The CRTC, Pierre Vallières, the N-word and broader principles

--- 11 juillet 2022

A letter to my Anglo friends

[Note: The radio segment at the heart of the CRTC ruling involved a discussion between Radio-Canada host Annie Desrochers and guest Simon Jodoin. Simon is a friend and co-founder of this platform, but the opinions expressed below are my own.]

As you may have heard, Quebec has been roiled by a rather peculiar debate for the last two weeks: can someone legally say the N-word (in French) when quoting the title of an important political essay during a radio segment on Radio-Canada?

The debate arises from a recent decision of the CRTC, which ruled that uttering the word without proper warnings and attenuation measures was impermissible, even though, as the Board expressly acknowledged in its decision, “the word was not used in a discriminatory manner in the context of the segment, but rather to quote the title of a book that was central to a current issue.” 

The current issue underlying the segment was the launch of a petition to demand the dismissal of Catherine Russell, a distinguished Concordia University professor who quoted the title of Pierre Vallières’s book, Nègres blancs d’Amérique, in a 2019 class. This was not a mere anecdote. A few months earlier, CBC journalist Wendy Mesley had been disciplined for mentioning the same book title during an internal meeting. A few weeks after the August 17, 2020 radio segment, yet another controversy would explode, for similar reasons, this time at the University of Ottawa

Radio-Canada’s ombudsman had ruled that the radio segment, which aired almost two years ago, complied with the organization’s norms and practices. But then, two weeks ago, the CRTC overruled the ombudsman and ordered Radio-Canada to provide a written apology and to take other corrective measures. The CRTC decision included two significant dissents – one from Caroline J. Simard, Vice-Chair for Broadcasting, and the other from Joanne T. Levy, Commissioner for Manitoba and Saskatchewan. These dissenting opinions consider that the majority decision is, to quote Ms. Levy, “deeply flawed”. 

The backlash

In the days following the decision, Quebec media was flooded with op-eds, editorials, columns, blog posts, radio commentary and a million social media posts almost unanimous in their condemnation of the CRTC verdict. 

The issue quickly became political. On July 5, Prime minister Legault weighed in, saying the CRTC should be the one apologizing, not Radio-Canada. Three opposition parties agreed, including the very federalist, very diverse Québec Liberal Party. On July 7, Liberal MNA Frantz Benjamin (himself of Haitian origin) said that the CRTC decision was “a mistake that should be firmly condemned” and added that he had in fact been listening to the Radio-Canada segment in August 2020 and had “not felt hurt at all by the exchange, which was done respectfully, responsibly, by quoting the title of the book.” 

Mr. Benjamin’s declaration echoed the words of Liberal leader Dominique Anglade, also of Haitian origin, who had forcefully defended the French use of the n-word, in a proper context, at the time of the University of Ottawa controversy. For her stance, Ms. Anglade had received the support of several prominent Black Quebecers, including Boucar Diouf, a well known Quebec comedian and media personality of Senegalese origin. In a column published in October 2020, Mr. Diouf “wholeheartedly congratulated” Ms. Anglade for her “clear and nuanced position” before adding:

“This new tendency of a certain left, which often decides aggressively, in certain universities, who has the right to use a word, to wear a kimono, to teach yoga, to prepare sushi, to wear certain hairstyles or to revisit certain cuisines raises a big question for me: how can we, in the name of greater openness to others, plead for so much compartmentalization of identities? The more intercultural prohibitions and taboos there are, the more people feel obliged to walk on eggshells.” 

Last week, Rachida Azdouz, a psychologist, expert on intercultural relations and frequent media collaborator also criticized the CRTC decision by writing that:

“The most insufferable trait of these self-appointed advocates is their deep contempt for the minorities they pretend to defend. By exploiting the lowest common denominator (the primary, first-degree reaction) they deny minorities their intelligence, their sense of nuance and moderation, their sense of humour, their adult status, their capacity to distinguish between a mistake and an aggression, racist provocation and contextualized speech, sensitivities and rights, their indulgence, their ability to forgive a mishap and to clarify misunderstandings with their fellow citizens through dialogue and reason. To this contempt, one must add essentialization: as if minorities were a homogeneous bloc that thinks as one, that has the same areas of sensitivity, the same values, the same aspirations, the same concept of coexistence and community life.”  

