August 18, 1997: My husband was out of town. I had left for work at approximately 8:20 AM, our sixteen year old daughter was home alone.

          At approximately 12:00 PM, August 18, 1997, Mr. Blaine Gaffney arrived at our home.

Our daughter answered the door and said Mr. Gaffney introduced himself and said he would like to ask her some questions.

He did not ask if her parents were home nor did he take into consideration this is a child he is talking to.

Mr. Gaffney asked her if she knew what was going on next door.

Our daughter replied no, but said she was guessing that someone may be dead because there had been phone calls from friends asking if we were all okay.

Nothing at this point had been confirmed to her that there had been a death, let alone two deaths, or who the victims were. The victims' names had not been released to the public at this time.

Mr. Gaffney proceeded to interview our daughter when she did not know the facts of what had taken place.

Our daughter requested not to be put on television.

I arrived home at 4:45 PM, our daughter filled me in on what had happened.

I turned on the television to watch the 5:00 PM news on CHBC and there was our daughter.

She had been broadcast on the 1:00 PM news and 5:00 PM news, her name across the screen and the fact that this was the nearest neighbour to the home where the murders took place.

I was outraged to say the least!

What is any reporter doing questioning a child in regards to a murder let alone a double murder.

This was not a community affair, it was a double murder!

Our daughter’s request for the interview not to be televised, was not adhered to.

There was never a consideration of a possibility that a family member is in a protective program.

Given the history of the victims with a criminal record related to drugs, theft and abuse, there was no consideration given that there may be retribution from family and friends of the victims.

It has happened once. Because of this broadcast by CHBC our daughter has had retribution on our property from a family member of the victims.

Fortunately an R.C.M.P. investigator was arriving at our home and escorted the victims' family member off of our property.

Can we ever be guaranteed it will not happen again?

Because of this incident our daughter does not want to be home alone and does not want to go outside of the house if we are not there.

As well, we are afraid to leave her home alone.

I am having to take days off of work and we are continuously having to explain ourselves to people when they ask what kind of parents are we to allow our daughter to be exposed like that (televised) in regards to a double murder.

Also because of the way CHBC presented the coverage on T.V., i.e. our daughter saying there had been a lot of parties, noise, we never paid any attention to them and that he was not one of her most favourite people, then showing the home and the bodies being removed and lastly the grieving family members, people are saying how uncaring and inconsiderate our daughter is.

She is a very sensitive girl with a kind heart and was answering questions honestly without knowing the facts of what had taken place next door.

She had made it clear she did not want to be on T.V. That was not adhered to.

Our concerns are that no parental permission had been requested nor given and that our underage daughter had been interviewed and exposed on her opinion when she knew nothing of the facts of the double murder that had just occurred.

The effects of this has brought a great deal of grief to our family to the extent of considering selling our home and relocating.

This is not an experience I would wish upon anyone.

* We have just been informed that our daughter was on BCTV news as well, and shown on the 11:30 PM BCTV news broadcast. When does this end?!

The News Director for CHBC-TV replied to the complainant on September 16, 1997 with the following:

I am very sorry to hear you are suffering such grief following the tragic events which occurred in your neighbourhood on August 18, 1997. One can only imagine how upsetting something of that nature could be.

We are also sorry to hear that you feel our news story about the event, which included an interview with your daughter, has added to your distress. While it is common practice to interview neighbours in such situations, we assure you it is only for the purpose of providing information to the public at large which, you will understand, may be quite anxious about the matter.

In your letter to the CBSC you refer to specific concerns which need to be addressed. You seem most upset that we would interview your daughter, whom you refer to as "a child", without your express permission. The fact is, and our legal counsel confirms, that there is no such thing as an age of consent in Canada when it comes to interviewing a person for a news story. However, legalities aside, and while it is unlikely that many people today would consider a sixteen year old as a child, I agree with my news crew that your daughter presented herself in a very responsible and mature manner.

Our crew approached your daughter for information because upon arrival on the scene Mr. Gaffney noted your daughter being interviewed by an RCMP Officer. By that time the murders were the subject of every radio newscast in Vernon, and in light of the amount of police activity going on, plus the fact that your daughter expressed the opinion that "someone must be dead" , he logically thought she might have information which could contribute to the public’s understanding of the matter.

It must be clear that we weren’t asking your daughter for facts about the double murder. We were asking her about a subject that we reasonably felt she could speak to with first-hand knowledge, specifically, "What was it like to live next door to these people?"

