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Statutes—Subordinate legislation—Authority of C.R.T.C. to make regulation in furtherance of its objects—Objects defined as including promotion of high standards of programs and programming—Prohibition of broadcasting certain telephone interviews without consent of person interviewed—Jurisdiction of Court to determine whether regulation is intra vires—Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 15, 16; Radio (A.M.) Broadcasting Regulations, SOR/64-49 am. SOR/65-519, s. 1; SOR/70-256, s. 3.

Broadcasting—Validity of C.R.T.C. regulations prohibiting the broadcasting of certain telephone interviews without the prior consent of the person interviewed—C.R.T.C. empowered to make regulations for furtherance of objects—Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 15, 16—SOR/64-49 am. SOR/65-519, s. 1; SOR/70-256, s. 3.

CKOY broadcast a telephone interview with a person from the Federation of Students of Ottawa University without that person’s consent, written or oral, having been obtained prior to the broadcast. The Canadian Radio-Television Commission had pursuant to s. 16 of the Broadcasting Act enacted Regulation 5 which purported to prohibit stations or network operators from broadcasting such telephone interviews or conversations or any part thereof without such consent unless the person had telephoned the station for the purpose of participating in a broadcast. The Provincial Court Judge dismissed the charge against CKOY after holding that para (k) of subs. 1 of s. 5 of the Radio AM Broadcasting Regulations was not authorized by the Broadcasting Act, s. 16(1) of which provides that in furtherance of its objects the CRTC may make regulations applicable to all persons holding broadcasting licences. The Crown appealed by way of stated case. Reid J. dismissed this appeal but was reversed by the Court of Appeal.

[Page 3]

Held (Laskin C.J. and Martland and Estey JJ. dissenting): The appeal should be dismissed.

Per Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ: The grant of power to enact regulations is given to the Commission by s. 16 of the Act, the opening words of which provide that the exercise of the power shall be in furtherance of the objects of the Commission, i.e. the implementation of the broadcasting policy enunciated in s. 3 of the Act. The validity of any regulation enacted in reliance upon s. 16 must therefore be tested by determining whether the regulation deals with a class of object referred to in s. 3. The confidentiality implied in the impugned regulation can be regarded as an element in providing a “reasonably balanced opportunity for the expressing of differing views” which the Commission might have concluded as hindered if confidentiality were not granted to the persons interviewed. Further the Commission is responsible for the standard of programme and it is self-evident that an undesirable broadcasting technique may well affect the high standard of programming. Programming extends to more than the mere words which go out over the air and embraces the total process of gathering, assembling and putting out programmes and in this context it was open to the Commission to enact s. 5(k) to secure programme standard.

Per Laskin C.J. and Martland and Estey JJ. Dissenting: The words “program” and “programming” used in s. 3 refer to the actual program broadcast to the public, a view reinforced by the terms of s. 3(c) which clearly refers to programs, broadcast and received. As Dubin J.A. in his dissent in the Court of Appeal said, the impugned regulation here does not relate to the standards of programs. What is here prohibited is the broadcasting of telephone interviews without the consent of the person being interviewed being obtained prior to the broadcast. This has nothing to do with the standard of the program. The respondent also sought to rely on para. 16(1)(b)(ix) taking the position that it is for the Commission to determine what regulations are necessary for the furtherance of its objects. Parliament did not grant such powers to control every phase of the activities of broadcasters. The Commission is an administrative body and can only legislate pursuant to s. 16 within the express limits defined by the Act. To find the wide legislative powers claimed would require very clear language which is not found here.

As in the case of other types of subordinate legislation it is for the Courts to decide whether a regulation is intra vires and in furtherance of the objects of the Commission as defined in the Act.

[Page 4]

[Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., [1978] 2 S.C.R. 141; Canada Metal Co. v. Canadian Broadcasting Corporation (1974), 3 O.R. (2d) 1 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] from a judgment of Reid J.[2] dismissing an appeal from an acquittal on a charge under the Broadcasting Act, R.S.C. 1970, c. B-11, and regulations made thereunder. Appeal dismissed, Laskin C.J. and Martland and Estey JJ. dissenting.

Gordon Henderson, Q.C., and Wayne B. Spooner, for the appellant.

Claude Thomson, Q.C., and Gavin MacKenzie, for the respondent.

