Date:
20110408
Docket: A-151-11
Citation: 2011 FCA 130
Present: NADON
J.A.
BETWEEN:
ELIZABETH MAY
Applicant
and
CBC/RADIO CANADA, CTV TELEVISION
NETWORK LTD.,
GLOBAL TELEVISION NETWORK INC.
and
TVA GROUP INC.
Respondents
REASONS FOR ORDER
NADON J.A.
[1]
On
Tuesday, April 5, 2011, I heard the applicant’s motion for an expedited hearing
under subsection 8(1) of the Federal Courts Rules, SOR/98-106. At the
end of the hearing, I informed the parties that I would dismiss the motion and
that Reasons would follow on Friday, April 8, 2011. These are the reasons for
which I concluded that the applicant’s motion should be dismissed.
[2]
The
issue is whether I should grant the applicant’s motion for an expedited hearing
of her application for judicial review.
[3]
Ms.
Elizabeth May, the applicant and current leader of the Green Party, commenced
an application for judicial review on March 31, 2011, of the Canadian Radio-television
and Telecommunications Commission’s (the “CRTC”) Broadcast Information
Bulletin 2011-218 (the “Bulletin”). The Bulletin was issued pursuant to
section 347 of the Canada Elections Act, which requires the CRTC to
issue, within 4 days of the election writ being dropped, a set of guidelines
pertaining to the applicability of the Broadcasting Act and its Regulations
to the conduct of broadcasters during a general election.
[4]
The
Bulletin refers to the CRTC’s 1995 Guidelines (the “Guidelines”) to the
effect 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 such that the public is reasonably informed on all issues from a
variety of viewpoints.
[5]
The
applicant requests two alternative forms of relief in her Notice of
Application. First, she asks for a mandamus order from this Court
requiring the CRTC to issue clear criteria as to which party leaders must be
included in a leaders’ debate, and that these criteria should require the
inclusion of any leader whose party secured more than 2% of the popular vote in
the prior election. In the alternative, she asks for a mandamus order
requiring the respondents, the Canadian Broadcasting Corporation (the “CBC”)
and its broadcasting partners in the Broadcaster Consortium – namely, CTV
Television Network Ltd., Global Television Network Inc. and TVA Group Inc. – to
allow the applicant to participate in the leaders’ debates scheduled for April
12 and 14, 2011.
[6]
In
support of her application, the applicant argues that the Bulletin is ultra
vires the CRTC’s powers because it violates her right of effective
participation in a fair electoral process under section 3 of the Canadian
Charter of Rights and Freedoms [Charter].
[7]
In
my view, the motion must be dismissed and this for several reasons.
[8]
First,
the applicant could have sought relief earlier than she did – a mere 12 days
before the first leaders’ debate. It was repeatedly argued by the applicant
that she had no choice but to seek urgent relief, since the administrative
action affecting her rights, the CRTC Bulletin, was issued only after the
election writ was dropped, pursuant to section 347 of the Canada Elections
Act. In her view, if the application had been brought earlier, the
respondents would likely have argued that it was premature. Thus, if the
hearing is not expedited, it will become moot.
[9]
In
essence, the applicant argues that the Bulletin is a decision or order of a
federal board within the meaning of subsection 18.1(2) of the Federal Courts
Act and that judicial review is impossible until such a decision or order
has been made.
[10]
This
argument, in my respectful view, is wrong. While it is true that, normally, judicial
review applications before this Court seek a review of decisions of federal
bodies, it is well established in the jurisprudence that subsection 18.1(1)
permits an application for judicial review “by anyone directly affected by the
matter in respect of which relief is sought”. The word “matter” embraces more
than a mere decision or order of a federal body, but applies to anything in
respect of which relief may be sought: Krause v. Canada, [1999] 2 F.C.
476 at 491 (F.C.A.). Ongoing policies that are unlawful or unconstitutional may
be challenged at any time by way of an application for judicial review seeking,
for instance, the remedy of a declaratory judgment: Sweet v. Canada (1999), 249 N.R. 17.
[11]
Here,
the impugned CRTC Bulletin contains a reference to the Guidelines, which
contain the same impugned rule. In fact, the same impugned rule has applied to
leaders’ debates in federal elections since 1995. As such, it qualifies as an
“ongoing policy” that could have been and can be challenged at any time by the
applicant. Consequently, the applicant did not need to wait until the Bulletin
for the 2011 general election was issued to bring her application.
[12]
Given
this fact, I find that the proceeding is not “really urgent”, but rather that
the applicant simply prefers the matter to be expedited: Canada (Canadian Wheat Board) v. Canada (Attorney General), 2007 FC 39 at paragraph 13.
The lack of necessary urgency weighs against granting this motion.
