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Telecommunications - Canadian Radio and Telecommunications Commission (CRTC). Bell Canada v. Beanfield Technologies Inc.
In Bell Canada v. Beanfield Technologies Inc. (Fed CA, 2023) the Federal Court of Appeal illustrates a CRTC decision temporarily ordering certain internet access facilities by Bell to competitors:[1] Bell Canada (Bell) has moved for a stay of Decision CRTC 2023-358 of the Canadian Radio-television and Telecommunications Commission (CRTC), issued on November 6, 2023 (the Decision). In the Decision, the CRTC directed Bell and Telus Communications Inc. (TCI) to provide reseller competitors access to Bell and TCI’s fibre-to-the-premises (FTTP) facilities “over aggregated wholesale HSA”, within Ontario and Quebec, by no later than May 7, 2024. Such access was mandated by the CRTC on a temporary basis, pending the outcome of a broader review that the CRTC is undertaking, following a Notice of Consultation the CRTC issued on March 8, 2023.
[2] A little background is helpful to put this motion and the Decision into context.
[3] FTTP facilities enable access to high-speed internet. In ordering the temporary provision of access to Bell and TCI’s FTTP facilities over aggregated wholesale HSA, the Decision requires Bell and TCI (the latter, for only a relatively small number of customers) to allow reseller competitors to temporarily access, on an aggregated basis, Bell and TCI’s fibre network facilities in Ontario and Quebec that deliver to customers wireline access to high-speed internet. The CRTC was of the view that this would open the door to competitors to sell high-speed internet services in Ontario and Quebec that are competitive to those offered by Bell and TCI. In the Decision, the CRTC also mandated the wholesale rates that Bell and TCI can charge resellers on an interim basis for such aggregated access to their FTTP facilities.
[4] In 2015, the CRTC mandated that facilities based carriers, including Bell and TCI, were required to provide disaggregated FTTP services to resellers and set the wholesale rates that could be charged to resellers for such services.
[5] The difference between aggregated and disaggregated access is usefully summarized by Bell, at paragraphs 18 and 19 of its Written Representations filed in connection with this motion, as follows:18. Facilities Based Carriers invest in two types of facilities, among others: transport facilities and access facilities. Transport facilities allow large amounts of data traffic to be sent and received across a fibre network. They are analogous to highways or transmission power lines. Access facilities, by contrast, connect individual customer locations (i.e., premises) to the fibre network. These access facilities are analogous to local roads or distribution power lines.
19. The CRTC has historically regulated two types of wholesale Internet services using these facilities:
(a) Aggregated wholesale Internet service: permits Resellers to lease a combination of both: (i) the access facilities needed to connect to customer locations; and (ii) the transport facilities through which large amounts of traffic can be sent and received. Prior to the Decision, aggregated wholesale service was available for Bell’s fibre-to-the-node Internet service (a good Internet service, but not as fast as FTTP service), but was not available for FTTP service, which is an emerging technology that Facilities Based Carriers use to provide the highest speed Internet services available to them; and
(b) Disaggregated wholesale Internet service: permits Resellers to lease only the access facilities needed to connect to customer locations, but not the transport facilities. Instead, competitors must obtain transport facilities primarily by either investing in their own networks … or by leasing facilities from other carriers on a commercial basis. Disaggregated wholesale services have been available on FTTP facilities for some time, but, in practice, none of Bell’s competitors made use of them. [6] According to some of the respondents to this motion, the disaggregated access option for FTTP was unfeasible because it was too expensive for them on the terms that the CRTC mandated in 2015.
[7] On February 9, 2023, the Governor in Council issued an order under section 8 of the Telecommunications Act, S.C. 1993, c 38, entitled the Order Issuing a Direction to the CRTC on a Renewed Approach to Telecommunications Policy, SOR/2023-23, registered February 10, 2023 (P.C. 2023-110 February 9, 2023) (the Policy Direction).
[8] Section 10 of the Policy Direction provided as follows:Aggregated wholesale high-speed access service
Service d’accès haute vitesse de gros groupé
10 The Commission must mandate the provision of an aggregated wholesale high-speed access service — that is additional to any other types of wholesale high-speed access services that are mandated — until it determines that broad, sustainable and meaningful competition will persist even if the provision of an aggregated service is no longer mandated.