Perhaps confirming the heterogeneity point, freelance commentator Vanessa Destiné published an op-ed on July 8, agreeing with parts of the CRTC decision but rejecting the demand for an apology.

What does Québec want?

Watching from afar – geographically or culturally – some observers seem to have concluded that Quebecers were somehow united in their desire to throw the n-word around for no reason. 

But this is a gross misrepresentation of reality. Everyone in Québec – including the dozens of journalists, politicians, academics and commentators who have criticized the CRTC decision – knows the word is loaded and should not be used lightly. The French connotation of the term may not be as bad as the English one, but the word is far from neutral and I have not seen or heard anyone argue that it should be used casually in any context. Contrary to what some would like to believe, the uproar over the CRTC ruling has nothing to do with racism, systemic or not. 

What unites many critics of the CRTC decision is a sense that context and substance matter more than disincarnated words, and that government bodies cannot invoke vague and subjective notions of “quality” and “social standards” to censor non-discriminatory radio segments based on the perception of offense of a complainant. Canada abolished its religious blasphemy laws in 2018 and many people, in Québec and elsewhere, do not want to see them reintroduced in secular form. 

It’s true that a number of Québec nationalists have seized on this episode to ramp up their usual criticism of multiculturalism, claim that francophones were once again being persecuted, and generally portray the incident as a Québec vs Canada battle. It’s indeed possible (likely) that linguistic and cultural differences played a role in the decision, but on the whole I do not find the narrow Québec-vs-the-ROC argument very convincing. 

Joanne T. Levy, who authored one of the dissenting opinions, is commissioner for Manitoba and Saskatchewan, and previously served as Director of Programming for the Aboriginal Peoples Television Network. University of Ottawa Professor Michael Geist, National Post columnist Chris Selley, former CRTC commissioner Timothy Denton, former CRTC Vice-chair Peter Menzies, aspiring Conservative leader Jean Charest and others not suspected of harboring secessionist sentiments have criticized the CRTC decision as well. In fact, some of the Quebecers who denounce the CRTC decision today have in the past used Pierre Vallières’s famous essay (an anti-colonial, anti-capitalist manifesto) to attack the contemporary brand of Québec nationalism. I did this myself, on this blog, two months before the CRTC issued its ruling.

The current controversy is also conceptually related to other incidents, in Canada and abroad, that have nothing to do with Québec or the N-word. Examples include the Wilfrid Laurier University free speech affair, the burning of books by an Ontario school board, the toppling of statues and boycotts of speakers and works of art – distinct but similar efforts to suppress words, symbols and ideas that some find offensive. But while these incidents typically result from the actions of individual militants or local institutions, the CRTC/Radio-Canada controversy is about the censorship of social and political commentary by a federal government entity. It’s much more serious.

(For those who claim that the CRTC decision is not censorship, please consider that the ruling forced Radio-Canada to (1) apologize in writing, (2) submit a report on updated internal processes designed to “address similar issues in the future”, (3) remove or modify the radio segment at issue; and (4) not broadcast “offensive content” in the future unless certain conditions are met. Just because the majority opinion does not use the word “censor” does not mean that it’s not, in fact, censorship. We should always distinguish between words (said or unsaid) and actual intent and effect.) 

So the debate around the CRTC decision is not fundamentally about Québec or about the N-word. It’s about basic constitutional and democratic principles that transcend specific regional sensitivities and sociopolitical issues. 

As commissioner Levy put it in her dissent: 

The majority approach could lead to the censorship of expression regarding current events, books, songs, films and TV titles. The risk-averse in today’s newsrooms will avoid difficult discussions and self-censor. In his commentary on Le 15-18, Simon Jodoin argues that when we erase words, we erase ideas too. As society evolves, how will this response suppress expression? What other words and ideas will be seen as problematic? Simply because a word or idea is offensive, does that render the discussion of the word or idea to be of a quality inconsistent with the high standard for programming mandated by the Broadcasting Act?

What’s the big deal?

Critics have put forward a number of arguments highlighting the flaws in the CRTC decision. I briefly mention four substantial issues below.

