed a duty
to observe the principles of natural justice. This
case can readily be distinguished, however. As
indicated previously we are not dealing here
with a hearing which took place at which the
applicants were not allowed to be heard but
merely with a decision not to hold a public
hearing, and I do not consider it was necessary
for the applicants to be heard before the Execu
tive Committee reached such an administrative
decision, especially in view of the material
_which it undoubtedly had before it or of which
the members were aware at the time the deci
sion that a public hearing would not be in the
public interest was reached. If the Bill of Rights
were to be given the broad interpretation con
tended for by applicants it would mean that
every time an administrative decision was
made, even if it were on a routine matter or
question of procedure, if the person who felt
himself aggrieved by this decision had not been
heard before it was made, the Courts could be
asked to intervene to overrule the decision. The
nature of a decision or order on which the
Courts might properly intervene was touched
on slightly by Jackett C.J. in his judgment of
June 21, 1971 in these same proceedings.
Although he was dealing with the subject in a
different context, namely the nature of the deci
sion or order which might be subject to review
by the Court of Appeal under section 28(1) of
the Act, his comments are nevertheless still
pertinent.
Applicants' motion must therefore be dis
missed, but in view of the fact that they may
well have a legitimate grievance (although I am
not so deciding) for which the law as presently
constituted appears to provide no adequate
redress, I will exercise the discretion vested in
me with respect to the costs of these proceed
ings, and dismiss applicants' motion without
costs.
Actually, the judgment of the Executive Committee of
the CRTC was made on May 26, 1971, but only conveyed
to applicants by telegram dated May 28, 1971.
2 Rule 1100(1) & (2) reads as follows:
RULE 1100. (1) An application to quash proceedings
under section 52(a) of the Act may be made at any time, but
failure to move promptly may, in the discretion of the
Court, be ground for a special order as to costs of the
motion and of the proceedings.
(2) The Court of Appeal may of its own motion make an
order under section 52(a) quashing proceedings after giving
the appellant and any other interested party an opportunity
to be heard.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.