Charter Values, the Green Party and the Leaders’ Debates Commission

This morning, the Leaders’ Debates Commission (a body created by an Order in Council to organize leadership debates in advance of federal elections) rescinded its invitation to the Green Party to participate in two debates, this evening and tomorrow. The decision is available here.

The reason is that the Green Party initially provided a list of candidates for most of the ridings in the country, thereby satisfying one of the conditions imposed by the Commission (the others are having an outgoing MP (which the Green Party has) and getting 4% in national polls (a criteria the Green Party does not meet)). But media reports revealed that the Green Party has now withdrawn many of those candidates for strategic reasons. So, the Commission decided:

However, the Commission concludes that in circumstances in which the Green Party of Canada has intentionally reduced the number of candidates running in the election for strategic reasons, it no longer meets the intention of the participation criteria to justify inclusion in the leaders’ debates. Whether or not the Green Party of Canada intended to run 343 candidates, it has since made the strategic decision to reduce the number of candidates running, meaning that voters no longer have the opportunity to vote for those candidates. Deliberately reducing the number of candidates running for strategic reasons is inconsistent with the Commission’s interpretation of party viability, which criterion (iii) was designed to measure. The Commission concludes that the inclusion of the leader of the Green Party of Canada in these circumstances would undermine the integrity of the debates and the interests of the voting public.

What of the so-called Doré duty to consider Charter values when making decisions that engage the Charter (as this one certainly does)? The decision speaks to that too:

The Commission acknowledges that its decision engages protections for freedom of expression and the right to vote under the Charter of Rights and Freedoms. This decision engages the freedom of expression of the Green Party of Canada and its leader, as well as the rights of voters to be effectively informed through the debates. However, these rights and values must be balanced against the Commission’s mandate to ensure that debates are effective, informative, and compelling, and benefit from the participation of the leaders who have the greatest likelihood of becoming Prime Minister or whose political parties have the greatest likelihood of winning seats in Parliament, as measured by the participation criteria. Inviting the leader of the Green Party of Canada would not be consistent with the Commission’s mandate and his inclusion would detract from the informativeness and effectiveness of the debates. The Commission concludes that any impact on Charter rights is therefore outweighed based on the Commission’s mandate to act in the public interest.

To my mind, this looks rather conclusory. In Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, at para. 151, the Court of Appeal suggested that a careful analysis of the positive and negative effects of a decision affecting freedom of expression is required to satisfy the Doré duty. Adapting Lauwers JA’s analysis to the present context, the required exercise is:

first, to assess the negative or deleterious effects that the [decision] would have on the exercise of right asserted by [the Green Party]…as well as any collateral effects, for example, creating a chilling effect on the rights of others; second, to assess the positive effects or benefits of that disposition in terms of the public good; and third, to undertake the proportionality analysis by assessing, for example, whether the [decision] involves means that are always impermissible, whether the [decision] is needed to achieve the good sought, or whether the deleterious effects or costs imposed by the [decision] are out of proportion to the public good to be achieved.

It may be that ‘gaming the system’, which seems to be the Commission’s complaint, does indeed undermine the “public good” and made the decision necessary “to achieve the good sought”; it may also be that including a minor party would “detract from the informativeness and effectiveness of the debates” and have a deleterious effect on the expressive rights of those who tune into the debate. But as Lauwers JA admonished, the point of the exercise is to ensure that it is not necessary to “reconstruct” a decision after the fact (Lauzon, at para. 151).

In theory, the Green Party could seek judicial review of this decision, on procedural fairness and reasonableness grounds in Federal Court. (I am assuming that the fact that the Commission is created by an Order in Council makes it a state actor and that it is exercising a public function so as to make this decision reviewable.) If so, it will make for an interesting judicial examination of the Doré duty.

This content has been updated on April 16, 2025 at 14:10.