The judgment of Laskin C.J. and Martland and Estey JJ. was delivered by

MARTLAND J. (dissenting)—The course of the proceedings leading to the present appeal has been set out in the reasons of my brother Spence. The Court of Appeal directed the registration of a conviction against the appellant on a charge of having committed a breach of the provisions of para. (k) of subs. (1) of s. 5 of the Radio A.M. Broadcasting Regulations. That regulation provides as follows:

5. (1) No station or network operator shall broadcast:

...

(k) any telephone interview or conversation or any part thereof, with any person unless

(i) the person’s oral or written consent to the interview or conversation being broadcast was obtained prior to such broadcasting or

(ii) the person telephoned the station for the purpose of participating in a broadcast.

It was not contested that the appellant had broadcast a telephone interview with Lorne Mahoney without obtaining her oral or written consent prior to such broadcast. The appellant

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contends that the enactment of this regulation was beyond the powers of the Canadian Radio-Television Commission, hereinafter referred to as “the Commission”.

The power of the Commission to regulate is defined in s. 16 of the Broadcasting Act, R.S.C. 1970, c. B-11. I will cite only those portions of the section which are relevant to this appeal:

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 broadcasting 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).

...

(ix) respecting such other matters as it deems necessary for the furtherance of its objects;

The objects of the Commission are set out in s. 15 of the Act:

15. Subject to this Act and the Radio Act and any directions 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.

Section 3 of the Act appears under the heading “Broadcasting Policy for Canada”. Paragraph (d) of that section, to which reference is made in s. 16(1)(b)(i), states:

3. It is hereby declared that

...

(d) the programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the programming provided by each broadcaster should be of high standard, using predominantly Canadian creative and other resources;

The majority of the Court of Appeal were of the opinion that the Commission was empowered to

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make the regulations now in issue by subpara. 16(1)(b)(i), being of the view that this paragraph enabled the Commission to regulate “programming technique”. With respect, I do not agree with this conclusion. The paragraph relates to regulations respecting “standards of programs” to give effect to para. 3(d). Paragraph 3(d) says that “the programming provided by each broadcaster should be of high standard using predominantly Canadian creative and other resources”.

In my opinion the words “program” and “programming” used in s. 3 refer to the actual program broadcast to the public. This view is reinforced by para. 3(c) which declares that:

3. It is declared that

...

(c) all persons licensed to carry on broadcasting undertakings 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 paragraph clearly refers to programs broadcast and received and para. (d) refers to the same subject matter, i.e. the transmission of programs, which are to be of high standard. I agree with what was said by Dubin, J.A., in his dissenting reasons:

In my respectful opinion, the impugned regulation here does not relate to the standards of programs. S. 16(1)(b)(i) authorizes the Commission to make regulations respecting standards of programs for the purpose of giving effect to s. 3(d). The authority granted to the Commission by s. 16(1)(b)(i) pertains to what is seen or heard on air. What is prohibited by the regulation in issue is the broadcasting of a telephone interview or any part thereof without the consent of the person being interviewed agreeing to the interview or conversation being broadcast, or unless the person telephoned the station for the purpose of participating in a broadcast. The requirement that the person being interviewed must consent to the interview being broadcast has nothing to do, in my opinion, with the standard of the program. The interview may or may not be of high standard, but whether it is or is not has nothing to do with the consent of the person interviewed having been obtained.

The respondent also relied upon subpara. (ix) of para. 16(1)(b), which empowers the Commission

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to make regulations “respecting such other matters as it deems necessary for the furtherance of its objects”. This submission raises an issue of some importance because counsel for the respondent took the position “that it is for the Commission, and not for the Court, to determine what regulations are necessary for the furtherance of its objects”. In other words, the Commission has carte blanche to make any regulation which it sees fit to enact provided it, the Commission, is of the opinion that it is desirable in order to further its objects.

I am not prepared to accept this submission. I do not agree that Parliament has granted to the Commission autocratic powers to control every phase of the activities of broadcasters. Section 16 confers on the Commission certain powers of subordinate legislation. The Commission is an administrative body and can only legislate within the express limits defined by the Act. To clothe the Commission with the wide legislative powers claimed by it would require very clear language and I do not find it here.