[13]
Second,
the respondents, the applicant and the public interest would all suffer
significant prejudice if the application were expedited. In Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCA 129 (Rothstein J.A., as he
then was, deciding alone) [Dragan], this Court decided that prejudice to
the respondent is a highly relevant factor in deciding whether a proceeding
should be expedited: paragraph 13.
[14]
Here,
expediting the hearing will no doubt prejudice the respondents. If the hearing
were expedited, the respondents would have to prepare significant Charter
arguments, cross-examine the applicant’s expert and any other affiants, as well
as prepare their own expert report; all by Monday, April 11, 2011, at the
latest. Such work would, in the circumstances, be a significant burden on the
respondents.
[15]
Further,
in Dragan, this Court held that the “timetable is extraordinarily short”
when the applicant sought an expedited hearing and a decision in 19 days. Here,
this reasoning is even more applicable, given the extensive expert evidence and
Charter argumentation that would need to be produced and the fact that a
hearing and a decision would have to occur within 6 days.
[16]
I
also believe that expediting the hearing could prejudice the applicant. The
Supreme Court of Canada has “cautioned against deciding constitutional cases
without an adequate evidentiary record”: British Columbia (Attorney
General) v. Christie, 2007 SCC 21 at paragraph 28. Here, given the
undoubtedly complex Charter arguments that could be made, I do not think
an adequate evidentiary (and argumentative) record could be produced within 6
days. The applicant could be prejudiced if her application, which raises issues
of considerable importance, had to be decided quickly and without an adequate
record.
[17]
Further,
I believe expediting the hearing would prejudice the public interest. In RJR-MacDonald
v. Canada, [1994] 1 S.C.R. 311 [RJR-MacDonald], a unanimous Supreme
Court said that in an interlocutory Charter proceeding, the public
interest may be a reason to grant or refuse the relief sought: at page 344.
Here, the applicant is asking this Court to allow an expedited hearing so that
the important electoral rights protected by section 3 of the Charter,
and other difficult Charter issues that arise, namely freedom of speech
and freedom of the press, can be argued and determined in less than a week. I
cannot conclude that it is in the public interest to have such a speedy
determination regarding such important issues.
[18]
Third,
the application contains a formal defect. The applicant is right to argue that
pursuant to paragraph 303(1)(a) of the Federal Courts Rules, the
CRTC need not be named as a respondent in this application. But the Attorney
General of Canada should have been named as a respondent in this application.
After all, as the respondents argue, section 1 of the Charter places the
burden of justifying a Charter breach on the shoulders of the
government. It is not for the Broadcast Consortium to argue that the CRTC
Bulletin is a reasonable limit proscribed by law that can be demonstrably
justified in a free and democratic society. That argument is the government’s
to make.
[19]
Thus,
despite the Department of Justice’s apparent disinterest in this case, the
Attorney General of Canada should be named as a respondent and should be given
the opportunity to adduce evidence and present arguments. The fact that the
Attorney General is not a respondent is another consideration weighing against
the granting of the applicant’s motion.
[20]
Fourth,
the application for mandamus faces significant legal hurdles. The
general rule is that a motions judge should not engage in an extensive review
of the merits of the case: RJR-MacDonald at page 338. However, one
exception to this general rule is when “the result of the interlocutory motion
will in effect amount to a final determination of the action”: ibid.
[21]
This
exception applies in part here. The applicant makes clear in her Notice of
Application that she is seeking a mandamus order, either against the
CRTC or the respondents, requiring that the applicant be included in the 2011
federal election leaders’ debate. In either case, if her application is not
decided by April 12, 2011, it is probably moot. Of course, this Court has the
discretion to hear an application even if it is moot: Borowski v. Canada,
[1989] 1 S.C.R. 342. Still, the Supreme Court has said in RJR-MacDonald
that a motions judge must consider the merits of a case “when the rights which
the applicant seeks to protect can be exercised immediately, or not at all”: at
page 338. This reasoning applies here because if the hearing is not expedited,
then the applicant will not be able to participate in the 2011 debates.
[22]
I
should note that at the hearing of the motion, counsel for the applicant
emphasized that the applicant’s choice of remedies may not have been precise,
given the extreme speed with which the application was brought. I take this
statement to mean that the applicant may be willing to pursue the non-time
sensitive aspect of her application, namely, her contention that the Bulletin violates
her section 3 Charter rights. This aspect of her application will not be
rendered moot by this decision.
[23]
Still,
insofar as the 2011 leaders’ debates are concerned, the result of this
interlocutory motion amounts to a final determination of her application and,
pursuant to RJR-MacDonald, I should consider the application’s merits.
[24]
Interestingly,
RJR-MacDonald cites Trieger v. Canadian Broadcasting Corp.
