Letter to Broadcasting Arbitrator from Majority of Registered Parties

November 8, 2020

Monica Song,
Broadcasting Aribtrator

Re: 2020 Allocation of Broadcasting Time

Congratulations on your appointment as Broadcasting Arbitrator. We look forward to working with you.

We, the undersigned, are writing to propose that you use the discretionary powers accorded to the Broadcasting Arbitrator by the Canada Elections Act (CEA) to allocate broadcasting time for 2020 equally to all registered political parties. We think such use of your discretionary power is appropriate because any allocation that is not based on the principle of equality is not only unfair to all but the larger parties already represented in Parliament; it is also against the public interest.

When a publicly owned/controlled resource such as election broadcasting time is put at the disposal of registered political parties, it must not be used to benefit some parties over others. An allocation based either on the statutory formula or on the 2019 "50-per cent modified approach" does not uphold the democratic principle of enabling Canadians to exercise an informed vote.

Arguments to justify preferential treatment for some parties were first advanced in the 1930s before political parties were even recognized in the CEA. They articulated a concept of "free and fair" elections in which certain parties were to be favoured with publicly controlled airtime if they had a reasonable chance of forming a majority government. At the time, only two political parties were considered to be "viable" for this purpose. Today, there are many more parties, and arguments claiming that some deserve more free time so that they can be heard over others do not stand up to modern democratic standards.

Coupled with the unfair free-time broadcasting allocation, both broadcasting and print media news coverage are also highly discriminatory. The 2019 Federal Election saw an almost complete blackout of the small parties by national media outlets.

Furthermore, not just during an election but between elections as well, the political parties with seats in the House of Commons receive extensive news coverage, especially the ruling party. On the other hand, the media erects a virtual hermetic wall of silence around the small parties, broken only on very rare occasions.

Over the past three decades, successive governments have rejected recommendations to reform the broadcasting allocation to make it democratic. As far back as the 1992 Royal Commission on Electoral Reform, the regime's unfairness and its failure to contribute to an informed vote has been raised as a problem. The Royal Commission's arguments included a survey showing that more than 53 per cent of Canadians wanted to hear more about the small parties.

For two decades, Elections Canada has recommended the equal allocation of free time among all registered political parties. In 2001, then Chief Electoral Officer Jean-Pierre Kingsley argued that the use of the paid-time formula to determine free time is "to the disadvantage of small and new parties, because they do not have the resources of the well-established parties to pay for air time, with the result that they are given less free time as well."

This recommendation came after the Alberta Court of Appeal had ruled in 1995 that the paid-time allocation could no longer be used as a limit on how much broadcasting time a party can purchase. Thus, the argument that the paid-time allocation formula serves to prevent a party with more money from dominating the airwaves was rendered void. Any party can buy as many ads as it wants so long as it doesn't exceed the spending limits.

After the 2003 ruling of the Supreme Court of Canada [Figueroa v. Canada (Attorney General)], the Chief Electoral Officer added that the allocation regime is potentially a violation of the Charter of Rights and Freedoms. In that case, the Government argued that Charter violations of the right to elect and to be elected could be justified because "a party that does not participate in an election with a view to forming a government, or at least of winning a substantial number of seats in Parliament, is not a party that possesses the capacity to advance the objective of effective representation." The Supreme Court did not agree. It found that legislation informed by the aim of giving rise to a particular form of responsible government was "problematic."

"Legislation enacted for the express purpose of decreasing the likelihood that a certain class of candidates will be elected is not only discordant with the principles integral to a free and democratic society, but, rather, is the antithesis of those principles," the Supreme Court stated.

Following the 2015 Federal Election, Chief Electoral Officer Marc Mayrand reiterated Mr. Kingsley's 2001 recommendation. The Committee on Procedures and House Affairs promised to "revisit" the matter later, a promise that remains unfulfilled.

The current allocation of broadcasting time benefits political parties with seats in the House of Commons -- some more than others -- at the expense of the parties with no seats in the House. It 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.

We can only hope that on November 9 the representatives of all registered political parties and especially those with seats in the House of Commons will take a small but important step in favour of an informed vote by supporting the equal allocation of broadcasting time.

Respectfully submitted,

Liz White, Animal Protection Party
Partap Dua, Canada's Fourth Front
Rodney Taylor, Christian Heritage Party
Liz Rowley, Communist Party
Coreen Corcoran, Libertarian Party
Blair Longley, Marijuana Party
Anna Di Carlo, Marxist-Leninist Party
Stephen Garvey, National Citizens Alliance
Sébastien CoRhino, Parti Rhinocéros Party
Ken Ranney, Stop Climate Change Party
Randy Joy, Veterans Coalition Party

This article was published in

Volume 51 Number 8 - March 21, 2021

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