BROADCASTING |
Front commun des personnes assistées sociales du Québec v. Canada (Radio-television and Telecommunications Commission)
A-442-01
2003 FCA 394, Létourneau J.A.
23/10/03
11 pp.
Appeal from decision by Canadian Radio-television and Telecommunications Commission (CRTC) that TQS Television network did not infringe 1987 Broadcasting Regulations, s. 5(1)(b)--Appellant objected TQS network program had strong tendency to promote and encourage scorn and prejudice for persons receiving social assistance--CRTC submitted appellant's complaint to Quebec Regional Council of Canadian Broadcast Standards Council (CBSC)--Latter concluded TQS had infringed provisions contained in Canadian Association of Broadcasters' Code of Ethics, but not Code, s. 2 which prohibited making of discriminatory comments--On appeal, CRTC concluded TQS had not infringed Regulations, s. 5(1)(b), which prohibits broadcasting of any abusive comment that tends to or is likely to expose victim of comment to hatred or contempt--Not necessary to determine whether social condition is ground in Charter, s. 15, as neither CRTC nor this Court had before it sufficient evidence of constitutional facts to decide whether ground analogous to those listed in Charter, s. 15 and Regulations, s. 5(1)(b)--No evidence in record showing inclusion of social condition in Regulations, s. 5(1)(b) is or might be reasonable limit on freedom of expression guaranteed by Charter, s. 2(b) and that that limit can be demonstrably justified in free and democratic society--Need for factual basis also becomes important in analysis which must be undertaken under Charter, s. 1--Effect of allowing appellant's request and including social condition in Regulations, s. 5(1)(b) as analogous ground would be twofold--First, it would introduce considerable degree of ambiguity, unforeseeability and uncertainty into penal provision which is intended to be precise and limiting--Second, insertion of this ground by judicial declaration would have retroactive effect--For obvious reasons of justice, fairness and legal security and predictability, criminal law, which by definition imposes limitations on rights and freedoms of individuals, does not allow either vagueness, retroactivity or creation of offences by courts--Rule of law does not permit interpretation by analogy--Significant difference in wording between Charter, s. 15 and Regulations, s. 5(1)(b)--Latter, undoubtedly because of its purpose, not subject to extension--It is exhaustive and contains no "in particular" as in Charter, s. 15, which opens the way to analogous interpretation in non-criminal context--Appeal dismissed--Broadcasting Regulations, 1987, SOR/87-49, s. 5(1)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.