10 Le Conseil doit rendre obligatoire la fourniture de services d’accès haute vitesse de gros groupé — qui s’ajoutent à tout autre type de service d’accès de gros à haut débit dont la fourniture est obligatoire — jusqu’à ce qu’il détermine qu’une concurrence vaste, durable et significative perdurera même si la fourniture d’un service groupé n’est plus obligatoire. [9] On March 7, 2023, the CRTC issued Telecom Notice of Consultation CRTC 2023-56. In it, the CRTC stated that it was going to review the existing framework for wholesale high-speed access (HSA) “… in light of changing market conditions, the significant challenges in implementing the framework, and the importance to Canadians of having access to greater choice and more affordable services”. The CRTC also set out its preliminary views that:(i) the provision of aggregated wholesale HSA services should be mandated; (ii) access to fibre-to-the-premises (FTTP) facilities should be provided over these services; and (iii) the provision of FTTP facilities over aggregated wholesale HSA services should be mandated on a temporary and expedited basis, until the Commission reaches a decision as to whether such access is to be provided indefinitely. [10] In its Notice of Consultation, the CRTC invited comments from interested parties. Over 300 companies and individuals intervened before the CRTC to provide their views. Among them were Bell and the respondents who have filed submissions on this motion, namely TekSavvy Solutions Inc. (TekSavvy), Québecor Media Inc., on behalf of Vidéotron Ltd. (QMI), and Competitive Network Operators of Canada (CNOC).
[11] In the Decision, the CRTC confirmed, in part, its preliminary views on the temporary relief it was considering to impose. As a result, the CRTC mandated that Bell and TCI were to provide reseller competitors access to Bell and TCI’s FTTP facilities over aggregated wholesale HSA, within Ontario and Quebec, by no later than May, 7, 2024, on a temporary basis pending the outcome of the CRTC’s overall review of the framework for HSA services.
[12] In reaching this conclusion, the CRTC noted that, in recent years, many additional subscribers have subscribed to Bell’s FTTP service and that the competitive intensity in the sector has declined. The CRTC determined that the temporary aggregated FTTP access that it mandated would help stabilize competition. The CRTC also noted that it was its view that “… competitors’ inability to practically provide services over FTTP networks has severely affected their ability to effectively compete”. The CRTC continued by stating that it was “… concerned that this negative impact on wholesale-based competition will become even more severe over time [and that absent] regulatory intervention, meaningful wholesale-based competition will continue to decline” (Decision at para. 57).
[13] The CRTC limited the scope of the temporary mandated FTTP access to Ontario and Quebec, finding that these were the two areas “where wholesale based competition [was] most clearly declining” (Decision at paras. 59 and 68).
[14] In the Decision, the CRTC addressed Bell’s concerns that it might not be able to recover the implementation costs associated with providing temporary access to its FTTP facilities over aggregated wholesale HSA, if such access were not permanently mandated. The CRTC considered that such issues, should they arise, were “... not insurmountable from a regulatory perspective”. The CRTC continued by stating that it was “... prepared to deal with these matters at a later date should this be required” (Decision at para. 67). . Société Radio-Canada v. Canada (Attorney General)
In Société Radio-Canada v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal (on consent) from a CRTC ruling which found that the SRC (the French counterpart of the CBC) had used offensive language, being the racist 'N'-word. The appeal ground was "that the CRTC exceeded its jurisdiction and failed to take into account the applicable legal framework as well as the SRC’s freedom of expression as guaranteed by the Charter" [para 19].
In these quotes the court (firstly at paras 23-36) cites the submissions of both the SRC and the Attorney-General on the CRTC's content control jurisdiction [note that the appeal was allowed on consent], and then (secondly at paras 42-56) states it's conclusions on the jurisdiction issue:[17] On July 28, 2022, the SRC sought leave to appeal the decision pursuant to subsection 31(2) of the Act. Leave was granted on September 12, 2022. The notice of appeal, which seeks to overturn the decision, was filed on November 8, 2022. It alleges that the CRTC could not sanction the SRC solely because the content broadcast on the air was, in its opinion, inconsistent with the Canadian broadcasting policy set out in subsection 3(1) of the Act, and that in so doing, the CRTC exceeded its jurisdiction. The notice of appeal also alleges that the CRTC erred in law by failing to consider certain applicable provisions as well as the values of the Charter, more precisely freedom of expression.
