Federal Court of Appeal Decisions

Date: 20031023

Docket: A-442-01

Citation: 2003 FCA 394

CORAM:       LÉTOURNEAU J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

FRONT COMMUN DES PERSONNES

ASSISTÉES SOCIALES DU QUÉBEC (FCPASQ)

Appellant

and

CANADIAN RADIO-TELEVISION AND

TELECOMMUNICATIONS COMMISSION (CRTC)

Respondent

and

RÉSEAU DE TÉLÉVISION

QUATRE SAISONS INC. (TQS)

Respondent

Hearing held at Montréal, Quebec, on October 20 and 23, 2003.

Judgment from the bench at Montréal, Quebec, on October 23, 2003.

REASONS FOR JUDGMENT OF THE COURT:                                                 LÉTOURNEAU J.A.

Date: 20031023

Docket: A-442-01

Citation: 2003 FCA 394

CORAM:       LÉTOURNEAU J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

FRONT COMMUN DES PERSONNES

ASSISTÉES SOCIALES DU QUÉBEC (FCPASQ)

Appellant

and

CANADIAN RADIO-TELEVISION AND

TELECOMMUNICATIONS COMMISSION (CRTC)

Respondent

and

RÉSEAU DE TÉLÉVISION

QUATRE SAISONS INC. (TQS)

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Montréal, Quebec, on October 23, 2003)

LÉTOURNEAU J.A.

[1]        The appellant objected to a decision by the Canadian Radio-Television and Telecommunications Commission ("the CRTC") on December 21, 2000. That decision concerned a complaint laid against the Télévision Quatre Saisons ("TQS") network for broadcasting a program titled "Black-out au Lion d'Or", the daily theme of which was "Le B.S., c'est ben correct". The appellant's objection to this program was its strong tendency to promote and encourage scorn and prejudice for persons receiving social assistance. He asked the CRTC at that time to rule on whether such a program was consistent with the standards laid down by the Broadcasting Act, S.C. 1991, c. 11 ("the Act").

[2]        The CRTC submitted the complaint to the Quebec Regional Council of the Canadian Broadcast Standards Council ("the CBSC"). The latter, relying on the Canadian Association of Broadcasters' Code of Ethics ("the Code"), concluded that TQS had infringed the provision contained in subsection 6(3) of the Code by projecting a negative image of welfare recipients. The subsection requires full, fair and proper treatment of a subject broadcast.

[3]        However, the CBSC said that in its opinion TQS had not infringed section 2 of the Code, which prohibited the making of discriminatory comments. Its conclusion was based on the fact that need for social assistance is not one of the grounds contained in that section and there is no connection between this ground and those listed in the provision, namely race, ethnic or national origin, colour, religion, age, sex, family situation or physical or mental handicap.

[4]        The appellant was not satisfied with the CBSC's decision and applied to the CRTC again, citing paragraph 5(1)(b) of the 1987 Broadcasting Regulations, SOR/87-49 ("the Regulations"). That paragraph states:

[5]        The CRTC did not hold public hearings. After analyzing the facts and law, it considered that the program in question did not meet the high standards of quality TQS must maintain in its programming. It further concluded that TQS had not infringed paragraph 5(1)(b) of the Regulations, which prohibits the broadcasting of any abusive comment that tends to or is likely to expose the victim of the comments to hatred or contempt.

[6]        In its appeal pleading, the appellant sought the following conclusions:

[TRANSLATION]

ALLOW this appeal;

REVERSE the decision made by the CRTC on December 21, 2000, in connection with case No. 4677-341, reference No. 981002ML819L-3;

MAKE a decision broadening the interpretation of paragraph 5(1)(b) of the Regulations to include social condition in the grounds listed in the provision;

IN THE EVENT of a decision by this Court to include the ground of social condition in paragraph 5(1)(b) of the Regulations, the appellant asks this Court to make a decision that the respondent TQS contravened paragraph 5(1)(b) of the Regulations by broadcasting abusive comments about persons receiving social assistance as part of the program "Black-out au Lion d'Or" broadcast on or about September 1, 1998;

ALTERNATIVELY, refer the matter back to the CRTC for it to exercise its jurisdiction and decide whether the comments made in the program "Black-out au Lion d'Or" on or about September 1, 1998, were abusive to persons on social assistance, contrary to paragraph 5(1)(b) of the Regulations, interpreted in accordance with this Court's findings on including the ground of social condition in that paragraph . . .

[7]        For the reasons set out below, we consider that the appellant cannot obtain the remedies sought and that the appeal should be dismissed.

