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Completing the Cycle of Electoral Reforms – Recommendations from the Chief Electoral Officer of Canada on the 38th General Election

Chapter 3 – Broadcasting

3.1 A Simpler, Fairer Entitlement to Broadcasting Rights

The rules for apportioning paid and free-time political broadcasting should be made simpler and fairer, and allow the electorate adequate access to the views of existing and emerging parties, through the following measures:

  • All registered parties should have the right to purchase up to 100 minutes of paid time from each broadcaster at the lowest unit rate.
  • Each broadcaster should have a maximum cap of 300 minutes. Where requests of all parties amount to more than 300 minutes for one station, their requests for time at that station should be pro-rated.
  • All registered parties should then have the right to purchase additional paid time from each broadcaster at the lowest unit rate, subject to availability.
  • Party ability to purchase paid time would be subject to their election expenses limits.
  • Each broadcaster (as opposed to network) that accepts advertising should be required to apportion 60 minutes of free time in prime time49 equally among registered parties.

The existing legislative system that regulates the apportioning of free and paid broadcasting time is overly complex and must be reformed.

Furthermore, the viability of the existing free-time system has been significantly undermined by the fact that there is now only one English-language television network, the CBC, required to provide free political broadcasting time. The loss of network status by CTV in 2004 had the effect of halving the free-time English-language television broadcasting available to parties in the 38th general election.

Finally, the current process of apportionment is strongly driven by past electoral success and raises concerns about potential infringement of the principles laid down by the Supreme Court of Canada in its decision in Figueroa v. Canada (Attorney General).

The Current Legislative Scheme

There is no legal limitation on the amount of prime-time broadcasting that a registered or eligible party may purchase under the existing provisions of the Canada Elections Act, except that such purchases must fall within the general spending limits imposed by the Act. However, in recognition of the limited amount of prime-time broadcasting actually available for purchase, the Act sets out a scheme whereby a basic amount of prime-time broadcasting (390 minutes) must be made available for purchase by registered parties. That available prime time is apportioned among the various registered parties according to a specific formula set out in the Act. Parties are free to purchase more prime time above this guaranteed amount, provided that broadcasters are willing to sell it.

Eligible parties may also request that paid broadcasting time be allocated to them. The Act requires that either six minutes or the lowest amount of time allocated to a registered party be allocated to each eligible party. At no time may this additional allocation to eligible parties exceed 39 minutes.

The Broadcasting Arbitrator is required to hold annual meetings to review the allocation. If, at the time of one of these meetings, the total time allocated to registered and eligible parties is more than 390 minutes, he or she is required to reduce the total allocated time to 390 minutes.

The statutorily mandated apportionment to registered parties of prime time available for purchase is based on factors that give equal weight to the percentage of seats in the House of Commons and the percentage of the popular vote obtained by each of the registered parties in the previous general election, and half weight to the number of candidates endorsed by each of the registered parties as a proportion of all candidates endorsed. The Broadcasting Arbitrator may modify this apportionment if he or she deems that an allocation made in accordance with that calculation would be unfair to a registered party or contrary to the public interest.

The Act also provides for arbitration by the Broadcasting Arbitrator of disputes over this purchase of actual time.

It should be noted that the allocation of paid broadcasting time does not necessarily result in the actual use of the resources available. For example, in the 1995 decision of the Alberta Court of Appeal in Reform Party of Canada v. Canada (Attorney General),50 the Court noted that, at that time, while the full allotment of time was purchased on a limited number of radio stations, no political party had purchased all of its allotment of broadcasting time on any television station. In fact, the Broadcasting Arbitrator has observed that, in the past few elections, smaller parties have rarely used any of the paid time apportioned to them because they are unable to afford it. Even the larger parties rarely, if ever, use their full allocation on any station, and all of them purchase time only on a select number of networks or stations.

To ensure that broadcasting is not totally dependent on financial resources, the Act also requires the provision by certain networks of an amount of free broadcasting time no less than the amount of free broadcasting time made available at the last general election. This pool of free time is apportioned among the parties as follows:

The apportionment of paid and free broadcasting time to eligible parties is carried out only to address situations where an eligible party achieves registered party status during a general election. An eligible party that does not achieve registered status loses its eligible status and with it the accompanying broadcasting time otherwise apportioned to it.