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THE ARGUMENTS OF THE ATTORNEY GENERAL AND THE SRC
[23] The Attorney General asks that the appeal be allowed and the decision set aside on the ground that the CRTC exceeded its jurisdiction and, in addition, erred in law by ignoring the legal framework applicable to the matter before it. In so doing, the Attorney General essentially adopts the arguments presented by the SRC in support of its appeal.
[24] The Attorney General acknowledges from the outset that certain jurisdiction-conferring provisions of the Act give the CRTC the power to control the content of the programs broadcast on the air by the SRC (written submissions of the Attorney General, para. 40; reply of the Attorney General, para. 5), but he submits that these provisions were not invoked or applied in this matter. In this case, the CRTC rested its decision on nothing but a failure to achieve the Canadian broadcasting policy objectives set out in subsection 3(1) of the Act. According to the Attorney General, the CRTC erred in relying on this provision because neither subsection 3(1) of the Act nor any other provision authorizes the CRTC to impose sanctions for the broadcast of content deemed to be inappropriate on the sole basis of these objectives (written submissions of the Attorney General, paras. 19–21; reply of the Attorney General, paras. 2 and 4).
[25] In support of this argument, the Attorney General notes that the Supreme Court has repeatedly recognized that subsection 3(1) is not a jurisdiction-conferring provision (written submissions of the Attorney General, paras. 18–26, citing Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476 [Barrie Public Utilities], paras. 37 and 42; and Reference re Broadcasting Regulatory Policy CRTC 2010–167 and Broadcasting Order CRTC 2010–168, 2012 SCC 68, [2012] 3 S.C.R. 489 [2012 Reference], para. 22).
[26] Furthermore, the Attorney General considers that even though subsection 5(1) of the Act confers on the CRTC the task of supervising “all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy”, this provision is no more jurisdiction-conferring than subsection 3(1) (written submissions of the Attorney General, para. 28, citing TVA Group Inc. v. Bell Canada, 2021 FCA 153 [TVA Inc.], para. 35, leave to appeal to S.C.C. refused, 39861 (May 12, 2022)).
[27] According to the Attorney General, the CRTC must carry out its supervisory duties within the framework of the powers conferred on the CRTC by sections 9 to 17 of the Act, under the heading “General Powers” (reply of the Attorney General, para. 26). More specifically, the Attorney General submits that section 12 of the Act allows the CRTC to sanction any failure to comply with Part II (sections 5 to 34) of the Act or the terms of any regulation, licence, decision or order made under this Part (written submissions of the Attorney General, paras. 30–34). It follows, according to the Attorney General, that section 12 of the Act allows the CRTC to ensure that the content broadcast on the airwaves is compliant with the conditions of licences issued pursuant to section 9 of the Act and with the requirements imposed on broadcasters by the regulations promulgated pursuant to section 10 of the Act (written submissions of the Attorney General, para. 40; reply of the Attorney General, para. 27).
[28] In this case, the Attorney General contends that the CRTC could have imposed sanctions on the SRC on the ground that the content broadcast contravened sections 9 and 10 of the Code (which were imposed on the SRC as conditions of its licence) and paragraph 3(b) of the 1986 Regulations, if it had made a finding to that effect, but that it did not exercise this power (written submissions of the Attorney General, paras. 53–54 and 59–60). In so doing, the CRTC would have applied the wrong legal framework to the facts, which in itself amounts to an error of law (written submissions of the Attorney General, para. 61).
[29] That said, the Attorney General submits that nothing prevents the CRTC from turning to the Canadian broadcasting policy objectives in order to construe the content of the applicable provisions (reply of the Attorney General, para. 28). There is also nothing that prevents it from amending the terms of the broadcasting licences or the applicable regulations in order to better reflect the Canadian broadcasting policy, but until then, the CRTC must apply the provisions as they read, which it did not do (reply of the Attorney General, paras. 3 and 5). The Attorney General argues that to hold otherwise would be tantamount to conferring unfettered discretion on the CRTC (written submissions of the Attorney General, paras. 34–35, citing 2012 Reference, paras. 27–28; reply of the Attorney General, paras. 32–33).