Inclusion of social condition as analogous ground in section 15 of Charter and paragraph 5(1)(b) of Regulations

[8]        The appellant submitted that social condition is an analogous ground in section 15 of the Canadian Charter of Rights and Freedoms ("the Charter"). Based on this premise, it argued that this ground should also be included in paragraph 5(1)(b) of the Regulations, since the grounds listed are the same in both provisions.

[9]        It is not necessary to determine whether social condition is a ground in section 15 of the Charter, as neither the CRTC nor this Court had before it sufficient evidence of constitutional facts on the basis of which it could decide whether this is an analogous ground to those listed in section 15 and paragraph 5(1)(b). In Mackay v. Manitoba, [1989] 2 S.C.R. 357, the Supreme Court of Canada pointed out the need to have a factual basis before undertaking analysis of Charter concepts. At 361-362, Cory J. wrote:

[8] Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society. For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.

[9] Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void . . .

[10]      Additionally, there is no evidence in the record showing that inclusion of social condition in paragraph 5(1)(b) of the Regulations is or might be a reasonable limit on the freedom of expression guaranteed by subsection 2(b) of the Charter and that that limit can be demonstrably justified in a free and democratic society. The point is of some interest and the answer is far from obvious, as can be seen from the very divided judgment of the Supreme Court of Canada (4-3) in R. v. Keegstra, [1990] 3 S.C.R. 697. While the four majority members of the Court held that subsection 391(2) of the Criminal Code, which punishes the promotion of hatred against any identifiable group, is a justifiable invasion of the freedom of expression, the other three judges on the bench concluded that the limitation imposed by that section was not reasonable and justified under section 1 of the Charter.

[11]      In support of its opinion, the majority noted the requirement that the promotion of hatred be wilful, the fact that the word "hatred" further reduces the scope of the prohibition, the fact that the provision offers several defences, and finally the fact that the identifiable group is narrowly defined. In the case at bar, the prohibition contained in the Regulations extends to contempt, there is no requirement of mens rea, no defence is mentioned and the group identified, which the appellant would like to broaden still further, is not so narrowly defined.

[12]      The need for a factual basis also becomes important in the analysis which must be undertaken under section 1 of the Charter: Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54. At paragraph 30 of that decision, Gonthier J. said the following:

Second, Charter disputes do not take place in a vacuum. They require a thorough understanding of the objectives of the legislative scheme being challenged, as well as of the practical constraints it faces and the consequences of proposed constitutional remedies. This need is heightened when, as is often the case, it becomes necessary to determine whether a prima facie violation of a Charter right is justified under section 1. In this respect, the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional challenge, will often be invaluable to a reviewing court . . .

[13]      The appellant referred the Court to several earlier cases under section 15 of the Charter dealing with the need to give the Charter a broad, liberal and generous interpretation: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, Vriend v. Alberta, [1998] 1 S.C.R. 493, Miron v. Trudel, [1995] 2 S.C.R. 418, Corbère v. Canada, [1999] 2 S.C.R. 203, Re Dartmouth/Halifax County Regional Housing Authority v. Sparks, 101 D.L.R. (4th) 224 (N.S.C.A.).

Prohibition in paragraph 5(1)(b) of Regulations and rule of law

[14]      All these section 15 cases, to which others might be added (see e.g. Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697 (C.A.); Lovelace v. Ontario, [2000] 1 S.C.R. 950; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; Gosselin v. Quebec (Attorney General) (2002), 221 D.L.R. (4th) 257; Falkiner v. Ontario (Ministry of Community and Social Services), 59 O.R. (3d) 481), deal either with access to benefits, accommodation or work or the right to vote. None concerns a penal provision, as in the case at bar.

[15]      Paragraph 5(1)(b) of the Regulations creates an offence punishable under the Act on summary conviction. As indicated by subsection 32(2) of the Act, the penalties in the event of failure to perform the obligation are significant:

[16]      The effect of allowing the appellant's request and including social condition in paragraph 5(1)(b) of the Regulations as an analogous ground would be twofold. First, it would introduce a considerable degree of ambiguity, unforeseeability and uncertainty into a penal provision which is intended to be precise and limiting since, as decisions are rendered by the courts, other grounds could then be added which might not even have been contemplated by Parliament or the offender. Second, the insertion of this ground by judicial declaration would have a retroactive effect.

