Broadcasting Commission Letter addressed to Gretchen King (CMAC)

Ottawa, 09 April 2021

BY EMAIL: cmac@riseup.net

Dr. Gretchen King
CMAC Secretary
Community Media Advocacy Centre

Re: Notice of hearing, Broadcasting Notice of Consultation CRTC 2019-379 – Procedural requests by the Community Media Advocacy Centre (CMAC)

Dr. King,

This is in response to the two procedural requests sent to the Commission dated 4 January 2021 and 26 January 2021 regarding the Canadian Broadcasting Corporation/Société Radio-Canada (CBC/SRC) licence renewal process announced in Broadcasting Notice of Consultation CRTC 2019-379 (the Notice). Specifically, CMAC filed two procedural requests to include information in the public record;

The Commission notes that these requests were filed well after the close of the intervention period. Notably, the Notice of Consultation regarding this process was published 25 November 2019 (CRTC 2019-379) and the initial date for the submission of interventions was 13 February 2020. On 28 January 2020, the Commission extended the intervention deadline to 20 February 2020. On 22 June 2020 the Commission announced that the hearing would be held on 11 January 2021. At the hearing the Commission indicated that such late requests would be taken under advisement and the Commission would rule on them at a later date.

Request to include CMAC’s research to the record

On 4 January 2021, the Commission received a procedural request in which CMAC expressed concern about the CBC/SRC’s 1 December 2020 response to the Commission’s request to submit employment equity figures for the record. As a result, CMAC requested that the Commission add CMAC’s own research of protected group representation in English-only CBC programming to the record.

Commission’s analysis and decision

As the procedural request was submitted one week prior to the oral hearing, the Commission is of the view that adding the research to the public record of the proceeding would introduce an issue of procedural fairness to the CBC/SRC, as well as for other interveners given the page and time limits for final submissions and reply. In addition, given that the CBC/SRC, in particular, is allotted limited time and number of pages in which to submit a final reply to all arguments raised during the oral hearing, the Commission believes that including the research on the record at this point in the process could be prejudicial to the CBC/SRC, which would not have the full opportunity to respond.

Further, after being questioned at the oral hearing in regards to its internal representation of diverse Canadians, the Corporation submitted its Annual Cultural Census, including the self-identification questionnaire and three years of results, on 18 January 2021. As well, the CBC/SRC committed in a 3 February 2021 undertaking to report on workforce composition, new hire composition, and key leadership roles for the next licence renewal. The CBC/SRC also committed to reporting on intersectionality between gender and other employment equity groups.

The additional information provided by the CBC/SRC coupled with the information already on the record of this proceeding, as well as any submissions that may be received as a part of the reply phase that concluded in March 2021, will be used by the Commission to render an informed decision on areas related to commitments to diversity in the CBC/SRC’s programming and programming-related activities. 

While the issues raised by CMAC throughout the proceeding have formed a clear statement of its concerns already included on the record, after careful review of the information, the Commission is of the view that the inclusion of this research will not provide incrementally valuable evidence upon which the Commission could base its decision that would justify the deviation from the procedure established by the Commission for this proceeding.

The Commission therefore denies CMAC’s procedural request seeking to have its research filed on the record of this proceeding.

Request to add an open letter to the record

On 26 January 2021, the Commission received a procedural request from CMAC to add an open letter to the record of the proceeding. The letter, titled Absence of racialized voices at CRTC public hearings and received by the Commission on 20 January 2021, was also sent to the CBC/SRC, and the Minister of Canadian Heritage. Signed by a diverse group of Canadian students, media workers, and citizens, the letter contained concerns about the diversity of interveners appearing in the oral phase of the proceeding, as well as anonymous accounts of problematic programming decisions within the CBC/SRC.

Commission’s analysis and decision

The Commission notes that the request to include the open letter on the record was received 11 months after the end of the public intervention period which took place from 25 November 2019 to 20 February 2020. Although the Commission acknowledges that the letter itself was only received 20 January 2021 and that CMAC could not, therefore, have submitted its request sooner, the Commission also notes that the authors did not request that the letter be added on the record of the proceeding. Further, the authors of the letter give no indication as to why the signatories could not have raised the concerns earlier in the process. 

The Commission notes that the letter has been widely available online in both French and English since 20 January 2021. Further, as the letter was discussed in CMAC’s 22 January 2021 presentation at the oral hearing, interveners were able to reference it in their final submissions for this proceeding should they have chosen.

The Commission is of the view that adding the letter to the record of the proceeding would introduce an issue of procedural fairness as it relates to the CBC/SRC, as well as other interveners given the page and time limits for final submissions and reply, and could also introduce further delay into the process. The Commission is also concerned that adding the letter to the record of the proceeding could be prejudicial to the CBC/SRC which would be put in the position of having to respond to these allegations in its limited reply without sufficient information available for it to determine the context and facts surrounding the alleged incidents.

