Supreme Court of Canada
CKOY Ltd. v. R., [1979] 1 S.C.R. 2
Date: 1978-10-03
CKOY Limited (Plaintiff)
Appellant;
and
Her Majesty The
Queen on the Relation of Lorne Mahoney (Defendant) Respondent.
1978: May 17; 1978: October 3.
Present: Laskin C.J. and Martland, Ritchie,
Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
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 from a
judgment of Reid J. 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
[Page 5]
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
[Page 6]
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
[Page 7]
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?
[Page 9]
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.
...
[Page 10]
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:
[Page 12]
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
[Page 13]
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., 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., 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.
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