This system, despite its laudable goals, is neither effective nor efficient, and has given rise to a number of concerns. The current statutory apportionment of paid time favours existing, more successful parties by unduly fettering the ability of emerging parties to purchase enough time to make a meaningful case to the Canadian public. In an attempt to offset the adverse discriminatory effects of the existing formula, the Broadcasting Arbitrator, since 1992, has exercised his discretionary authority under the Act to modify the statutory apportionment formula, by apportioning one third of the base time equally among all registered parties.

Despite this continual adjustment, the statutory formula for the apportionment of paid time (and the consequent apportionment of free time) still results in registered parties that enjoy broader support receiving more time than less popular registered parties do. For example, in the 38th general election, free time on a network required to provide such free time resulted in the Liberal Party of Canada being apportioned a total of 65 minutes of free time and the Conservative Party of Canada 47 minutes, while the Progressive Canadian Party and the Libertarian Party were apportioned only 3 minutes each.51 Similarly, the Liberal Party of Canada was apportioned 122 minutes and 30 seconds of paid time and the Conservative Party of Canada 88 minutes and 30 seconds, as compared to 6 minutes each for the Progressive Canadian Party and the Libertarian party.

Furthermore, the current reliance of the free-time system on the paid-time system introduces a substantial degree of artificiality into the system because parties are required to participate in the apportionment of paid time (which they might never use) to secure their allocation of free time.

The current requirement that free time need only be provided by "networks" also makes that system dependent upon an organizational arrangement of diminishing national importance.52 As noted above, the only English-language broadcasters still required to provide free broadcasting time are CBC Television and CBC Radio One.

Under the current free-time system, networks are entitled to provide the required free time at whatever time the network feels is appropriate, and to package time in broadcasts of specific lengths, as they see fit. The Broadcasting Arbitrator has noted that free time is usually given out in 5- or 10-minute blocks and that it is typically packaged with other free-time blocks.

Finally, although the Act purports to give political parties the benefit of the lowest applicable rates for paid time, the Broadcasting Arbitrator believes that the provision is poorly worded and does not achieve this purpose. The Arbitrator is of the view that the provision does not give candidates and parties access to the same rates that are given the station's most favoured commercial advertisers, and that it allows stations to charge much higher rates for political broadcasts.53

Ideally, an efficient legislated system would:

The political broadcasting system should be recast so that it is simpler, reflects more closely the principles enunciated by the Supreme Court of Canada in Figueroa, and allows the electorate adequate access to the views of existing and emerging parties. The following recommendation is closely patterned on that recommended earlier in the 2001 report Modernizing the Electoral Process:

Such an approach would give all registered parties significantly more free time than they receive now.

This is a substantially simpler scheme than the current paid-time/free-time apportionment process, and would not require annual apportionment. It will increase public access to new messages from newer or smaller parties as well as more familiar messages from established parties, and may help to revitalize public interest in the electoral process.

There should be no real cost to the public purse or to individual broadcasters, insofar as this approach would not take away time that broadcasters could sell to someone else. Such political broadcast time does not count toward the 12-minute commercial restrictions imposed on television broadcasters (there do not appear to be any commercial timing restrictions on radio). Nor would it result in a loss of sales revenues from party purchases of paid time. Parties already purchasing time would likely continue to do so, in addition to free time.

Disputes would continue to be resolved by the Broadcasting Arbitrator.

49 "Prime time" is defined in the Act: for television, "prime time" is between 6 p.m. and midnight; for radio, "prime time" is between 6 a.m. and 9 a.m., between noon and 2 p.m. and between 4 p.m. and 7 p.m.

50 (1995), 123 D.L.R. (4th) 366 (Alta. C.A.).

51 See the Report of the Chief Electoral Officer of Canada on the 38th General Election Held on June 28, 2004, pp. 73–75.

52 The Broadcasting Arbitrator noted, in both 1997 and 1993, that the term "network" is no longer a sufficient ground for distinguishing between obligations of stations and station groups (Report of the Chief Electoral Officer of Canada, 1993 and 1997).

53 No provinces or territories have regulations on the provision of broadcasting time during an election (although Quebec and New Brunswick allow broadcasters to provide voluntary time), and only four provinces regulate the rates charged for broadcasting. For instance, Newfoundland and Labrador regulates the rates charged for broadcasting by requiring that broadcasters and publishers offer political parties and candidates the lowest rate offered to another party within the election broadcasting period, as well as outside the election broadcasting period [E.A., s. 226.2(2)].

The Royal Commission on Electoral Reform and Party Financing recommended that broadcasters be required to provide time to registered parties at half the rate they offered to other advertisers in the same period (rec. 1.6.18).