[30] Moreover, and on a completely different note, the Attorney General contends that because the decision circumscribes the use that may be made of the “N‑word” on the airwaves, it necessarily engages the SRC’s freedom of expression as guaranteed by the Charter (written submissions of the Attorney General, para. 66). However, the CRTC did not point to any specific consideration requiring that restrictions be placed on this freedom. According to the Attorney General, it follows that the decision does not reflect the proportionate balancing that must be conducted in these circumstances (written submissions of the Attorney General, paras. 65 and 68, citing Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], para. 4). He submits that this error is as fatal as the other errors already pointed to.
THE ARGUMENTS OF THE AMICUS CURIAE
[31] In response to the Attorney General’s arguments, the amicus curiae (the amicus) submits that the decision lies within the CRTC’s jurisdiction and that it took into account the applicable legal framework. He further maintains that the CRTC complied with the balancing exercise mandated by the Charter. He therefore asks that the motion for judgment on consent be dismissed. Failing this, the amicus asks that the matter be returned to the CRTC for reconsideration and re-determination.
[32] According to the amicus, the jurisdiction of the CRTC in matters pertaining to the supervision of the Canadian broadcasting system is sufficiently broad to allow it to police the compliance of the content broadcast on the air solely on the basis of objectives of the Canadian broadcasting policy. In his view, this power finds its source in subsection 5(1), which [translation] “grants the CRTC the jurisdiction to regulate and supervise the Canadian broadcasting system” in order to implement the Canadian broadcasting policy set out in subsection 3(1) of the Act (response of the amicus, para. 31; see also paras. 47–52, referring to Capital Cities Comm. v. C.R.T.C., 1977 CanLII 12 (SCC), [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609 [Capital Cities], at 171). While the jurisdiction of the CRTC, insofar as it pertains to its regulation-making power, is [translation] “strictly governed by sections 9 and 10 of the Act” as well as by the rulings 2012 Reference and TVA Inc. (response of the amicus, paras. 31 and 61–63), its jurisdiction, as it pertains to its supervisory powers, is not so limited (response of the amicus, paras. 31 and 41–42). The amicus submits that this jurisdiction can be exercised by virtue of subsection 18(3), which allows the CRTC, if it is satisfied that it would be in the public interest to do so, to dispose of any complaint within its jurisdiction “under this Act”, which includes that conferred by subsections 3(1) and 5(1) of the Act (response of the amicus, paras. 37 and 41).
[33] The amicus further submits that this approach gives meaning to each key word in subsection 5(1) and gives effect to Parliament’s intention, which is to create a body that would act as a [translation] “watchdog for the Canadian broadcasting system” (response of the amicus, para. 59). To fully assume this role, the CRTC must be able to intervene as needed—that is, without having to wait for the licence renewal process and without having to rely on a specific regulation or on the conditions attached to a licence in order to sanction an inappropriate use of the airwaves. Only this approach would allow the CRTC to ensure that the Canadian broadcasting system functions properly in a context of rapid social change (response of the amicus, paras. 43 and 51).
[34] The amicus stresses that this is the approach that was used by the CRTC in the present matter and that it is consistent with the role that it played in the past (response of the amicus, para. 51, citing Broadcasting Decision CRTC 2005–348, para. 30; Broadcasting Decision CRTC 2007–423, paras. 38–40; and Broadcasting Decision CRTC 2009–548, paras. 17–19, 21 and 24). Indeed, in disposing of the complaint on the basis of the Canadian broadcasting policy, the CRTC drew the attention of the SRC and of all licence holders [translation] “to its expectations regarding high-quality programming, the strengthening of the cultural and social fabric, and the need to reflect the multicultural and multiracial character of Canada” (response of the amicus, para. 53).
[35] Although the CRTC disposed of the complaint on the sole basis of the policy objectives, the amicus asserts that it nevertheless considered all relevant provisions, i.e., paragraph 3(b) of the 1986 Regulations and sections 9 and 10 of the Code. Indeed, he contends that the peripheral references in the reasons to notions and key words embodied in these provisions, together with the dissenting opinions which make specific reference to these provisions, show that the CRTC took them into account (response of the amicus, paras. 69–80).