Your letter suggests that your daughter made a strong request not to be put on television. However, both Mr. Gaffney and our Camera Operator tell me such was not the case.

Your daughter said, "You’re not going to put this on television, are you?", to which Mr. Gaffney replied, "Well, that depends". Of course the decision to include her comments in our story depended entirely on whether she had anything to say that may help the people of Vernon understand why this murder took place, and we believe the information she provided went a long way toward making the community feel safer through its understanding that this likely wasn’t a random act of violence.

We should also say that the question, "You aren’t going to put this on television, are you?" is a question we hear frequently. It has been our experience that the person asking the question really is simply expressing a form of modesty and surprise at being asked to participate in a television program. Further, it should be noted that after Mr. Gaffney replied, "It depends", your daughter made no objections whatsoever, and in fact, cooperated fully as he continued the interview with both the microphone and the camera pointed at her and in plain view.

I sincerely hope this explanation will assist you in understanding the facts surrounding our involvement in the events of that day. As upsetting and traumatic as this tragedy must be for all concerned, I think your anger at Mr. Gaffney and CHBC-TV is misdirected. Our intentions that day, and always, are simply to fulfill our mandate to inform the public about matters of importance and concern in a fair and responsible way. We believe we did that.

Finally, you advise that your daughter has received threats from certain individuals as a result of expressing her considered opinion on her [sic] newscast. We understand and share your concerns since we too endure such threats from time to time. May [w]e respectfully suggest, however, that the answer to challenges such as this should not be for us to bow to intimidation and, thereby, hide or compromise the truth. The right of free and responsible speech is too precious. We strongly urge you to take this matter up with the police.

The complainant was unsatisfied with this response and requested, on September 27, that the CBSC refer the matter to the appropriate Regional Council for adjudication. Her request for adjudication was accompanied by a letter which reiterated many of the points raised in her initial letter of complaint. The full text of that lengthy letter is included as an appendix to this decision; however, the briefer relevant portions read as follows:

In the first paragraph of their letter they say they are "very sorry to hear we are suffering such grief following the tragic event which occurred in our neighbourhood on August 18, 1997." The grief we are suffering following the double murder next door to us, is only that of which CHBC-TV has brought upon us by exposing our daughter who is a minor, on television, giving an opinion without knowing the facts of what had occurred, using her name on screen, the fact that this was the closest neighbour, and we the parents were not made aware by CHBC-TV that they intended to expose our daughter nor were we asked for consent.

...

In paragraph three CHBC states that we seem most upset that they would interview our daughter, whom we refer to as "a child", without permission. Also that there is no such age of consent in Canada when it comes to interviewing a person for a news story. As well it is unlikely people today would consider a sixteen year old as a child and the news crew agreed our daughter presented herself in a very responsible and mature manner.

Our comment to this is when we refer to our daughter as "a child", she is under the age of nineteen, a minor. Any person under the age of nineteen is not yet recognized as an adult and are [sic] not recognized as being fully capable of making mature and responsible decisions. That is why it is the responsibility of the parents to care for their children until such an age where they are considered responsible and mature. And that age was set at nineteen.

If a reporter wants to interview a person in regards to a brutal crime, then please have enough responsibility and ethics and common sense to interview an adult who is mature enough to be aware of what they are getting into and can make the responsible choice of whether it would be appropriate to get involved or make any comments, such as or daughter did, in regards to such a criminal act.

...

As to paragraph two of page two, CHBC’s letter says that the question, "You aren’t going to put this on television are you?" is heard frequently and they regard it as the person simply expressing a form of modesty and surprise at being asked to participate in a television program.

A reporter should never make their own assumption as to what that person is expressing.

When one asks that question, it would only be the professional and ethical thing of the reporter to then make it clear, "Do you or do you not wish to be on television? Yes or no?" and respect the yes or no answer.

As well, this incident was not to "participate in a television program." It was to participate in a double murder, a brutal crime! There are not too many people that [sic] would care to participate in that.

Again in this same paragraph, CHBC states that after Mr. Gaffney replied, "it depends", our daughter made no objections whatsoever.

Well such is not so! Our daughter did say, "Please don’t put me on television."

It is easy for Mr. Gaffney to say our daughter made no objections because he was the adult, he was the one in control of the situation and realizing he was speaking to someone obviously under the age of nineteen, he could craft his questions and take advantage of her vulnerability of being a child.

...

Our daughter explained to us that the cameraman was walking around on the front porch, sometimes looking over towards the park across the road. She said, "I didn’t really know what they were recording or when. The one guy was talking to me and the guy with the camera was walking around. Sometimes the camera was on me and sometimes not."