A) What about the Broadcasting Act and the Charter? Both dissenting opinions and several commentators note that the majority opinion fails to adequately consider freedom of expression and freedom of the press guarantees under the Broadcasting Act and in the Charter. Of particular relevance is a recent Supreme Court precedent, the Ward case, which confirmed that “a right not to be offended … has no place in a democratic society”. Constitutional experts can opine on the precise contours of the free speech analysis, but dissenting commissioners are right to point to the majority opinion’s silence on this issue as a fundamental flaw. It’s one thing to conclude, after careful review, that the sanctions imposed are compatible with free speech protections; it’s quite another to dispense with this analysis altogether. 

B) What is speech? While this may sound like a philosophical question, it’s very much at the heart of this decision. As Simon Jodoin put it in a blog post:

“Speech is not a word, or a collection of words following each other. Speech is the notion one puts forward, what is meant, what is being talked about. Speech has a direction, an intent. In the case of my radio segment – and this will apply to all subsequent cases – everyone recognizes that there was no insulting or discriminatory content. In its decision, the CRTC itself recognizes that “the word was not used in a discriminatory manner in the context of the segment, but rather to quote the title of a book that was central to a current issue”. The word that poses a problem here cannot be considered in isolation and simply transformed into “potentially offensive speech”. This invents speech that was not my own. Accepting this idea means that a person could be found responsible for saying things they’ve never said. We must highlight this absurdity.”

Vice-chair Simard’s dissent also points to this absurdity:

The assessment of the high-standard criterion in the majority decision seems to be confined to a pointed assessment of the facts that considers the ratio of the number of times the “mot ‘n’” was said on air to the number of minutes of the segment, without even assessing the purpose of such uses and while disregarding the professional tone with which the host and the commentator dealt with this sensitive issue.”

C) Is freedom of expression limited to speech that conforms to social norms? In its decision, the CRTC writes that Radio-Canada and other licensees “are responsible for broadcasting programs that meet the standards set by society at all times”. On this basis, the Board then proceeds to censor content that, in its view, does not meet “high standards”. But is that really how it should work? Does freedom of the press, and freedom of expression more generally, exist only for speech that fits within current social norms? As former Radio-Canada executives wrote in an op-ed, “is Radio-Canada obliged to broadcast content that accords with dominant and majority opinion?” The CRTC majority seems to understand freedom of expression exactly backwards: constitutional protection of speech exists precisely to shield from government censorship content that might run against prevailing social norms – not the other way around. By holding that broadcasting standards can be used to regulate content based on prevailing social norms, the CRTC ruling sends a terrible signal to news outlets and commentators across the country.

As commissioner Levy writes, “Canadians are not well-served if exemplary becomes equivalent to cautious and self-censoring. Journalism that is bold, enterprising and courageous is also exemplary.” 

Vice-chair Simard is more explicit: 

Because the Commission required Radio-Canada to put in place all reasonable and necessary corrective measures with regard to the use of “any potentially offensive material,” Radio-Canada will be restricted in its use of words, expressions and book titles on-air. This restriction is in fact not limited to the “mot ‘n’” in a book title, which, in my opinion, already violates the freedom of expression in itself. (…) These measures have the potential to apply to all Canadians, including on-air hosts, commentators and even on-air guests (which include members of the public) as well as, of course, the listeners of these programs. All broadcasting activities are subject to these measures, which include not only activities related to the program Le 15-18 or to radio, but also those that are broadcast on television, online and via catch-up on Radio-Canada’s web platform. Finally, in addition to directly or indirectly restricting the content broadcast on radio and television services, the conclusions of the majority decision (paragraphs 22 to 26) carry the risk of self-censorship. It is reasonable to anticipate that, in an ecosystem like that of broadcasting, this risk extends to other broadcasters in the country (both public and private, regardless of broadcast language). I also have serious concerns about how these findings will complicate the practice of journalism, which is already facing a variety of other major challenges at the same time.”

D) In any case, who sets social norms? Even if one assumes that social norms and standards should play a role in CRTC decision-making, the problem remains: who decides what those norms and standards are? Are standards dictated by government agencies? Or are they constructed and deconstructed, constantly, by thousands of Canadian voices with different perspectives and viewpoints? 