[36] Finally, the amicus maintains that the CRTC complied with the balancing obligation imposed on it by the Charter. In his view, the only issue for this Court to decide is whether the CRTC was “alive” to this question (response of the amicus, paras. 30, 81, 83–84, 86 and 95, citing Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré], paras. 55–56; and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 [Trinity Western University], paras. 55–56). This, according to the amicus, is the case; he submits that since the dissenting members considered the SRC’s freedom of expression, it should be inferred that the majority did the same (response of the amicus, para. 87). Even though this is said nowhere, he also invites the Court to read the decision of the CRTC as if the majority had endeavoured to show that the infringement of the SRC’s freedom of expression was justified in a free and democratic society (response of the amicus, paras. 88–94).
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Does the CRTC have the jurisdiction to control the content of programs based on the Canadian broadcasting policy set out in subsection 3(1) of the Act and sanction licensees on the sole ground that the content broadcast on the airwaves contravenes this policy?
[42] I note from the outset that it is well established that Parliament may regulate what can and cannot be said on the airwaves and that it has delegated to the CRTC the power to do so (Genex Communications v. Canada (Attorney General), 2005 FCA 283, [2006] 2 F.C.R. 199 [Genex], paras. 131–137). No one takes issue with this. Indeed, all are agreed that the CRTC has validly established rules of conduct towards this end and that it can sanction any instance of non-compliance pursuant to section 12 of the Act. In this case, the applicable rules of conduct were established pursuant to paragraph 3(b) of the 1986 Regulations, promulgated pursuant to subsection 10(1) of the Act, as well as by sections 9 and 10 of the Code, which were imposed on the SRC as a condition for its licence pursuant to subsection 9(1) of the Act (see condition 7 in Appendix 4 of the Broadcasting Decision CRTC 2013–263; this licence was renewed administratively by Broadcasting Decision CRTC 2018–407).
[43] These rules of conduct require broadcasters to be vigilant and sensitive with respect to the language and expressions used on the air to refer to individuals or groups based on, among other things, race. They prohibit, in particular, the broadcast of offensive content that tends or is likely to expose these individuals or groups to hatred on the basis of race.
[44] The CRTC made no findings based on these rules of conduct; rather, it made findings on the sole basis of the Canadian broadcasting policy. If it did otherwise, nothing can explain why it did not mention the applicable rules of conduct, if only to circumscribe the issue that it had to decide. I note in this respect that when the CRTC has, in the past, made a finding based on these rules, these were referred to in express terms (see, for example, Broadcasting Decisions CRTC 2005–348, para. 30; and CRTC 2007–423, para. 41).
[45] The amicus contends that this omission is inconsequential because in any event, the CRTC has the power to sanction the SRC on the sole ground that the content broadcast on the air is, in its opinion, inconsistent with the Canadian broadcasting policy set out in subsection 3(1) of the Act.
[46] Subsection 3(1) does not give the CRTC this power. The Supreme Court has repeatedly recognized that subsection 3(1) is not a jurisdiction-conferring provision. Instead, its purpose is to describe the broadcasting policy that Parliament was pursuing in adopting the Act, and circumscribe the exercise of the discretionary power granted to the CRTC (2012 Reference, paras. 22–23, 25; Barrie Public Utilities, paras. 37 and 42; see also Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764, paras. 50 and 74).
[47] The amicus does not take issue with this case law, but rather rests his case on subsection 5(1) of the Act; he contends that unlike subsection 3(1), subsection 5(1) is not so limited and allows for the same result. Subsection 5(1) reads as follows:Objects
5 (1) Subject to this Act and the Radiocommunication Act and to any directions to the Commission issued by the Governor in Council under this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1) and, in so doing, shall have regard to the regulatory policy set out in subsection (2).
[Emphasis added.]
Mission
5 (1) Sous réserve des autres dispositions de la présente loi, ainsi que de la Loi sur la radiocommunication et des instructions qui lui sont données par le gouverneur en conseil sous le régime de la présente loi, le Conseil réglemente et surveille tous les aspects du système canadien de radiodiffusion en vue de mettre en œuvre la politique canadienne de radiodiffusion.
