Court File No: 09-A-19

FEDERAL COURT OF APPEAL

BETWEEN:

John C. Turmel
Applicant

and
Canadian Radio-Television and
Telecommunications Commission
Respondent



APPLICANT REPLY TO C.R.T.C. MEMORANDUM OF FACT AND LAW

OVERVIEW:

0. The issues raised in this appeal are:

1) whether the licensee controls display of candidates'
promotional materials;
2) whether a candidate can be punished by the loss of time after
the moderator's command has been obeyed;
3) whether the Commission is derelict in its duty to regulate and
supervise air-time distribution beforehand;
4) whether the Ontario Court of Appeal decision in R. v. C.B.C.
that debates are not programs of partisan political character is
contradictory;
5) whether omitting the "all" for the Commission's policy
statements from the statute's "all rival parties and candidates"
is derelict;
6) whether the Ontario Court of Appeal's contradictory ruling
should be accepted as final, or
7) whether accepting the court ruling which corrupts the
democratic process by allowing the exclusion of candidates from
debates when they can issue new regulations that work is a
dereliction of the duty to regulate and supervise that election
debates be democratic.

PART I - FACTS

1. The Commission states:
CRTC: "2... The applicant was a candidate in the 2007 Ontario
provincial election. On 18 September 2007, he participated in a
debate program hosted by Rogers on its community channel, Rogers
TV, for six candidates of the riding of Brant. At some point
during or shortly after the applicant made his opening statement,
he was removed from the set and did not participate further in
the debate."

2. There is no "or shortly after." Both Applicant and Respondent
have and could produce the videotape of the event showing it was
"during" the opening statement and after Applicant had obeyed the
moderator's command to remove the party affiliation badge that
the moderator Tim Philp then ordered Brantford police to remove
the Applicant. The Respondent has offered no evidence to support
the suggestion that the candidate was ordered removed after his
opening statement. So, to be clear, the timeline is:
1) Abolitionist candidate dons LETS Local Employment-Trading
System badge;
2) Moderator Tim Philp interrupts to command badge be removed;
3) Candidate obeys controller of the microphone to remove badge;
4) Moderator orders police to remove candidate anyway.

3. CRTC: "3. On 24 Sep 2007, the applicant filed a complaint with
the Commission alleging that his removal from the debate amounted
to denying him an equitable share of a free-time partisan
political broadcast as he asserted was required by the
Commission's regulations and requesting that the Commission take
action."
"4. Rogers responded to the applicant's complaint on 27 Sep 2007
and explained its reasons for why the applicant was removed from
the debate program. Rogers alleged that the applicant had taken
issue with a request to remove a badge he was wearing in
violation of rules set by Rogers for the debate regarding the
display of candidates' promotional material on the production
set."

4. The Commission does crystallize the Issue #1 herein as whether
debate organizers on our public airwaves may control the display
of "candidates' promotional material." Applicant has detailed how
all my promotional materials were used in previous elections to
help me explain my programs and that it was in order to impair
only my presentation that moderator Tim Philp banned all
candidates' promotional materials since the Commission has given
him the power to make up any rules he wishes candidates obey in
order to receive their fair share of the air-time pie.

5. CRTC: "Subsequently, according to Rogers, the applicant
interrupted a fellow candidate, at which point the moderator had
the applicant removed from the set."

6. This doesn't fit into the timeline of 1) applicant illegally
donning his party affiliation badge, 2) moderator demanding it be
removed, 3) Applicant obeying the omni-potent controller of the
microphone and removing the illegal party identification, 4)
debate fuhrer ordering police to remove candidate anyway. An
"interruption of another candidate" just does not fit in. It only
fits if the moderator must have ruled that I had to be punished
for my transgression against his etched-in-stone rules by losing
the rest of the opening statement, thus making my continuation of
my opening statement an interruption of the next candidate in his
opinion. Of course, Fuhrer Philp does not say he is punishing me
by denying me the remainder of my opening statement. Applicant
will argue that moderator does not have the authority to deny
candidate equitable time in punishment for violation of the rules
dictated by them media debate organizers. (Issue #2)

7. CRTC: "5. On 1 Oct 2007, the applicant wrote again to the
Commission requesting it compel Rogers to give the applicant an
equitable share of time before election day."

8. The CRTC has both a regulatory responsibility to enact and
supervisory responsibility to ensure a democratic election
influence by the greatest influence of all, electronic media.
Having no process to prevent undemocratic distributions shows the
Commission's failure to regulate and supervise that the time pie
be shared fairly. If one can figure out the distribution of a
cherry pie is unfair before the pie is eaten, the Commission is
derelict in being unable to judge that the distribution of the
time-pie is inequitable before it is allocated on an inequitable
basis to not all rival candidates. (Issue #3)

9. CRTC: "7... On 8 Apr 2009, the Commission issued Broadcasting
Decision CRTC 2009-184 (the "Decision") dismissing the
applicant's complaint. Broadcasting Decision CRTC 2009-184
http://www.crtc.gc.ca/eng/archive/2009/2009-184.htm
"8. In the Decision, the Commission noted that it considered the
applicant's request that the Commission compel Rogers to provide
him with an equitable share of the time in the election debate
program was now moot given that the election had already taken
place."

