Greens Leader Elizabeth May Files Court Challenge To Be Included In Leaders’ Debate
Folks, it’s the great debate (pardon the pun) of 2008 all over again. As in 2008, the decision has been made to exclude Green Party leader Elizabeth May from participating in the televised (and widely watched) English and French leaders’ debates, to be held on April 12th and 14th. The decision was made by a consortium of television broadcasters based on regulations established by the Canadian Radio-television and Telecommunications Commission (“CRTC”). One of the key features of the CRTC rules is that broadcasters do not have to include the leaders of all political parties in election-related debates.
In 2008, after an enormous public outcry and the threat of legal action, the broadcasters backed down and allowed May to participate in the debates, thus setting the precedent for the inclusion of the Green Party Leader and for a leader of a party with no elected seats in the House of Commons. (at the time, one Independent MP had changed allegiances and become a Green Party MP). This time, though, the threat of legal action wasn’t enough and, after it seemed Ms. May would not be allowed to participate, the Green Party filed an application for judicial review in the Federal Court of Appeal on March 31, 2011. A copy of the application can be found here.
Broadcasting Information Bulletin CRTC 2011-218
The policy in question comes in the form of Broadcasting Information Bulletin CRTC 2011-218 (the “Bulletin.”)
First, the Bulletin in general establishes a broadcaster’s duty to ensure the public has adequate knowledge.
“III: It is the broadcaster’s duty to ensure that the public has adequate knowledge of the issues surrounding an election and the position of the parties and candidates. The broadcaster does not enjoy the position of a benevolent censor who is able to give the public only what it “should” know. Nor is it the broadcaster’s role to decide in advance which candidates are “worthy” of broadcast time.”
However, the Bulletin also allows for limits on this duty.
“In Election-period broadcasting: Debates, Public Notice CRTC 1995-44, 15 March 1995, the Commission announced that it will no longer require that so-called “debates” programs feature all rival parties or candidates in one or more programs. The licensee will have satisfied the balance requirement of the Act if reasonable steps are taken to ensure that their audiences are informed on the main issues and of the positions of all candidates and registered parties on those issues through their public affairs programs generally.”
The consortium of broadcasters (which includes CBC/Radio-Canada, CTV Television Network Ltd., Global Television Network Inc. and TVA Group Inc.) made an official statement, stating that the decision was “based on the application of journalistic principles, and the fact that the Green Party has never elected a member to Parliament.”
The Greens’ Position
The Green Party’s legal response was made by way of a s. 28 Federal Courts Act application, which gives the Federal Court of Appeal the jurisdiction to hear and determine applications for judicial review made in respect of the CRTC. Of course, in the interests of expediency the Application also requested allowance for short service. Lawyers will be in court tomorrow (Tuesday) morning.
The Green Party (on behalf of May) made the application for an “order in the nature of mandamus” (so, a mandate) that “electoral fairness” under s. 3 of the Charter requires that the CRTC issue guidelines for participation in leader’s debates which allow for the participation of party leaders whose parties received at least 2% of the vote in the last federal election.. Additionally, the Party requested these guidelines be implemented prior to the April debates so that May would be able to participate.
In the Application, the Greens cite the 6.8% of the national vote they received in 2008 as a reason to include May in the debates. The application also focuses on the importance of the debates, suggesting that exclusion from the debates labels one’s political party as a “fringe party” and one that is not taken seriously by voters.
But the crux of the Application suggests that the ruling distorts the electoral process to arbitrarily decide on who may be included in the debates. Further, they argue that s. 3 of the Charter requires an equitable allocation of broadcast time – and the effect of the debates is so significant that it would be very difficult to give equitable allocation to a party who was excluded, particularly if that party garnered almost 7% (close to 1 million Canadians) of the vote last time around.
The Other Side
Unsurprisingly, the blogosphere is a abuzz in the aftermath of the decision, with politicos taking sides and many editorials popping up in support of one position or another.
It has been suggested that the Greens are a fringe party due to their low voter support and inability to elect a member to Parliament (yet!).
This argument is weak. The Greens are hardly a marginal party, commanding the votes of a significant number of Canadians. Additionally, they run candidates in almost every riding all provinces and territories- unlike the Bloc Quebecois.
Another argument against May’s inclusion is the fact the party is unrepresented in the House. While this post isn’t meant to discuss the flaws in our electoral system, this is a consequence of our first-past-the-post method of electing MPs. And while the system determines the way in which our MPs are elected, why should it also allow the Consortium to arbitrarily exclude a political party with a significant national following while allow the inclusion of a party that only cares about one province in a federal electoral debate?
Let Her In!
There’s certainly something to be said about a political party that inspires so many Canadians to vote for them, knowing full well it is extremely unlikely their vote will elect a Green MP. The Greens are hardly “another fringe” party. All other “small” parties combined made up less than 1% of the vote last election compared to the Greens’ 7%. These hard numbers speak for themselves.
This statistic also renders the party eligible for the $2 per-vote subsidy. The Green Party received close to $2 million dollars as a result of this subsidy – funded by the public. If the public (theoretically) owns the public airwaves, does the public not have the right to know where the parties they fund stand on relevant issues?
I think Andrew Coyne at MacLeans says it best.
“Personally, I think this is outrageous. It’s obviously impossible to include every single party, no matter how marginal, in the debates, or mayhem would ensue. But the Greens are hardly a marginal party. … The Greens have clearly broken from the pack. They have much more in common with the big four than the others.”
It will be exciting to see how the Court handles this application. To the best of my knowledge, this sort of challenge is unprecedented in Canadian electoral politics and I personally can’t wait to see if true justice is achieved by providing Canadians with the viewpoints of all nationally relevant political parties.