THE FACTS
Mon ex à moi is a drama program that follows the love lives of a group of young adults. Noovo Montreal (CFJP-DT) broadcast this episode, entitled “Père recherché” (“Father Wanted”), on February 22, 2021 at 7:30 pm.
At the beginning of the episode and at the end of each commercial break, Noovo broadcast the following advisory in audio and video format:
[translation]
Warning
This program contains mature scenes or themes. Viewer discretion is advised.
A 13+ icon appeared on screen for ten seconds, thirty seconds after the beginning of the program. It reappeared after each commercial break, each time for ten seconds, after approximately thirty seconds’ worth of content.
The episode consisted mostly of conversations between the characters, some of which were of a sexual nature, interspersed with scenes of a couple, Mathieu and Charlotte, having sex.
Towards the beginning of the episode, Mathieu announces to Charlotte and Marilou that he is going to write an article entitled [translation] “Female Fountains: Myth or Reality?” Marilou asserts that this is a myth and a “porn invention”, but Charlotte says that it has happened to her [translation] “a couple of times, but always at the third or fourth orgasm”. She then explains the biology of the phenomenon. Mathieu leads Charlotte into the bedroom for a demonstration.
The scenes of Charlotte and Mathieu in bed are interspersed with others. In the first, Mathieu and Charlotte are on a bed. Charlotte is on all fours wearing a sleeveless top with her bra visible. Mathieu, still dressed, is kneeling behind her. He appears to have his fingers in Charlotte’s vagina as she groans and moves in a manner that indicates she is sexually aroused. Mathieu looks to see if she has ejaculated.
In the second, Mathieu is looking at a diagram of female genitals on his cellphone. Charlotte is lying on her back. She moves her legs. Her face is visible while Mathieu reads the instructions: [translation] “Make small circular movements, but with suitable pressure.” The camera angle changes. Charlotte now has one leg on Mathieu’s shoulder and has the other knee bent. Mathieu’s hand is not visible, but is presumably inside Charlotte’s vagina. Charlotte says [translation] “Go like this” as she moves two of her fingers in a stroking motion. Mathieu modifies his motion and Charlotte adjusts her position, saying [translation] “This is going to take some lubricant”.
Meanwhile, Marilou reminds Félix-Antoine about the time he [translation] “asked her to come in [his] mouth”. He explains that he likes feeling a woman’s vaginal lips quivering against his mouth. Marilou mentions the notion of female ejaculation. Félix-Antoine also thinks it is a porn invention.
Charlotte and Mathieu continue their attempts to make Charlotte ejaculate. Mathieu, who is now wearing only his briefs, is on his knees with his head between Charlotte’s legs, performing cunnilingus on her. Charlotte tells him it is not going to work and that she is starting to find it annoying. The camera zooms in on Mathieu’s head between Charlotte’s legs, but her shirt covers her genital area. Mathieu gets dressed and leaves to go to the bar.
Once at the bar, Mathieu receives a text message from Charlotte telling him she is [translation] “ready for round 4”. Charlotte and Mathieu are back in bed together. Mathieu is naked. Charlotte is still wearing her shirt and is lying on her back. Mathieu is on top of her, having intercourse. Charlotte cries out in pleasure and has an orgasm. Mathieu looks down. He says [translation] “And myth becomes reality”. The two smile and Mathieu lies on top of Charlotte. Charlotte pats Mathieu’s bare buttocks and they kiss. (A more detailed description of the relevant scenes is in Appendix A, available in French only.)
On February 22, the CBSC received a complaint via its webform. The complainant wrote that [translation] “the explicit sexual gestures were absolutely inappropriate for that time of day” and listed numerous acts that she had seen in the broadcast.
Noovo responded to the complainant on March 25. The broadcaster noted that the episode was accompanied by a 13+ icon and a viewer advisory. It regretted that the content had offended the complainant and added that, subsequent to her complaint, it had decided not to rebroadcast the episode.
The complainant wrote again to the CBSC on March 27 asking if this type of content was allowed at that time of day and if the 13+ icon was sufficient for this type of explicit content. She submitted her Ruling Request on April 6. According to her, the episode was targeted at mature adults and the 13+ icon did not permit a broadcaster to air explicit scenes at that time of day. She explained that she did not have a problem with seeing that type of content, but only at a suitable time when children were not likely to be watching television. She questioned Noovo’s decision not to rebroadcast the episode and wanted to know how the station was going to ensure that it properly rated its programs and respected the rules related to broadcast scheduling. (All of the correspondence can be found in Appendix B, available in French only.)
THE DECISION
The French-Language Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and the CAB Violence Code:
CAB Code of Ethics, Clause 10 – Television Broadcasting (Scheduling)
a) Programming which contains sexually explicit material or coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, defined as 9 pm to 6 am. [...]
CAB Code of Ethics, Clause 11 – Viewer Advisories
To assist consumers in making their viewing choices, when programming includes mature subject matter or scenes with nudity, sexually explicit material, coarse or offensive language, or other material susceptible of offending viewers, broadcasters shall provide a viewer advisory
a) at the beginning of, and after every commercial break during the first hour of programming telecast in late viewing hours which contains such material which is intended for adult audiences, or
b) at the beginning of, and after every commercial break during programming telecast outside of late viewing hours which contains such material which is not suitable for children.
Suggested language for suitable viewer advisories is outlined in Appendix A [to the Code]. The suggestions are meant as possible illustrations; broadcasters are encouraged to adopt wording which is likeliest to provide viewers with the most relevant and useful information regarding the programming to which it applies.
