The Green Party's Constitutional Challenge to Exclusion from the Televised Debates

Cross-referencing: Laws of Government, ch. 3.

As discussed in Laws of Government, election-time leaders' debates are a creature of a consortium of broadcasters who, while governed by "guidelines" issued by the Canadian Radio and Television Commission, determine which parties' leaders may be present during for the event.  In the current election, Elizabeth May, leader of the Green Party, was excluded, prompting a court challenge in the Federal Court of Appeal.  That court challenge failed an early test when the Federal Court of Appeal declined to expedite Ms. May's judicial review challenge to accommodate Ms. May's efforts to join the leaders' debate on April 12.  Most of that decision, reported as May v. CBC/Radio Canada, 2011 FCA 130, hinges on the court's review of jurisprudence on expedited review.  The court does, however, raise doubt on the merits of Ms. May's claims, citing the now venerable case of Trieger v. Canadian Broadcasting Corp. (1988), 54 D.L.R. (4th) 143 (ONSC). 

In that decision, a past effort by an earlier incarnation of the Greens to compel a debate presence, the court observed that "[i]t is by no means clear on this record that their freedom of expression requires a court to force the media to carry their views to the public. It is by no means clear on this record that any citizen's right to vote is impaired by the failure of this group to get the media attention which it sincerely and profoundly believes it requires. To make the orders sought would not promote free public discussion in political debate. It would interfere with free public discussion and political debate by forcing on unwilling participants a certain debate format."

These views must, however, be read in the context of the much more robust treatment the Supreme Court of Canada has given to the section 3 right to vote provisions since 1988.  In cases on thirty party advertising and elsewhere, the Court has emphasized the right to an informed vote, and has generally prioritized equity in the capacity of candidates to make themselves heard over free expression rights.  While Ms. May's case raises new issues different from these Supreme Court issues, it is indisputable that section 3 is now a bigger stick for Ms. May to wield than it was in 1988.