[1994] 1 F.C. 580
T-2319-93
The Natural Law Party of Canada, Donald Jackson and Donald Jackson on behalf of the members of The Natural Law Party of Canada (Applicants)
v.
Canadian Broadcasting Corporation (Respondent)
Indexed as: Natural Law Party of Canada v. Canadian Broadcasting Corp. (T.D.)
Trial Division, McKeown J.—Ottawa, September 29 and October 1, 1993.
Broadcasting — Application for interlocutory injunction requiring CBC to include leader of Natural Law Party in telecasts of leaders’ debates during federal election campaign — Participants in debates determined by consensus within Broadcasters’ Consortium to include leaders of five major parties — CBC having no power to unilaterally include other participants — Jurisdiction as to relief sought assigned to CRTC under Broadcasting Act, ss. 12(2), 18(1)(d) — Court not assuming role of regulator on matters within CRTC jurisdiction — New Broadcasting Act strengthening broadcasters’ rights to freedom of expression — Interlocutory injunction would give applicants remedy without trial — Legal test of serious issue not met.
Elections — Due to large number of political parties contesting federal election, Broadcasters’ Consortium establishing criteria for inclusion of leaders in telecast debates — Party not meeting criteria seeking interim order declaring law requires CBC to include its leader — CBC acting as broadcaster, not as government agent when participating in Consortium — Court not to assume role of regulator or to dictate agenda of political debate — Dangers resulting from court interference with journalism to satisfy demands of group seeking increased media attention on freedom of expression grounds.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Broadcasting Act, S.C. 1991, c. 11, ss. 2, 12, 18, 35, 46, 52.
Canadian Bill of Rights, R.S.C., 1985, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Federal Court Act, R.S.C., 1985, c. F-7, s. 23.
CASES JUDICIALLY CONSIDERED
APPLIED:
Trieger v. Canadian Broadcasting Corp. (1988), 66 O.R. (2d) 273; 54 D.L.R. (4th) 143; National Party of Canada v. Canadian Broadcasting Corp. (CBC), [1993] A.J. No. 677 (Q.B.) (Q.L.).
DISTINGUISHED:
Green Party Political Assn. of British Columbia v. Canadian Broadcasting Corp. (CBC), [1991] B.C.J. No. 2852 (S.C.) (Q.L.).
APPLICATION for interlocutory injunction requiring CBC to include the leader of the Natural Law Party of Canada in all television broadcasting of CBC-produced Town Hall meetings and leaders’ debates among federal political party leaders. Application dismissed.
COUNSEL:
Gerald D. Chipeur for applicants.
Larry Huculak and Ian Donahoe for respondent.
SOLICITORS:
Milner Fenerty, Edmonton, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
McKeown J.: The Natural Law Party and Donald Jackson privately and on behalf of the members of the Party brought this application for an interim order. The motion is for an interim order declaring that the law requires the Canadian Broadcasting Corporation (CBC) to provide equitable treatment to the Natural Law Party of Canada in all television broadcasting of CBC-produced Town Hall meetings and leaders’ debates (debates) among federal political party leaders or their representatives, and, in particular, requires CBC to include the leader of the Natural Law Party of Canada, Neil Paterson, or his representative, in debates if CBC continues to participate in the production or broadcast of debates and a mandatory interlocutory injunction to that effect.
FACTS
On September 4, 1993, several media organizations disseminated the news that a broadcasting consortium composed of the major television services that is, the CBC, Global Television Network and SRC (Société Radio-Canada), had reached a deal to broadcast debates among the leaders of five political parties (the Progressive Conservative Party, the Liberal Party, the New Democratic Party, the Reform Party and the Bloc Québécois). Neil Paterson of the Natural Law Party was not included.
The participants in the debates have been determined by consensus within the Broadcasters’ Consortium and the format is still being negotiated with the five political parties. The CBC had no power to unilaterally include other participants in the debates.
Due to the large number of political parties contesting the federal election, the Broadcasters’ Consortium considered including in the debates leaders whose parties met all of the following criteria:
a. having at least one representative sitting as a Member of Parliament;
b. showing themselves consistently over recent years to have had an impact on the Canadian public inasmuch as each has scored more than 5% popularity in various public opinion polls; and
c. its leader has been involved in a very publicly visible manner in the constitutional and economic debates in Canada in recent years.
Once all of the details of the leaders’ debates have been settled, the CBC intends to be involved in another television program enabling the leaders of the parties not represented in the proposed debates to present their views to the public, and invitations were sent out on the date of this hearing to the nine remaining parties. The nature of the program has not yet been decided upon.