CAB Violence Code, Article 4.0 – Classification
Icon Use Protocols
Frequency
The rating icon is to be keyed over the first 15-16 seconds of the program. It is expected the Americans will have their ratings up for 15 seconds. For programs which run longer than one hour, the icon is to be repeated at the beginning of the second hour. These are minimal use standards; stations may wish to use the icons more frequently on programs with particularly sensitive content.
Classification System for French-Language Broadcasters
G – General
The program is appropriate for viewing, rental or purchase by persons of all ages.
A classification of General means that the program is not likely to disturb children. If the program might offend the sensibilities of children under eight years of age, the Ministry adds "Not suitable for young children" to this classification.
Programs rated General can contain some scenes of violence, but these are discreet, occasional and not overly intense. The tone and genre of the program are taken into consideration. Scenes of violence in a comedy or adventure program featuring a hero who is larger than life have a different effect on children than those in a realistic program.
If nudity is present, love scenes remain rather discreet. Depending on the context, some expletives are also tolerated.
8 + (General – Not Suitable for Young Children)
These programs are suitable for the general public but could contain mild or occasional violence that may disturb young children. Viewing with adult supervision is therefore recommended for young children (age 8 and under) who are less able to distinguish between real and make-believe programming.
13+
The program may be viewed, purchased or rented only by persons 13 years of age or older. Children under 13 may be admitted only if accompanied by an adult.
The Ministry classifies in this category films that require a certain level of judgement. These programs contain passages or sequences that may offend the sensibilities of younger viewers.
For example, adolescents, aware of cinematic artifice, are psychologically better prepared to view more complex or dramatic programs. Also, violence, eroticism, coarse language or horror may be more developed than in programs rated General. These themes can even figure prominently in the programs in question. The program must, however, clearly demonstrate the reasons for the characters' actions, since adolescents have not yet reached the level of maturity required to face certain themes (drugs, suicide, troubling situations, etc.). These are, therefore, carefully examined. Moreover, the Ministry encourages parents to keep in mind the notice provided in this classification category.
16+
The program may be viewed, purchased or rented only by persons 16 years of age or older.
At the age of 16, adolescents move from adolescence to adulthood and attain a certain level of psychological maturity.
Programs with this rating present troubling themes, situations or behaviours. They express a more direct point of view about things and may contain scenes where violence, horror and sexuality are more graphic than in programs rated General (with or without the indicator "Not Suitable for Young Children") or 13+.
18+
The program may be viewed, purchased or rented only by persons 18 years of age or older.
Programs reserved for adults most often deal primarily with the representation of explicit sexual encounters. They may also be extremely violent, showing scenes of hyperrealistic cruelty, torture and horror.
The Panel Adjudicators read all of the correspondence and viewed the episode in question. The Panel concludes that Noovo breached Clause 10 of the CAB Code of Ethics for airing the episode before 9:00 pm and Clause 11 of the CAB Code of Ethics for failing to mention the sexual content in the viewer advisories. Noovo also breached Article 4 of the CAB Violence Code for failing to display the icon for 15 seconds and for rating the broadcast too low at 13+.
The questions posed to the Panel are presented below.
Did this episode of Mon ex à moi contain sexually explicit material intended for adult audiences that should have been broadcast after 9:00 pm under Clause 10 of the CAB Code of Ethics?
The CBSC has had to determine on numerous occasions what constitutes sexually explicit material suitable only for adult audiences. Not all sexual content is considered as such. Numerous factors enter into this assessment and nudity alone is not a determinative criterion. The key issue is, rather, whether the sexual activity is obvious and demonstrative.
In TQS re an episode of the program Faut le voir pour le croire (CBSC Decision 99/00-0460 & 00/01-0123, August 29, 2000), the Panel found an infraction for the scheduling of the program:
In the view of the Council, the sexual activity portrayed in this case was clearly of a nature intended for adult audiences. The practice of cunnilingus, the love-making in the clandestine circumstances of a parking garage on the hood of a car, the sexual interlude in an elevator, these are all activities which may not be problematic in the context of adult audiences but are entirely inappropriate, as the complainant states, for children. The showing of this episode of Faut le voir pour le croire at a pre-Watershed hour is clearly in breach of the Code.
In a similar case, TQS re the program 2000 ans de bogues (CBSC Decision 99/00-0116 & -0345, August 29, 2000), the CBSC examined a humorous, non-dramatic program broadcast at 7:30 pm which dealt with sexuality and included a series of images involving nudity and sexual activity, as well as filmclips taken during the production of a pornographic movie. The Panel had no hesitation in concluding that this broadcast violated the scheduling provision:
In this case, the Council is of the opinion that the symphony of images presented in the program 2000 ans de bogues is too risqué to be aired at 7:30 pm. There are numerous illustrations of what concerns the Council. Among other things, despite the fact that they were run at double speed and digital pixillation had concealed the actors’ genitalia, the sexual acts during the pornography segment were excessive. Moreover, in distinct contrast to the film Strip Tease, the scenes of nudity in this case are presented in an overwhelmingly erotic context, namely, in one part of the episode, during the making of a pornographic film. In 2000 ans de bogues, not only are we able to see the actresses’ bare breasts, we are also able to see them engaging in explicitly sexual acts.