[Non souligné dans l’original.] [48] In support of this argument, the amicus cites the following passage from Capital Cities, through which the Supreme Court, he contends, would have confirmed that subsection 5(1) (section 15 at the time) is a jurisdiction-conferring provision in terms of supervising what can and cannot be said on the air (at page 171):In my opinion, having regard to the embracive objects committed to the Commission under s. 15 of the Act [now section 5 of the Act], objects which extend to the supervision of “all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in section 3 of the Act”, it was eminently proper that it lay down guidelines from time to time as it did in respect of cable television. The guidelines on this matter were arrived at after extensive hearings at which interested parties were present and made submissions. An overall policy is demanded in the interests of prospective licensees and of the public under such a regulatory regime as is set up by the Broadcasting Act. Although one could mature as a result of a succession of applications, there is merit in having it known in advance. [49] This passage has neither the reach nor the meaning that the amicus attributes to it. In so saying, the Supreme Court merely confirmed that the CRTC may develop guidelines applicable to a specific industry—cable distribution, in that case—that will serve to guide the exercise of the discretionary powers conferred upon it by sections 9 to 17 of the Act, including the power to issue and amend licences. Indeed, this is the role that the guidelines played in Capital Cities as they served to inform the CRTC in the exercise of its discretionary power to amend licences under paragraph 9(1)(c) of the Act (paragraph 17(1)(b) at the time).
[50] This jurisprudential statement was later codified and is now set out in section 6 of the Act, which reads as follows:Policy guidelines and statements
6 The Commission may from time to time issue guidelines and statements with respect to any matter within its jurisdiction under this Act, but no such guidelines or statements issued by the Commission are binding on the Commission.
Directives du Conseil
6 Le Conseil peut à tout moment formuler des directives — sans pour autant être lié par celles-ci — sur toute question relevant de sa compétence au titre de la présente loi. [51] Capital Cities is more in line with the Attorney General’s position that subsection 5(1) is no more attributive of jurisdiction than subsection 3(1) because both are aimed at guiding the CRTC in exercising the discretionary power conferred upon it, one under the guise of a policy and the other under the guise of objects. This is indeed the conclusion that was reached by this Court in TVA Inc. (para. 35). This decision is binding on us and the amicus has provided no reason that would allow us to depart from it (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, para. 10).
[52] Indeed, subsection 5(1), by its wording, provides that the objects to be pursued by the CRTC are to develop a regulatory framework and to supervise what is said over the air with the view of implementing the Canadian broadcasting policy. It follows that the argument advanced by the amicus according to which the CRTC may rely on this policy as though it was in and of itself a rule of conduct that forms part of the regulatory framework governing what can be said on the air must fail.
[53] Contrary to the Canadian broadcasting policy, which is intended to guide the exercise of the discretionary power conferred upon the CRTC, rules of conduct are put in place in order to delineate what can and cannot be said on the air. It follows that imposing sanctions on the sole basis of this policy, as if it were itself a rule of conduct, goes against the role that Parliament attributed to this policy.
[54] The amicus submits that the CRTC must be able to rely on the Canadian broadcasting policy in order to intervene on a timely basis [translation] “within a context of rapid social change” (response of the amicus, para. 51). Although it is true that the CRTC must be able to act promptly, the Act as it reads allows for timely action without the need to treat the policy as thought it was a rule of conduct. Alleged breaches of the existing rules of conduct may be brought to the attention of the CRTC at any time by way of complaints filed pursuant to subsection 18(3) of the Act, and, when the circumstances so require, nothing prevents the CRTC from imposing the appropriate sanctions as and when needed based on the rules of conduct established towards that end.
[55] As the Attorney General points out, the CRTC may amend the rules of conduct prospectively in order to adapt them to the new realities emerging from the changing social landscape, if it considers it necessary to do so. In addition, nothing prevents the CRTC from relying on the Canadian broadcasting policy in order to clarify the meaning and the scope of the existing rules of conduct. However, it remains that the CRTC cannot sanction licensees on the sole basis that what is said on the air is, in its opinion, inconsistent with the Canadian broadcasting policy, without more. As the Attorney General submits, to hold otherwise would be tantamount to conferring on the CRTC an unfettered discretion over what can and cannot be said on the air.
[56] The Attorney General is therefore correct in arguing, with the support of the SRC, that the CRTC overstepped its jurisdiction by sanctioning the SRC on the sole basis that the content broadcast on the air was, in its opinion, inconsistent with the Canadian broadcasting policy.
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