The debates are considered by CBC to be news events and CBC considers its television coverage of these debates to be part of its overall news coverage of the federal election campaign. The debates will be in front of an audience and will be broadcast as they take place. The parties involved will have no advance knowledge of the questions to be asked of them by the reporters and members of the public that will be present.
The CBC has also conducted two Town Halls and plans to present more. The Town Halls are also considered by CBC to be news events and part of its overall news coverage of the federal election campaign. The Town Halls provide opportunities for voters and political parties to debate various issues and provide important information that could not be conveyed in the formal debates. The Natural Law Party has not been invited to any of the Town Halls. The CBC has not told the representatives of the Natural Law Party why Mr. Paterson or other members of the Party were not asked to participate in the debates or Town Halls. The criteria were disclosed in an affidavit filed by Mr. Bazay of the CBC.
If any organization or political party were to organize another debate or Town Hall, the CBC would consider providing appropriate coverage of it.
JURISDICTION
The Natural Law Party of Canada is applying for relief on an expedited basis but the relief can be provided by the Canadian Radio-television and Telecommunications Commission (CRTC) under paragraph 18(1)(d) and subsection 12(2) of the Broadcasting Act, S.C. 1991, c. 11. There is no provision in the Broadcasting Act for providing relief on an expedited basis, but this does not mean that the Federal Court of Canada can obtain jurisdiction. Section 23 of the Federal Court Act, R.S.C., 1985, c. F-7 (as amended) limits the jurisdiction of the Federal Court to the extent that jurisdiction had been otherwise specially assigned. Since the Broadcasting Act has assigned jurisdiction to the CRTC, I do not have jurisdiction.
This Court is a statutory court. I am unable to rely on the inherent jurisdiction of other superior courts as was the case in Green Party Political Assn. of British Columbia v. Canadian Broadcasting Corp. (CBC) (October 9, 1991), Vancouver, B.C., Doc. No. C916786 [[1991] B.C.J. No. 2852 (S.C.) (Q.L.)] where Collver J. accepted jurisdiction. Collver J. was a Judge of the Supreme Court of British Columbia, which is not a statutory court. There is no gap in the jurisdiction.
INTERIM INJUNCTION
However, in the event that I am not correct in my views on jurisdiction, I would still refuse to grant an interim injunction for the reasons set out in Trieger v. Canadian Broadcasting Corp. (1988), 66 O.R. (2d) 273 (H.C.) and National Party of Canada v. Canadian Broadcasting Corp. (CBC) (not yet reported) (September 23, 1993) Doc. No. 9303-18257 (Alta. Q.B.) [[1993] A.J. No. 677 (Q.L.)].
In my view, the CBC is acting as a broadcaster and not as an agent of the government in its participation in the Broadcasters’ Consortium. There is no legislation in Canada which prevents broadcasters from participating in such debates. The American jurisprudence is not of assistance in this respect.
In Trieger, supra, Campbell J. succinctly dealt with several important points in deciding that the public interest would not be served by depriving the public of the opportunity to hear the debate. He states at pages 276-277:
Counsel have referred to no case in which any of our courts have purported to dictate to the broadcast networks what they should cover and what they should not cover as a matter of newsworthy public political debate during an election campaign. There is no issue raised in this case of the equal free time regulations or the paid time rules which obtain during election campaigns. The issue here is purely a question of the coverage of national leaders’ debates which are considered newsworthy by the various networks in question.
In this case, the Town Hall meetings as well as the debates are involved, but Campbell J.’s reasoning is applicable to the Town Hall meetings as well. In addition, all the other leaders have been invited to participate in another television program enabling those leaders to present their views to the public in a forum to be determined.
Although the Natural Law Party has not brought a complaint to the CRTC, I must agree with Campbell J. when, at page 277 of the Trieger decision, he rejects the idea of the Court assuming the role of a regulator:
Generally speaking it is not for the court to assume the role of the regulator. The C.R.T.C. is still dealing with the complaint of the applicants. I am not satisfied that it is appropriate, for the purpose of disposing of this matter on the merits, for this court to assume the role of a regulator and to second-guess the C.R.T.C. on matters within C.R.T.C. jurisdiction. Neither is it for this court to conjure up out of thin air some new regulatory scheme to govern the broadcast agenda for national political debate in this country. Regulation of the airwaves is a matter for Parliament to decide within any constitutional limits that may obtain. Parliament has chosen the machinery of the Broadcasting Act, R.S.C. 1970, c. B-11, and the C.R.T.C. for this purpose.