[17]      For obvious reasons of justice, fairness and legal security and predictability, criminal law, which by definition imposes limitations on the rights and freedoms of individuals, does not allow either vagueness, retroactivity or the creation of offences by the courts. The origin of this principle lies in the principle of legality, constitutionalized in part by subsection 11(g) of the Charter, which provides that a person cannot be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian law. "The principle of legality, or nulla poena sine lege", writes J.C. Jeffries, Jr. in "Legality, Vagueness and the Construction of Penal Statutes", 71 Va.L.Rev. 189 (1985), "condemns judicial crime creation".

[18]      In R. v. Kelly, [1992] 2 S.C.R. 170, at 203, McLachlin J. noted the standard applicable in criminal law:

It is a fundamental proposition of the criminal law that the law be certain and definitive. This is essential, given the fact that what is at stake is the potential deprivation of a person of his or her liberty and his or her subjection to the sanction and opprobrium of criminal conviction. This principle has been enshrined in the common law for centuries, encapsulated in the maxim nullum crimen sine lege, nulla poena sine lege - there must be no crime or punishment except in accordance with law which is fixed and certain. A crime which offends this fundamental principle may for that reason be unconstitutional.

[19]      Lamer J. made similar comments in Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123. After citing two passages from two U.S. Supreme Court judgments holding that unacceptably vague legislation is void because it is contrary to due process of law, he wrote at 1152:

The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege - that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards . . .

[20]      Finally, the principle of legality does not permit interpretation by analogy in criminal law, as Profs. Fortin and Viau explained in their Traité de droit pénal général, Montréal, Éditions Thémis, 1992, at page 28:

[TRANSLATION]

The principle of legality excludes analogous interpretation from our law. Essentially this method of interpretation consists of comparing two phenomena or situations which have a resemblance in what is regarded as their essentials, and which differ in incidental respects, and considering only what is common between the phenomena so as to treat them on an analogous basis. For example, the law prohibits situation A and the evidence against the accused discloses situation B, not prohibited by law. The judge holds that situation B, although different from situation A, is so close to it that he has decided to apply the prohibition existing against situation A. This method is inconsistent with the principle of legality, because situation B becomes the subject of a judicial, not a legislative, prohibition. In fact, the judge is legislating.

[21]      It should also be noted that there is a significant difference in wording between section 15 of the Charter and paragraph 5(1)(b) of the Regulations. Whereas under section 15 the list of grounds is not exhaustive, as indicated by the use of the words "in particular", the wording of paragraph 5(1)(b), undoubtedly because of its purpose, is not subject to extension. It is exhaustive and contains no "in particular" as in section 15 of the Charter, which opens the way to analogous interpretation in a non-criminal context.

[22]      In the case at bar, the appellant is not asking that paragraph 5(1)(b) be declared unconstitutional and that the effect of that declaration be suspended to allow the legislation to be amended. Instead, it is asking that this Court rule that social condition is a ground that has been included in the paragraph 5(1)(b) prohibition since the Regulations were enacted and that TQS infringed that prohibition. It acknowledges that its claim is retroactive.

[23]      Without ruling on the merits of its argument that social condition is an analogous ground under section 15 of the Charter, it is clear that for the reasons stated the Court does not legally have the power to include it in paragraph 5(1)(b) of the Regulations.

[24]      The appeal will be dismissed, in the circumstances without costs as the respondent TQS decided not to appear at the hearing and to rely on the decision of the Court.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF APPEAL

                                                          SOLICITORS OF RECORD

DOCKET:                                                              A-442-01

STYLE OF CAUSE:                                              FRONT COMMUN DES PERSONNES ASSISTÉES SOCIALES DU QUÉBEC (FCPASQ)                    Appellant

and

CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC)      Respondent

and

RÉSEAU DE TÉLÉVISION QUATRE SAISONS INC. (TQS)      Respondent

PLACE OF HEARING:                                                     Montréal, Quebec

DATES OF HEARING:                                                    October 20 and 23, 2003

REASONS FOR JUDGMENT OF THE COURT       (LÉTOURNEAU, NADON AND PELLETIER JJ.A.)

DELIVERED FROM THE BENCH BY:                       LÉTOURNEAU J.A.

APPEARANCES:

Carmen Palardy                                                                                            FOR THE APPELLANT

SOLICITORS OF RECORD:

Ouellet, Nadon et associés                                                                           FOR THE APPELLANT

Montréal, Quebec

Legal Services of Canadian Radio-Television                                             FOR RESPONDENT CRTC

and Telecommunications Commission

Hull, Quebec

Ogilvy, Renault                                                                                            FOR RESPONDENT TQS

Montréal, Quebec