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Ottawa, 20 August 1990
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Decision CRTC 90-772
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Les Entreprises de Radiodiffusion de la Capitale Inc.
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Québec, Quebec - 894332600
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Following a Public Hearing commencing 13 March 1990 in Montréal, the Commission renews the broadcasting licence for CHRC Québec from 1 September 1990 to 31 August 1991, subject to the conditions specified in this decision and in the licence to be issued. This renewal for one year (1) only follows an earlier 20-month licence term expiring 31 August 1990 (Decision CRTC 88-888 dated 23 December 1988). In that decision, the Commission stated that the 20-month licence term was to allow it to assess the response of Les Entreprises de Radiodiffusion de la Capitale Inc. (Les Entreprises, the licensee) to concerns expressed therein. It appears in this regard that the situation, rather than showing any improvement, has further deteriorated.
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The Commission's decision to limit the new licence term to a period of one year reflects its serious concerns with the licensee's flagrant failure to meet the requirement set out in the Broadcasting Act (the Act) for the provision of high quality programming (the high standard requirement) in cases involving certain on-air comments made by André Arthur as host of CHRC programs. The Commission also has serious concerns regarding the licensee's performance in response to the Act's requirement that there be balance in the discussion of matters of public concern (the balance requirement) in the context of certain events since brought to its attention, again involving the on-air behaviour of André Arthur on CHRC. These events that have led to the Commission's present decision are dealt with later. In addition to the one-year renewal, the Commission's concern with the licensee's performance is reflected in the conditions of licence set out at the end of this decision. Through these conditions, the Commission will be in a better position to monitor closely the licensee's performance. These conditions are intended to make the licensee correct its failings; otherwise, the Commission will be called upon to consider what other stricter measures should be applied.
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The Commission intends to review the licensee's performance in response to the concerns expressed in this decision when it considers CHRC's next licence renewal.
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I.BACKGROUND
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On 22 May 1985, the Commission approved applications by Les Entreprises for authority to acquire the assets, and for a licence to continue the operation, of CHRC (Decision CRTC 85-361). In that decision, the Commission noted its discussions with the licensee regarding the station's editorial policy and the measures proposed by the licensee to ensure that its news, public affairs and open-line programming are of high quality and provide for the balanced expression of differing views; the Commission made it an expectation that the licensee adopt specific guidelines in this regard, and furnish a copy of these guidelines to the Commission.
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In June 1985, the licensee submitted its [TRANSLATION] 'Statement of Guidelines for Open-Line, News and Public Affairs Programming'. With respect to open-line programs, the licensee's guidelines stipulated that they [TRANSLATION] 'must exist solely for the purpose of serving the public interest'. With regard to program quality, the licensee stated that it would rely upon the work and competence of its research teams, as well as on the careful verification of all incoming calls before they are broadcast. The licensee noted that the hosts of these programs regularly consulted with specialists in order to gain a better understanding of the issues to be discussed, and that on-air staff were carefully supervised to ensure that they [TRANSLATION] 'perform their work in an objective manner and treat the public with respect'.
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Nevertheless, the licensee's performance as regards its open-line programs was such that it was called to appear at the 7 March 1988 Public Hearing in Québec for consideration of its renewal application. Subsequently, in renewing the CHRC licence for 20 months, the Commission stated:
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Owing to the fact that the licensee places great emphasis on open-line programs, and in view of the particular responsibilities which this programming places upon CHRC in light of the requirements with respect to both balance and high quality programming set out in paragraph 3 (d) of the Broadcasting Act, the licensee is required to submit to the Commission new guidelines and any other control measures it proposes specifically tailored to this type of programming and that respond to the concerns that have arisen over the existing licence term.
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Pursuant to the Commission's decision dated 23 December 1988, the licensee submitted, in March 1989, a set of proposed guidelines for open-line programs. After receiving the Commission's comments, the licensee submitted amended guidelines and, on 13 October 1989, the Commission informed the licensee that these amended guidelines had been accepted. While the licensee remained clearly answerable to the Commission for any failure to meet the requirements relating to high standard and balance occurring before that date, it now became responsible as well for adherence to its own guidelines following their acceptance by the Commission.
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It was against this background that the Commission considered the application for renewal of CHRC's current licence, expiring 31 August 1990.
