Procedure and House Affairs Committee on Nov. 30th, 2017

[Stéphane Perrault]

During an election there may be situations where there may be conflict regarding the purchase of time, whether a broadcaster makes available the right time at the right moment, or there may be issues between the broadcaster and the party, and he would serve as an arbitrator in that context. Those are his two roles.

[David Christopherson, NDP, Hamilton Centre, ON]

You said it's very episodic too. That one is episodic as well as the boundary commission, so the nature of this other one would not be a shock to your system.

[Stéphane Perrault]

That's correct. It's very similar.

[David Christopherson, NDP, Hamilton Centre, ON]

Chair, I'm good. I appreciate it. Thank you very much for the answers and thanks for the excellent presentation.

[The Chair, Liberal, Larry Bagnell]

Thank you very much, Mr. Christopherson.

Now we're moving on to Ms. Tassi.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Thanks to each of you for your participation today, your presence here, your testimony. Mr. McCallum, with respect to the Ontario Court of Appeal decision you referenced, was that 1993 or 1995?

[Peter McCallum]

I think it initially was 1993, but the current reference is to 1995.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Okay.

[Peter McCallum]

Just for your information, leave to the Supreme Court of Canada was subsequently refused.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Okay. That was part of my question.

Let me ask you this. Do I understand correctly, from what you said, that it was determined by the court of appeal that debates are not political or partisan in nature, and therefore, don't need to ensure that all parties participate? Is that right?

[Peter McCallum]

Effectively, yes.

What happened was that there was a prosecution under the Broadcasting Act, instituted by the exclusion of the Green Party from election coverage. It was an interpretation of section 8, I believe, of the TV regulations, which uses the expression “partisan political character”. The court determined that debates do not fall within partisan political character. Therefore, section 8 is not engaged and the equity requirement in the regulations is not breached.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

I see.

Leave was made to the Supreme Court and was not granted.

[Peter McCallum]

Leave was denied. That is correct.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Okay.

With respect to the relationship between this commission or commissioner and CRTC, how do you see that working? How do you see a relationship with a potential commissioner established?

[Peter McCallum]

I can't really answer that vis-à-vis a going-forward basis.

I can say something about the broadcasting arbitrator, and that is that it's recognized in the Canada Elections Act. There is a requirement for the CRTC to publish, for example, the results of the allocation of the 390 minutes among the parties. The CRTC duly publishes those results. It's a section of the Canada Elections Act. That is fairly episodic, but it also happens quite frequently during the period between elections, because some parties are registered and others are deregistered, which triggers a change in the allocation among the parties. The requirement to publish is in the act, and the CRTC duly publishes and follows the obligation as a result.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

It's just ensuring that those procedures are followed.

With respect to that, is there often a breach of the requirements?

[Peter McCallum]

I haven't been made aware of any breach.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Very good.

Now I'll go over to Mr. Perrault.

You've spoken about the importance of Parliament establishing the criteria, and you've expanded a little on that. When you talk about the importance of Parliament establishing the criteria—taking that away from the commissioner and making sure Parliament establishes it—what criteria are you referring to?

[Stéphane Perrault]

These are not my criteria, but there have been proposals made regarding the percentage of votes received in the last election or the number of candidates who ran, these kinds of objective criteria. I like the idea that was suggested by Mr. Fox, who came last week, that if you meet a number of the criteria but not all, you may qualify to participate in the debate. This could provide some flexibility, for example, for non-parliamentary parties.

Those are the kinds of criteria that I would see set out in legislation.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

That would be conducted by Parliament.

What authority would the commissioner have with respect to establishing any criteria? Would the commissioner or commission have any authority?

[Stéphane Perrault]

My recommendation would be that he or she not have any authority. He or she would be applying fairly mechanical criteria set out by Parliament. There may be situations where you need to have some form of residual discretion, but I would remove that from the commissioner to all extent possible.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

How valuable do you think the role of the commissioner or commission is?

[Stéphane Perrault]

It depends. Again, that is why, at the outset, I asked what objectives you are trying to pursue. I think you have to work from the objectives up, and see how a commission can assist in pursuing those objectives.

In my view, I do not see the commissioner as having a role in carving out which parties are excluded and which are included.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

What about other criteria, for example the number of debates, the language of the debates, or the content of the debates?

[Stéphane Perrault]

I see no reason why the commission or commissioner would not have broad latitude. To the extent that the commission is involved in editorial aspects of the debates and so forth, it must be equipped with the proper expertise. We were talking earlier about the broadcasting arbitrator. He has knowledge of the industry, but he is not a journalist and does not have the full range of expertise.

That is why, in my remarks, I said that if that were the model, he would either be supported by other members or have an advisory committee that he would create to reflect the interests of parties and civil society, and to speak to the media. I think the commission would need to have some expertise if it is going to be making content and format decisions.