“Stéphane Perrault
Chief Electoral Officer of Canada
email: info@elections.ca

Yves Côté, Q.C.
Commissioner of Canada Elections
email: info@cef-cce.ca

30 Victoria Street
Gatineau, Quebec
K1A 0M6

Dear Mr. Perrault and Mr. Côté:

I am writing to both of you about the issue of Leaders’ and Candidates debates.

I am asking you both to intervene to ensure that voters get to see and hear the fifteen or more new and smaller parties and independent candidates during the upcoming October 21, 2019 election campaign period.

With respect to Leaders’ Debates we request you advise the Debate Commission and Canadian Debate Production Partnership (CDPP) that a third debate for the Leaders not included in the two main debates must take place using the same sets at the same venue as the main debates, in the Gatineau, Quebec Canadian Museum of History on one of the available dates of October 8, 9 or 11. The Museum has not yet replied to numerous requests to confirm rental of the facilities or the date.

This third All Party Leaders’ Debate can be co-produced by the Democracy Channel®, Gordon Henderson of 90th Parallel Productions and Keith Holding of Media Tribe Interactive, producers of the 1993 (using the main debate sets at the National Arts Centre) and 2000 All Party Leaders’ Debate (recorded in a Toronto private studio) that was broadcast by CPAC and CBC News Channel. The debate will be also available on the Democracy Channel® website along with the archived 2000 debate at DemocracyChannel.net.

We ask you to advise the Commission, CDPP, participating political parties and leaders that since the debate is now a government sponsored if a third debate is not facilitated by them that the two main debates cannot proceed as doing so would violate the Charter rights of these party leaders, their candidates and voters alike and be considered an illegal campaign contribution of a good or service could call into question any winners victories and lead to invalidating the election.

We remind Mr. Perrault that he warned the government that the exclusion of smaller parties in government sponsored debates might run afoul of the Charter of Rights and Freedoms.

You testified before the Parliamentary Committee that “Debates are an important element of the campaign and often contribute to defining the ballot-box issues … The chief electoral officer should not be involved in matters that could be perceived as having an influence on the orientation of the campaign or the results of the election.”

Some small parties have in the past gone to court to challenge their exclusion from the debates. But those cases failed because the debates were considered “essentially private events” that were not subject to scrutiny under the charter, you said.
“This would likely no longer be the case if the state, or an entity created by the state, were to play a role in organizing the debates.”

On June 4, 2019 the political parties with Members elected in the House of Commons were asked to take steps to protect the Charter S. 2 and 3. rights of new, smaller party and independent candidates and the most fundamental right of voters to see and hear them especially at public candidate debates or where public property is used, but none replied.

The Leaders Debate Commission debates producer is the Canadian Debate Production Partnership (CDPP). The CDPP is a publicly funded agency and therefore its activities must comply with the laws of Canada and Canadian Charter of Rights and Freedoms.

The Creation of an Independent Commissioner Responsible for Leaders’ Debates majority Report of the Standing Committee on Procedure and House Affairs warning that government involvement in leaders’ debates without accommodating smaller party Charter rights would be unconstitutional was also ignored by the government.

“Leaders’ debates already have a history of being litigated in Canadian courts. The Liberal majority’s proposal is a prescription for paralysis because it will ensure that this pattern of court challenges will continue, increase and, now, succeed.

Figueroa v. Canada (Attorney General), means that leaders’ debates will not only become subject to judicial oversight, by virtue of the Liberal majority’s recommendations, but they will be challenged from an ever-growing number of angles.”

The Supreme Canada ruling in 2004 in Harper v. Canada cited starting at paragraph 11 the 1991 Committee for the Commonwealth v. Canada and the 2003 Figueroa v. Canada decisions in finding that all parties and candidates must have unhindered access to public property, they must be allowed to communicate with voters, and voters must be informed of the campaign policies and positions.

11) Political speech, the type of speech here at issue, is the single most important and protected type of expression. It lies at the core of the guarantee of free expression; see R. v. Guignard, [2002] 1 S.C.R. 472, 2002 SCC 14, at para. 20; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 23; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 92; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 175; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 968.

12) The right of the people to discuss and debate ideas forms the very foundation of democracy; see Reference re Alberta Statutes, [1938] S.C.R. 100, at pp. 145-46. For this reason, the Supreme Court of Canada has assiduously protected the right of each citizen to participate in political debate. As Dickson C.J. stated in R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 764, “[t]he state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.”