...

We firmly believe that the report by CHBC-TV on these murders was reported unfairly, without accuracy and did not respect the dignity and privacy of the people involved.

Upon receiving the request for a ruling from the complainant and the accompanying letter, the CBSC forwarded the correspondence to the broadcaster along with a request for logger tapes of the news item in question. The broadcaster provided the logger tapes in question along with the following letter and attachment:

I am concerned about the accompanying letter from the [complainant]. I understand it will also be sent to the Regional Council members along with the tapes. But according to my reporter, and camera operator, the letter contains many factual errors. This is particularly troubling, as [the complainants] are commenting about a conversation they are hearing about second hand. Therefore I have asked my employees, who were present, to write down the facts. In the interest of dealing with this matter as quickly as possible, I am sending the tapes now, and will fax you the notes written by the reporter and camera operator.

The notes referred to in the October 8, 1997 letter from the broadcaster were as follows:

The CBSC’s B.C. Regional Council considered the complaint under the Code of (Journalistic) Ethics of the Radio and Television News Directors Association (RTNDA). The relevant clauses of that Code read as follows:

RTNDA Code of Ethics, Article 4

Broadcast journalists will always display respect for the dignity, privacy and well-being of everyone with whom they deal, and make every effort to ensure that the privacy of public persons is infringed only to the extent necessary to satisfy the public interest and accurately report the news.

RTNDA Code of Ethics, Article 7

News directors recognize that informed analysis, comment and editorial opinion on public events and issues is both a right and responsibility that should be delegated only to individuals whose experience and judgement qualify them for it.

The Regional Council members viewed a tape of the news item in question and reviewed all of the correspondence. The Council finds no violation of the RTNDA Code of (Journalistic) Ethics in this case.

 Summary of the Issues Raised by the Complaint

The complainant’s two letters may be resumed into three main areas of concern. The complainant’s biggest grievance is that an interview with her daughter should not have been broadcast without parental consent, given that the daughter was under the age of majority.

Her second concern, which is also an issue of consent, is that the broadcaster aired the interview with her daughter despite having been urged not to do so by the daughter at the time of the interview.

Finally, the complainant takes issue more broadly with the broadcaster’s reporting of the double homicide story, alleging that it was "reported unfairly, without accuracy and did not respect the dignity and privacy of the people involved."

There were conflicting versions of the facts (particularly as they related to the issue of the daughter's consent to the interview) presented by the complainant and the broadcaster. Although it is, in a sense, an academic point, on the basis of the stories of the two sides and the footage used in the report, the Regional Council considers the hearsay version of the parents less reliable than the carefully documented position of the interviewer and cameraman who were on the scene in person and documented their recollections soon after the event. In the end, though, this decision does not fundamentally turn on that choice of versions.

On the general issue of conflicting versions of the facts in any matter, the CBSC considers it useful to reiterate its oft-explained position that it is not set up to be a "fact-finding" body. It does not hold "hearings" in a quasi-judicial sense and generally does not look to other "evidence" than the logger tape of the broadcast in question. As stated in CTV re an episode of The Shirley Show (CBSC Decision 93/94-0261, August 18, 1995),

In circumstances where the Council is not in a position to assess the accuracy of either version of events, it will generally be forced to abstain from dealing with the issue in question as it is not an evidence-gathering body.

Since, in the case at hand, the Council does not deem it necessary, for the purposes of resolving the complainant’s concerns, to resolve each and every question of fact before dealing with the complainant's main concerns, it can turn directly to those issues.

It is the contention of the complainant that a reporter seeking an interview must first obtain a clear consent from the interviewee to the broadcast of the interview. While the Council has on previous occasions dealt with the question of invasion of privacy related to the broadcast of images (with or without sound accompaniment) of persons in news reports, this is the first time that the Council has dealt with the issue of consent to broadcast an interview given to a reporter.

In CTV re Canada AM (Airborne Hazing) (CBSC Decision 94/95-0159, March 12, 1996), the Ontario Regional Council was called upon to consider the broadcast of images of one of the unidentified soldiers involved in the hazing ritual. The Council explained its interpretation of the privacy provisions of the RTNDA Code of (Journalistic) Ethics as follows:

It would be right to observe here that Article 4 of the RTNDA Code of Ethics, in dealing with the issue of privacy, makes specific reference to the privacy of public persons and not to private persons. This is perhaps because there may otherwise be a tendency on the part of citizens to believe that they have a proprietary interest in the lives of persons who have chosen to make themselves, in part, very public. This could not be said to be the same in the case of non-public figures.

