Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000

APPENDIX: THE BROADCASTING ARBITRATOR'S REPORT

Introduction

Advertisements developed by political parties and carried on television have become the most important publicity vehicle of election campaigns. They are also thought to be the most effective means of attracting the attention of electors and of getting messages across to them. These features give broadcasting its singular importance in the Canada Elections Act and in electoral practice.

The role of the Broadcasting Arbitrator is set out in sections 332–348 of the Canada Elections Act, S.C. 2000, c. 9, which came into force on September 1, 2000. The new Act carried forward almost all of the provisions on the allocation of broadcasting time that were in the previous legislation.

Under section 335 of the Act, every broadcaster in Canada is required to make available for purchase by registered political parties six and one-half hours (390 minutes) of airtime during each federal election. The allocation of time among the parties is to be made by agreement among them, or failing such agreement, by the decision of the Broadcasting Arbitrator.

Allocation decisions in 1998 and 1999

In accordance with what was then section 308 of the Canada Elections Act (now section 336 of the new Act), the Broadcasting Arbitrator, Mr. Peter S. Grant, convened a meeting of all registered parties on October 9, 1998, and issued a binding allocation of paid time to those parties on November 12, 1998.

Section 343 of the Act requires the Arbitrator to convene and chair a meeting of the parties in each calendar year to review the previous allocation and entitlement orders. The 1999 meeting was held on September 10, 1999, and reconvened on December 3, 1999. The Arbitrator rendered his decision on December 22, 1999.

No allocation meeting was held in 2000, and the 1999 allocation decision, therefore, governed the 37th general election held on November 27, 2000. The allocation of paid time used for the 2000 general election is set out in Table 1.

 

The Broadcasting Arbitrator has rendered arbitration decisions on the allocation of paid time for three federal general elections, in 1993, 1997 and 2000. The formula used for the allocation of paid time is based largely on the application of statutory factors set out in section 338 of the Act. Those factors 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 so endorsed.

Before 1992, the decisions of broadcasting arbitrators did not vary significantly from the statutory factors. However, in making his first allocation decision of December 31, 1992, Mr. Grant concluded that the pure application of the statutory factors was neither in the public interest, nor was it fair to all the registered parties. In his 1992 decision, he noted that Mr. Justice Moshansky had commented in Reform Party of Canada v. Attorney General of Canada that "the allocation formula has a discriminatory effect which tends, in my opinion, to favour the existing parties at the expense of new or emerging parties." The Arbitrator concluded that the statutory factors as applied to allocation unduly fettered the ability of emerging parties to purchase enough time to make a meaningful case to the Canadian public.

Consequently, two thirds of the time was allocated using the statutory factors. Using the discretion allowed under the Act, the Arbitrator allocated the remaining one third equally among all the registered parties. This hybrid approach significantly increased the time allotted to the smaller parties, but continued to give predominant weight to the statutory factors. While this was by no means a perfect solution, in the absence of other workable approaches, and given the problems with the alternatives considered (discussed at some length in his 1992 decision), the Arbitrator considered it the best approach to take at that time. Since 1992, he has adopted a similar approach for each allocation of paid time, and the allocation for the 2000 federal general election continued this approach.

Of crucial significance in examining the question of allocation is the impact of the decision of the Alberta Court of Appeal in Reform Party of Canada et al. v. Attorney General of Canada, which was released on March 10, 1995. That judgment, which was not appealed by either side, dealt with a constitutional challenge brought by the Reform Party of Canada to the election broadcasting provisions of the Act.

The result of this decision was to maintain the allocation system set forth in the legislation, which entitled political parties to purchase time at the lowest equivalent rate, even if such time pre-empted other advertising. However, the decision struck down provisions that effectively transformed the entitlement into a cap, preventing a party from purchasing more than its allocated time on any station.

The 1997 and 2000 general elections were thus the first in which parties were free to purchase more time than allocated to them under the Act, provided stations were willing to sell them such time. Although data on this matter were not collected, the Arbitrator was informed by a number of stations that they were prepared to sell time over and above the allocation.

As noted above, the general approach to allocation has not changed since 1992, and in the view of the Broadcasting Arbitrator, the decision of the Alberta Court of Appeal strengthens the rationale for giving special attention to the smaller parties. One reason for this is that the smaller parties are much more dependent on free time, and this continues to be determined by their paid time allocation under the Act. The second reason is that any reduction to the paid time allocation for the larger parties is not as problematic for them, since their allocation no longer operates as an upper limit on their purchase of time. The only effective limit is now determined by the general limits on election expenses under the Act.

As noted above, one of the considerations in allocating paid time is the fact that this determines the allocation of free time required to be given by certain radio and television networks, applying the principles set out in section 345 of the Act. That section provides that each network that granted free time in the previous election is required to continue to offer the same total amount of time, with that time essentially shared pro rata among the parties on the basis of the allocation of paid time.

The periods of free time that each of the networks were required to allocate to the parties, in the 2000 federal general election, are shown in Table 2.

 

The 2000 general election

The Broadcasting Arbitrator published his guidelines under section 346 of the Act on October 22, 2000. These, along with guidelines from the Canadian Radio-television and Telecommunications Commission (CRTC), were sent immediately to all broadcasters and political parties.

The guidelines took into account the changes to the Canada Elections Act made by Bill C-2 and previous amendments, which had shortened the election campaign from 47 days to 36 days and tightened many of the deadlines for placing orders for broadcasting time. The new Act continued these provisions, but eliminated the blackout on party advertising that had previously applied at the beginning of the campaign and the day before election day.

For the 2000 general election, all parties receiving an allocation of paid time had to notify the stations and networks, by November 3, 2000, of the amount of time they wished to purchase within the 390-minute allocation. The networks and stations then had two days to respond. This obligation was subject to a rule that no party could obtain broadcasting time before the fifth day after the notice was received by the broadcaster.

The Broadcasting Arbitrator's guidelines addressed these and other matters, including guidelines for booking advertisements, the requirement to identify the sponsor of political advertising, regulations affecting the content of political messages, the period within which such advertisements could be aired, the requirement that the lowest applicable rates be charged to political parties by broadcasters, the new rules on opinion polls and third party advertising, and the rule prohibiting the release of election results before the local polls had closed.

Throughout the election, the Broadcasting Arbitrator fielded numerous calls from broadcasters and parties seeking guidance on the interpretation of the Act and the application of the guidelines. All complaints and disputes were resolved without the need to issue a binding arbitration order on the placement of time.

 

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