10. This is only because of the Commission's failure to regulate
and supervise that the media's allocation of the time pie before
the event.

11. CRTC: "10. The Commission noted that in Public Notice 1995-
44, it stated that, pursuant to the Ontario Court of Appeal's
decision in R. v. Canadian Broadcasting Corporation (1993), the
Commission's regulations regarding the equitable allocation of
time did not apply to election debate programs because they are
not programs of a "partisan political character."

12. The Ontario Court of Appeal has ruled that debates do not
have to be shared equitably like other broadcasts of partisan
political character because debates are not programs of partisan
political character. This contradiction rationalizing the
exclusion of some candidates from Canada's democratic process is
certainly being challenged herein. (Issue #4)

13. CRTC: "The Commission further noted that it had reiterated
this statement in Broadcasting Circular 2007-5 issued in
connection with the 2007 Ontario provincial election."

14. In fulfilling their responsibility to ensure a democratic use
of the national airwaves, the Respondent made sure to alert the
media that the Ontario Court of Appeal has okayed excluding any
candidate they want without reason if they merely called it a
debate.

15. CRTC: "11. The Commission considered that, in light of its
determinations in Public Notice 1995-44, it was within Rogers'
editorial discretion to exclude participants from an election
debate program..."

16. Yes, Rogers did call it a debate and the Commission considers
it is within Rogers editorial discretion to exclude any candidate
they want from a democratic debate program. So not only is the
issue raised of whether the licensee has absolute control not
only over candidates' promotional materials but over candidates'
participation too.

17. CRTC: "who were not complying with the rules and format
Rogers had set for the program."

18. Of course, if Rogers may exclude any candidate at their total
editorial discretion because they call it a debate, it's a bonus
to hide such absolute control over participation if they can also
make up rules offensive enough to prompt some candidates to
rebel, especially those whom the changes in format are intended
to disfavor. Of course, since the Commission has omitted to
mention that Applicant had obeyed the fuhrer's order before being
ejected, the Commission must therefore fail to see that the issue
herein is not breaking Big Brother's Rules, it's about being
punished after obeying; and about how much a candidate can be
punished by loss of air-time after he has already obeyed.

19. CRTC: "12. As a result of these considerations, the
Commission determined that Rogers did not breach subsection 27(4)
of the Broadcasting Regulations and accordingly dismissed the
Applicant's complaint."

20. "Paragraph 10(1)(e) of the Broadcasting Act empowers the
Commission to make regulations "respecting the proportion of time
that may be devoted to the broadcasting of programs, including
advertisement or announcements, of a partisan political character
and the assignment of that time on an equitable basis to
political parties and candidates.

21. And once the Court of Appeal had ruled that the present
regulations did not ensure that the time devoted to the
broadcasting of programs of a partisan political character was
share on an equitable basis by political parties and candidates,
the Commission is correct in mentioning that the Broadcasting Act
empowers it to make better regulations to effect the intent that
the time devoted to the broadcasting of programs of a partisan
political character was share on an equitable basis by all
political parties and candidates, Of course, it doesn't help that
in the 1980s and 1990s, the legislation said: "all rival parties
and candidates." Applicant doubts that Parliament dropped the
word "all" and suggests that the Commission chose to omit it in
their policy statements. Of course, if Parliament has dropped the
"all" from "all parties and candidates," then that explains why
the O.C.A. would rule that the media can now exclude any
candidate they want from debates since they don't have to have
them on at all. But Applicant alleges that it is an omission of
the word by the Commission and not a deletion by Parliament. If
Parliament did remove the "all," I am asking this Court to order
them to put it back in. (Issue #5)

22. CRTC: "14. Under this provision, the Commission has enacted
several regulations requiring that, during an election period,
broadcasters allocate time for broadcasting programs,
advertisements or announcements or a "partisan political
character" on an equitable basis to accredited political parties
and rival candidates in the election."
"15. On 2 Sep 1998, the Commission issued A Policy with Respect
to Election Campaign Broadcasting, Public Notice CRTC 1988-142.
The Public Notice set out the Commission's position regarding
various aspects of election period broadcasting. With respect to
debate programs held during an election, the Commission noted
that it may be impractical to include all rival parties and
candidates in one program. However, the Commission stated that if
this type of broadcast takes place, all parties and candidates
should be accommodated, even if doing so requires that more than
one program be broadcast.

23. I will accept this Commission statement as the rationale for
why I asked that I be accommodated after the event in obtaining
an equitable share of the broadcast pie even if doing so required
that more than one program be broadcast or appended.

24. CRTC: "16. On 15 Mar 1995, the Commission issued Public
Notice CRTC 1995-44 which revised its policy set out in Public
Notice CRTC 1988-142 with respect to election debate programs.
The Commission noted that the Ontario Court of Appeal had ruled
in R. v. C.B.C. that debates were not covered by the Commission's
regulations regarding the equitable allocation of time during
election periods."