Accordingly, the Commission is not convinced that it should deviate from the process as set out. The Commission therefore denies CMAC’s request to add the open letter in question to the public record of this proceeding.

Sincerely,

Claude Doucet
Secretary General

Dissenting Opinion of Commissioner Claire Anderson

I have read the Commission letter addressed to Dr. King and dated April 9, 2021, and with the utmost respect to my colleagues, I disagree with their disposition of the procedural requests filed by the Community Media Advocacy Centre (CMAC) on January 4, 2021, and January 26, 2021, regarding the Canadian Broadcasting Corporation/Société Radio-Canada (CBC/SRC) licence renewal proceeding (the proceeding).

CMAC Request to Add Research to the Record

On January 4, 2021, the CMAC filed a procedural request with the Commission seeking to add to the record of the proceeding its own open source research (the Open Source Research) regarding diversity in certain English-language CBC programming. The CMAC submitted that the Open Source Research would help inform discussions on whether the CBC/SRC is reflecting the circumstances and aspirations of all members of Canadian society.

In the majority reasons for denying this request, the Commission noted that “[a]s the procedural request was submitted one week prior to the oral hearing, […] adding the research to the public record would introduce an issue of procedural fairness to the CBC/SRC, as well as for other intervenors…”

For the reasons outlined below, I would have granted the CMAC’s request and added the Open Source Research to the record.

I find that the Open Source Research is relevant to the proceeding as it speaks to whether the CBC/SRC, through its programming, reflects the circumstances and aspirations of all members of Canadian society. It therefore falls squarely within the Commission’s jurisdiction, pursuant to subparagraph 3(1)(d)(iii) of the Broadcasting Act (the Act). The Open Source Research also helps inform whether the CBC/SRC is meeting its programming obligations under paragraphs 3(1)(l) and (m) of the Act, which include provisions intended to ensure that the needs and interests of Canadians from diversity groups are being met in a respectful manner. Footnote1

Moreover, as the Commission acknowledged in Broadcasting Notice of Consultation 2019-379-4, data of this nature was sought by the Commission in order to ensure that there was a meaningful discussion at the hearing on the relevance of CBC/SRC’s programming to Canada’s diverse population. At the time the CMAC filed the Open Source Research, the CBC/SRC had not filed the requested data.

I am also of the view that the timing of the CMAC’s request was largely due to factors beyond its control. The CMAC first raised the issue of whether the CBC/SRC’s programming is reflecting and meeting the needs of Canada’s diverse population in a request filed on February 8, 2020. This letter underscored the notion that diversity at the leadership level is necessary in order for the CBC/SRC to fulfill its legal and policy obligations, and requested documentation relating to diversity at the CBC/SRC, including access to its Annual Cultural Census Reports (ACC Reports). Footnote2 This request was repeated in the CMAC’s intervention, which was filed on February 20, 2020.

On July 24, 2020, the CMAC filed its second procedural request relating to diversity within the CBC, wherein it asked the Commission to, among other things, require the CBC/SRC to submit certain detailed employment equity information. The CMAC noted that this request was fuelled in part by the death of Mr. George Floyd, an unarmed Black man who was killed by a police officer in the United States on May 25, 2020, and by subsequent allegations of systemic discrimination by Black, Indigenous and People of Colour (BIPOC) journalists at the CBC/SRC. Footnote3

On July 29, 2020, the CBC/SRC responded to the CMAC’s request. It submitted that the request is related to employment equity, and relied on subsection 5(4) of the Act to support its position that it should not have to provide the requested information.

On August 4, 2020, the CMAC responded that the CBC/SRC had taken a flawed and narrow interpretation of its obligations as a national broadcaster, and noted that “the requested information is in the public interest because employment equity and cultural diversity information is needed to assess if the CBC/SRC is delivering on its obligations in sections 3(1)(d)(iii) and 3(1)(m)(viii) of the Broadcasting Act…”.

I note that the Commission has subsequently requested information relating to diversity at the leadership level, in order to assess if the CBC/SRC is meeting its programming obligations under the Act, which, in my view, confirms the inextricable connection between diversity in leadership and programming at the CBC/SRC.

For instance, the Commission’s November 10, 2020 letter to the CMAC confirmed that further information relating to diversity could assist the Commission and the parties in the discussion of this issue. In that regard, on November 10, 2020, the Commission wrote to the CBC/SRC, requesting more information about diversity within key leadership positions.

On December 1, 2020 the CBC/SRC filed a reply with the Commission. The CBC/SRC did not provide any of the requested information, citing confidentiality concerns, and noting there are so few individuals from diversity groups in leadership positions that there is a “serious risk” that an individual could be identified through the release of the data. Footnote4

On December 18, 2020, the Commission issued Broadcasting Notice of Consultation 2019-379-5, in which it noted its dissatisfaction with the CBC/SRC’s reply. It also noted the importance of having the “necessary information to consider how the Corporation is, through its programming, reflecting the circumstances and aspirations of all members of Canadian society…” The Commission gave notice that it intended to question the CBC/SRC on these issues at the public hearing.