Two episodes of an hour-long sex information program hosted by a sexologist were examined by the CBSC in TQS re two episodes of Sexe et confidences (CBSC Decision 01/02-0329, April 5, 2002). Both episodes were broadcast at 1:00 pm and neither contained any viewer advisories. The first episode discussed bestiality and the sexologist related legends and folklore surrounding the practice, academic studies on the subject, and methods of performing bestiality. She also took telephone calls from viewers who described their experiences in this area or stories they had heard. The program included visual images of bestiality taken from the internet. The episode was rated 18+. The second episode, rated 16+, was about the act of strip-tease and included images of bare breasts, and interviews with strip club employees and clients. With respect to the scheduling of the two episodes, the Panel’s view was divided:
It considers that the explicit references to sexual activity (of, it should be added, a distinctly aberrant variety) coupled with the images render the episode on bestiality clearly intended for adults. Moreover, TQS itself has acknowledged this by determining that 18+ was the appropriate rating for the show.
[...]
On the other hand, the Panel finds that the discussion and images in the episode dealing with strip-tease are no more oriented exclusively toward adults than the film of the same name [the movie Strip Tease which the same Panel determined did not require a post-Watershed broadcast.]
In Canal D re Festival Juste pour Rire and Comicographies Juste pour Rire: François Morency (CBSC Decision 02/03-0142 & -0143, July 17, 2003), the Panel examined two programs broadcast from 12:00 to 1:00 pm. A complainant was concerned with the adult-oriented sexual material contained in these midday broadcasts, such as [translations] “That grosses me out […] having a penis in your mouth”, “fat-free sperm for the whore who’s watching her weight” and “cigar in the vagina”. The Panel distinguished between the two episodes and stated that:
the sexual references in the biographical episode dealing with the story of comedian François Morency […] were often brief, veiled or light-hearted and employed double entendres or other humorous devices. They were neither graphic nor explicit and did not constitute programming intended exclusively for adults. […] This was not, however, the case with the routine by Maxim Martin, which was, in the view of the Panel, lengthier, cruder and more graphic on the subjects of fellatio and presidential masturbation of an intern with a large cigar, among others. Such material is suitable only for adult audiences and must not be broadcast before the 9:00 pm Watershed hour.
A program about sexual practices around the world was broadcast at 9:00 pm and contained erotic photographs of men and women, a demonstration (using hands only) of a masturbation device for men, a performance in a bar during which a dominatrix butted a cigarette out on another woman’s tongue, scenes of a nude woman being tied with ropes by her male partner, and a discussion about the sale of young women’s used underwear to men for masturbatory purposes. The Panel concluded that the program was sexually explicit and the discretionary service had respected the Watershed hour in the time zone of signal origination so there was no breach of the code (TV5 re Le sexe autour du monde (“Japan”), CBSC Decision 11/12-1648, October 24, 2012).
In TQS re an episode of Loft Story (CBSC Decision 03/04-0200 & -0242, April 22, 2004), the Panel examined an episode of a reality series which concluded with images presented on a split screen of the lofters kissing each other in a hot tub and some women removing their bikini tops (although no nudity was actually shown). The Panel found that the scene was not sufficiently sexually explicit:
While there is clearly kissing and hugging going on in the hot tub amongst the lofters, there is no nudity shown nor is there anything else shown that would lead viewers to conclude that the intimate activity goes any further than the kissing.
In a segment about rock singer Billy Idol broadcast in an episode of the magazine-style entertainment program Star Système, one of Idol’s female fans asked him to sign her chest. He complied by signing just above her cleavage. The singer then posed for a photograph with another female and pretended to lick her breasts. Then, another female fan wearing a mesh top that readily revealed her large breasts approached the singer who lifted her top and kissed one of her bare breasts, though it was the other breast that was primarily visible. The Panel concluded that the content was not explicit enough to necessitate a post-Watershed broadcast (TVA re a segment on an episode of Star Système, CBSC Decision 04/05-1319, September 9, 2005).
In MusiquePlus re CTRL (CBSC Decision 15/16-0367, October 19, 2016), the Panel examined a program on which three young adult hosts presented video clips from YouTube or other media-sharing websites and then made humorous commentaries about them. The episode in question contained a video showing people waving, throwing and sucking on dildos and another video of a young man suggesting that the sound of macaroni being stirred is “what good pussy sounds like” (the clip was in English with French subtitles). The Panel concluded that there was no content that was intended for adults that required a post-9:00 pm broadcast.
The appearance of dildos used mainly as props at the rally was not in the best taste, but does not constitute sexual content that is sufficiently explicit as to be directed solely to an adult audience during the watershed period.
In Canal Vie re La belle gang (CBSC Decision 17/18-0448, June 27, 2018), the Panel dealt with an episode of a television talk show about age and sexuality in which a sexologist talked about the evolution of sexuality and showed some sex toys. In another segment, the hosts interviewed a swinger who produced pornographic films with his wife. There was a clip of the man on the set of a porn movie in which he discussed with his cameraman how to get the best angle on the penetration: [translation] “She can spread like this, [...] but there has to be the guys looking after her so she can be fucked like she should.” The viewer could vaguely distinguish naked men, from the back. The majority of the Panel concluded that the content was not so explicit as to necessitate a post-9:00 pm time slot:
After viewing the broadcast of La belle gang in question, the Panel concludes, by majority, that the content was not explicit under Clause 10 of the CAB Code of Ethics. With respect to the 7-to-8-second-long film excerpt on which the porno-swinger producer commented, it was found to be acceptable because the images were sufficiently blurred and the verbal content constituted mere allusions to sex. Certainly some of the swinger’s comments could be considered suggestive, but they were not sufficiently explicit to come to the conclusion that they were addressed exclusively to an adult audience.