Subparagraph (ix) is one of nine subparagraphs, all of which are subject to the opening words of s. 16 “In furtherance of its objects, the Commission, on the recommendation of the Executive Committee may”. In my opinion, as in the case of other types of subordinate legislation, it is for the Courts to determine whether or not a regulation made by the Commission is within its powers. It is for the Courts to decide whether a regulation is in furtherance of the objects of the Commission as defined in the Act. The objects of the Commission, defined in s. 15, are to implement the broadcasting policy enunciated in s. 3. It is the Courts which must interpret s. 3 and determine whether a regulation is in furtherance of the policies enunciated in that section.

The only paragraph of s. 3 which has any relevance here is para. (d) which I have already discussed. The duty of the Commission under that paragraph is to insure that programs broadcast in Canada are “of high standard”. It is not the duty of the Commission nor within its power to control program content.

[Page 8]

I agree with the view expressed by Dubin, J.A., in the following paragraph in his reasons:

As my brothers have observed, the regulation in issue purports to strike down an undesirable broadcasting technique. The fact that the object of the regulation may very well be a laudatory one is quite irrelevant. The broadcast in issue in this case may have been one of considerable public interest, or may have been one which was quite offensive, but the regulation in question here would prohibit it, whatever quality it may have, if no consent is obtained to it being broadcast. It is only one step removed to contemplate the regulation reading that no such interview could be broadcast without the consent of the Commission itself. It could then equally be said that the Commission was thereby seeking to establish a high standard of programming, but looked at in that way it cannot be anything other than a form of censorship.

In my opinion, the appeal should be allowed and the judgment of Reid, J., should be restored. The appellant should have its costs in this Court and in the Court of Appeal.

The judgment of Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on January 12, 1976.

The appellant had been charged in a summons as follows:

That CKOY Limited, on or about the 5th day of March 1974, at the City of Ottawa in the Judicial District of Ottawa-Carleton did violate Section 5 of the Regulations passed pursuant to Section 16 of the Broadcasting Act by broadcasting a telephone interview or conversation with a girl from the Federation of Students of the University of Ottawa, without her oral or written consent to the interview or conversation having been obtained prior to such broadcast.

The accused was acquitted by the Provincial Court Judge and the Crown appealed by way of stated case. The Provincial Court Judge in the case stated asked two questions:

1. Did I err in law in holding that paragraph (k) of subsection 1 of section 5 of The Radio AM Broadcasting Regulations is not authorized by The Broadcasting Act?

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2. Did I err in law in failing to convict the accused on the charge against it having made the findings as set out above?

DATED at Ottawa this 2nd day of January, 1975.

                                                                                       (Signed) R.B. Hutton

                                                                                                       PROVINCIAL JUDGE.

Reid J. dismissed the appeal answering both questions above in the negative. The appeal by the Crown to the Court of Appeal for Ontario was allowed. It was ordered that the questions propounded in the Stated Case be answered in the affirmative and the proceedings were remitted to the Provincial Court Judge to register a conviction and impose an appropriate sentence. Dubin J.A., dissenting, would have dismissed the appeal. Leave to appeal to this Court was granted by this Court on April 5, 1976.

The Broadcasting Act, R.S.C. 1970, c. B-11, provides in part:

3. It is hereby declared that

(a) broadcasting undertakings in Canada make use of radio frequencies that are public property and such undertakings constitute a single system, herein referred to as the Canadian broadcasting system, comprising public and private elements;

(b) the Canadian broadcasting 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;

(c) all persons licensed to carry on broadcasting undertakings 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;

(d) the programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the programming provided by each broadcaster should be of high standard, using predominantly Canadian creative and other resources;

...

5. (1) There shall be a commission to be known as the Canadian Radio-Television Commission, consisting of five full-time members and ten part-time members to be appointed by the Governor in Council.

...

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15. Subject to this Act and the Radio Act and any directions 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.

...

