On the Right to an Informed Vote

Small Parties Demand an End to Election Broadcasting Privileges and Uphold Right to Equality and an Informed Vote

In this Supplement, TML Monthly is publishing a letter submitted by 11 of Canada's twenty registered parties calling on Broadcasting Arbitrator Monica Song to use the discretionary powers granted to her office to uphold the right to an informed vote by allocating air time for television and radio election advertising equally to all parties and urging the other parties to support this position. The letter was submitted to a November 2020 meeting of registered political parties convoked by the Arbitrator to determine the allocation.

The Canada Elections Act includes a "statutory formula" for the distribution of election broadcasting time, both paid and free, to registered political parties. Enacted in 1974, the formula uses weighted factors based on a party's past electoral performance to allocate time: the number of seats it won in the previous election, the percentage of votes it received, and the number of candidates fielded. The formula is first used to divide up 390 minutes of prime-time that certain licensed networks must each make available for purchase by political parties during an election campaign. The same proportion of time is then applied to distribute a smaller amount of free time the networks are required to provide for election ads, at an airing time of the networks' own choosing. The amount of paid time allocated to a party used to also determine the maximum time a registered party could purchase, but in 1993 this aspect of the law was struck down as an unconstitutional limit on freedom of expression. Today, the broadcasting regime's sole effective purpose is to distribute free time on an unequal basis. A party can buy as many ads as its wealth allows, so long as it does not exceed the election spending limits.

The election law's broadcasting regime was initially administered by the head of the Canadian Radio-television Commission, which in 1976 was renamed the Canadian Radio-television and Telecommunications Commission (CRTC). In 1993 the election law was amended to create the position of a Broadcasting Arbitrator with discretionary powers to change the allocation should it be "unfair to a political party or contrary to the public interest." The Broadcasting Arbitrator is required to convene an annual meeting of all registered parties to deliberate on the allocation with the purported aim of arriving at a consensus among the parties on the division of time. Failing a consensus, the Arbitrator decides.

The November 2020 Broadcast Allocation meeting saw an intense discussion in which the small parties argued out the need for the principle of equality to be upheld. The Liberal Party was the only party in the House of Commons that attempted to mount a defence for the law, suggesting that it reflects the "will of the people" by virtue of it having been adopted by Parliament. This also pointed out that the parties in the House of Commons all voted against equality.

In January, the Broadcasting Arbitrator issued her ruling, upholding what is referred to as a "50-50 modified approach," whereby 50 per cent of the available time is allocated equally and the other half according to the statutory formula. On this basis, the five parties in the House of Commons have been allocated 58 per cent of the available air time. The Liberals and Conservatives end up with 77.5 and 70 minutes respectively, the NDP 33 minutes, the Bloc Québecois 23 and the Greens 16. The MLPC is entitled to buy nine minutes, with the other small parties in the range of six to nine minutes as well. The ruling can be read in its entirety here.

Since the regime was enacted, 13 federal elections have been held, each with air time distributed in a manner that privileges the incumbent political parties. The 1979 federal election was the first to be held under the broadcasting regime, at a time when there were six registered parties, including the Marxist-Leninist Party of Canada. Of the 390 available minutes, the Liberals were allocated 155; the then-Progressive Conservatives 134, and the NDP 63 minutes. The Social-Credit received 22. The MLPC, which fielded 144 candidates, was allocated eight minutes and the Communist Party the same.

On May 18, 1979, the MLPC sent its first letter of protest on the matter to the Chief Electoral Officer of Canada and the CRTC Commissioner. It objected to how the monopoly-controlled media "divided the political parties between 'major' and 'minor' parties," in an attempt to justify their failure to inform the electorate about the views of all parties. The letter particularly criticized the CRTC for its failure to uphold the provisions of the Canadian Broadcasting Act which stipulates that the media must provide a "reasonable balanced opportunity for the various points of view on matters of public concern..."

The letter stated that, "while the Marxist-Leninist Party has to obey all their laws, it does not have the same rights. [The ruling parties] have all the rights to concoct laws and they enforce those which serve their interests, while the working class and the broad masses of the people have no rights whatsoever." The letter concluded that "the election results cannot be considered as the results of a democratic process from either the narrowest or broadest definition of the term."

In June 1996, on the initiative of the MLPC, nine registered political parties made a joint submission to the Broadcasting Arbitrator, highlighting the importance of upholding the right to an informed vote and the equality of political parties within the context of the growing political discontent and loss of credibility of the electoral and political process. For the text of the brief, click here. This was further argued out by a follow-up letter from MLPC National Leader Hardial Bains. For the text of the letter, click here

Five years later, on June 1, 2001, then-Chief Electoral Officer Jean-Pierre Kingsley recommended to Parliament that the election law be amended to sever the free time allocation from the statutory formula. He proposed that the number of stations required to provide free time be expanded and that the free time be allocated equally amongst all registered political parties. His recommendation was rejected by the House of Commons. Since then, the recommendation has been reiterated by Chief Electoral Officers Marc Mayrand and then, Stéphane Perrault, again only to be dismissed out of hand by the parties in the House of Commons.

The decision by the Broadcasting Arbitrator, which benefits some political parties over others is neither reasonable nor perceived to be democratic. Enabling Canadians to exercise their right to an informed vote requires measures which at the very least inform them properly of the presence and positions of all those who are participating in an election.

This article was published in

Volume 51 Number 8 - March 21, 2021

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