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II. FREEDOM OF EXPRESSION
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The Commission fully recognizes that the most important issue raised by this decision is freedom of expression on the airwaves, and what limits to such freedom are reasonable in the circumstances. The Canadian Charter of Rights and Freedoms (the Charter) explicitly recognizes freedom of expression in subsection 2(b):
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2. Everyone has the following fundamental freedoms:
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................................
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(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
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Paragraph 3(c) of the Act states that:
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(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;
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Furthermore, Section 1 of the Charter states that:
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The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
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And the Act, under paragraph 3(a), states that:
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(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;
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The Commission, having due regard for each of these provisions, must interpret and determine the appropriate application of the requirements for high standard and balance set out in paragraph 3(d) of the Act, as follows:
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(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;
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Section 1 of the Charter makes it readily apparent that the rights and freedoms listed therein are not absolute in this country, nor have they ever been for that matter. Freedom of expression in Canada is thus not without restriction. The above-mentioned provisions of the Act unequivocally attest to Parliament's intent that, in supervising the use of radio frequencies, which are public property and limited in number by the radio spectrum, the greatest possible emphasis be given to the affirmation of the right to freedom of expression, subject to the requirement for programming of high standard and subject to achieving an intelligent harmony with the requirement for balance in the discussion of matters of public concern. The Commission, whose challenging responsibility it is to apply the Act in a manner that respects fully the Charter, recognizes, shares and accepts as healthy the instinctive and deeply held scepticism with which Canadians greet any attempt to limit freedom of expression by those who would dictate or impose values as to what constitutes truth, beauty, goodness or justice.
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The Commission is therefore wholly committed to exercising the strongest possible bias in favour of freedom of expression. This freedom not only constitutes an essential characteristic of democracy, but one of its more important guarantees as well. Central to the Commission's approach is the premise advanced by the philosopher John Stuart Mill in his essay 'On Liberty':
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He who knows only his own side of the case, knows little of that.
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Print media are privately owned and provide, in theory, for unlimited access. Frequencies are, in contrast, both a public property and a scarce resource. These features undoubtedly have an essential bearing upon the exercise of freedom of expression over the airwaves and this translates into a unique framework. Persons licensed by the Commission to make use of these public frequencies, and the powerful means of communication they represent, are, in fact invested with the trust of Canadians, and thus occupy positions involving a particularly onerous responsibility. The framework applicable to the exercise of freedom of expression is imposed through specific statutory requirements for high standard and balance, and licensees must ensure that this framework is respected in their programming.
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In the Commission's view, the right to freedom of expression is to be favoured to the full extent that the high standard and balance requirements allow.
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The Commission must examine the particular circumstances of each individual case, taking into account the vital freedom of fair and vigorous comment. Moreover, the Commission is not prepared to conclude that the limits to freedom of expression have been overstepped in cases other than those of the most flagrant excess; in grey areas, where it is not obvious that the requirement of high standard has been breached, the Commission will settle in favour of freedom of expression. The aim is to provide a minimum level of protection to persons in situations where freedom of expression, a very powerful freedom when exercised using the public airwaves, comes at their expense.
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The Commission believes that Parliament's clear intent in requiring the provision of reasonable and balanced opportunity for the expression of differing views on matters of public concern was to ensure that listeners and viewers have access to a variety of views on these matters, such access itself serving to promote freedom of expression on the airwaves.
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III REPRESENTATIONS CONCERNING CHRC
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Using the above as its framework, the Commission considered the complaints and interventions on the public file of CHRC's licence renewal application. The Commission received 71 interventions supporting renewal of CHRC's licence, many apparently the result of a campaign to obtain such support conducted by CHRC. Among the several petitions submitted, one contained more than 5,500 signatures. One intervenor supporting renewal of the licence, Simon Wilson, appeared at the hearing. Four interventions in opposition to CHRC's licence renewal were presented at the hearing, namely those by the Quebec Urban Community (the Urban Community), Mrs. Margaret Delisle, Mayor of the City of Sillery, the daily newspaper Le Soleil and the Sûreté du Québec (the Quebec Police Force).
