Organizers of electoral debates should accommodate candidates from smaller political parties, according to the legal remedy.
A small political party challenges in court an Elections Ontario directive on the participation of fringe parties in non-televised debates.
The None of the Above party is protesting Elections Ontario’s order of May 9, 2018, in which the agency explains that it has no authority over the organization of electoral debates in the province and that it has no control over the selection criteria of the organizers as to the candidates invited to these debates.
The political party, which says it defends direct democracy, had sent a letter to Elections Ontario asking it to better explain to the organizers of debates their obligation to accommodate marginal parties before the general election of June 2018.
The complainant, Greg Vezina, argues that Elections Ontario has a duty to remind debate organizers to invite candidates from smaller parties like his.
However, he maintains that the agency violated the right of voters enshrined in the Charter, because the candidates of the third parties could not present to the public the electoral program of their party.
Party leader Greg Vezina, who attended the virtual hearing on Thursday, argues that “the chief executive chose not to enforce the law and that is a mistake”.
An imprescriptible right
According to None of the Above lawyer Saba Ahmad, the rules surrounding the organization of an electoral debate in Ontario are confusing and too heterogeneous, because they differ from one city to another or from one organization to another.
Ms Ahmad maintains that the fact of selecting a few candidates before their participation in a debate undermines the legitimacy of the electoral process.
According to her, voters will not be able to make an informed choice on polling day. “However, the right to vote enshrined in the Charter is inalienable”, she said.
“Democracy means not only putting the names of all the candidates in an election on a ballot, but also allowing all the candidates listed on the ballot to participate in the debates during an election period.” — A quote from Saba Ahmad, lawyer for the None of the Above party
Ms Ahmad affirms that the voters have the right to know the positions of all the candidates concerning files specific to their district. She quotes on this subject a UN declaration according to which the will of the people must be the basis of the authority of any government.
“Elections Ontario’s order violated the right of every citizen in my client’s riding to receive information that could influence how they exercise their right to vote”, she continues.
The lawyer adds that the candidates of the marginal parties have the right to attend debates held in public places such as a school, a library or a community center.
“They have the right to speak there to communicate their ideas,” she continues.
This exercise is not only reserved for candidates from the main political parties, she said, recalling that her client has been trying since 1983 to have the right of small parties recognized to be heard.
The lawyer adds that no one should fear being expelled from a public place as was the case in Whitby and Ottawa for two candidates from the None of the Above party during two by-elections in 2016.
Three bitter failures
At the time, Greg Vezina had urgently applied to the courts on February 2, 2016, to obtain an interlocutory injunction to cancel a debate at the Abilities Center in Whitby to which he had not been invited. In vain.
He argued that the province’s four main parties (PPCO, PLO, NPDO, PVO) held an unfair monopoly over fringe parties and independent candidates in the February 11, 2016, by-election.
However, in the riding of Whitby-Oshawa, 10 candidates were listed on the ballots.
Same scenario in Ottawa. A candidate of the same party, Sheldon Bergson, had been expelled by the police during a debate before another by-election in the riding of Ottawa-Vanier.
Mr. Bergson had joined the candidates of the four main parties on November 10, 2016 on the platform of a room of the Knights of Columbus, when he had not been invited to the debate.
However, 11 candidates were on the ballot in this county for the November 17, 2016 vote.
Mr. Vezina had then filed a complaint against Elections Ontario, but he did not receive a response from the agency until a year later. A delay that his lawyer described as unreasonable in court.
Another refusal, this time in the spring of 2018 during another debate in Whitby before the last election in the province, had motivated the plaintiff to go to court to seek a judicial review of Elections Ontario’s order.
“Where there is a right, there should be a remedy; however, no reparation was granted to my client” , adds his lawyer.
Proportional representation
Greg Vezina says in an interview with Radio-Canada that the right to fill out your ballot wisely is the most fundamental of any democracy.
“Elections Ontario is trying to make us believe that there are only four political parties in this province” , he said.
He accuses the main parties, in Ontario as well as at the federal level, of not wanting to disseminate voters’ votes and take the risk of winning fewer votes in each election.
Mr. Vezina also accuses Prime Minister Justin Trudeau of lying to Canadians when he promised to reform the first-past-the-post system.
He argues that Canada has the “most tyrannical electoral system on the planet
and that Canadian democracy is more cynical than in Russia
. “Canada is not a democracy, we are like in Iran, where the government chooses the opposition parties to the detriment of all the others.” – a quote from None of the Above Party Leader Greg Vezina.
Mr. Vezina also does not believe that proportional representation would create chaos in Parliament or in the country’s legislatures with the election of perpetual minority governments like in Italy or Israel.
“All the small parties become bigger one day on the condition that they can make themselves heard in the general media”, he says, recalling that the Coalition avenir Québec CAQ was still unknown 12 years ago in Quebec, when this party now forms the government in that province.
A word at the heart of the pleadings
The definition of the word debate
is at the center of the pleadings. Ms. Ahmad recalls that chambers of commerce or unions have the possibility of organizing debates in ridings before an election, but that it is up to Elections Ontario to decide whether such debates constitute election expenses.
According to her, the debates are in a way election expenses, since the organizers spend beyond the permitted limit large sums to rent, for example, premises in order to organize an electoral debate between candidates.
“However, by refusing to take a position in its order, Elections Ontario has delegated its responsibilities to the organizers of debates, who can easily invite the candidates of their choice to their event, thus contravening the law on election expenses.” – a quote from Saba Ahmad, lawyer for Greg Vezina
Ms Ahmad argues that the word “debate” can have many meanings, but that in the absence of a clear directive on what constitutes a debate, the Chief Executive Officer of Elections Ontario favored the judgment of unelected third parties over his own judgement.
However, these organizers choose the word debate without any consideration of electoral laws
, she said.
Arguments of the opposing party
In his submissions, Elections Ontario lawyer Andrew Bernstein reiterated that the agency has no authority over the organization of pre-election debates in the province, because the legislature wanted it to avoid controlling the political expression of the candidates.
Mr. Bernstein assures that the Chief Electoral Officer of Elections Ontario has all the necessary discretion to interpret the electoral law and that in this sense his interpretation of the legislation concerning the two complaints of Mr. Vezina’s was fair and reasonable
.
The lawyer also asserts that a debate does not constitute an election expense. “It is up to the legislature and not the courts to redefine the meaning of a debate,” he said.
According to him, Elections Ontario therefore did not violate section 3 of the Canadian Charter on the rights of electors. He also claims that there is no evidence that these debates amounted to election ads.
Mr. Bernstein also wonders about the timing chosen by Mr. Vezina for his legal challenge, accusing him of wanting to influence the outcome of the vote in the next election, on June 2.
“This waiting period does not mean that his complaint is still valid six years later,” he said.
In any event, the lawyer asserts that the two Elections Ontario decisions that Mr. Vezina is contesting are not subject to judicial review by the courts.
He invites the Divisional Court to reject the request of the leader of the None of the Above party, because he waited three years before submitting his request.
The three judges of the Court have put the case under advisement until an indefinite date.
For Greg Vezina, the cause is of paramount importance because, according to him, there will be more and more protests in the streets of the country if citizens feel excluded from any political participation.
He also believes that the recent occupation of downtown Ottawa would never have taken place if Canada had adopted a direct proportional electoral system, because the small parties would probably be represented today in the legislatures of the country, where all citizens could make their voices heard.
Source: Contestation en cour des règles sur les débats électoraux en Ontario | Radio-Canada.ca
https://ici.radio-canada.ca/nouvelle/1868194/revision-judiciaire-loi-depenses-electorales-tiers-partis-debats