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 broadcasting 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),

(ii) respecting the character of advertising and the amount of time that may be devoted to advertising,

(iii) respecting the proportion of time that may be devoted to the broadcasting of programs, advertisements or announcements of a partisan political character and the assignment of such time on an equitable basis to political parties and candidates,

(iv) respecting the use of dramatization in programs, advertisements or announcements of a partisan political character,

(v) respecting the broadcasting times to be reserved for network programs by any broadcasting station operated as part of a network,

(vi) prescribing the conditions for the operation of broadcasting stations as part of a network and the conditions for the broadcasting of network programs,

(vii) with the approval of the Treasury Board, fixing the schedules of fees to be paid by licensees and providing for the payment thereof,

(viii) requiring licensees to submit to the Commission such information regarding their programs and financial affairs or otherwise relating to the conduct and management of their affairs as the regulations may specify, and

(ix) respecting such other matters as it deems necessary for the furtherance of its objects;

[Page 11]

The Canadian Radio-Television Commission enacted Regulation 5 which, in its relevant parts, provided:

5. (1) No station or network operator shall broadcast:

...

(k) any telephone interview or conversation or any part thereof, with any person unless

(i) the person’s oral or written consent to the interview or conversation being broadcast was obtained prior to such broadcasting or

(ii) the person telephoned the station for the purpose of participating in a broadcast.

This is a regulation which the Provincial Court Judge found to have been beyond the power granted to the Commission by the Broadcasting Act. Reid J. on the appeal by way of Stated Case and Dubin J.A. in the Court of Appeal for Ontario were of like view. The majority of the Court of Appeal for Ontario determined the said regulation was within the power granted to the Commission by s. 16 of the Broadcasting Act, particularly in subs. 1(b)(i), as a regulation carrying out the broadcasting policy for Canada as enunciated in s. 3(d) and (g)(iv). Evans J.A. giving reasons in the Court of Appeal for Ontario did not rely on s. 16(1)(b)(ix).

The grant of power to enact regulations is given to the Commission by s. 16 of the statute. By its opening words, such a power is directed to be exercised “in furtherance of its objects”. Section 15 is entitled “Objects of the Commission”. For our purposes, the said objects may be briefly stated in the last words of s. 15, “with a view to implementing the broadcasting policy enunciated in section 3 of this Act”. Therefore, I agree with the courts below that the validity of any regulation enacted in reliance upon s. 16 must be tested by determining whether the regulation deals with a class of subject referred to in s. 3 of the statute and that in doing so the Court looks at the regulation objectively. However, I also agree with Evans J.A. when he states:

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It is obvious from the broad language of the Act that Parliament intended to give to the Commission a wide latitude with respect to the making of regulations to implement the policies and objects for which the Commission was created.

Therefore, whether we consider that the impugned regulation will implement a policy or not is irrelevant so long as we determine objectively that it is upon a class of subject referred to in s. 3. I should add that as Evans J.A. noted there is no suggestion that the Commission acted capriciously. Of course, no allegation of bad faith has been advanced.

Therefore, I turn to a consideration of the provisions in s. 3 setting out the Broadcasting Policy for Canada. Section 3(b) declares the policy as to ownership of “the Canadian broadcasting system” so as to “strengthen the cultural, political, social and economic fabrics of Canada”. [The underlining is my own.] The statute thereby exhibits the expected interest in such subject and a regulation aimed at such strengthening, whether in our view successfully or not, would be within the power granted by s. 3.

Section 3(d) expresses the policy that programming should provide reasonably balanced opportunity for the expression of differing views on matters of public concern and should be of high standard. The Commission might well have concluded that a broadcasting station canvassing members for their views upon a matter of public concern could not provide a “reasonably balanced opportunity for the expression of differing views” unless it granted confidentiality to the person interviewed. 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. There is a certain lack of preciseness in Regulation 5(k) but “conversation” might be considered to cover more than conversation over the telephone and to cover perhaps idle words of the person met on the street who would not even know that he was speaking to a reporter let alone that his words were being

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recorded. With respect, I agree with Brooke J.A. when he said:

In my view, the purpose of the impugned regulation is to prohibit an undesirable broadcasting technique, one which does not reflect the high standard of programming which the Commission must, by regulation of licensees, endeavour to maintain.

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”.