In TQS re the movie L’Affaire Thomas Crown (The Thomas Crown Affair) (CBSC Decision 01/02-0622, December 20, 2002), the CBSC, in dealing with a two-minute-long sexual scene which showed the male and female main characters engaged in sexual activity with bare breasts and buttocks visible, acknowledged that regional differences may exist with respect to standards for the rating and scheduling of sexual material:
The Quebec Regional Panel is also fully conscious of the fact that it is unlikely that this would be the rating selected [13+] by English-language broadcasters elsewhere in Canada as appropriate for this motion picture (assuming that the "problematic scene" were not cut). Based on principles established in other CBSC Panel decisions, it is likely that the rating chosen would be 18+ and that the film would require post-Watershed broadcast. This presents no problem, however, since the CBSC's Regional Panels were established to reflect regional differences, as these may, from time to time, be reflected in broadcast practices and public tastes. The case at hand is one in which this regional distinction is apparent.
This episode of Mon ex à moi was a humorous program rated 13+ by the broadcaster. It consisted primarily of conversations, some of a sexual nature, and numerous sex scenes involving two characters (Mathieu and Charlotte). The sexual segments evolved during the episode, as Mathieu had to write an article entitled “Female Fountains: Myth or Reality?”. Charlotte was the partner who helped him do his research in order to answer the question.
The Panel readily notes the fact that the CBSC has acknowledged that a panel can represent the distinct tastes of the target audience. In this case, a francophone audience might tolerate more explicit sexual content than would an anglophone market. The Panel also recognizes that the content is of a comedic and satirical nature. Finally, nudity is only present in the last sex scene.
As explained above, nudity alone is not a determinative criterion. The key issue is whether the sexual activity is obvious and demonstrative. The Panel concludes that, even with the chosen camera angles, the sexual content is not only obvious but demonstrative. There is no doubt that the couple is engaging in various sexual practices (e.g. fingers in the vagina, cunnilingus) and conspicuously having sex, resulting in Charlotte’s eventual orgasm as she cries out in pleasure. Having answered Mathieu’s question in the affirmative, the couple kisses and Charlotte pats his buttocks.
The Panel concludes that the sexual content is explicit since it is obvious, demonstrative, and involved multiple detailed sexual acts. In this regard, it is content intended for adult audiences that should have been broadcast after 9:00 pm. Consequently, the broadcast of this episode of Mon ex à moi at 7:30 pm breached Clause 10 of the CAB Code of Ethics.
Was the wording of Noovo’s advisories adequate for this episode of Mon ex à moi under Clause 11 of the CAB Code of Ethics?
The broadcaster’s advisory specified only that the program contained “mature scenes or themes. Viewer discretion is advised.”
The CBSC has stated in numerous decisions that the advisories must specify the nature of the potentially offensive content.
In Teletoon re Team America: World Police (CBSC Decision 07/08-1011, August 7, 2008), the film included numerous scenes of gory violence and coarse language. In addition to some sexual dialogue, the movie also contained scenes of sexual activity, including a lengthy scene in which one male and one female Team America agent were naked and engaged in sexual activity in various positions. The advisories provided indicated, “The following program is intended for adult audiences. It may contain mature subject matter and coarse language. Viewer discretion is advised.” The Panel concluded that the advisories were incomplete:
In the present case, while Teletoon specifically advised viewers of the “coarse language” in the film, it characterized the violence and the sexual content under the amorphous heading “mature subject matter”. [...] The Panel finds this patently insufficient for viewers who may wish to know what kind of subject matter they and their families may encounter. Some who may be offended by sexual content may have no difficulty with violence. Others may tolerate both those categories but be troubled by the use of coarse language. While the Panel has no problem with the additional designation “mature subject matter”, it concludes that this is insufficiently precise in the face of any of the categories of sexual content, violence, or coarse or offensive language. They must be explicitly identified in viewer advisories.
A program that contained erotic photographs of men and women, a demonstration (using hands only) of a masturbation device for men, a performance in a bar during which a dominatrix butted a cigarette out on another woman’s tongue, scenes of a nude woman being tied with ropes by her male partner, and a discussion about the sale of young women’s used underwear to men for masturbatory purposes had an advisory that stated only that the program was intended for an adult audience. The Panel found a breach of Clause 11 of the CAB Code of Ethics because the advisories did not specifically mention the sexual content (TV5 re Le sexe autour du monde (“Japan”), CBSC Decision 11/12-1648, October 24, 2012).
The CBSC dealt with a complaint about a comedy movie about two brothers trying to find women with whom to have sex in CITY-DT re The Long Weekend (CBSC Decision 13/14-0046, February 5, 2014). The film contained numerous scenes of explicit sexual activity, as well as vulgar references to sexual acts and women’s appearances. The Panel found a breach of Clause 11 for the failure to mention the sexual content in the advisories:
The CBSC has consistently found that broadcasters must provide detailed information in their viewer advisories about the potentially offensive content in any program. Vague terms such as “mature themes” or “adult content”, while applicable in some cases, should not be used as “catch-all” phrases to cover all types of potentially objectionable material. Instead, broadcasters must specify whether the program contains nudity, violence, coarse language or sexual content. Such detail is required in order to be of the most assistance to viewers; some viewers may be troubled, for example, by violence but not coarse language, while others may have concerns about sexual activity, but not violence. Indicating the precise nature of the content allows viewers to make informed choices for their households. The indiscriminate use of advisories without careful regard to whether they are called for and, if so, what specific program content makes them necessary, does not meet this objective.
The CBSC’s jurisprudence is clear on this subject. Broadcasters must specify the nature of the content that could offend viewers so that viewers can make informed viewing decisions. The use of vague terms, such as those that Noovo used here, are not adequate. Consequently, the Panel concludes that the advisories on this episode of Mon ex à moi breached Clause 11 of the CAB Code of Ethics for their failure to mention the sexual content.