13) Section 2 (b) of the Charter aims not just to guarantee a voice to registered political parties, but an equal voice to each citizen. The right of each citizen to participate in democratic discussion was embraced by Iacobucci J., who elaborated on the scope of s. 3 for the Court in Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37, at para. 26:

Section 3 does not advert to the composition of Parliament subsequent to an election, but only to the right of each citizen to a certain level of participation in the electoral process. On its very face, then, the central focus of s. 3 is the right of each citizen to participate in the electoral process. This signifies that the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society and suggests that s. 3 should be interpreted in a manner that ensures that this right of participation embraces a content commensurate with the importance of individual participation in the selection of elected representatives in a free and democratic state. Defining the purpose of s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the composition of Parliament subsequent to an election, better ensures that the right of participation that s. 3 explicitly protects is not construed too narrowly. [Emphasis added.]

15) The right to participate in political discourse is a right to effective participation — for each citizen to play a “meaningful” role in the democratic process, to borrow again from the language of Figueroa. In Committee for the Commonwealth, supra, at p. 250, McLachlin J. stated that s. 2 (b) aspires to protect “the interest of the individual in effectively communicating his or her message to members of the public” (emphasis added). In the same case, Lamer C.J. declared that “it must be understood that the individual has an interest in communicating his ideas in a place which, because of the presence of listeners, will favour the effective dissemination of what he has to say” (emphasis added); see Committee for the Commonwealth, at p. 154.

20) It is clear that the right here at issue is of vital importance to Canadian democracy. In the democracy of ancient Athens, all citizens were able to meet and discuss the issues of the day in person. In our modern democracy, we cannot speak personally with each of our fellow citizens. We can convey our message only through methods of mass communication. Advertising through mail-outs and the media is one of the most effective means of communication on a large scale. We need only look at the reliance of political parties on advertising to realize how important it is to actually reaching citizens — in a word, to effective participation. The ability to speak in one’s own home or on a remote street corner does not fulfill the objective of the guarantee of freedom of expression, which is that each citizen be afforded the opportunity to present her views for public consumption and attempt to persuade her fellow citizens. Pell J.’s observation could not be more apt: “[s]peech without effective communication is not speech but an idle monologue in the wilderness”; see United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), at p. 415.

24) These are worthy social purposes, endorsed as pressing and substantial by this Court in Libman, supra, at para. 47:

Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources.

35) … It is not an exaggeration to say that the limits imposed on citizens amount to a virtual ban on their participation in political debate during the election period. In actuality, the only space left in the marketplace of ideas is for political parties and their candidates. The right of each citizen to have her voice heard, so vaunted in Figueroa, supra, is effectively negated unless the citizen is able or willing to speak through a political party.”

Since our democracy and legislatures are almost exclusively controlled now by political parties and more specifically their leaders, it is mandatory that unfair restrictions on their access to reach the public and the resulting elimination of the public right to cast an informed vote be dealt with forthwith, as Parliament and the Government have refused to do so in spite of numerous requests and recommendations including from reports to Parliament by many of our Chief Electoral Officers.

It is of note than rather than pass a bill to establish the Debate Commission the government tried to escape Charter scrutiny by establishing it by order of the Minister of Democratic Institutions pursuant to her mandate letter from the Prime Minister which directed her to “bring forward options to create an independent commissioner to organize political party leaders’ debates during future federal election campaigns, with a mandate to improve Canadians’ knowledge of the parties, their leaders, and their policy positions.”

The proposed Leaders’ debates do not improve Canadians’ knowledge. They do the opposite by suppressing the views of 75% of party leaders and as many as 50% of candidates regurgitating policies and talking points of established party leaders.

Indeed the CRTC regulations requiring equitable election coverage to assist the public in casting an informed vote are blatantly ignored by broadcasters, as are the feckless replies and investigations of complaints to the CRTC about political broadcasting in between and during elections. Similarly other governmental and regulatory agencies refuse to act to provide remedies to such complaints making Charter democratic right virtually non-existent for many candidates and the vast majority of voters alike.

As an example, similar complaints to Elections Ontario, the Chief Electoral Officer of Ontario, the CRTC and the Ontario Ombudsman about the fact that TVO mentioned the None of the Above Direct Democracy Party one single time on air during its first election in 2014 and not one single time in the five years since including throughout the entire 2018 election, were ignored or dismissed.

How can giving daily coverage to the major political parties over four years and not a single second to a new party that grew from eight to forty two candidates in four years be equitable?

