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T-5329-80
John C. Turmel (Plaintiff)
v.
Canadian Radio-television and Telecommunica tions Commission (Defendant)
Trial Division, Walsh J.—Ottawa, November 20 and 26, 1980.
Prerogative writs — Mandamus — Motion for an order of mandamus that defendant obtain written and graph algorithms used by television and radio stations for the allo cation of time available to political parties — Whether or not defendant has a duty to obtain information from radio or television stations to be conveyed to a member of the public — Application dismissed — Broadcasting Act, R.S.C. 1970, c. B- II, ss. 3(d), 16(1)(b)(iii) — Television Broadcasting Regula tions, C.R.C. 1978, Vol. IV, c. 381, s. 9(1),(2) — Radio (A.M.) Broadcasting Regulations, C.R.C. 1978, Vol. IV, c. 379, s. 6(1),(2).
APPLICATION. COUNSEL:
John C. Turmel on his own behalf. Robert J. Buchan for defendant.
SOLICITORS:
John C. Turmel, Ottawa, on his own behalf. Johnston & Buchan, Ottawa, for defendant.
The following are the reasons for judgment rendered in English by
WALSH J.: Plaintiff applies by originating notice of motion for an order of mandamus that the CRTC obtain in writing and in graph the algorithms used by CJOH, CFRA and CKOY for the allocation of the time available (presumably for free election broadcasts although the applica tion itself does not so state). While the accom panying affidavit refers both to the February 1980 general election in which plaintiff ran as an independent candidate and the recent Ottawa mayoralty election in November in which he ran for mayor, his principal grievance appears to be with respect to the latter election. As an engineer and mathematician he is obsessed with the use of graphs and formulas, which most probably the television and radio stations themselves do not use,
although according to him they should, but what it really comes down to is that he wants the defend ant to obtain information from the said radio and television stations as to how many minutes of time were allotted to each candidate. Possibly, armed with such information, he might then consider bringing some form of action against the stations in question, who are not however parties to the present proceedings.
It is fundamental law that mandamus lies to secure the performance of a public duty in the performance of which the applicant has sufficient legal interest. The applicant must show that he has demanded the performance of the duty and that performance of it has been refused by the author ity obliged to discharge it. It is therefore necessary for applicant to show that what he seeks is a duty which the CRTC is obliged to discharge. Nowhere in the Broadcasting Act, R.S.C. 1970, c. B-11 or in the Television Broadcasting Regulations, C.R.C. 1978, Vol. IV, c. 381, or in the Public Notice published on January 9, 1980, with respect to the federal election, all of which were produced by defendant is there any requirement that the CRTC is under an obligation to obtain from regu lar radio or television stations information to be conveyed to a member of the public, even one such as plaintiff herein who has sufficient legal interest. As he concedes in argument, the objective of his proceedings is to force the CRTC to exercise more control over radio and television stations in con nection with the allocation of free time for what might be described as "minor candidates". Another principle is that a mandamus will not be issued to order a body as to how to exercise its jurisdiction or discretion. See Judicial Review of Administrative Action, S. A. de Smith, 2nd ed., page 565 in which he states:
In one sense, every body entrusted with powers of decision is under a duty to apply the law correctly; but not all errors of law are redressible by mandamus.
As previously indicated Mr. Turmel's affidavit starts off with his complaint about the allocation of time in the federal election in February. He wrote a very strongly worded letter to CJOH on February 15 setting out his mathematical theories, demanding an apology because his party had not got 62 seconds of time. On the same date a reply was written to him by Bushnell Communications
Limited stating that they were well aware of the equitability requirements of the legislation and Regulations and pointing out that he had already been given an accurate, lengthy and adequate explanation of their position. On February 26 he wrote to Mr. Mahoney of the CRTC referring to this letter of February 15 and reiterating that equitable means "just and fair", and making some gratuitous comments about the spelling and math ematics of the writer of the Bushnell Communica tions Limited letter, and asking the CRTC to obtain in writing in graph form the algorithms determining the allocation of the time. On April 1, 1980, he again wrote Mr. Mahoney about obtain ing this from CJOH even suggesting that it should reply as he has "bets that depend on the outcome of this investigation". No reply was received in writing until just before the hearing of his applica tion when a letter dated November 14, 1980 from Mr. Mahoney refers to Mr. Turmel's letters of February 26 and April 1 to him, and February 15, 1980, to the CJOH Management. It states that it was unfortunate that a written response was not provided previously by the Commission but that it had been explained to him in telephone conversa tions on February 13 and 14, and in a face-to-face conversation when he delivered the copy of the CJOH-TV letter, that the Commission does not agree that "equitable" time necessarily means "equal" time. The letter concludes "The Elections Committee of the CRTC reviewed your complaint and the CJOH-TV response at that time and was of the view then, and confirms now that it finds no reason to conclude that you received an inequit able allocation of time in the broadcast in question."
With respect to the more recent Ottawa civic election, Mr. Turmel complains that on October 25, 1980, CJOH announced its intention to give "their favorites" 10 minutes each of live time to express their views and to give Mr. Alphonse Lapointe and himself only 1 minute, 45 seconds to express their views (and that on tape) on the basis that they were "minor probability candidates". He also complains that although he had announced his candidacy in early August it was only reported by CJOH on October 20, two and one-half months
later. He complains that two radio stations also treated him in the same way: Hal Anthony of CFRA gave Pat Nicol and Marion Dewar two hours of live time each, giving Turmel only two minutes and Lapointe none; Lowell Green of CKOY gave Pat Nicol and Marion Dewar his whole show and gave Lapointe and Turmel no time. He states that the affidavit is made in sup port of the application for the mandamus requir ing CRTC to obtain in graph and in writing the algorithms used by these stations for the allocation of the time available in an effort to determine if there is any legitimate basis to his complaint that he is not treated fairly.