(1988), 54 D.L.R. (4th) 143 (ONSC) [Trieger] as an example of
a situation where the motions judge should take a look at the merits of the
application or the action before him. Trieger pertains to an application
in 1988 by the leader of the Green Party for an injunction or a mandatory order
requiring the broadcasters to include him in the 1988 leaders’ debate. Although
Mr. Trieger’s situation and that of the applicant are not identical, they are analogous.
[25]
In
disposing of the motion before him, Campbell J. of the Ontario High Court of
Justice expressed considerable doubt as to the chances of success of Mr. Trieger’s
application for an injunction and, as a result, refused to grant the interim
order sought. In particular, I wish to highlight Campbell J.’s remarks at
paragraphs 27, 29, 32 to 34 and 36, regarding the possibility of success of Mr.
Trieger’s injunction:
27. The applicants say that
their rights to freedom of expression are infringed by the broadcast policy and
by the non-enforcement of the broadcast policy. It is by no means clear on this
record that their freedom of expression requires a court to force the media to
carry their views to the public. It is by no means clear on this record that
any citizen's right to vote is impaired by the failure of this group to get the
media attention which it sincerely and profoundly believes it requires. To make
the orders sought would not promote free public discussion in political debate.
It would interfere with free public discussion and political debate by forcing
on unwilling participants a certain debate format.
[…]
29. …
In this case the applicants, in
furtherance of their own constitutional rights, seek to interfere with the free
right of the public and the other political leaders to uncurtailed political
debate. The applicants seek to interfere with the right of the public to hear
the scheduled debate and to interfere with the right of the scheduled leaders
to debate whom they want and when they want. To grant the order sought would
interfere with the freedom of political debate of this country, would interfere
with the freely scheduled debates that are about to proceed on Monday and
Tuesday and would interfere with the constitutional right of the media to
decide what they think is newsworthy without having newsworthiness dictated to
them by any court.
30. I will say little more
about the merits of the constitutional arguments raised by the applicants. The
applicants in my view have some very considerable legal hurdles to overcome at
trial. As to free speech, the right to speak does not necessarily carry with it
the right to make someone else listen or the right to make someone else carry
one's own message to the public. That point was made by Thurlow C.J. of the
Federal Court in Re New Brunswick Broadcasting Co. Ltd. v. C.R.T.C.
(1984), 13 D.L.R. (4th) 77 at p. 89, 2 C.P.R. (3d) 433, [1984] 2 F.C. 410
(C.A.) [citation omitted]
[…]
32. There is enough doubt on
these points to require a full trial to determine whether or not the right to
free speech carries with it, in the circumstances of this case, the right to
force the media to carry anyone's message to the public.
33. This is a matter that
should be decided at trial, not on any summary application of this kind brought
upon short notice. It is sufficient to say that whatever the eventual decision
of any court on the merits of this case, the applicants' constitutional rights
to force what they want from the broadcasters is far from clear.
34. The same considerations
apply to the applicants' arguments based on freedom of association and the
right to vote. While the applicant relies on these freedoms, the order sought
would vary significantly and interfere with the freedom of association of those
with whom a debate would be forced. It would, alternatively, interfere with the
right of voters to hear and see a scheduled debate which is likely to be of
great public interest. I refer also to the interference with the rights and
freedoms of the broadcast media under the Charter.
[…]
36. In conclusion I have such
significant doubts about the legal, factual and constitutional basis of the
applicants' case that I doubt there is in law a serious issue to be tried in
the sense of sufficient strength to overbear the rights of the defendants to a
trial, to overbear their constitutional rights and possibly the constitutional
rights of others. While the public policy issues are serious issues the
applicant has not established a serious enough legal basis for its case that it
should get the remedy it seeks with no trial and indeed with no proper
opportunity for the defendants to meet the case alleged against them.
[26]
In
my view, Campbell J.’s remarks are entirely apposite in the present matter.
[27]
In
addition to the above remarks, I would add that this Court has recently
reiterated the applicable test for receiving a writ of mandamus in Arsenault
v. Canada (Attorney General), 2009 FCA 300 at para.32 [Arsenault] –
a test which has been approved of by the Supreme Court in Apotex Inc. v.
Canada (Attorney General), [1994] 3 S.C.R. 110. This test is quite
stringent. In respect of the applicant’s claim for a mandamus order
forcing the CRTC to issue guidelines with a particular content, I note that Arsenault
holds that “mandamus is unavailable to compel the exercise of a
"fettered discretion" in a particular way”: paragraph 32. In respect
of the applicant’s claim for a mandamus order forcing the broadcasters
to allow her to participate in the debates, I note that Arsenault
requires a “public legal duty to act”: ibid. Given these tests, I have
significant doubts concerning the applicant’s ability to obtain the relief
sought.
[28]
For
all of these reasons, I dismissed the applicant’s motion to expedite the
hearing of her application.
“M.
Nadon”
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