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The licensee challenged the admissibility before the Commission of the interventions by the Urban Community, Le Soleil and the Quebec Police Force. In the interest of ensuring, among other things, the broadest possible access to its public proceedings, as required by its statutory mandate, the Commission begins from the premise that any person can intervene, provided the intervention is relevant to the issue under consideration and meets all other relevant procedural requirements. In this case, the Commission considered carefully the arguments of both sides regarding the admissibility of the interventions. It was unable to conclude that these intervenors were clearly legally incompetent to appear before it; furthermore, in no case was there a court decision declaring the intervenor incompetent to bring such an intervention before the Commission, or the Commission to be incompetent to consider any of the matters that were the subject of the intervention. The Commission therefore refuses to declare the interventions of the Urban Community, Le Soleil or the Quebec Police Force inadmissible; it notes that, as such, they form part of the record concerning CHRC's licence renewal application, and have been assessed by the Commission in reaching its decision.
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IV. SPECIFIC INCIDENTS EXAMINED AND ASSESSED
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In the present case, the Commission considers it necessary to focus on certain specific incidents contained in the public record pertaining to CHRC's licence renewal application, and to state its position on these incidents in relation to the high standard requirement and the balance requirement, with any conclusion as to the violation of either being, for all intents and purposes, self-evident. All of these situations involve André Arthur and are addressed below.
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A. Assessment of specific incidents in relation to the high standard requirement.
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Complaint by the Quebec Police Force concerning the Pont-Rouge incident
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In this case, the Quebec Police Force filed a complaint with the Commission after Mr. Arthur, making reference to [TRANSLATION] 'rather incredible rumours' concerning the drowning deaths of a mother and her child, implied on the air that [TRANSLATION] 'the [Quebec Police Force] divers, having found the mother and the child, secured the child's body to the bottom of the river, and retrieved the body of the mother in order to have it appear as if they were searching for three more days because it looked good on television'. In discussions of this matter with the licensee, including those held at the hearing, the Commission obtained no valid indication that the licensee, through its host André Arthur, was not simply using the phrase [TRANSLATION] 'rather incredible rumours' as an artificial and expedient means of allowing discussion of a matter whose accuracy had not been nor could be verified. Obviously, there is no question of obliging the licensee and/or André Arthur to reveal, if applicable, the source(s) of the information in question; rather, the Commission must be fully convinced that the necessary precautions had been taken prior to broadcast of the information. The Commission considers it incumbent upon the licensee to submit satisfactory evidence regarding the basis of the [TRANSLATION] 'rather incredible rumours'. In the absence of such evidence, the Commission cannot accept that André Arthur had any legitimate reason to speak of the rumours in question during a CHRC broadcast, rumours of undeniable harm to the Quebec Police Force, and lacking the most basic consideration for the family of the drowned mother and child. In the circumstances, the Commission must assume that the licensee was in clear violation of the high standard requirement.
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Complaints by Jacques Beaudoin of 6 April and 12 September 1989 concerning remarks about Mr. Beaudoin by André Arthur during CHRC broadcasts.
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These complaints concern remarks made by André Arthur on CHRC on 8 March and 5 September 1989. The Commission considered the following remarks from a commentary by André Arthur on 8 March 1989 on CHRC [TRANSLATION]:
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Obviously, when you've been the Chief of the Quebec Police Force and you have everything you need to blackmail politicians -- you know the little girls they've slept with, and the little boys they've slept with; you know where they did this or that, it's easy to find a job afterwards. But not everyone is as lucky as Jacques Beaudoin.
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On 5 September 1989, André Arthur repeated similar comments on CHRC. This time, after stating that Mr. Beaudoin was in a position to blackmail politicians, he took the precaution of adding [TRANSLATION] 'I'm not saying he does it', and continued with the same type of commentary as quoted above.
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Even though wishing to give the freest possible rein to freedom of expression, the Commission cannot condone the broadcast of insinuations that are so malicious and damaging. These insinuations clearly violate the high standard requirement.
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Comments by André Arthur on CHRC concerning a Quebec vocal artist
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In particular, the intervention by Le Soleil drew the Commission's attention to the following remarks by André Arthur on CHRC on 16 January 1990, concerning a Quebec vocal artist [TRANSLATION]:
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[name of person] was raped when she was 13; that was her last chance.