Did Noovo breach Article 4.0’s icon use protocols of the CAB Violence Code by displaying the icon for only 10 seconds?
As indicated above, the icon “is to be keyed over the first 15-16 seconds of the program.” In this context, Noovo displayed the 13+ icon for only ten seconds, and after 30 seconds from the beginning of the program. The icon was rebroadcast coming out of every commercial break, but only for ten seconds and again 30 seconds after the recommencement of the program.
In TQS re the movie L’Affaire Thomas Crown (The Thomas Crown Affair) (CBSC Decision 01/02-0622, December 20, 2002), the Panel found a violation of the obligation to display the classification icon for the required 15 to 16 seconds. The icon was displayed for eight seconds at the beginning of the broadcast and nine seconds at the beginning of the second hour.
In an episode of the reality show Loft Story, TQS broadcast a 13+ classification icon at the beginning of the program and coming out of every commercial break, for five to six seconds on each occasion. The Panel concluded that there was a breach because the icon did not appear for the required 15 to 16 seconds at the beginning of the broadcast. Although the icon was broadcast more frequently than was necessary, TQS still had an obligation to respect the requirement regarding the duration of its appearance (TQS re an episode of Loft Story, CBSC Decision 03/04-0200 & -0242, April 22, 2004).
The CBSC has consistently applied the rule regarding the duration of the display of the classification icon and it has found a violation of the rule each time that a broadcaster has not met the required 15 to 16 seconds (TQS re the movie Film de peur, CBSC Decision 02/03-0940, April 22, 2004; TQS re the Bleu nuit movie Mission de charme, CBSC Decision 03/04-0976, February 10, 2005; TVA re Les jeunes loups, CBSC Decision 13/14-0808, September 10, 2014; and MusiquePlus re CTRL, CBSC Decision 15/16-0367, October 19, 2016).
In this case, Noovo did not meet the requirement to display the classification icon for 15 to 16 seconds at the beginning of the program. Even if the icon reappeared after each commercial break, that display “does not relieve the broadcaster from its responsibility to respect the duration requirement.” As a result, Noovo breached Article 4.0 of the CAB Violence Code, which sets out the icon use protocols, for displaying the icon for only ten seconds.
Was Noovo’s choice of 13+ for this episode of Mon ex à moi in conformity with the classification system set out in Article 4.0 of the CAB Violence Code?
The audience age group indicated by each rating level serves only as a guideline. A program’s 13+ rating does not mean that every 13-year old would be untroubled watching it. Parents must decide for themselves what is appropriate for their own individual children. In addition, each category itself allows for a spectrum of content within it. In other words, there will be programs rated 13+ that only just pass the threshold of 8+, whereas others will be closer to 16+.
In TQS re the movie L’Affaire Thomas Crown (The Thomas Crown Affair) (CBSC Decision 01/02-0622, December 20, 2002), the Panel dealt with a two-minute-long scene that showed the male and female main characters engaged in sexual activity with bare breasts and buttocks visible and which the broadcaster had rated 8+. The broadcaster explained that the theatrically released version of the film had been rated “Visa général” by the Régie du cinéma du Québec, but that it had raised this rating to 8+ for the television broadcast. In its decision, the Panel established that French-language broadcasters can use the system of the Régie, but not necessarily rely on the actual rating given by the Régie to any particular film due to the different circumstances of the television environment. With respect to TQS’s choice of the 8+ rating, the Panel concluded that it was too low and should have been 13+ for the following reasons:
In the case at hand, the Panel considers that both the G rating applied by the Régie and the 8+ rating selected by the broadcaster are too low. As the Vice President, Communications of TQS noted in her letter, the Régie's definition of the G-rating allows that, "although there may be some nudity, love scenes remain rather discreet." The broadcaster had raised the rating to 8+ in order to add, in effect, the Régie's further warning that the film is "not recommended for young children." The Panel agrees with the broadcaster's conclusion that the film should not be recommended for children, whether they be "young children" in the 8 and under category or children as defined by the relevant Code, namely, those under 12. Accordingly, the Panel considers that the 13+ level would be far more appropriate for this movie. As the Régie provides, this category includes films requiring a level of discernment on the part of the viewer. They "include scenes or sequences which may upset the sensibilities of younger audiences." Further down in the Régie's definition the word "eroticism" is used, rather than the gentler terms "nudity" and "love scenes", which are found in the G category. The Panel considers that "erotic" is the operative word to describe the love-making sequence in the foyer of Thomas' apartment.
As a spoof on horror films, Film de peur (in TQS re the movie Film de peur, CBSC Decision 02/03-0940, April 22, 2004) included scenes with sexual references and vulgar language. The broadcaster rated it 13+. The Panel concluded that 13+ was the appropriate choice:
As the definition provides, “violence, eroticism, coarse language and horror may be more developed and [may even] constitute a dominant characteristic of the film.” The Panel does not consider that there is any content in the film that could be said to exceed that definition. It wishes to also underscore that fact that all parents must determine which levels are appropriate for viewing in their own homes. There is no straight line relationship between, say, 13+ and 13-year olds. In the first place, one 13-year old may be more or less mature than another, and, second, the values of one family may differ from those of another. [...] The bottom line for the Panel is that, in this instance, the broadcaster’s 13+ choice is the correct one.
