THE FACTS
On May 13, 2012 at 9:30 pm, TVA aired “Le party à Mercier”, a pre-recorded program of the 2011 comedy gala series Juste pour rire. The complainant mistakenly indicated that the broadcast took place at 8:30 pm that evening and TVA only discovered that error the day before this Panel was scheduled to meet. Consequently, the CBSC examined the entire broadcast in detail since it originally thought that the program aired before the watershed hour. The show in question featured the comedian Jean-François Mercier celebrating his 44th birthday. The program presented sketches and performances involving him and some of his comedian friends. Mercier himself is well-known for his sarcastic, caustic and sometimes mean humour.
The program began with a scene showing Mercier sitting on a sofa in an all-white room. A man wearing a sadomasochistic costume and mask is sitting on the floor beside him, while a third individual nearby appears to be engaging in necrophagia.
Throughout the entire program, the vocabulary used by Mercier as well as the other comedians on stage (as is their habit) was laced with French profanity such as “calice”, “’ostie”, “tabarnac’”, “chrisse” and “sacrament”. In addition, the English word “fuck” was uttered at least once. There were also a few jokes with sexual connotations. The CBSC does not know if TVA aired appropriate viewer advisories as the broadcaster provided only a copy of the program instead of the official logger files containing the totality of the material aired.
The complainant identified a joke involving a fat woman and asserted in her complaint that the joke contained [translation] “hateful and discriminatory” comments against obese women and reinforced harassing and intimidating behaviour towards people who are physically different.
The joke was as follows:
[translation]
Mercier: At one of my birthdays back when I was single and younger, one of my buddies said to me “Ah, what would you like for, um, your birthday?” “Introduce me to a girl.” “Hey, your timing couldn’t be better.” He said “Martine, a friend of my girlfriend’s at her office is single.” “Well, what is this Martine like, you know?” “Oh, he says, she’s really nice.” “What about her physical appearance?” “I think you’ll like her. She’s exactly your type, you know.” So he [?] on a blind date, and the girl shows up and the girl, tabarnac’, was fat. Since I’m fat, he said “I’ll introduce him to a fat girl.” Tabarnac’ yes I’m fat, calice, but I’m not blind! I said to him “The girl you introduced me to, would you go out with her?” He said, “Come on, Jeff”, he said “I can’t even lift her.” He says “Hey, hey, hey I didn’t ask you to move her, I asked you to go out with her! You know, my uncle has a Cadillac. He can’t lift it, but that doesn’t stop him from going out with it ’ostie!” You don’t think that warrants a laugh, fat girl, ’ostie? [the camera pans to a fat woman in the audience who does not look pleased]. Not pleased to be fat, plus she’s got her face scrunched up like someone’s just taken away her dog dish [Mercier laughs]. Hey, fat lady, do you know what the difference is between a miss and a fail? When you try on a bikini, that’s a miss. When you’re on the beach, that’s a fail. [Mercier laughs].
The woman: Have you looked at yourself in the mirror you fat ugly ’ostie!? Eat shit! [The woman leaves the audience].
Mercier: [laughing] Are you planning on coming back, because otherwise I’ll give your seat to a row in the balcony, um? [the audience boos] Well, it was all set up. This was just to pull your leg, to give me a thrill, a bit of fun. It’s my birthday. I don’t understand, you know. She was supposed to give me certain answers and she is supposed to come up and join me on stage –
Another woman in the audience: Mister Mercier.
Mercier: Huh?
Second woman: Mister Mercier. [a teleprompter showing the dialogue can be seen behind her] That’s because you were supposed to do the sketch with me. [the audience laughs].
Mercier: Did I pick the wrong fat girl? Well, um, I’m glad because, seriously, I was afraid that sketch might make people uncomfortable.
A giant birthday cake for Jean-François Mercier was brought out at the end of the program, and the woman who insulted Mercier during the program popped out of the cake.
Mercier: It can’t be what I’m thinking? Wow, oh no! It’s my fat lady! Absolutely. Fat women are like that; as soon as they smell cake, they dive in!
TVA responded to the complainant stating that it did not agree with her, and noting that Mercier described himself as fat in the sketch and that the audience and the two women were clearly in on the joke. The cake scene at the end confirmed that the first woman was involved from the outset. (The full text of all correspondence can be found in the Appendix, in French only.)
THE DECISION
The Quebec Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Violence Code as well as certain requirements set out in the CBSC Manual which members must follow:
CAB Code of Ethics, Clause 2 – Human Rights
Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability.
CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation
It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.
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
CAB Violence Code, Article 5.0 – Viewer Advisories
5.1 To assist consumers in making their viewing choices, broadcasters shall provide a viewer advisory, at the beginning of, and during the first hour of programming telecast in late evening hours which contains scenes of violence intended for adult audiences.