Campbell J. then proceeds to review why the Canadian Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] should not apply to the CBC when it is operating as a broadcaster. He states at page 278:
The Canadian Charter of Rights and Freedoms applies to government action. It represents a curb on the power of government, not a fetter on the rights of organizations or individuals independent of government which do not exercise the functions of government.
It is not the function of the government or indeed the courts to dictate to the news media what they should report. The broadcasters are exercising a function that is very central to the democratic process. But it is a function that they perform quite independently of government.
The C.R.T.C. has not delegated any of its regulatory or other functions to the private broadcasters or to the Canadian Broadcasting Corporation (the “C.B.C.”). By leaving broadcasters a wide individual discretion and responsibility to ensure fair treatment of issues, candidates and parties during elections, the C.R.T.C. is emphasizing the editorial freedom of broadcasters rather than delegating to them any power of regulation.
Campbell J. then deals with the merits of the application before him and, in view of the many parallels in the two applications, I apply the same reasoning to the application before me. He states at pages 279-280:
What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate. It is not for this court, certainly on an interlocutory application of this nature without full opportunity as at trial to canvas the facts and the legal issues, to interfere with the freedom of speech and expression of the various party leaders by dictating the debate format, content or participants. Neither is it up to this court to dictate in any way to broadcast editors what is news and what is not news, subject of course to non-publication orders in criminal cases and a few other exceptional cases. It is up to broadcasters and editors to decide what they wish to publish. Their decisions to cover a particular event or not to cover it are matters, to use the words of the U.S. Supreme Court in Columbia Broadcasting System, Inc. v. Democratic Nat. Committee; Federal Communications Com’n v. Business Executives’ Move for Vietnam Peace; Post-Newsweek Stations v. Business Executives’ Move for Vietnam Peace; American Broadcasting Companies Inc. v. Democratic Nat. Committee, 412 U.S. 94 at p. 118 (1973), “within the area of journalistic discretion”. Those editorial decisions do not amount to the carrying out of any government function.
There is a significant constitutional value at stake here in the freedom of the press and the other media of communication, particularly the broadcast media. The delicate balancing of their constitutional rights against the constitutional rights asserted by the applicants would involve a very complex factual process of broadcast regulation. It would require a great deal more factual material than this court has before it right now on the eve of the scheduled debate and so close to the actual time of the election itself.
Since 1991, the amendments to the new Broadcasting Act have the effect of strengthening the rights of the broadcasters to enjoy freedom of expression; see the Broadcasting Act, subsection 2(3), which concerns all broadcasters, and subsections 35(2), 46(5) and 52(1), which specifically concern the CBC. There is nothing on the face of the criteria chosen which is so unreasonable as to require the intervention of the Court. The criteria are not arbitrary, unfair or based on irrational considerations on their face.
Campbell J., at pages 281-282, points out the dangers which could result from a court interfering in journalistic endeavours in order to satisfy the demands of groups seeking more attention from the media on the grounds of freedom of expression:
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.
…
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.).
At page 283, Campbell J. concludes his discussion of the merits of the application before him:
This is not the sort of relief that should be granted on an interlocutory application of this kind. The legal issues involved are complex and I am not satisfied that the applicant has demonstrated there is a serious issue to be tried in the sense of a case with enough legal merit to justify the extraordinary intervention of this court in making the order sought without any trial at all.
“The proper purpose of an interlocutory injunction is to preserve or restore the status quo, not to give the plaintiff his remedy, until trial”. I refer to these remarks of Mahoney J. in Re A.-G. Can. and Gould (1984), 13 D.L.R. (4th) 485 at p. 490, [1984] l F.C. 1133, 42 C.R. (3d) 88 (C.A.), quoted by the Divisional Court in Re Metropolitan Toronto School Board and Minister of Education (1985), 53 O.R. (2d) 70 at p. 81, 23 D.L.R. (4th) 303 at p. 313, 6 C.P.C. (2d) 281 at p. 293.
I also seek to preserve the status quo until trial, and an interlocutory injunction in this application would have the effect of giving the applicants their remedy without a trial. Most of the foregoing reasoning was reviewed and accepted by Berger J. in the National Party case supra. Due to the necessity of producing these reasons quickly, I have not reviewed his reasons in detail, but I am in agreement with his judgment.
The foregoing reasoning is also applicable to the Canadian Bill of Rights [R.S.C., 1985, Appendix III]. The Canadian Bill of Rights encompasses freedom of the press and again the Court should not attempt to balance that right with the right of freedom of speech in an interlocutory motion.
Despite the very able arguments by counsel for the applicants, I am not satisfied that they have met the legal test of a serious issue to be tried and I am not satisfied that they succeeded on the balance of probabilities. The motion will be dismissed.