In TVA re Les jeunes loups (CBSC Decision 13/14-0808, September 10, 2014), the Panel examined two episodes of a dramatic program about a team of young journalists. One episode contained scenes of sexuality, namely a couple in bed together, their movements and moaning suggesting sexual activity. The other episode also contained scenes of violence, namely a man shooting a female police officer and then photographs of the officer’s bloodied face. The Panel concluded that 13+ was the correct rating for the program because the language, as well as the scenes of sexuality and violence “were not sufficiently explicit or did not contain a level of violence that would preclude teenagers from viewing them.”
Furthermore, in TQS re an episode of the program Faut le voir pour le croire (CBSC Decision 99/00-0460 & 00/01-0123, August 19, 2000), the Panel dealt with a complaint about a “candid camera” type program which caught people in the act of doing foolish or illegal things. The episode was broadcast at 7:30 pm and included scenes of nudity and sexual activity as people were filmed performing cunnilingus and having sex on the hood of a car and in an elevator. The Panel concluded that TQS should have rated it 16+:
In this case, bearing families in mind, the Council is of the view that the rating 13+ would be insufficiently restrictive since it provides that “Scenes of sexual activity of a dominant nature, for example, the portrayal of unconventional sexual relationships, may not be suitable for this age group.” Although the 18+ category includes “films showing explicit sexual activity”, it is the view of the Council that the 16+ rating would be appropriate.
The CBSC reached the same conclusion in another decision adjudicated on the same day (TQS re the program 2000 ans de bogues, CBSC Decision 99/00-0116 & -0345, August 29, 2000). That program was a non-dramatic series, each episode of which dealt with a particular subject in a humorous fashion. During the challenged episode, the host presented a variety of topics dealing with sexuality, including the evolution of sexual practices throughout history, sex in the animal kingdom, sex tools and the pornography industry. The program included interviews with various “experts” on sexuality and included a series of images and video sequences of a sexual nature, including scenes of nudity in which bare breasts were clearly displayed. The program also contained video clips taken during the filming of a pornographic movie, in which the broadcaster had superimposed digital pixillation over the actors’ genitalia. The Panel concluded that the program was not exempt from classification and should have been rated 16+.
Finally, in TQS re the movie Les Girls de Las Vegas (Showgirls) (CBSC Decision 01/02-0478, December 20, 2002), the Panel agreed that the 16+ classification chosen by TQS was appropriate for a movie about the erotic dance industry that contained considerable nudity, as well as two scenes of explicit sexual activity, each of three minutes duration. The first involved the main female character, completely nude, performing a lap dance on a clothed male to the point of his orgasm. In the second scene, the same couple, both naked, was shown having frenetic sex in a swimming pool. Another scene alluded to a rape: two menacing men approach a woman at a party and she is later seen, disoriented, coming out of a bedroom with blood on her legs.
The Panel is well aware that the classification icon is intended to allow parents to assess whether a program is likely to cross their children’s tolerance threshold. In addition, each category itself allows for a spectrum of content within it. The 13+ category indicates “violence, eroticism, coarse language or horror may be more developed than in programs rated General.”
The latter element is particularly important in the present context since the 16+ category indicates “At the age of 16, adolescents move from adolescence to adulthood and attain a certain level of psychological maturity. [...] Programs with this rating [...] express a more direct point of view about things and may contain scenes where violence, horror and sexuality are more graphic than in programs rated General (with or without the indicator ‘Not Suitable for Young Children’) or 13+.”
The Panel considers that this episode of Mon ex à moi crosses the threshold of acceptability for young adolescents aged 13 and older. Not only are the sexual scenes detailed, but they are obvious and demonstrative. In this particular case, the two categories might overlap in the sense that the comedic treatment of the sexual scenes might be acceptable for some 15-year olds. CBSC jurisprudence, however, leads the Panel to believe that the majority of parents would find the sexual content troublesome and would cross the threshold of acceptability for young adolescents. The 16+ rating informs parents that a program’s sexual content requires a much more adult psychological maturity. In consequence, the Panel concludes that this episode should have been rated 16+.
In conclusion, the Panel would like to emphasize that the CAB codes are not censorship tools. It notes that Noovo indicated in its response that it had decided not to rebroadcast this episode of Mon ex à moi. Neither the CBSC nor the complainant wishes to eliminate this genre of content from the Canadian broadcasting system. The Broadcasting Act sets out that the broadcasting system should “encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity”.
In other words, the Canadian broadcasting system anticipates the availability of a large variety of content, including that similar to this episode of Mon ex à moi. However, the codes seek to ensure that scheduling, advisories and classification icons respect the requirements of the codes administered by the CBSC, thus allowing audiences to know the type of content offered by the broadcaster and to judge for themselves if they wish to view it.
Broadcaster Responsiveness
In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner. In this case, despite a relatively short response, Noovo nevertheless met its requirements to be responsive. The broadcaster fulfilled its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required on this occasion.
DECISION ANNOUNCEMENT
Noovo is required to: 1) announce the decision, in the following terms in audio and video format, once during prime time within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which Mon ex à moi was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by Noovo.
The Canadian Broadcast Standards Council has found that Noovo breached the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Violence Code in its broadcast of an episode of Mon ex à moi on February 22, 2021 at 7:30 pm. The episode, which contained scenes of explicit sexuality, should have been broadcast after 9:00 pm under Clause 10 of the Code of Ethics. The viewer advisories should have warned of sexual content under Clause 11 of the code. Noovo did not broadcast the classification icon for 15 seconds as required by Article 4 of the CAB Violence Code. The episode should have been rated 16+ under the code.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.
ANNEXE A
Mon ex à moi est une émission dramatique qui suit les vies amoureuses d’un groupe de jeunes adultes. Noovo Montréal a diffusé cet épisode le 22 février 2021 à 19 h 30.