25. The Commission to ensure democratic election broadcasting is
peddling this judicial rationalization for why election
broadcasts do not have to be shared equitably among all rival
political candidates anymore. Yet it has the duty to come up with
regulations that work and to supervise that democracy works, not
accept a court ruling rationalizing candidate exclusion as still
being democratic. The CRTC is not limited by the court's
contradictory decision on its first bad efforts to ensure
democracy and can always try to make better policy a second time.
That's why I am challenging not only the O.C.A. ruling that
debates featuring partisan political opinions are not partisan
political programming (Issue #6) but also that the CRTC is not
limited by it and can enact new regulations trying to be more
effective at ensuring democracy again. After all, sharing a pie
isn't such a complicated deal. (Issue #7)

26. CRTC: "In light of this decision, the Commission stated that
it would no longer require that debate programs feature all rival
parties and candidates in one or more program."

27. Instead of issuing new regulations so that debate programs
feature all rival candidates, the Commission makes it official by
accepting the court ruling that excluding candidates from debates
is still democratic, a complete dereliction of the duty to
regulate the democratic integrity of our election broadcasting.

28. CRTC: "21. The applicant has failed to point to an error in
law or jurisdiction made by the Commission in the decision. The
applicant's argument - that Rogers did not have sufficient
justification to remove him from the election debate program - is
premised on the notion that he was entitled to an equitable share
in the debate program pursuant to ss.27(4). However, in the
Decision, the Commission reiterated that subsection 27(4) does
not apply to debate programs because they are not programs of a
"partisan political character." The Commission notes that the
application does not seek to contest this conclusion.

29: Applicant notes that there is now no choice but to.

30. CRTC: "As such, the applicant's argument about the
sufficiency of Rogers' reasons for ejecting him from the debate
and does not point to an error of law or jurisdiction by the
Commission."

31. After I had obeyed, Rogers did not have valid reasons for
ejecting me from the debate.
I challenge this because the CRTC has stated I must obey any
rules the ruler makes up and I say the organizers' control does
not extend to candidates promotional materials.

32. CRTC: "22. Furthermore, in determining that ss.27(4) does not
apply to election debate programs, the Commission was merely
following existing judicial precedent as well as its own public
notices."

33. The Commission is not bound to follow the existing judicial
precedent denying all candidates and equitable share of the
debate time when it has the power to re-regulate new rules so the
media share out the time pie democratically.

34. CRTC: "23. In R. v. CBC, the Ontario Court of Appeal
established clearly that election debates do not constitute
programs of "partisan political character" within the meaning of
the Commission's regulations since they present all different
political viewpoints.

35. Applicant could agree had the Court said "since they present
all different political viewpoints." Of course, debates with
partisan political opinions from all candidates do not exert
unfair partisan political influence but debates with only some
candidates do exert unfair influence and cannot be said to not be
of partisan political character.

36. CRTC: "The Court stated that "while the statements by each of
the participants are undoubtedly partisan, the program itself is
clearly not."

37. This is only true when all different political viewpoints are
presented. Sadly, this seems typical of judicial thinking: since
debate programs with all candidates aren't unfair, shows without
all candidates aren't unfair either.

38. CRTC: "24. As a result of the Ontario Court of Appeal's
decision, the Commission issued Public Notice 1995-44 which
stated it would no longer require that debate programs feature
all rival parties and candidates in one or more programs."

39: Rather than issue new regulations so debate programs feature
all rival parties and candidates in one or more programs, the
Commission remains derelict in accepting that debate programs no
longer feature all rival parties and candidates in one or more
programs. The Commission accepting undemocratic exclusions
because of a contradictory court ruling when it has the power to
re-regulate a fair debate is a dereliction of the Commission's
duty to regulate and ensure democratic allocation of broadcast
time. Sure, the Courts may have ordered that elections debates be
unfair, but it's still the Commission's duty to get around such
flawed decisions to ensure the election debates be fair.

40. The Commission has the responsibility to ensure democratic
fairness and to say it cannot because the courts have ordered
that debates be unfair is silly when they can write new policy
get around the court's corruption of the democratic integrity of
the Canadian election process. They have the power to compel the
media to be fair and that they rely on an irrational court
judgment to thwart their own mission says it all, the ultimate
dereliction of duty.

41. On all grounds, Applicant seeks leave to appeal the decision
of the Commission ruling that the equitableness subsection 27(4)
does not apply to debate programs because they are not programs
of a "partisan political character."

Dated at Brantford on Monday June 15, 2009




__________________________
John C. Turmel, B.Eng.,
8-37 Colborne St. E.,
Brantford, N3T 2G3,
Tel/Fax: 519-753-0645,
Email: johnturmel@...

To: Regan Morris, Legal Counsel
Canadian Radio-Television and Telecommunications Commission
Central Building, Les Terrasses de la Chaudiere
1 Promenade du Portage Gatineau Quebec J8X 4B1
Tel/fax: 819-953-5204/0589
55 St. Clair St. W. #624, Toronto