Green Party v. Broadcast Consortium?

The Leaders Debate Broadcast Consortium has announced that, once again, the Green Party of Canada will not be invited to participate in the nationally-televised leaders debates during this federal election campaign. The stated reason for this decision is that three (of the four) leaders of other parties objected to Green Party representation and were threatening not to participate, and that "it is better to broadcast the debates with the four major party leaders, rather than not at all."

One wonders what might happen if that bluff was called. Would the major parties really choose not to have any televised debates rather than share a stage with Elizabeth May? This seems unlikely.

The Greens have been preparing for this possibility, which only seems sensible, since it has happened before. Just a few days previously they retained Toronto lawyer Peter Rosenthal and that they "will not hesitate to go to the courts to defend democracy in Canada".

One also wonders how they would propose to do that. This case has been tried, and lost, a few times now. In Trieger v. Canadian Broadcasting Corp. in National Party of Canada v. Canadian Broadcasting Corp. and in Natural Law Party of Canada v. Canadian Broadcasting Corp., the courts have consistently refused to intervene to "dictate to the broadcast networks what they should cover and what they should not cover as a matter of newsworthy public political debate during an election campaign."[McKeown J. in Natural Law Party] Campbell J. goes on a some length:

What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate. It is not for this court, certainly on an interlocutory application of this nature without full opportunity as at trial to canvas the facts and the legal issues, to interfere with the freedom of speech and expression of the various party leaders by dictating the debate format, content or participants. Neither is it up to this court to dictate in any way to broadcast editors what is news and what is not news, subject of course to non-publication orders in criminal cases and a few other exceptional cases. It is up to broadcasters and editors to decide what they wish to publish. Their decisions to cover a particular event or not to cover it are matters, to use the words of the U.S. Supreme Court in Columbia Broadcasting System, Inc. v. Democratic Nat. Committee; Federal Communications Com'n v. Business Executives' Move for Vietnam Peace; Post-Newsweek Stations v. Business Executives' Move for Vietnam Peace; American Broadcasting Companies Inc. v. Democratic Nat. Committee, 412 U.S. 94 at p. 118 (1973), "within the area of journalistic discretion". Those editorial decisions do not amount to the carrying out of any government function.

This would seem to offer a rather broad discretion to the broadcasters and the political parties to negotiate whatever terms for the debates they choose.

In their press release, the Green Party notes that Mr. Rosenthal "won the Figueroa case on election law at the Supreme Court of Canada." This was the case that overturned the 50 candidate rule under the Canada Elections Act. The court, in that case, did hold that the restrictions under that rule "undermine[s] the capacity of some individuals to participate in the political process" and "is inconsistent with the values of Canadian democracy."[Iacobucci J. in Figueroa] But there's an important distinction: this case was about a structural barrier to participation that existed in a Federal law. But the Canada Elections Act specifically exempts political debates from the rules covering "election advertising", and as noted above, the courts have held that they are not a "government function".

So, while it's probably a good opportunity to generate some press, it seems unlikely that a court challenge against the Broadcast Consortium's decision would be successful. Legally, that's probably the right outcome in my opinion, but it's a shame since I would have preferred to see Ms. May participate in the debate.