Au début de l’épisode et à la fin de chaque pause publicitaire, Noovo a diffusé en format audio et vidéo la mise en garde ci-dessous :
Avertissement
Cette présentation contient des scènes ou des sujets délicats destinés à un public averti.
Après 30 secondes d’émission, l’icône 13 ans+ est apparue pendant 10 secondes à l’écran. Elle est revenue après chaque pause publicitaire, toujours pendant 10 secondes et toujours après 30 secondes environ de contenu.
Voici une description et transcription des scènes pertinentes.
03:32 à 04:10
Marilou est enceinte. Son amie Charlotte et elle essaient de faire la liste des hommes qui pourraient être le père du bébé de Marilou.
Mathieu entre dans la cuisine où Marilou et Charlotte sont assises. Il dit qu’il écrira un article intitulé « Femmes fontaines : Mythe ou réalité? »
Marilou : Mythe! C’est une invention de la porn cette affaire-là.
Charlotte : Non, ça existe pour vrai.
Marilou : C’est du pipi?
Charlotte : Il peut y avoir des traces. Mais c’est parce que le liquide vient des glandes de Skene qui sont juste à côté du méat urinaire. [Mathieu et Marilou ont l’air stupéfaits.] On est tout capable d’être fontaine.
Marilou : Je le saurais si je l’étais.
Mathieu : Attends, attends, attends. Toi, ça marche?
Charlotte : C’est arrivé un couple de fois, mais c’est toujours au troisième ou quatrième orgasme.
Marilou : Non!?
Mathieu : Okay, viens-t’en. Je suis désolé, Mari. Mais j’ai un article à écrire et je veux savoir de quoi je parle. C’est parti.
Mathieu entraîne Charlotte hors de la cuisine.
05:01 à 05:30
Mathieu et Charlotte sont sur un lit. Charlotte est à quatre pattes. Elle porte une chemise sans manches et on peut voir son soutien-gorge. Mathieu, toujours habillé, est à genoux derrière Charlotte. Il semble qu’il ait ses doigts dans son vagin. Elle gémit et bouge d’une façon qui indique qu’elle est excitée sexuellement. Mathieu regarde pour voir si elle éjacule.
05:30 à 06:25
Marilou téléphone à Josh pour lui dire qu’il est possiblement le père de son bébé.
Marilou : Je sais pas trop comment dire ça, mais savais-tu ça toi que le taux réel d’efficacité des condoms c’est comme 82 pour cent là?
Josh : Hein?
Marilou : Je dis, chus sous le choc. J’ai eu le, le test de grossesse positif.
Josh tombe par terre et dit qu’il a une douleur à la poitrine.
13:32 à 14:06
Charlotte et Mathieu sont de nouveau au lit. Charlotte porte une chemise sans manches. Mathieu regarde un schéma des organes génitaux féminins sur son téléphone cellulaire. Charlotte est allongée sur le dos. Elle déplace ses jambes. On voit son visage pendant que Mathieu lit les directives.
Mathieu : Faire des petits mouvements circulaires, mais avec une bonne pression.
L’angle de la caméra change. Charlotte a posé une jambe sur l’épaule de Mathieu et replié le genou de son autre jambe. La main de Mathieu est cachée, mais prétendument dans le vagin de Charlotte.
Charlotte : C’est pas exactement une bonne pression ça. Fais comme ce genre. [Elle bouge deux de ses doigts en forme de caresse]
Mathieu : Chus pas Capitaine Crochet. [Mathieu ajuste sa façon de toucher.] Comme ça, genre?
Charlotte : Ah, non. [Elle ajuste sa position à elle.] Ça va prendre du lubrifiant.
Mathieu : Tu veux qu’on arrête?
Charlotte : Non, non. Juste je veux te taquiner. [Elle prend le téléphone cellulaire de Mathieu et le lance. Ils s’embrassent.] Capitaine Crochet. [Mathieu se met à enlever son t-shirt à lui]
14:34 à 15:36
Marilou a invité Félix-Antoine chez elle.
Félix-Antoine : Je me demande ce que j’ai fait pour te faire fuir.
Marilou : Rien, rien. Rien fait.
Félix-Antoine : C’est quoi d’abord?
Marilou : C’est juste que j’ai pas trop sûre quoi faire quand tu m’as demandé de venir dans ta bouche.
Félix-Antoine : Euh... je voulais juste sentir, euh, boy, c’est vraiment la conversation la plus malaisante ever.
Marilou : Eille, t’es pas vraiment obligé de m’expliquer là.
Félix-Antoine : J’aime ça, j’aime ça sentir les lèvres sur ma bouche. Frémir. C’est cool d’avoir la confirmation que la fille a du fun.
Marilou : Eille, vraiment là. Stop. C’est beau.
Félix-Antoine : OK.
Marilou : Je pensais que, que tu attendais à ce que je, je [elle gesticule de ses mains] j’éclate.
Félix-Antoine : [il rit] Ben voyons. Tout le monde sait que c’est une invention de la porn ça.
16:52 à 17:35
Charlotte et Mathieu sont toujours au lit. Charlotte porte toujours sa chemise sans manches et est allongée sur le dos. Mathieu ne porte maintenant que son caleçon. Il est agenouillé, la sa tête entre les jambes de Charlotte, et lui fait un cunnilingus.
Charlotte : Mathieu, Mathieu, c’est assez. [Elle touche la tête de Mathieu.]
Mathieu : Prends ton temps là. Je peux faire ça pendant des heures. [Il recommence.]
