JCT: I posted the CRTC's Response last time, here's my Reply:

File Number: #33319
Appeal Court No: 09-A-19
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:
John C. Turmel
Applicant
Appellant in appeal
and
Canadian Radio-Television and
Telecommunications Commission
Respondent
Respondent in appeal

APPLICANT'S REPLY
JOHN C. TURMEL, APPLICANT

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") which had
dismissed the applicant's complaint relating to being excluded
from an election debate program hosted by Rogers Cable
Communications Inc. ("Rogers") during the 2007 Ontario provincial
election in Brant because, pursuant to the Ontario Court of
Appeal's decision in R. v. CBC, subsection 27(4) of the
Broadcasting Regulations regarding the equitable allocation of
time did not apply to election debate programs because they are
not considered of a "partisan political character."

2. 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." 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.

3. 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.

4. The Commission reiterated this statement in Broadcasting
Circular 2007-5 issued in connection with the 2007 Ontario
provincial election. 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 and accordingly dismissed the applicant's
complaint.

5. On 22 July 2009, the application for leave to appeal the CRTC
decision was denied by Federal Court of Appeal Nadon, Evans, and
Pelletier JJ.A. No reasons were given. The applicant is now
applying to this Court for leave to appeal the Federal Court of
Appeal's order.

PART II - QUESTION IN ISSUE

6. A) whether Rogers has the editorial discretion to exclude
participants from an election debate program pursuant to the
Ontario Court of Appeal ruling that televised debates excluding
some candidates are not of a "partisan political character;"

7. B) whether the Commission was derelict in revising national
policy to accept candidate exclusion rather then amend national
regulations to prevent candidate exclusion from future debates;

8. C) whether the Commission is derelict in not being able to
determine fair division before an unfair division occurs;

9. D) whether the Federal Court of Appeal erred in not correcting
R. v. CBC's ruling that debates excluding candidates do not have
partisan political effect.

10. E) These errors affecting the Canadian national democratic
process are of national importance.

PART III - ARGUMENT

A) R. v. CBC illogical

11. Respondent notes: "Applicant's 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 and
points out that 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."

12. In R. v. CBC, the Ontario Court of Appeal rules:

"We are dealing with... the failure of a licensed television
broadcaster to allocate time on an equitable basis to a non-
participant..
Section 8 reads "During an election period, a licensee shall
allocate time for the broadcasting of programs, advertisements,
or announcements of a partisan political character on an
equitable basis to all accredited political parties and rival
candidates represented in the election."
We agree with Judge Kerr and Borins J. that the national debates
are not programs of a "partisan political character" within the
meaning of s.8 because they present a number of varying political
points of view..
While statements made by each of the participants are undoubtedly
partisan, the program itself clearly is not. In this regard, we
are of the view expressed by Arnup J.A. is apt: "In my view, a
partisan broadcast is one intended to favor one candidate over
the other or others, in an election..."
Programs prepared and presented by the licensee, or by someone
other than the political parties and candidates are not, in our
view, covered by the provisions of s.8..."

13. Before the R. v. CBC re-interpretation, the legislation was
interpreted to mean that broadcasts that have partisan political
influence must be shared equitably. That's what "partisan
political character" means, that it helps capture the vote. If
it's helping you get votes, it's of partisan political character.
After policy revision, we have the illogical proposition that
candidates may be excluded from debates because, while broadcasts
intended to favor one candidate over the others are improperly
partisan, broadcasts intended to favor two or more over the rest
are not improperly partisan. The net result of the R. v. CBC
ruling and the CRTC's revision of its policy, exclusion by media
of candidates from debates, should be warning enough of the
importance of the error that needs correcting.

B) CRTC Duty to Regulate

14. Respondent notes 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
but says that this argument ignores the fact that the
Commission's authority to make regulations under section 10 of
the Broadcasting Act is permissive, not mandatory.

15. Since the national broadcast air-waves have been used
undemocratically under the current policy based on the R. v. CBC
decision, the R. v. CBC error that debates are not partisan to be
shared equitably must be struck down and the CRTC's failure to
deliver a fair game censured despite the Commission's authority
being not only permissive but maybe also mandatory.

16. Applicant also notes that in R. v. CBC: "In any event, there
is nothing to preclude a rethinking by the CRTC of the wording of
s.8 to more clearly effect the policy considerations with which
it is charged and concerned." The CRTC has not rethought the
wording to more clearly effect the policy considerations with
which it is charged, that is, making sure the national airwaves
are used fairly and democratically during elections.

C) CRTC Duty to Supervise

17. The Respondent also has a duty to supervise and is derelict
in not being able to determine whether a division is fair before
the unfair division occurs because it is so easily countable.

D) Federal Court of Appeal erred

18. The Federal Court of Appeal could have declared that debates
excluding some candidates are of improper partisan political
character and ordered the CRTC to comply with its Order that
debates excluding candidates be banned as improperly politically
partisan.

E) Importance

19. The Respondent argues that this application raises no
questions of law of public importance. The Applicant submits that
the new CRTC policy no longer requiring that debate programs
feature all rival parties or candidates is a profound change of
national import. The revised CRTC policy giving Big Brother power
to exclude some candidates from their staged debates on our
national airwaves raises questions of law of immense national
public importance.

PART V - ORDER SOUGHT

Applicant seeks an Order granting leave to appeal from the
judgment of Justices Marc Nadon, John Maxwell Evans, and Denis
Pelletier of the Federal Court of Appeal 09-A-19 made July 22
2009.

Dated at Brantford on Aug 25 2009.



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

JCT: So now we see if the Supremes think the CRTC revising its
policy to permit Rogers to exclude candidates from debates is too
unimportant to be heard.