Judicial Review – Canadian Radio-television and
Telecommunications Commission (CRTC) – Canadian
Charter of Rights and Freedoms – Voting Rights
Pursuant to the Canada Elections Act, the CRTC is
required to issue a set of guidelines with respect to the conduct
of broadcasters during a general election within four days of the
election writ being dropped. The CRTC issued such a bulletin for
the May 2011 election (the "Bulletin"),
which referred to the CRTC's 1995Guidelines
(the "Guidelines"). The Guidelines
provided that not all party leaders need be included in the
leaders' debates, as long as equitable coverage of all parties
is provided during the election campaign.
The Applicant is the leader of the Green Party, and brought an
application for a mandamus order requiring the CBC and its
broadcasting partners to allow her to participate in the
leaders' debates. She also sought an expedited hearing of the
application. The Applicant argued that the Bulletin violated her
right of effective participation in a fair electoral process under
section 3 of the Canadian Charter of Rights and Freedoms
The court dismissed the application for four reasons. First, the
court held that the application could have been brought earlier
than it was, and thus there was no need for an urgent hearing. Even
though the Bulletin was issued after the election was called, the
Bulletin referred to the Guidelines, which contained the same
impugned rule. The Applicant could have challenged the Guidelines
at any time.
Second, the court held that the Respondents, the Applicant and
the public interest would be significantly prejudiced if the
application were expedited. The application involved extensive
expert evidence and Charter argumentation. The court
doubted that an adequate evidentiary and argumentative record could
be produced in the time before the leaders' debates were to
take place, and found that it would not be in the public interest
to have such a speedy determination made on such important
Third, the court found that the application contained a formal
defect in that it failed to name the Attorney General of Canada as
Finally, although on an interlocutory motion the court generally
does not consider an application's merits, in this case, doing
so was appropriate because the result of the interlocutory motion
would have amounted to a final determination of the case. The court
expressed "significant doubts concerning the applicant's
ability to obtain the relief sought". Among other things, the
court noted that it is unable to compel the exercise of a
"fettered discretion" in a particular way.
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