How can cover to cover election coverage with media and partisan expert panels and pollsters that only represent the major parties and totally exclude all others be democratic or constitutional?

In Public Notice CRTC 1988-142 A Policy with respect to Election Campaign Broadcasting the CRTC wrote “More recently, the Commission, in circular letter No. 334 dated 4 June 1987, and titled ‘Political Broadcasting — Complaints re: free time and editorial time allocations’, dealt with complaints about broadcasting stations and their allocation of time. It stated that:

“Once a licensee chooses to give free time, it must allocate some time to all political parties which are duly registered under the applicable legislation….
The Commission in this present notice continues to endorse these principles.”

As the Commission noted in Circular No. 334:
It is the broadcaster’s duty to ensure that the public has adequate knowledge of the issues surrounding an election and the position of the parties and candidates. The broadcaster does not enjoy the position of a benevolent censor who is able to give the public only what it “should” know. Nor is it the broadcaster’s role to decide in advance which candidates are “worthy” of broadcast time.
From this right on the part of the public to have adequate knowledge to fulfill its obligations as an informed electorate, flows the obligation on the part of the broadcaster to provide equitable — fair and just — treatment of issues, candidates and parties. It should be noted that “equitable” does not necessarily mean “equal”.

The Lortie Royal Commission on Electoral Reform and Party Finance Commission was appointed by the federal government in 1989 “to review, among other issues, the many anomalies identified by Charter challengers”, particularly regarding restrictions in the Elections Act inconsistent with Section 3 of the Canadian Charter of Rights and Freedoms.

The 1991 Lortie Commission Vol. 21, Election Broadcasting in Canada, Recommendations on pages 172-173, Inclusion of Minor Parties in Campaign Coverage were also ignored by Parliament.

“According to the CBC’s promises of performance, a 24-hour news channel should air alternative points of view, should ‘provide airtime for more programs of opinion’ (CBC 1988, 17) and should relax conventions of balance within news and current-affairs programs -conventions which have often served to exclude minority interests from the regular networks’ public-affairs schedules (CRTC 1987b, 3066). In our view, current operating procedures are often at odds with these original statements of intent. The CBC’s pledge to ‘rigorously enforce’ its standard procedures for fairness and balance in political programming, coupled with its insistence that Newsworld adhere to current CBC policies concerning the ‘equitable’ coverage of minor parties, suggests to us that the news channel has little to offer in the way of an alternative public access strategy. Such a strategy was certainly not in evidence during the Ontario and Manitoba campaigns. We would advise the CBC to re-examine its current policies in this regard. To remain wedded to traditional public access formats (which were essentially developed for 22-minute news and current-affairs programs) would, in our view, represent a very regrettable lost opportunity in Canadian political broadcasting. As a second recommendation, then, we suggest that the all-news service use its extra election broadcast time to provide a forum for Canada’s minor parties and social movements, both in its news and in its current-affairs schedules.”

Similarly the 1986 Caplan & Sauvageau, Report of the Task Force on Broadcasting Policy recommendations on reducing media concentration, expanding political and public affairs programming and for the CRTC to strengthen its policy on the separation of news room were also ignored.

There are two precedents in federal elections in 1993 and 2000 for holding separate debates for leaders of the new and smaller parties. Both were organized by Greg Vezina, President of the democracy Channel, who is organizing the 2019 debate on behalf of them in the public interest.

In addition to Leaders Debates’, candidate debates are a very important part of the email request I made on June 4, 2019 to the Prime Minister, other party leaders in the House of Commons and others, wherein I questioned the 2015 reversal of the position by the previous Chief Electoral Officer regarding candidate debates, that changed from all candidates must be accommodated to allowing debates with only two or more, allowing the exclusion of all others.

The original policy directive was titled Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election (2008)

II.7 Candidates’ Debates

“The Act should define under what circumstances expenses incurred to organize a candidates’ debate constitute a non-monetary contribution received by the participating candidates and an election expense of those candidates. Similarly, it should specify under what circumstances expenses incurred to organize a party leaders’ debate constitute a non-monetary contribution made to the participating registered parties and an election expense of those parties. These clarifications would add certainty to the corresponding rules and make it easier for candidates to interpret them.

In recent years, there has often been confusion about the political financing rules set out in the Canada Elections Act and how they apply to candidates’ debates that are organized by community associations or by other interested individuals or groups during an election. During the 40th general election, Elections Canada was again asked whether a candidate’s participation in a debate constitutes, with respect to the costs of organizing the event, a non-monetary contribution to the candidate and an election expense of the candidate.