In general, it is also true to observe that the private lives of individuals are of little or no interest to the public. There must, however, be exceptions to this principle or we would never, as a society, be entitled to see news stories on television on the grounds that they may contain footage of an unwilling participant in the event. It would not be realistic, for example, for television station news teams to seek permission from everyone who might be seen on camera at a crime scene, an accident, the picketing of a shop or a legislature, the arrival of a public figure or other events too numerous to describe here.

The point is that the issue is not so much the recording and broadcasting of the image of the individual as it is the identification of the person. Where the broadcaster provides no information which permits the public at large to identify the individual, such as in this case, the broadcaster has not interfered with that person’s right to privacy. The fact that the individual filmed and those close to him may know who he is does not interfere with his right to be free from identification by the public at large.

Circumstances do, moreover, arise from time to time in which the public interest in an event may override the otherwise legitimate interest of individuals to keep their identity and activities free from filmed scrutiny. Even a situation such as the hazing ritual in which a home video camera rather than a broadcaster’s equipment was present would give rise to this principle. The public had such an abiding interest in learning about the unorthodox and apparently discriminatory practices of the Regiment, whose members had killed Somalis in questionable circumstances thereby affecting the reputation of the country in its international peace-keeping role, that the private interest of any individuals seen in the film in question would have been overridden by the public’s need to know.

In CHAN-TV re Newscast (Recycling Society) (CBSC Decision 96/97-0004, March 10, 1997) and CKCO-TV re News Report (Police Arrest) (CBSC Decision 96/97-0174, February 20, 1998), the Council carried forward the principle that, where images of unidentified persons are relevant to a story about which the public has an interest in learning, broadcasters may have a justifiable interest in using these images. In the Recycling Society case, the CBSC affirmed the principles laid down in the Airborne Hazing decision.

In applying those principles to this matter, the Council considers, first, that there was no identification of the individuals whose images were briefly on camera and, second, that there was a justifiable interest is using those unidentified images to illustrate the story which the public had an interest in knowing.

In CKCO-TV re News Report (Police Arrest) (CBSC Decision 96/97-0174, February 20, 1998), the Ontario Regional Council extended the foregoing principles, even where the image used was that of a 10-year girl who was related to, but had nothing to do with, an accused murderer.

The Ontario Regional Council also finds, as it and the B.C. Regional Councils did, in the CTV and CHAN-TV cases, that there was a justifiable interest in using the unidentified but relevant images to illustrate a story about which the public had an interest in learning. This principle is not altered by the age of the individual in the bit of videotape used in the story. The same privacy principles apply whether the image used is that of a child or an adult.

Finally, for these purposes, the Council refers to a decision of the B.C. Regional Council in CHBC-TV re Newscast (CBSC Decision 93/94-0292, December 18, 1996), in which the complainant, a defendant in court proceedings, was visited at his home by news reporters who attempted to interview him. Although he declined to be interviewed at that time, he did accept, in rather unperturbed fashion, to be interviewed on the following day. That interview never actually occurred and his rather undefined image and words, shot through his curtained living room window, on that initial occasion, were used in the news report. The B.C. Regional Council held that it was not an invasion of privacy as "this complainant/defendant was a willing, if not blasé, participant."

In the case at hand, the B.C. Regional Council readily recognizes the interest of the broadcaster in visiting the area of the murders and in trying to provide for its viewers as much information as possible from persons with knowledge of the crime or the individual victims or perpetrators. In principle, therefore, the broadcaster was entitled to do what it did, including the seeking of interviews with people likely to have information on the events. The Council will now look at the specific issue of the age of the interviewee and the general issue of consent.

 The Age of the Interviewee

The first consensual issue to deal with in this case relates to the age of the complainant's daughter, the interviewee. The complainant contends, first and foremost, that her 16-year-old daughter is a "child" and on this ground was deserving of some form of protection from the media. She insists that parental consent must be obtained for the broadcast of an interview with a minor. She rebuts the broadcaster's argument that her child was acting of her own free will by saying that Blaine Gaffney, the interviewer, "was in control of the situation" and was able to "take advantage of [her daughter’s] vulnerability of being a child."

On the factual level, the Council considers that the daughter was always in a position to give or withhold her consent. She knew that she was being recorded. She was always inside the door of her house while the interviewer was outside. She could have ended the interview at any time by closing the door. There is no indication whatsoever in the video footage used in the news report that she was coerced. The Council readily concedes that she was probably inexperienced but this does not, in the Council's view, render her any different than most non-public figures of any age who are interviewed by the press. While some of the questioning was leading, that issue was not age-related. Nor, in the view of the Council, was the interviewee in any way compromised thereby.