I find a basis for the enactment of Regulation 5(k) also in s. 16(1)(b)(ix) of the statute. It is to be noted that its very broad words are not, as are those of s. 16(1)(b)(i), confined to the policy expressed in s. 3(d) and, therefore, authorize one enactment of regulations to further any policy outlined in the whole of s. 3. It was submitted that s. 16(1)(b)(ix) should be confined to matters of procedure since it followed s. 16(1)(b)(viii) enabling the Commission to require licensees to submit information. But the information which may be required under (viii) is very broad covering not only the licensees’ financial affairs but “programs” and “the conduct and management of their affairs.” Therefore, the information obtained under a regulation enacted by virtue of s. 16(1)(b)(viii) may well provide the basis for a regulation which the Commission might deem necessary under s. 16(1)(b)(ix). Such regulation would, of course, have to be to further the “Broadcasting Policy of Canada” but it might be difficult to fit it under any of the other numbered paragraphs of s. 16(1)(b). I find it of some importance that the broad words appearing in s. 16(1)(b)(ix) “as it deems necessary” emphasize the discretion granted to the Commission in determining what is necessary for the furtherance of its objects. Therefore, even if the word “programming” were to

[Page 14]

receive the narrow meaning advanced by counsel for the appellant, then s. 16(1)(b)(ix) would authorize the enactment of Regulation 5(k). So, the said regulation may well be in furtherance of the policy set out in, for instance, s. 3(c), that is, responsibility for the programmes which the licensee broadcasts.

I note that the Chief Justice of this Court gave a broad interpretation to the Commission’s powers under s. 15 of the Broadcasting Act in Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al.[3], at p. 171, when he said:

In my opinion, having regard to the embracive objects committed to the Commission under s. 15 of the Act, objects which extend to the supervision of “all aspect of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in section 3 of the Act”, it was eminently proper that it lay down guidelines from time to time as it did in respect of cable television. The guidelines on this matter were arrived at after extensive hearings at which interested parties were present and made submissions. An overall policy is demanded in the interests of prospective licensees and of the public under such a regulatory regime as is set up by the Broadcasting Act. Although one could mature as a result of a succession of applications, there is merit in having it known in advance.

The appellant also urges s. 2 of the Canadian Bill of Rights, R.S.C. 1970, Appendix III (enacted as 8-9 Elizabeth II, c. 44). It is urged that to interpret Regulation 5(k) as being intra vires of the Canadian Broadcasting Act would infringe the provisions of s. 2 as it would result in the abridging of freedom of speech recited in s. 1(f) of the said statute. I am ready to assume that the broadcasting media may be presumed to be defined within the word “press”. However, as has been stated on many occasions, the freedom of the press is not absolute and the press, as all citizens, is subject to the ordinary law and has no more freedom of expression than the ordinary citizen. I do not stop

[Page 15]

to recite authority. The principle was lately declared in Canada Metal Co. v. Canadian Broadcasting Corpn.[4], cited by the appellant in its factum. The limitation is referred to in s. 3 of the Canadian Broadcasting Act which makes the “freedom of expression” subject to “the generally applicable statutes and regulations”. I am unable to understand how Regulation 5(k) in any way abridges the freedom of the press. It does not hinder or prevent either the broadcaster or an interviewed person from making any comment whatever. It simply prevents the interview being broadcast without the consent of the interviewed person. Indeed the regulation protects and confirms another fundamental freedom set out in the same s. 1 of the Canadian Bill of Rights in para. (d), that of freedom of speech, for the interviewed person may grant or withhold his consent to the broadcasting of his comments. Therefore, I am of the opinion that the Canadian Bill of Rights does not prevent the said Regulation 5(k) being found to be intra vires.

For these reasons, I would dismiss the appeal. The order of the Court giving leave to bring this appeal provided that costs of the application should be in the appeal. The prosecution was by summary conviction and s. 758 of the Criminal Code permits the award of costs upon the appeal. Costs were awarded by Reid J. in dismissing the Crown’s appeal by way of stated case but the Court of Appeal for Ontario set aside that order and allowed the Crown’s appeal making no order as to costs. I would simply affirm the judgment of the Court of Appeal and would, likewise, make no order as to costs.

Appeal dismissed, LASKIN C.J. and MARTLAND and ESTEY JJ. dissenting.

Solicitors for the appellant: Gowling & Henderson, Ottawa.

Solicitors for the respondent: Campbell, Godfrey & Lewtas, Toronto.

 



[1] (1976), 13 O.R. (2d) 156, 70 D.L.R. (3d) 662.

[2] (1975), 25 C.C.C. (2d) 333, 9 O.R. (2d) 549, 19 C.P.R. (2d) 1.

[3] [1978] 2 S.C.R. 141.

[4] (1974), 3 O.R. (2d) 1.

 

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