In light of the importance of such debates to our democratic system, the Chief Electoral Officer’s interpretation of the political financing rules has long been that expenses incurred to organize a forum for debate that allows the public to hear and question candidates do not constitute a contribution to any candidate, provided that the following conditions are met:

• The forum must be open to the public, and the invitation must be extended to all of the candidates. (Where this is not the case, there must be a reasonable basis for the exclusion.)
• The forum must be conducted in a politically impartial fashion.
While the Chief Electoral Officer believes that this interpretation is consistent with the intent of Parliament, this matter continues to generate complaints that are difficult to address during an election period.”

This policy was completely reversed in the August 2015 |Elections Canada| Interpretation Note: 2015-03 Candidate and leader debates Issue

“Whether or not providing a public forum for candidate or leader debates constitutes a contribution to the participating candidates or parties as well as an election expense under the Canada Elections Act(“CEA”).

The interpretation and approach of Elections Canada to candidate and leader debates is as follows:

(1)Providing a public forum for candidate or leader debates with two or more participants does not constitute a non-monetary contribution from the entity providing the forum. It is also not an election expense of the participating candidates or, in the case of leader debates, of the participating parties.
(2)The expenses incurred by the entity holding the debate do not qualify as non-monetary contributions to or election expenses of participating candidates or parties.
(3)The exclusion of one or more candidates or parties from a debate does not change the fact that the provision of a public forum for candidate or leader debates is not a non-monetary contribution to the participating candidates or parties.
(4)There may be situations in which a debate is not a true debate, but rather a disguised contribution. This could be the case if a debate was conducted in a partisan manner to promote or oppose a particular candidate or party, or if the debate organizer gave control over the event to a particular candidate or party. In such cases, the totality of the circumstances would need to be examined to determine whether or not the debate was a true debate or a disguised contribution.”

The reality is that since the then Chief Electoral Officer of Canada changed the policy and allowed debates with as little as two candidates in 2015 in most Canadian federal or even provincial elections today in Canada smaller, new party and independent candidates are regularly threatened with arrest for daring to ask to speak at local all candidates debates.

CBC News reported in a 2016 article “Police escort 2 uninvited candidates out of Ottawa-Vanier byelection debate” that Candidates from Pauper Party of Ontario and None of the Above Party not invited to debate were threatened with arrest if they did not leave. Only four out of the eleven officially nominated candidates were invited and allowed to speak.

The smaller parties and independent candidates contend that the holding public debates without accommodating all registered parties, leaders and candidates should also be considered an illegal corporate, union or third party contribution of a good and service, and that winning candidates participating in such may lose their seats as a result of a prosecution for participating in a corrupt practice.

In the present election there are literally hundreds of debates being organized by third parties who are allowed to skirt the election laws. There are six or more Leaders’ debates planned and several organizations including Chambers of Commerce and a Professional Engineers Association are holding debates to promote their interests and policies. GreenPAC, a non-partisan, non-profit organization “dedicated to electing environmentalist candidates” is holding over 100 debates across Canada during the election in mid October. These debates exclude virtually all of the new or smaller parties’ leaders or candidates.

All of these debates are “conducted in a partisan manner to promote or oppose a particular candidate or party”, and unless all other candidates are accommodated, must be considered to be a campaign expense incurred by the parties’ leaders and candidates and an illegal contribution of a good or service.

This is especially important now that recent media reports show that about 50% of voters do not support the major parties and for the majority of voters political integrity is the most important issue.

According to a recent Digital Democracy Project report Canadians’ media-consumption habits lead to misinformation.

“The one troubling point seems to be that, while social media exposure is associated with higher levels of misinformation, so is exposure to traditional or mainstream media (though to a lesser extent),” writes the report.

“It appears that simply consuming news, regardless of source, makes people susceptible to being misinformed about the issues,” the report says.

Complaints to Media Councils about unprofessional, biased and outright false newspaper reports that exclude the mention of more than three or four of the old line parties are dismissed without a hearing, concluding:

“While the complainant is correct to point out that there are far more federal political parties and leaders than covered by media, including the Star, it is generally recognized that comment is limited to the traditionally dominant parties. The column outlined the issues that voters should be aware of and was not meant to outline all party platforms. The complaint is dismissed by the Ontario Press Council.”
Further, it is very important to note the unfair influence of unscientific and unprofessional polls promoted by parties, candidates, third parties and the media in our elections.