It is unheard of to make a mandamus order to a public body requiring it to obtain information which it is not obliged by law to obtain to enable the person seeking the order to determine whether he has a legitimate complaint that he was not treated fairly by a third person, even if that third person is to a certain extent subject to the jurisdic tion and control of the body against which the mandamus is sought. Section 15 of the Broadcast ing Act gives the Commission power to regulate and supervise all aspects of the Canadian broad casting system with a view to implementing the broadcasting policy enunciated in section 3 of this Act, subject to the Radio Act, R.S.C. 1970, c. R-1 and any directions to the Commission from the Governor in Council under the authority of the Broadcasting Act. Section 3(d) of the Broadcast ing Act reads as follows:
3. It is hereby declared that
(d) the programming provided by the Canadian broadcasting system should be varied and comprehensive and should pro vide reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the pro gramming provided by each broadcaster should be of high standard, using predominantly Canadian creative and other resources;
Section 16(1) (b) gives the Commission authority to "make regulations applicable to all persons holding broadcasting licences, or to all persons holding broadcasting licences of one or more classes" and subparagraph (iii) reads as follows:
16. (1)(b)...
(iii) respecting the proportion of time that may be devoted to the broadcasting of programs, advertisements or announcements of a partisan political character and the assignment of such time on an equitable basis to political parties and candidates,
It is the Commission's interpretation of the words "equitable basis" which applicant complains of. Section 9 of the Television Broadcasting Regulations' reads as follows:
9. (1) Each station or network operator shall allocate time for the broadcasting of programs, advertisements or announce ments of a partisan political character on an equitable basis to all parties and rival candidates.
(2) Political programs, advertisements or announcements shall be broadcast by stations or network operators in accord ance with the directions of the Commission issued from time to time respecting
(a) the proportion of time which may be devoted to the broadcasting of programs, advertisements or announcements of a partisan political character; and
(b) the assignment of time to all political parties and rival candidates.
Similarly section 6 of the Radio (A.M.) Broad casting Regulations 2 reads as follows:
6. (I) Each station or network operator shall allocate time for the broadcasting of programs, advertisements or announce ments of a partisan political character on an equitable basis to all parties and rival candidates.
(2) Political programs, advertisements or announcements shall be broadcast by stations or network operators in accord ance with such directions as the Commission may issue from time to time.
Again it is noted that the word "equitable" is used. Certainly if it had been intended that all candi dates be given equal time the word would have been "equal".
In connection with the federal election public notice was given, as previously indicated, by the Commission which specified the time allocation to the various parties. It states:
In arriving at these figures, the Commission first allocated six (6) minutes to each of the registered parties. The remaining time was divided among those parties with members of the House of Commons. The division was based on three factors: the percentage of popular vote in the last election, the number of seats in the House at dissolution and the number of candi dates fielded in the last election. In this calculation each of the first two factors was given double weight and the third, single.
' C.R.C. 1978, Vol. IV, c. 381. 2 C.R.C. 1978, Vol. IV, c. 379.
The Commission however wishes to emphasize that while those factors were considered relevant under the present circum stances, the above allocation is for purposes of the current election and should not necessarily be taken as a precedent for future elections, where other factors and their relative impor tance may lead to a different distribution.
This appears to be a reasonable approach, in fact a generous approach with respect to certain parties which did not have the slightest chance of electing any members but nevertheless were allowed six minutes each. It is evident that it recognized the principle however that "equitable" time does not mean "equal" time.
It is also evident that similar regulations could not be applicable to a municipal election where the candidates do not (officially in any event), repre sent parties but run as individuals, and many of them have never run before, and where there may be ten or more candidates in a given ward for alderman, or running for mayoralty. While there is no doubt that candidates who have little or no chance of success inevitably suffer prejudice by not being given equal time, some common sense distri bution of the time available has to be made, if for no other reason, in the interest of the listening public which would not tolerate, in a twenty minute broadcast for example, the allocation of only two minutes to each of the two leading candi dates, with a similar amount of time being allotted to perhaps eight other candidates with no hope of winning, and who may have ulterior personal motives for running. In stating this I wish to make it clear that I am not making any criticism of Mr. Turmel who has been a candidate in many elec tions, but merely generalizing why equal time cannot be allocated to each and every candidate. The danger in this is of course that it sets up the individual radio or television station as the arbiter and judge of which candidates are serious and worth hearing, which is undoubtedly not demo cratic. Mr. Turmel seems to feel that this author ity should be exercised by the CRTC, and that it should direct the individual stations how the time should be allocated. As stated it did so for the federal election and could probably do the same for a provincial election but it is difficult to see how this authority could be exercised in a munic ipal election. In any event it is not the function of the Court to reconsider or criticize the merits of
the decisions of the CRTC, and no mandamus should be issued against it provided it exercises the authority delegated to it by Parliament in accord ance with the Act and Regulations. That it has done so is apparent from the fact that it has reviewed Mr. Turmel's complaint and the CJOH- TV response to it (in connection with the federal election) and has confirmed that it finds no reason to conclude that he received an inequitable alloca tion of time. Whether it has done the same in connection with the civic election is not apparent from the material on the record, but in any event, this is not what the application for mandamus seeks, since the application merely requires the Commission to obtain certain information from stations subject to supervision for such use as plaintiff may wish to make of it.
The application for mandamus is clearly inad missible and must be dismissed, but defendant has not insisted on costs in connection with such dismissal.
ORDER
Plaintiff's application for mandamus against defendant is dismissed without costs.
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