It was in light of this procedural history, and, in its view, of the lack of information on the record about whether the CBC/SRC is meetings its obligations to provide programming that is reflective of and meets the needs of Canada’s diverse population, that the CMAC sought to file its Open Source Research on January 4, 2021.

While it is true that the January 4, 2021 request was made a week before the start of the hearing, I believe that it was an attempt to add relevant information to the record so that the Commission could establish a baseline with respect to diversity, and have a more fruitful discussion about diversity at the hearing. I further believe that if the CBC/SRC had been more forthcoming in providing the information relating to diversity and programming in response to the Commission’s earlier request, the CMAC may not have felt compelled to conduct a study over the course of the holidays.

For these reasons, I believe that it is in the public interest to include the Open Source Research on the record of this proceeding.

I take no position with respect to the accuracy of the Open Source Research or the methodology used to compile it. Had it been added to the record, the CBC/SRC would have had the opportunity to raise any such issues in reply. I also note that the Commission may ascribe varying degrees of weight to any piece of evidence on the record, if, for example, there are methodological concerns at hand.

Request to Add an Open Letter to the Record

On January 26, 2021, the CMAC filed a request to add an open letter, titled Absence of racialized voices at CRTC public hearings (the Open Letter), to the record of this proceeding. The letter was signed by Canadian students, media workers, and citizens, and expressed concern “about the near-total lack of representation from community groups and entities committed to bringing the concerns of racialized voices to the Canadian public” at the CBS/SRC licence renewal hearing.

The Open Letter raised several important issues, including that the Commission’s processes present immense challenges for marginalized populations to access “complicated online and bureaucratic procedures that structure who can actually participate.” The authors discuss that the absence of diverse populations “reveals an institutional failure” shaped by a lack of meaningful anti-racist policies and procedures.

In the majority reasons for denying the CMAC’s January 26 request, the Commission was of the view that adding this letter to the record would introduce an issue of procedural fairness, given the page and time limits for final submissions and reply, and could introduce further delay into the process. The Commission was also concerned about prejudice to the CBC/SRC in responding to the allegations contained in the letter. 

The majority decision also emphasized that the Commission did not receive the Open Letter until 11 months after the end of the intervention period, which took place from November 25, 2019 to February 20, 2020, and that the authors did not request that the letter be included on the record.

For the reasons outlined below, I would have granted the CMAC’s request to add the Open Letter to the public record of the proceeding. In particular, I believe that accepting the Open Letter would indicate a willingness on the part of the Commission to be more inclusive in our processes.

There is no requirement that the author of correspondence request that it be included on the record in order for that correspondence to be placed on the record. However, the fact that the letter is addressed to the CRTC Chair, amongst others, and then speaks to the CBC hearing specifically, indicates that this letter is both relevant, and perhaps intended, to be added to the record. Footnote5

Regardless of the authors’ intent, the CMAC is entitled to request that it be added to the record. The CMAC filed its request in a timely manner, and over a month before intervenors’ final submissions were due, and almost two months before the CBC’s final reply was due.

As an administrative tribunal, the Commission is master of its own process. It therefore has the flexibility to modify its process in response to requests of this nature, so long as the process remains procedurally fair. Given the timing of the CMAC’s request, I find that parties would have had an opportunity to respond to the Open Letter. If not, I believe that any prejudice to the CBC/SRC could have been adequately addressed with additional process. For example, we may have been able to extend the reply submission phase by a mere week or two, in order to allow the intervenors to address the Open Letter in their final submission. Alternatively, we could have allowed the CBC/SRC an additional, limited reply.

Additionally, and most importantly, in refusing to include the Open Letter on the record, I am concerned that the Commission may be seen as expressing an unwillingness to allow our procedures and processes to be more inclusive of groups who historically may have felt excluded. Footnote6 Accepting the letter onto the public record represents an opportunity to take a more inclusive approach. Nobody could have anticipated the global resurgence of the Black Lives Matter movement, and the discussions on systemic racism and discrimination that ensued. In my view, the importance of the concerns raised in the letter, the quickly evolving discussions about systemic discrimination, and the limited number of intervenors representing BIPOC Canadians at the hearing, are important considerations that favour including the Open Letter on the record.

We are living in an unprecedented time of honesty about how deep the trenches of systemic racism run in our institutions and levels of government. I understand and support that as an administrative tribunal, the Commission must strive to ensure that a high degree of procedural fairness is afforded to all parties. However, in my view, there is room to examine whether ‘fair’ or ‘neutral’ policies or processes mistakenly assume that all groups are starting from the same playing field, while ensuring that administrative law principles are respected.

This may entail asking ourselves some truly challenging questions about fairness. Is our current understanding truly equitable—or does a commitment to colour-blindness amount to a commitment to upholding systems that perpetuate inequality? If we are not challenging inequality, or at least acknowledging that it exists, we are contributing to it.

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