A ThreeHundredEight.com research project “The polling plight of the little parties” found, “The average result for a party that was included in polls was 1.7% compared to 0.4% for parties that were not included. On a per-candidate basis, small parties included in the polls averaged 3.4% support, compared to 0.9% for parties that were not included. And this despite the average slate of small parties included in the polls being 54.7%, only slightly higher than the 44.9% of parties not included in the polls. In other words, parties included in polls did 3.8 times better than parties that were not, despite running only 1.2 times the candidates.”

Most importantly these matters involve rights and obligations under the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) both of which Canada has ratified, that the Supreme Court of Canada has ruled such rights are minimum Charter rights.

The Universal Declaration of Human Rights (UDHR) states the basic civil, political, economic, social and cultural rights that every individual is entitled to just by virtue of their existence.

The UDHR was created to outline human rights as a general concept and establish their importance in the international realm. The United Nations (UN) then decided to create Covenants to define specific rights, their limitations, and to outline the role of states.

The ICCPR and the ICESCR were adopted by the UN on December 16, 1966 and subsequently ratified by Canada in May 1976. The creation of these Covenants put a requirement on governments to implement policies, programs and laws to meet the obligations outlined to protect the human rights.

International Human Rights Law: Obligations to protect, fulfill and not interfere.

International human rights law outlines what states are required to do — or not do — with regards to poverty and human rights. States have three basic obligations once they have signed on and ratified human rights treaties at the international level.

The obligation to protect is the most straightforward because it is simply the requirement that states must look after individuals and groups to guard them from violations of their rights.

Similarly, the obligation to fulfill declares that states have to take action to ensure that individuals can enjoy their rights properly (for example, passing legislation that protects human rights).

Finally, and in contrast with the other obligations, the obligation to respect demands that states do not needlessly interfere with individuals enjoying their human rights.

There are several specific international Conventions that Canada has ratified that specifically cover political belief, expression and the fundamental rights of candidates to equal access to public property, including public broadcasting facilities and other publically owned means of communications, in between, and most importantly, during elections.

In 2007 a very clear Charter linkage to similar obligations in the United Nations Human Rights Code and Conventions and other international human rights documents have been made by the Supreme Court in Health Services and Support – Facilities Subsector Bargaining Assn. V. British Columbia, when it ruled at paragraph 70, “The Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.”

Our campaign leaders’ and candidates’ debate practices, combined biased polling, follow-the-leader horse-race election coverage news coverage and feckless enforcement of election and broadcasting laws have rendered our elections to the point they do not function democratically.

These practices violate basic democratic principles of free and fair elections under Canadian and International law and most importantly have been found by our highest courts in numerous decisions to violate the Charter of Rights and Freedoms.

In conclusion, we ask the Chief Electoral Officer and the Commissioner of Canada Elections to take the following actions to ensure our elections and debates during them are democratic and comply with the Charter rights the CEO and Parliamentary Committee warned the government would be violated by their actions. We ask you:

To intervene to make sure voters get to see and hear the 15 plus new and smaller parties and independent candidates during October 21, 2019 election, especially where the use of public property is involved.

To advise the Debate Commission and Canadian Debate Production Partnership that unless they assist with the production and dissemination of a third “All Party Leaders’ Debate” to be held at the same public property venue as the two main debates, the main debates will become an illegal contribution of a good and service that promotes or opposes some but not all candidates, and that organizers and participants may face a prosecution and those who win election loss of their seats.

To advise the public, all political parties and candidates, the media, and candidate debate organizers that all registered and accredited candidates must be accommodated, even if requires two or more debates, otherwise it will become an illegal contribution of a good and service that promotes or opposes some but not all candidates, and that participants who win election may face a prosecution and loss of their seats.

To advise all media organizations and polling organizations that all election polls must include specific mention of all accredited political parties and nominated candidates, otherwise it will become an illegal contribution of a good and service that promotes or opposes some but not all candidates, and they will face a potential prosecution.

If we do not receive a reply advising our request will be met by 12:00 noon on Wednesday September 11, 2019, we respectfully advise we intend to seek a legal remedy to these issues on an urgent basis in accordance with the applicable Rules in a court of competent jurisdiction.

We seek to have these issues resolved forthwith, before the election is officially called in the next week or ten days by the official deadline on September 15, 2019.

Greg Vezina, Leader and President,
None of the Above Direct Democracy Party (Ontario and Canada)
Aucune de ces Réponses Démocratie Directe Parti

cc. David Johnston, Commissioner, The Leaders’ Debates Commission info@debates-debats.ca