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This hurtful and malicious comment denies the repugnant nature of the crime of rape. It effectively renders the author of the statement and the licensee accomplices in trivializing a crime whose effects on women, its most immediate victims, and ultimately on society in general, are greatly damaging and profound. It is a flagrant violation of the high quality standard and deserves the Commission's unhesitating condemnation.
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Remarks by André Arthur on CHRC, broadcast on 20 February 1990, concerning Mr. Roland Bourget, Chief of the Public Safety Department of Sainte-Foy and Mr. Pierre Leclair, then Director of Communications of the Montreal Urban Community Police Department and now Assistant Director, Operations, of the Public Safety Department of Sainte-Foy.
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As a result of the intervention by the Quebec Police Force, the Commission learned of statements by André Arthur on CHRC on 20 February 1990 concerning Mr. Roland Bourget and Mr. Pierre Leclair. On this occasion, André Arthur reported the possibility of Mr. Leclair becoming Mr. Bourget's 'right-hand man' on the Sainte-Foy police force. At the end of his commentary, André Arthur stated the following [TRANSLATION]:
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When Mr. Bourget let it be known that Mr. Leclair might be coming to Quebec City to be his right-hand man, you just can't help perceiving such an action to be absolutely and incredibly brazen on both their parts. Consider the facts. Not so long ago, there was a dreadful massacre at École polytechnique, and one of the victims was the daughter of Mr. Leclair, Director of Public Relations for the Montréal Urban Community Police Department. We found out two things later, though: Mr. Leclair's daughter was probably one of the last ones to be killed during the rifle fire, and she was stabbed as well because it seems the madman knew who she was. While Mr. Leclair's daughter was being executed by this lunatic at the Polytechnique, the police officers at the door didn't enter the building, in line with the new orders they were given by Roland Bourget after the Gosset affair. This guy would then accept a job in Sainte-Foy from this same Roland Bourget. Either you do not have much heart or one of the two thinks he owes the other a big debt.
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It's really funny to see that debts like that are going to be paid with money from Mayor Boucher's taxes. What do you think she'd have done if she had been in the opposition?
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These remarks speak for themselves. They show a shocking lack of consideration on the part of André Arthur, and consequently on the part of the licensee, for the undoubtedly cruel suffering of Mr. Pierre Leclair and his family following a tragedy that shook Quebec and Canada. The Commission believes that, under the high standard requirement, such behaviour on the part of those entrusted with the use of frequencies that Parliament has declared to be public property is unconscionable - and, therefore, not of high standard.
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Remarks by André Arthur concerning Mrs. Margaret Delisle, Mayor of Sillery.
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As a result of the intervention by Mrs. Delisle, the Commission learned of the following remarks made about her by André Arthur on 5 December 1989 when, during a CHRC broadcast, he openly challenged the reasons underlying her position on Sillery's water supply [TRANSLATION]:
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Perhaps Mrs. Delisle had made prior commitments to people at the time when she was persuaded that the river was preferable; perhaps she had made commitments to certain engineering firms that had come recommended by certain legal firms. After all, the professional circles in cities are highly structured and very well organized. For example, Mrs. Delisle's husband is himself a lawyer who works for a firm specializing in municipal law; he is therefore in contact with architectural firms, engineering firms and town planning firms. These people all know one another and see each other at conventions. Is it possible that Mrs. Delisle, at the time when she considered the river to be the best solution, made a number of moral commitments to certain firms, so that one day there would be a nice plant in Sillery?
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In effect, André Arthur clearly cast doubt on the honesty of Mrs. Delisle and her husband, yet avoided having to provide any basis whatsoever to support his statements. This is an insidious and unacceptable attack against individuals, and is incompatible with the high standard requirement.
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B. Assessing the incidents in relation to the balance requirement
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The interventions by the Urban Community and Margaret Delisle raised, in a particularly blunt fashion, the issue of balance in discussions of matters of public concern on André Arthur's CHRC programs. The Commission held a very intense discussion of this issue with both the Urban Community and Mrs. Delisle, and with the licensee at the hearing. Both the Urban Community and Mrs. Delisle argued convincingly that there had not been a balanced discussion regarding the specific matters of public concern of most direct interest to them, these being, in the case of the Urban Community, the purification of water from the river and the Quebec National Tourist Centre, and the City of Sillery's water supply in the case of Mrs. Delisle. With respect to André Arthur's programs broadcast by CHRC, the licensee maintained that the discussion of these matters was self-balancing and that, in any case, they should be considered as having received balanced discussion taking into account other CHRC programs.
