Under the Canada Elections Act, broadcasters are required to afford equitable broadcasting time to all political parties. Broadcasters are restricted from providing additional time to some parties without providing additional time to all parties. While this scheme of allotting “free time” equally to all parties appears fair on the surface, in practice it results in great inequity to small parties. This is because Canadian courts have consistently held that there is no requirement that small parties be included in leaders’ debates, and that the debates are “non-partisan,” similar to news reports, and are therefore not subject to the requirement of equitable coverage contained in the Canada Elections Act. In reaching these conclusions, it appears that Canadian courts have failed to recognize two important aspects of leaders’ debates. First, the television audience for leaders’ debates often dwarfs the audience available to any other form of political broadcasting or news reporting,[1] and second, media exposure on that scale has been shown to factor significantly in election outcomes.[2]
Fringe parties, unable to gain access to the debates through the Canada Elections Act, have instead turned to the Charter to seek a remedy. These efforts to date have met with failure due to the courts’ unwavering findings that the Canadian Broadcasting consortium is not a government actor, and is therefore, not required to act in accordance with the Charter. Campbell J. made a representative comment in Trieger v. Canadian Broadcasting Corporation that “[i]t is not the function of the government […] to dictate to the news media what they should report. The broadcasters are exercising a function that is very central to the democratic process. But it is a function that they perform quite independently of government.”[3] However, there is some evidence that the courts have started to see the issue differently. L’Heureux-Dubé J.’s majority opinion in Haig v. Canada included the obiter comment that “it is well understood, that a philosophy of non-interference may not in all circumstances guarantee the optimal functioning of the marketplace of ideas.”[4] This came immediately after she agreed with the appellants’ contentions that “freedom of expression must be broader than simply the right to be free from interference… the state has ‘a more affirmative role to play in the maintenance of a system of free expression.’”[5] The court’s emerging view on this issue may be articulated soon, since the Federal Green Party has launched a judicial review of the CRTC’s most recent decision to not include the Green Party in the leadership debate.
At the provincial level, most fringe party leaders have never been invited to participate in the all-important televised leaders debates. This is a major obstacle for minor parties because, in many ways, the debate helps frame the terms of the election campaign for voters. The format provides an indispensable tool for delivering a party’s message to the widest possible number of voters. It gives an opportunity for the major parties to showcase their leaders. The importance of the debate is compounded by the fact that the ensuing spin about who won and who lost occupies the media’s time for at least a couple days afterwards. By barring minor parties from participating in these events, the media outlet hosting the debate essentially eliminates the possibility of a minor party breakthrough.
Major parties can also act as a cartel in preventing minor parties from participating by insisting on certain conditions for the debate. In provincial jurisdictions where minor parties were offered the opportunity to participate, they have, on average, electorally outperformed their counterparts in provinces where fringe parties were barred from leaders debates. For example, in 1991, the Confederation of Regions Party (CoR) was allowed to participate in the New Brunswick leaders debate and went on to win over 20% of the vote and formed the official opposition. In British Columbia’s 1996, 2001, and 2005 elections, several fringe parties participated fully in the debates and took over 10% of the vote in each of those elections. In Alberta’s 2004 election, the inclusion of the Alberta Alliance Party in the leaders’ debate helped the small right-wing fringe party win almost 10% of the vote and elect its first MLA.
For info on the Green Party's campaign to be included in the next leaders debate, click here.
[1] See e.g. Randal Archibold and Raymond Hernandez, “For Cheney and Edwards, It’s now a Running Debate” The New York Times (6 October, 2004) p. 31, and Jim Rutenberg “First Debate Draws Large TV audience” The New York Times (1 October 2004) p. 10 both online:
[2] See e.g. Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569; 151 D.L.R. (4th) 385 at para. 47.
[3] Trieger v, Canada Broadcasting Corpoation (1988), 54 D.L.R. (4th) 143..
[4] Haig v. Canada [1993] 2 S.C.R. 995; 105 D.L.R. (4th) 577 at para. 74.
[5] Suora note 24. at para. 73.