The issue for the Council, therefore, is to decide whether the interviewer should have exercised any greater care in obtaining the interview in the case of a minor. The Council is not being asked here to decide the question of an interview with a 6 or 8 year old child. It is rather faced with the case of an interview with a mature looking 16-year-old. To say that a fiduciary relationship whereby the reporter held a position of trust vis-à-vis the daughter was created by the mere fact that she was interacting with an adult is simply naïve.

The Council does not find that use in the report of the interview with the complainant’s daughter was improper by reason of the absence of parental consent.

The Council finds that the complainant's contention that a formal consent from an interviewee must be obtained is, in such circumstances as are present in this case, too impractical and legalistic to be in the public interest as it would unduly impede the gathering and dissemination of news of which the public has an interest in being informed. Nor does the Council consider that a situation such as that which occurred in this case is, even by analogy, what is envisaged in Section 3(e)(i) of the Radio Regulations, 1986, which prohibits a licensee from broadcasting "any telephone interview or conversation, or any part thereof, with a person unless ... the person’s oral or written consent to the interview or conversation being broadcast was obtained prior to the broadcast."

While the Council readily acknowledges that the facts of this case are very different from those in the decisions previously cited, the principles established in those matters are at the root of this decision. Although it is undeniable that the complainant’s daughter was not directly involved in any "public" activity, such as court proceedings, the matter does not end there. She was clearly identified in the newscast and this does lead to a presumption of consent on her part. It was, after all, she who gave her name to the reporter during the course of that interview. There was no hidden camera nor any other surreptitious recording equipment involved in this case. The logger tape reviewed by the Council members shows the daughter answering the reporter’s questions via a large and very present microphone.

It is also significant that, while the CRTC’s Radio Regulations prohibit the broadcast of an interview or conversation without prior consent, no parallel prohibition is found in the CRTC’s Television Broadcasting Regulations. The Council is of the view that the absence of a parallel provision in otherwise parallel regulatory instruments is indicative of an expectation that it is less likely that there would be a surreptitious element in the obtaining of a television interview, unagreed to radio interviews being far easier to obtain. In any event, no such element is present in this case, where the camera and microphone were in full view. All necessary consent, whether express or constructive, was present in this case.

Finally, the complainant also alleges that the double-murder story was "reported unfairly, without accuracy and did not respect the dignity and privacy of the people involved." She points to the fact that video footage of the victims’ children was shown immediately after the interview with the daughter during which she made some statements about the victims which were not particularly flattering.

The Council finds no fault with the broadcaster’s construction of its report. In this regard, the Council refers to the decision of the Prairie Regional Council in CFRN-TV re Eyewitness News (CBSC Decision 96/97-0149, December 16, 1997). In that case, in dealing with a complaint that a news story about indoor playgrounds at fast food restaurants in the Edmonton area had been "alarmist" and sensational, the Council made the following comments regarding the broadcaster’s construction of the news feature:

... there is no doubt, in the view of the Council, that the intention of the news reporter was not to recount a story that would not attract attention. This alone does not mean that her story would be in breach of either of the above-noted Codes. There is not either any doubt, in the view of the Council, that the news reporter would not have merely threaded together the interviews she obtained in a chronological or other nondescript order. This also does not mean that her story would breach the aforementioned Codes. There is, in fact, an expectation on the part of the Council that the feature item was "ordered" in the first place because it would be newsworthy and that it was edited to be interesting and to have impact. The question for the Council is whether either goal was achieved at the cost of any contravention of the Codes.

The Council does not find that the order in which the various footage clips were presented in this case constituted a breach of the Codes. While the construction of the report may have been disturbing to the complainant given the daughter’s comments, that alone does not lead to a conclusion that a breach has occurred.

The Council finds, however, that the reporter was somewhat leading in his questioning of the daughter. It is doubtful that he would have obtained the answers he did had he not construed his questioning as he did. Nonetheless, while the Council has some concern with respect to the manner in which the report was conducted, it does not find a breach of the Code.

In addition to assessing the relevance of the Codes to the complaint, the CBSC always assesses the responsiveness of the broadcaster to the substance of the complaint. In this case, the Council considers that the broadcaster’s response addressed fully and fairly all the issues raised by the complainant. Consequently, the broadcaster has not breached the Council’s standard of responsiveness. Nothing more is required.