Simon Jodoin makes this point eloquently:

Who, exactly, will interpret this social context, uniformly from coast to coast, to set these norms? It should be said that it is the task of reporters, commentators and hosts, among others, to interpret the “social context”, with all the cultural differences we can imagine, and often considering numerous differences of opinions. This task is not exclusive to them. Artists, militants, politicians, publicists, academics, researchers and so many others – everyone who thinks, writes, speaks and reflects publicly, day after day – paints a picture of our social context through their freedom of expression. As such, how could freedom of expression be subordinated to a concept emanating from it, and in constant mutation? Social context is the result of multiple instances of speech, not a normative framework dictated by a regulatory body that determines what can and cannot be said.”

As is clear from the near unanimous reaction of Québec journalists, opinion writers and media executives, of both the government and opposition parties, and of commentators of all ages and backgrounds, the standards invoked by the CRTC decision seem to have very little resonance in Québec.

Where do we go from here?

At this point the ball is in the CBC/Radio-Canada court. The public broadcaster must decide whether to accept the CRTC verdict or appeal the decision. On the Radio-Canada side, there is a deep, vocal, almost existential conviction that the ruling must be challenged. The CBC side has been mostly quiet, but Catherine Tait, the president and CEO of CBC/Radio-Canada, is widely perceived as supporting the CRTC decision. 

As this column makes clear, I strongly believe CBC/Radio-Canada should appeal, if only to subject this complicated issue to rigorous statutory and constitutional analysis and clarify the applicable framework. Notwithstanding its conclusion, the superficiality and analytical deficiencies of the majority opinion must be corrected if it is to serve as a meaningful and persuasive legal precedent. 

For journalists, commentators and the broader public, what matters here are basic principles. Can we censor individual words, without consideration for context, even when they are mentioned in a non-discriminatory way? What purpose does freedom of expression serve if its protection extends only to speech that accords with social standards? Who determines what social standards are? Is there a single social standard that applies coast to coast? 

Quebecers (and, I would hope, Canadians) should also resist any attempt to shackle the public broadcaster to any particular ideology. As indicated by the recent writings and declarations of commentators of different origins and political stripes, there is absolutely no consensus in Québec on the best way of fostering tolerance and mutual understanding in a diverse society, and on the usefulness and desirability of policing speech by restricting the use of words. What are we to make of Frantz Benjamin’s forceful criticism of the CRTC decision as unacceptable censorship? Of Boucar Diouf’s argument that compartmentalized identities and intercultural prohibitions won’t result in greater openness to others but instead lead to more people walking on eggshells? Of Rachida Azdouz’s view that the majority opinion essentializes minorities and denies them their intelligence, sense of nuance and ability to distinguish between racist provocation and contextualized speech? Must these viewpoints be dismissed and ignored in favour of a government-enforced policy of banning or restricting “potentially offensive language”? 

Two final thoughts.

As the Senate prepares to study Bill C-11 next fall, there is a risk that this recent CRTC ruling will contaminate an otherwise legitimate debate. At its heart, Bill C-11 is about managing the disruptions in the Canadian broadcasting ecosystem brought about by YouTube, Netflix and other streaming services, and figuring out how Canadian content can thrive in this new environment. It’s a bill dealing with fair competition, funding mechanisms and cultural promotion, that also gives the CRTC new powers. However, by giving credence to the idea that the CRTC is in the business of policing speech, this latest decision could raise doubts about Bill C-11, even among people who were inclined to support its objectives. Some Québec commentators are starting to make this argument.

Finally, a word about Québec and Canada. Over the past years and decades, several crises and incidents have at times fueled a sense of mutual alienation in both solitudes. Sometimes these were inconsequential anecdotes, opportunistically magnified to serve a political agenda. Sometimes they were more significant policy differences, albeit with defensible, if debatable, rationales. 

But I have rarely seen such deep and widespread revulsion at a regulatory decision – uniting Québec government and opposition parties, academics, public intellectuals and ordinary folk, rival media networks and commentators, including many who are normally sympathetic to the federal government and the ideal of a diverse society. This is not about the N-word or racism. The principles at play are not trivial, and neither is the potential political fallout. 

Jérôme Lussier s’intéresse aux enjeux sociaux, politiques et économiques. Juriste, journaliste et idéaliste, il a tenu un blogue au VOIR et à L'Actualité et a occupé divers postes en stratégie et en politiques publiques, incluant à l'Assemblée nationale du Québec, à la Caisse de dépôt et à l'Institut du Québec. Il travaille actuellement comme directeur des affaires parlementaires au Sénat.

Lire tous les articles de Jérôme Lussier

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