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FEDERAL COURT OF APPEAL B E T W E E N: ELIZABETH MAY Applicant and CBC/RADIO-CANADA, CTV TELEVISION NETWORK LTD., GLOBAL TELEVISION NETWORK INC. AND TVA GROUP INC. Respondents
APPLICATION UNDER SECTION 28 OF THE FEDERAL COURT ACT
NOTICE OF APPLICATION FOR JUDICIAL REVIEW TO THE RESPONDENT: A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following pages. THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Toronto, Ontario. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is selfrepresented, on the applicant, WITHIN 10 DAYS after being served with this notice of application. Copies of the Federal Courts Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.
IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Dated at Toronto, Ontario this 31st day of March, 2011. Issued by:_____________________________________ (Registry Officer) Address of local office:__________________ TO: CBC/Radio-Canada 250 Front St. West Toronto ON M5V 3G5 CTV Television Network Ltd. 9 Channel Nine Court Toronto ON M1S 4B5 Global Television Network Inc. 121 Bloor Street East. – Suite 1500 Toronto ON M4W 3M5 TVA Group Inc. 1600, boul. De Maisonneuve Est Montréal QC H2L 4P2
APPLICATION This is an application for judicial review in respect of the portion of the Canadian Radiotelevision and Telecommunications Commission, Broadcasting Information Bulletin CRTC 2011-218 (March 29, 2011) that concerns the broadcasting of debates. The applicant makes application for: (a) Allowance of short service of all documents and materials in light of the urgency of the application;
order in the nature of mandamus that electoral fairness within the meaning of Section 3 of the Canadian Charter of Rights and Freedoms requires that the CRTC issue guidelines for participation in leaders’ debates programs during election periods; that those guidelines must include explicit criteria for participation that are made public and must allow participation of all leaders of registered political parties which received at least two percent of the vote in the most recent previous election; and that such guidelines must be issued prior to the first leaders’ debate in respect of the 2011 federal election which is scheduled for April 12, 2011; and
Such other remedies as counsel may advise and this Honourable Court may permit.
The grounds for the application are:
On March 29, 2011, the Canadian Radio-television and Telecommunications Commission [hereinafter “CRTC”] issued Broadcasting Information Bulletin
CRTC 2011-218; (b) With respect to debates, the Information Bulletin states that broadcasters are not required to include all leaders of political parties in debates programs; (c) From September 2, 1988 until March 15, 1995, the CRTC required that broadcasters accommodate all rival political parties in any leaders’ debates that they broadcast; (d) On March 15, 1995, the CRTC issued a public notice stating that the Commission would no longer require that debates programs feature all leaders; (e) From March 15, 1995 to the present, the CRTC has not issued any guidelines restricting broadcasters’ choices of which leaders to invite to participate in leaders’ debates; (f) The Applicant, Elizabeth May [hereinafter “Ms. May”], is the leader of the Green Party of Canada;
The Green Party of Canada is a registered political party pursuant to the Canada Elections Act;
(h) (i) (j)
A federal election has been called for May 2, 2011; The leaders’ debates programs are produced by a Consortium of broadcasters; The Consortium producing the leaders’ debates programs for the federal election of 2011 consists of CBC/Radio-Canada, CTV Television Network Inc., Global Television Network Ltd. and TVA Group Inc.;
The Consortium of broadcasters has invited the leaders of the Conservative Party of Canada, the Liberal Party of Canada, the New Democratic Party of Canada and the Bloc Quebecois to participate in the leaders’ debates during the election period
for the election of 2011, and has stated that no other leaders will be permitted to participate; (l) (m) The first leaders’ debate is scheduled is scheduled for April 12, 2011; The choices that the Consortium makes for participation in the leaders’ debates are arbitrary and capricious and are not based on any rational criteria; (n) Ms. May was also the leader of the Green Party of Canada for the election of 2008; (o) In 2008, the Consortium initially told Ms. May that she would not be permitted to participate in the leaders’ debates. After a huge public outcry and the threat of legal action, the Consortium reversed its position and allowed Ms. May to participate in the leaders’ debates of 2008; (p) It was widely recognised that Ms. May made important contributions to the leaders’ debates of 2008; (q) The Green Party of Canada received 6.8% of the vote in the most recent federal election, the election of 2008; (r) The combined votes for all the other registered political parties in the election of 2008 other than those invited to participate in the present leaders’ debate and the Green Party of Canada is less than one percent; (s) It is the consensus of academic specialists on the subject that the televised leaders’ debates are the most important events in the Canadian election campaign. No other campaign event comes close to the leaders’ debates in gaining a high level of voter interest; (t) Participation in the leaders’ debates legitimises the participants; exclusion from
the debates tends to relegate non-participants to the fringes of the campaign; (u) It distorts the electoral process to allow the Consortium to decide on an arbitrary basis who will participate in leaders’ debates. To ensure the fairness in elections that is required by democracy, it is essential that such decisions be made on a principled basis;
Section 3 of the Canadian Charter of Rights and Freedoms requires an equitable allocation of broadcast time;
The effect of participation in leaders’ debates is so significant that it would be extremely difficult to give equitable coverage to a political party whose leader did not participate;
It is extremely likely that the number of votes that Green Party candidates receive would be significantly increased by the participation of their leader in the leaders’ debates. While it is hard to quantify the likely effect of participation, it is clear that it would probably result in thousands of additional votes;
Each federally registered political party that gets 2% or more of the national vote receives $1.75 per vote, indexed to inflation. Therefore, the number of votes a party gets is significant independent of whether their candidate is elected;
Section 3 of the Canadian Charter of Rights and Freedoms; Sections 3 and 10 of the Broadcasting Act, S.C. 1991, c. 11; Section 8 of the Television Broadcasting Regulations, 1987; Section 28 of the Federal Court Act, R.S.C. 1985, c. F-7; and Such other grounds as counsel may advise and this Honourable Court may permit. This application will be supported by the following material:
(a) (b) (c) (d) (e)
The Affidavit of Elizabeth May and exhibits thereto, to be filed; The Affidavit of Frederick Fletcher and exhibits thereto, to be filed; Broadcasting Information Bulletin CRTC 2011-218; Public Notice CRTC 1995-44; and Such other documents as counsel may advise and this Honourable Court may permit.
Dated at Toronto, Ontario this 31st day of March, 2011
____________________________________ ROACH, SCHWARTZ & ASSOCIATES Barristers & Solicitors 688 St. Clair Avenue West Toronto, ON M6C 1B1 Peter Rosenthal LSUC #33044O Tel: 416-657-1465 Fax: 416-657-1511 Reni Chang Tel: 416-657-1465 Fax: 416-657-1511 Counsel for the Applicant
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