File Number: #33319
Appeal Court No: 09-A-19

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF CANADA)
BETWEEN:
John C. Turmel
Applicant
Appellant in appeal
and
Canadian Radio-Television and
Telecommunications Commission
Respondent
Respondent in appeal

MEMORANDUM OF ARGUMENT OF THE CANADIAN
RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

CR: PART I - STATEMENT OF FACTS

1. The Applicant, John Turmel, has sought leave to appeal the
order of the Federal Court of Appeal, 09-A-19, dated 22 July 2009
dismissing the applicant's leave to appeal Broadcasting Decision
CRTC 2009-184 dated 8 April 2009 ("CRTC Decision"). The CRTC
Decision had dismissed the applicant's complaint relating to an
election debate program hosted by Rogers Cable Communications
Inc. ("Rogers") during the 2007 Ontario provincial election.

A History of the Applicant's Complaint

2. Applicant was a candidate in the 2007 Ontario general
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.
Exhibits E, G. H of Applicant's affidavit dated Oct 4 2007.
Turmel v. CRTC 2008 FCA 405 at paras.3-4

JCT: It was during my opening statement. I've already corrected
this. Raising the other false possibility once again is lawying.

3. On 24 Sep 2007, the applicant filed a complaint with the
Commission alleging 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.
Exhibits E of Applicant's affidavit dated Oct 4 2007.
Turmel v. CRTC 2008 FCA 405 at para.5

4. On 4 October 2007, the applicant brought an application for
judicial review against the Commission. The applicant's request
for interlocutory relief was dismissed by Decary J.A. on 5 Nov
2007. The application for judicial review was dismissed by the
Federal Court of Appeal on 17 Dec 2008 on the grounds that the
Commission had not rendered a decision in relation to the
applicant's complaint which could be the subject of a judicial
review or against which relief could be sought.

5. On 26 Jan 2009, the applicant requested that the Commission
render a decision with respect to his complaint. On 8 April 2009,
the Commission issued the CRTC Decision dismissing the
Applicant's complaint.

B. Broadcasting Decision CRTC 2009-184

6. In the CRTC Decision, the Commission noted that it considered
the applicant's request that the Commission compel Rogers to
provide him with an equitable share in the election debate
program was now moot given that the election had already taken
place.

7. The Commission considered that the remaining issue raised by
the Applicant's complaint was whether Rogers had breached the
Commission's regulations regarding the equitable allocation of
time for programs of a partisan political character during an
election period. The Commission noted that the provision that
applied to Rogers in this case was subsection 27(4) of the
Broadcasting Regulations.

8. The Commission noted that in Public Notice 1995-44 it stated
that, pursuant to the Ontario Court of Appeal's decision in R. v.
CBC, the Commission's regulations regarding the equitable
allocation of time did not apply to election debate programs
because they are not considered of a "partisan political
character."

JCT: The big R. v. CBC loser by Green Greg Vezina. Sounds so
stupid doesn't it. Debates don't have any partisan political
influence like ads do. Or 1-person interview. Debates not having
partisan political character is the big issue.

The Commissioner further noted that it had reiterated this
statement in Broadcasting Circular 2007-5 issued in connection
with the 2007 Ontario provincial election.

JCT: Reminding the media the Vezina decision lets them exclude
anyone they wish if they call it a debate.

9. 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 who were not complying with the rules and format Rogers
had set for the program.

JCT: That it was within Rogers' editorial discretion to exclude
participants from an election debate program is the problem.
Notice how they throw in the superfluous qualifier "of those who
violate the rules" and when I argue they were bad rules I didn't
have to obey, they then refer to the Vezina decision giving them
the right to exclude me anyway.

10. As a result of these considerations, the Commission
determined that Rogers did not breach subsection 27(4) of the
Broadcasting Distribution Regulations and accordingly dismissed
the applicant's complaint.

11. The applicant applied for leave to appeal the CRTC decision
to the Federal Court of Appeal pursuant to subsection 31(2) of
the Broadcasting Act, which provides that an appeal lies from a
decision of the Commission on a question of law or jurisdiction
with leave of the Court.

12. Leave to appeal the Decision was denied by the Federal Court
of Appeal on 22 July 2009 (Nadon, Evans, and Pelletier JJ.A.) No
reasons were given.

13. The applicant is now applying to this Court for leave to
appeal the Federal Court of Appeal's order pursuant to section 40
of the Supreme Court Act.

C. Regulatory framework

14. 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
advertisements or announcements, of a partisan political
character and the assignment of such time on an equitable basis
to political parties and candidates."

JCT: And if the regulations they have promulgated result in
candidates being excluded from debates, they need new ones.

15. Under this provision, the Commission has enacted several
regulations requiring that, during an election period,
broadcasters allocate time for broadcasting programs,
advertisements or announcements of a "partisan political
character" on an equitable basis to accredited political parties
and rival candidates in the election.