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In light of the representations of the Urban Community and of Mrs. Delisle, the Commission considers that the licensee has failed to demonstrate conclusively that it ensured balance in the discussion of the matters of public concern in question during the programs hosted by André Arthur. The Commission therefore continues to have serious concerns regarding these specific incidents.
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V. THE LICENSEE'S POSITION
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At the hearing, the licensee was asked on a number of occasions to take a position on the complaints it received arising from on-air remarks by André Arthur during CHRC broadcasts. With regard to the specific situations examined above, whether in relation to the high standard requirement or balance requirement, the licensee has refused to acknowledge any violation whatsoever of either. It should also be noted that the licensee has in no other manner signaled the slightest acceptance that there might be a problem as regards either high standard or balance. At the hearing, it appeared that the licensee, for all intents and purposes, considered the mere existence of its guidelines, approved by the Commission, as a full and automatic guarantee against any violation of the high standard or balance requirement in CHRC broadcasts. As for high standard in particular, the licensee placed considerable emphasis on CHRC's budget for news and public affairs, as if to suggest that the money spent in this area should safely protect the station against any failure to meet this requirement. The licensee's attitude before the Commission was one of total inflexibility. It either saw no problem, or refused to agree that one existed.
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The Commission, however, is convinced that a serious problem does exist regarding the licensee's performance in meeting the high standard requirement, and the existence of this problem forms the basis for its decision, stated above, to renew the applicant's licence for one year only. The Commission also has serious concerns regarding the station's compliance with the balance requirement. As a consequence of this problem and these concerns, the Commission has decided to impose particular licence conditions upon the licensee, these being conditions 1 to 5, as set out in the following section.
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VI. CONDITIONS OF LICENCE
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In light of the Commission's concern regarding compliance with the balance requirement and the licensee's concern regarding the use of recordings not made by it, it is a condition of licence that the licensee retain logger tapes of all CHRC broadcasts for a period of six (6) months from the date of broadcast.
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Regarding the objectionable comments of André Arthur on CHRC concerning various persons, it is a condition of licence that the licensee inform the Commission of any judgements or settlements regarding defamation actions taken against it and/or its host, André Arthur, as a consequence of on-air remarks by André Arthur during CHRC broadcasts.
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3.Within the framework of the Act and the Radio Regulations, 1986, it is a condition of licence that the licensee adhere strictly to the requirements of its guidelines approved by the Commission on 13 October 1989, and to provide a copy of these guidelines to any interested party upon request. In the Commission's view, these guidelines serve a useful purpose in defining more accurately the scope of the high standard and balance requirements.
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4.In order to render the licensee's guidelines truly effective, it is a condition of licence that the licensee file with the Commission, within sixty (60) days of the date of this decision, amended guidelines specifying the manner in which all persons mentioned on the air are to be treated, whether they are present in the studio or not, taking into account the basic respect owed to such persons in conformity with the high standard requirement. The amended guidelines, once approved by the Commission, shall replace the guidelines approved on 13 October 1989, and adherence to them shall be a condition of licence. Moreover, copies shall be provided by the licensee to any interested party upon request.
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5.It is a condition of licence that the licensee inform its audience of the existence of the guidelines referred to in condition of licence #3 above and, as of their effective date, those referred to in condition #4. This shall be accomplished through an announcement of at least 30 seconds duration and in a form approved by the Commission, and broadcast by CHRC daily, Monday to Friday, immediately following the 8:00 a.m. newscast or, in the absence of such newscast, at 8:00 a.m. In particular, the announcement shall mention that a copy of the guidelines will be provided by the licensee to all interested parties upon request. 6. It is a condition of licence that the licensee adhere to the Canadian Association of Broadcasters' (CAB) self-regulatory guidelines on sex-role stereotyping, as amended from time to time and approved by the Commission.
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7. It is also a condition of licence that the licensee adhere to the provisions of the CAB's Broadcast Code for Advertising to Children, as amended from time to time and approved by the Commission.
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Alain-F. Desfossés
Secretary General
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