Charlotte : Oui là, mais non, elle marcherait pas là.
La caméra présente un gros plan de la tête de Mathieu entre les jambes de Charlotte, mais sa chemise recouvre ses parties génitales.
Mathieu : Mais relaxe un peu.
Charlotte : Non, je connais mon corps pis là c’est de l’acharnement.
Mathieu : C’est comme un peu de fun là.
Charlotte : Non, pis vraiment là, c’est rendu là que ça m’agresse là.
Mathieu : Ça t’agresse? Ça fait des heures que j’essaie de te satisfaire, pis je t’agresse? Aiye, eiye. Wow.
Mathieu se met debout et remet son pantalon. Charlotte se relève sur le lit.
Charlotte : C’est pas de ta faute. Ça marche pas tout le temps.
Mathieu quitte la chambre et Charlotte a l’air frustrée.
24:37 à 24:46
Mathieu est au bar. Il reçoit un texto de Charlotte qui est montré sur l’écran : « Je suis prête pour une prise 4. »
26:54 à 27:18
Charlotte et Mathieu sont encore au lit. Mathieu est nu. Charlotte porte toujours sa chemise et est allongée sur le dos. Mathieu est au-dessus d’elle et lui fait l’amour. Charlotte crie de plaisir et a un orgasme. Mathieu jette un regard en dessus.
Mathieu : Le mythe devient réalité.
Les deux sourient et Mathieu s’étend sur Charlotte. Charlotte tape les fesses nues de Mathieu et ils s’embrassent.
ANNEXE B
La plainte
Le CCNR a reçu la plainte suivante le 22 février 2021 :
Station de télévision ou de radio : Noovo
Titre de l’émission : Mon ex à moi
Date de la diffusion de l’émission : 22/02/2021
Heure de l’émission : 19 h
Motif :
Les gestions explicites de nature sexuelle sont absolument inappropriées pour cette heure de la journée. Des adultes font l’amour, cunnilingus, photo sexuelle, lèvres (partie génitale), vulves, etc. Nous ne sommes pas de nature pudique, mais franchement, cela dépasse les normes. D’autant plus qu’il y a des enfants dans cette émission!
La réponse du télédiffuseur
Noovo a répondu à la plaignante le 25 mars :
Le Conseil canadien des normes de radiotélévision (« CCNR ») nous a fait parvenir une copie de votre plainte du 22 février 2021 concernant un épisode de la série Mon ex à moi diffusé sur les ondes de Noovo le 22 février vers 19 h 30.
Nous tenons à vous remercier de nous avoir fait part de vos préoccupations.
Nous regrettons que le contenu de l’épisode vous ait offensé. Nous avons visionné l’épisode en question qui en l’occurrence comportait l’icône « 13 ans et plus » ainsi qu’une mise au garde aux téléspectateurs.
L’avis de nos téléspectateurs est important pour nous, et c’est ainsi que suite à votre commentaire et au visionnement de l’épisode, nous avons pris la décision de ne pas le rediffuser. Il s’agissait donc de la dernière diffusion de cet épisode.
Nous vous prions d’agréer, Madame [L.], l’expression de nos salutations distinguées.
Correspondance afférente
La plaignante a réécrit au CCNR le 27 mars en posant des questions :
Bonjour
J’ai maintenant eu la réponse de Noovo. Je souhaite maintenant savoir :
- si ce type de contenu est autorisé à cette heure de la journée;
- si un avis « 13 ans et plus » est suffisant pour ce type de contenu explicite.
J’apprécierais que le CCNR puisse visionner l’émission pour bien comprendre ce dont je parle.
Elle a également déposé sa demande de décision le 6 avril avec les commentaires suivants :
Bonjour,
J’ai bien reçu la réponse de Bell et leur réponse ne me satisfait pas. En effet, le contenu de cet épisode est, à mon avis, pour adultes avertis seulement. L’avertissement « 13 ans et plus » en début d’émission ne permet pas à un diffuseur de mettre à l’antenne des scènes aussi explicites à cette heure du jour. La catégorisation des émissions est importante et je doute sincèrement que cette émission respecte le cadre établi.
Le diffuseur mentionne « Nous regrettons que le contenu de l’épisode vous ait offensé. » Rectification : je ne suis pas offusquée par cette scène. Je considère plutôt que NOOVO a failli à sa responsabilité de s’assurer que son contenu respecte les auditeurs à qui elle s’adresse à cette heure du jour. Je suis une adulte et je n’ai pas de souci à visionner ce type d’émission à une heure qui convient pour des adultes seulement. Je n’ai plus d’enfants à la maison, mais je peux imaginer ceux qui ont intercepté ces scènes avec leur famille et qui ont dû répondre à des questions plutôt embarrassantes.
NOOVO mentionne « Nous avons visionné l’épisode en question qui en l’occurrence comportait l’icône “13 ans et plus” ainsi qu’une mise au garde aux téléspectateurs. » Je comprends donc que Bell juge qu’elle a bien agi. Pourtant, elle ajoute « ... suite à votre commentaire et au visionnement de l’épisode, nous avons pris la décision de ne pas le rediffuser. » Mais pourquoi si elle mentionne avoir ajouté l’avis obligatoire? Je doute qu’un simple commentaire d’une téléspectatrice soit suffisant pour mettre fin à une rediffusion potentielle. Je crois que travail en amont a été bâclé.
Ma question : Quelles actions ont été prises pour s’assurer de bien catégoriser celui-ci? Une analyse fine est-elle faite avant la diffusion pour ainsi s’assurer de respecter les règles?