JCT: So broadcasts that have partisan political influence must be
shared equitably. That's what "partisan political character"
means, that it helps capture the vote. If the effect is helping
you get votes, it's of partisan political character.

16. On 15 March 1995, the Commission issued Public Notice CRTC
1995-44 which revised its policy set out in Public Notice CRTC
1988-142 entitled "A Policy with respect to Election Campaign
Broadcasting." The Commission noted that the Ontario Court of
Appeal had ruled in R. v. CBC that debates were not programs of a
partisan political character, and therefore, were not covered by
the Commission's regulations regarding the equitable allocation
of time during election periods. In light of this decision, the
Commission stated that it would no longer require that debate
programs feature all rival parties or candidates in one or more
programs.

JCT: That's the big issue, that the Commission no longer requires
that debate programs feature all rival parties or candidates.

PART II - QUESTION IN ISSUE

17. The Commission's submissions will address the following
issue:
(1) Whether this application raises any issues of public
importance that warrant granting leave to appeal.

JCT: That the Commission no longer requires that debate
programs feature all rival parties or candidates is a profound
change of national import.

PART III - ARGUMENT

18. The Commission submits that the applicant has not raised any
issues of public importance that merit a decision from this
Court.

JCT: That the Commission no longer requires that debate programs
feature all rival parties or candidates is a change not of
national import? (They repeated it wasn't important 3 times, I
can repeat how important it really is 3 times too).

19. While there is no doubt that this Court has the jurisdiction
to hear appeals from decisions of the Federal Court of Appeal
denying leave to appeal, this jurisdiction is to be exercised
sparingly.

JCT: Why do they always point out that the remedies I seem are
rarely granted? Is that a reason not to? Because it's rare?

20. The applicant argues that Rogers did not have sufficient
justification to remove him from the election debate program.

JCT: Let's presume an example where I should have been ejected,
say if I was continuing to speak past my time, interrupting
people when it wasn't my time, unfair interference, sure.

This argument is premised on the notion that Rogers could not
exercise its editorial discretion in an election debate program
because the applicant was entitled to an equitable share of time
in the debate program pursuant to subsection 27(4) of the
Broadcasting Distribution Regulations. However, as noted above,
pursuant to the Ontario Court of Appeal's decision in R. v. CBC,
subsection 27(4) of the Broadcasting Distribution Regulations
does not apply to election debate programs because they are not
considered programs of a "partisan political character."

JCT: My presumption Rogers did not have justification is premised
on my claim to ss.27(4) equitableness however the Vezina decision
says the equitableness rules don't apply to debates because they
have no effects of partisan political character. Har har har har.
Someday, in 100 years, they'll be reading these pleadings to the
highest court in the land and laughing too.

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

JCT: A number but not all viewpoints.

The court stated that "while the statements made by each of the
participants are undoubtedly partisan, the program itself clearly
is not."

JCT: One viewpoint wrong, a number but not all okay? It's not
clear at all why a debate with 1 out of 5 candidates is partisan
but 2 out of 5 is not. I can understand the rational for 5 out of
5 being impartially partisan or having an equal partisan effect,
but to say a debate of partisan political is not partisan is
silly. But that's at stake in this case. Not very important?

22. Beyond simply stating that the decision is "contradictory,"
the applicant has not raised any reason do doubt the decision in
R. v. CBC or the Commission's reliance on that decision.

JCT: Exclusion is democratic isn't contradictory?

Leave to appeal this decision to the Supreme Court of Canada was
denied.

JCT: So Vezina couldn't convince three Supremes of the importance
of media exclusion of candidates because debates aren't partisan!

23. The applicant further argues that, despite R. v. CBC, the
Commission has a duty to make regulations that would ensure that
time in election debate programs is shared equitably among all
candidates.

JCT: Right. It's their duty to ensure the access to free time on
the public air-waves is fair.

This argument ignores the fact that the Commission's authority to
make regulations under section 10 of the Broadcasting Act is
permissive, not mandatory.

JCT: So they don't have the mandatory authority to make electoral
treatment democratic, they have a permissive authority, whatever
that means. They didn't explain. What's permissive authority to
do their duty? Authority but they don't have to if they don't
want to?

24. For the foregoing reasons, the Commission submits that this
application raises no questions of law of public importance.

JCT: The essence of democracy is not of public importance? For
the last time, that the Commission no longer requires that debate
programs feature all rival parties or candidates is a profound
change of national import.

PART IV - SUBMISSION ON COSTS

25. The Commission is not seeking costs.

PART V - ORDER SOUGHT

26. The Commission requests an order dismissing the application
for leave to appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED
September 17 2009
Regan Morris
Counsel for the Respondent
CRTC

JCT: The CRTC case why debates don't need all candidates.
My Reply in 10 days.