CBSC Manual, Responsibilities of Membership
Broadcaster members which join the CBSC do so voluntarily and, by so doing, agree to:
[...]
h) co-operate fully with the CBSC by retaining the logger tape of a challenged program from the time of any request by the Secretariat until such time as the CBSC notifies the broadcaster that it is no longer necessary to hold the tape for purposes of resolution of the complaint.
CBSC Manual, Complaint Resolution – Provision of Tapes
The Secretariat will, at the time of receipt of the complaint, and generally before even despatching the letter to the broadcaster, contact the broadcaster to ensure that the logger tape of the challenged broadcast be set aside by the broadcaster until such time as the CBSC notifies the broadcaster that it is no longer necessary to hold the tape for purposes of resolution of the complaint. It is a fundamental membership responsibility of the broadcaster to retain the logger tape securely so that it will be available if and when the Secretariat advises that the required number of dubbed copies be made available for purposes of evaluating, adjudicating or otherwise dealing with the file.
The Panel Adjudicators read all of the correspondence and viewed the broadcast in question. The Panel concludes that TVA did not violate either Clause 2 or 6 of the CAB Code of Ethics. However, in the absence of logger files, the Panel cannot rule on whether or not Clause 11 of the CAB Code of Ethics and Article 5 of the CAB Violence Code have been breached, as it is impossible to know if the broadcaster aired the appropriate viewer advisories. With respect to fulfilling the requirement to retain logger files as set out in the CBSC Manual, the Panel notes that TVA has never failed to meet that obligation in the past and that, given the erroneous broadcast time indicated in the complaint, the correct logger file was probably erased by mistake.
Applicability of the Clause concerning Human Rights
The Panel members point out that obesity and overweight, just as hair colour,1 do not constitute a physical handicap under either Clause 2 of the CAB Code of Ethics or Articles 2 et seq. of the CAB Equitable Portrayal Code. Moreover, the Panel concludes that the joke in question did not target women as a group. There was therefore no violation of Clause 2 of the CAB Code of Ethics or of Articles 2 et seq. of the CAB Equitable Portrayal Code.
An Unfair or Inappropriate Joke?
The Panel Adjudicators also reviewed the complaint under Clause 6 (Full, Fair and Proper Presentation) of the CAB Code of Ethics. In viewing the program, it is clear that the joke in question was an integral part of the script. In fact, the text could be read from the teleprompter visible on screen in the background. In addition, the two women who took part in the sketch at issue did so entirely of their own free will and the one who supposedly left the room reappeared at the very end inside the birthday cake. In these circumstances, the Panel can come to no other conclusion than that there was no breach of Clause 6 of the CAB Code of Ethics.
Viewer Advisories
The Panel notes it is unfortunate that TVA misplaced the logger file for this broadcast. As mentioned earlier, without a logger file it is impossible to determine if the broadcaster aired the appropriate viewer advisories.
The Panel is therefore unable to determine if Clause 11 of the CAB Code of Ethics has been breached or not with respect to viewer advisories warning of offensive language. Nevertheless, the Panel concludes that such an advisory would have been required given the significant use of offensive language throughout the program. The Panel does consider, though, that the sexual content was not sufficiently explicit to require a viewer advisory. Furthermore, the Panel is of the view that the brief necrophagia scene shown at the very beginning of the program, while in very bad taste, did not require an advisory under Article 5 of the CAB Violence Code.
Logger Files
The Panel understands that the initial error as to the broadcast time, which was only discovered the day before its meeting, may have led to the erasure of the logger file (broadcasters systematically erase these files after 28 days except if they are asked to retain them and they are generally coded with the broadcast time). On the other hand, the Panel notes that TVA has always given it its full cooperation in the files which have been adjudicated in the past and that this is the first instance in which TVA has lost a logger file.2 Consequently, the Panel finds that TVA did not violate its obligation to retain and provide logger files, but it does emphasize the importance the broadcaster must always place on meeting that obligation.
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, TVA provided a fairly detailed response explaining its point of view to the complainant. The broadcaster fulfilled its obligations of responsiveness and nothing further is required in this regard in this instance.
This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.
1 CKNG-FM re “Blond Moments” (CBSC Decision 96/97-0060, December 16, 1997) and CFEX-FM re comments about redheads (CBSC Decision 11/12-0323, April 20, 2012).
2 See the following decisions concerning logger file retention: CTV re W-Five (Swingers) (CBSC Decision 99/00-0347, February 14, 2001); Bravo! re the documentary film Give Me Your Soul (CBSC Decision 00/01-1021, January 16, 2002); Bravo! re the film The House of the Spirits (CBSC Decision 00/01-0738, January 16, 2002); Showcase Television re the movie Destiny to Order (CBSC Decision 00/01-0715, January 16, 2002); VRAK-TV re Charmed (“Dead man Dating”) (CBSC Decision 02/03-0365, July 17, 2003); Canal D re Festival Juste pour Rire and Comicographies Juste pour Rire: François Morency (CBSC Decision 02/03-0142 & -0143, July 17, 2003); and The Score re a segment of WWE Bottom Line (CBSC Decision 02/03-0520, January 30, 2004).