National Indian Brotherhood, Indian-Eskimo
Association, Union of Ontario Indians, and
Canadian-Indian Centre of Toronto (Applicants)
v.
CTV Television Network Ltd. (Respondent)
Trial Division, Kerr J.—Toronto, July 16, 1971.
Radio and Television—Interim injunction—Application to
restrain showing of film pending disposition of application
for mandamus to compel CRTC to hold inquiry—Dismis-
sal—Jurisdiction of Court—Broadcasting Act, R.S.C. 1970,
c. B-11, secs. 3, 15, 16.
Held, dismissing an application for an interim injunction
to restrain the CTV network from telecasting a film pending
a decision by this Court on an application for mandamus
directing the CRTC to hold a public inquiry into a complaint
that the film was defamatory of Indians —
(1) Having regard to the broadcasting policy for Canada
declared in the Broadcasting Act and the powers of regula
tion and supervision of the CRTC, it is doubtful if this
Court has jurisdiction to enjoin CTV from broadcasting a
film other perhaps than one legally actionable by reason of
being defamatory.
(2) Moreover, the application should be dismissed on the
merits, there being no prima facie showing that a telecast of
the film will violate some legal right or that it is defamatory
of any living person.
National Indian Brotherhood v. Juneau [No. 1], supra
p. 66, referred to.
APPLICATION for interim injunction.
R. A. Best, Q.C., for applicants.
J. E. Eberle, Q.C., and H. H. Soloway, Q.C.,
for respondent.
KERR J.—This in substance is an application
for an interim injunction restraining the
respondent CTV Television Network Limited
from broadcasting the movie or film known as
"The Taming of the Canadian West" until the
decision of the Federal Court of Canada, Trial
Division, has been handed down in another
pending application by way of mandamus to
direct the Canadian Radio-Television Commis
sion [CRTC] to hold a public inquiry into a
complaint filed by the same applicants with
respect to the film. That application was heard
by Mr. Justice Walsh, who reserved judgment
thereon. [National Indian Brotherhood v.
Juneau [No. 1], supra p. 66—Ed.]
The affidavit of Andrew Richard, filed on
behalf of the applicants, says that many of the
organizations representing the Canadian-Indians
including the applicants became concerned
about inaccuracies in the script of the film,
which, in their joint opinion, was racist, histori
cally inaccurate and slanderous to the Indian
race and culture, and that requests were made
to the CRTC to conduct a public inquiry on the
issue as to whether the film was in fact racist,
historically inaccurate and slanderous to the
Indian race and culture, but the Commission
refused to hold an open inquiry.
CTV proposes to broadcast the film on its
network on Sunday next. It appears that a first
showing of the film was broadcast on March 21,
1970.
The applicants say that damage to the Indian
people of Canada will be done if the film is
shown on the CTV network and that the hearing
before this Court in the aforesaid matter of the
applicants and the CRTC will become academ
ic, if not altogether futile, if CTV shows the
film before the Court gives its decision in that
other matter.
Affidavits on file give information respecting
the film and steps taken by the applicants, CTV
and the CRTC to consider complaints received
about the film.
CTV has referred to the broadcasting policy
for Canada as outlined by the Broadcasting Act
R.S.C. 1970, c. B-11, and says that, if the film
is enjoined from being shown, grave harm will
be done to the right of free expression, which is
a statutory responsibility of the CTV network
and a long-established tradition in Canadian
broadcasting.
Section 3 of the Broadcasting Act declares a
broadcasting policy for Canada, and reads in
part as follows:
3. It is hereby declared that
(c) all persons licensed to carry on broadcasting undertak
ings have a responsibility for programs they broadcast but
the right to freedom of expression and the right of per-
sons to receive programs, subject only to generally appli
cable statutes and regulations, is unquestioned;
and that the objectives of the broadcasting policy for
Canada enunciated in this section can best be achieved by
providing for the regulation and supervision of the Canadian
broadcasting system by a single independent public
authority.
Pursuant thereto the CRTC was established.
Its objects are set forth in s. 15 of the Broad
casting Act as follows:
15. Subject to this Act and the Radio Act and any direc
tions to the Commission issued from time to time by the
Governor in Council under the authority of this Act, the
Commission shall regulate and supervise all aspects of the
Canadian broadcasting system with a view to implementing
the broadcasting policy enunciated in section 3 of this Act.
Section 16 of the Act gives power to the
Commission to make regulations, inter alia,
respecting standards of programs.
Under s. 19 the Commission may hold a
public hearing in connection with
(c) a complaint by a person with respect to any matter
within the powers of the Commission.
Having regard to the broadcasting policy for
Canada declared in the Broadcasting Act and
the provisions for regulation and supervision of
the Canadian broadcasting system by the
CRTC, I doubt that Parliament intended to give
or has given to the Federal Court of Canada,
Trial Division, jurisdiction to enjoin CTV from
broadcasting a particular program or the par
ticular film here in issue. If parties who have
objections against a television program have a
right to have this Court entertain an application
to enjoin the broadcast of the program, other,
perhaps, than one that is legally actionable by
reason of being slanderous or libellous or other
wise, it would seem to me that an opportunity
to frustrate, delay and interfere with broadcast
ing in Canada would be available to such parties
and that this Court would, in effect, be exercis
ing functions of regulation and supervision of
the Canadian broadcasting system that Parlia
ment has seen fit to entrust to the CRTC.
But even if this Court has jurisdiction to
entertain the instant application, I am not dis
posed to grant an injunction to restrain CTV
from broadcasting the film, because
(1) the film has already been shown as far
back as March 21, 1970,
(2) the CRTC has considered the complaints
and has not indicated that it is a film that
should not be broadcast,
(3) CTV has a responsibility for the programs
it broadcasts and persons licensed to carry on
broadcasting undertakings have a right to
freedom of expression, subject to generally
applicable statutes and regulations, as set
forth in section 3(c) of the Broadcasting Act,
(4) the film is historical and is in respect of a
long-past era and not in respect of a current
situation, and, finally,
(5) there has not, in my opinion, been a prima
facie showing either that if the film is broad
cast such broadcast will violate some legal
right or commit some legal wrong that ought
to be enjoined by an injunction, or that the
film in fact slanders or libels any living
person.
Therefore the motion for an injunction is
refused, with costs.
In view of my decision to refuse an injunc
tion for the reasons I have given, it will not be
necessary for me to deal with the preliminary
objections by counsel for the respondent that
the applicants are not individual persons or
incorporated bodies and therefore have no
status to make the application, and that the
application is invalid because no substantive
action has been instituted.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.