JCT: You'll remember that I have filed an application for
judicial review of the CRTC's refusal to get me a fair share
of time from Rogers Cable TV.
Back ground can be found at my blog at
http://yahoogroups.com/group/turmel/messages/3404

I filed my Memorandum of Fact and Law that can be found at
http://yahoogroups.com/group/turmel/messages/3463

This is the Crown Memorandum in Response.

Court File No: A451-07
FEDERAL COURT OF APPEAL
BETWEEN:
John C. Turmel
Applicant
and
Canadian Radio-Television and
Telecommunications Commission
Respondent

APPLICATION UNDER Section 28
of the Federal Courts Act,R.S.C. 1985 c. F-7


RESPONDENT'S MEMORANDUM OF FACT AND LAW

PART I: FACTS
-------------

1. The applicant was a candidate in the 2007 Ontario general
election. On 18 September 2007, he participated in a debate
program hosted by Rogers Television (Rogers) for six
candidates of the riding of Brant. At some point during or
shortly after the applicant made his opening statement,

JCT: The facts say during, not after. Why introduce the idea
of what did not happen?

he was removed from the set and did not participate further
in the debate.
Exhibits E, G. H of applicant's Oct 4 2007 affidavit.

2. On 24 September 2007, the applicant filed a complaint
with the respondent alleging that his removal from the
debate amounted to denying him an equitable share of the
free-time partisan political broadcast as required by the
respondent's regulations and requesting that the respondent
take action.
Exhibit E of applicant's Oct 4 2007 affidavit.

3. On 25 September 2007, a staff member of the respondent
answered the applicant's complaint, advising him that
broadcasters are responsible for the programming that they
provide, and that, as a consequence, she was requesting
Rogers to respond directly to the applicant within 3 weeks
and to keep a tape of the broadcast in question. The
applicant was informed he would hear from the respondent if
any regulatory action was required.

JCT: After the event, too late to help out at all.

The applicant was also notified that his complaint and all
related correspondence would be placed on the public file at
the end of three weeks unless he objected, after which it
could be reviewed by the respondent during license renewal
time or by interested parties. The applicant was also
provided links to the respondent's complaints process.
Exhibit F of applicant's Oct 4 2007 affidavit.

JCT: But always too late to help me get equitable time now.

4. Rogers responded to the applicant's complaint on 27
September 2007 and explained its reasons for why the
applicant was removed from the debate program.
Exhibit G of applicant's Oct 4 2007 affidavit.

5. On 1 October 2007, the applicant wrote again to the
respondent requesting that it force Rogers to give the
applicant an equitable share of the time before election
day.
Exhibit H of applicant's Oct 4 2007 affidavit.

6. On 4 October 2007, the applicant commenced the present
application for judicial review.

7. As appears from the record of the court, the applicant
also brought a motion on 4 October 2007 requesting an order
of mandamus or declaratory relief. The Applicant's motion
was dismissed by Decary J.A. on 5 November 2007.

PART II: ISSUES
---------------

8. The respondent submits that the issues in this proceeding
are:

a. whether the relief requested by the applicant engages a
decision, order, act or proceeding of the respondent;

JCT: A non-act of the respondent.

b. whether the respondent is under a legal duty to inquire
into alleged breaches of its regulations;

JCT: Imagine that they're not. Har har har har.

c. whether the respondent's regulations regarding the
equitable distribution of time for broadcasts of programs of
a partisan political character apply to the debate program
in question; and

d. if the respondent's regulations do apply, whether
exclusion from a debate program violates the requirement to
distribute broadcasting time on an equitable basis.

JCT: So, is getting no time still a fair debate. Let's hear
how the lawyers answer that.

PART III: SUBMISSIONS

a. whether the relief requested by the applicant engages a
decision, order, act or proceeding of the respondent
----------------------------------------------------

9. In his 4 October 2007 application, the applicant seeks an
order declaring that the respondent failed to ensure an
equitable allocation of free-time partisan political
broadcast by Rogers in the 2007 Ontario general election.

10. The ability to obtain declaratory relief under the
Federal Courts Act is provided for in paragraphs 18.1(3)(b).
According to this provision, a declaration must be aimed at
a "decision, order, act or proceeding of a federal board,
commission or other tribunal."

11. The respondent submits that in this case there was no
decision, order, act or proceeding of the respondent which
can be subject of a declaratory order. A staff member of the
respondent merely responded to the applicant's complaint and
referred it to Rogers. There was no involvement of a
decision-making body of the respondent, and the case law
makes clear that a staff letter is not a decision or order
of the respondent for the purposes of an appeal or judicial
review.
Centre for Research-Action on Race Relations v. Canada
(Canadian Radio-Television and Telecommunications
Commission) [2000] F.C.J. No 2019 (QL) 266 N.R. 344 (F.C.A.)

JCT: So because they got the secretary to answer the
complaint (insufficiently), I have no recourse against their
failure to ensure a fair electoral debate?

12. It was of course open to the applicant to request a
formal determination by the respondent with respect to his
complaint.

JCT: Doing nothing by the secretary seemed the same as doing
nothing by the Commission.

In this case, while the applicant did indicate in his 1
October 2007 letter that he was not satisfied with the
response to his complaint, he proceeded immediately to an
application for judicial review on 4 October 2007, a mere
three days later and before the respondent or its staff had
an opportunity to respond.

JCT: Trying to get it fixed before the upcoming election had
something to do with the haste. Here is the election date
coming up, I want them to give me my time and play it before
the election, and the CRTC's sitting on its hands to then
complain about only being given 3 days when the election was
almost upon us.

As a result, there is no decision, order, act or proceeding
of the respondent with respect to his complaint that can be
the subject of judicial review by this Court.

JCT: Of course, refusal to act is one of the things we're
allowed to complain about too. Though many judges will hear
cases with merit despite any technical requirements missed,
(remember how the Ontario Court of Appeal said my appeal
against the dismissal of my motion to quash my marijuana
charge was improper, they were converting it to a motion to
prohibit so they could deal with it) it's an easy out if the
judge wants to duck the issue.

13. Furthermore, section 18.5 of the Federal Courts Act
provides that judicial review is excluded where there is a
right to appeal to the Federal Court of Appeal. Had the
applicant requested a formal determination by the respondent
he would have been able to appeal the decision under
subsection 31(2) of the Broadcasting Act. The applicant
should therefore not be permitted to obtain judicial review
given that an appeal route was available to him.
- S.C. 1991 C.11 See e.g. Front commun des personnes
assistees sociales du Quebec v. Canada (Canadian Radio-
Television and Telecommunications Commission) [2003] F.C.J.
No 1609 (QL) 2003 FCA 394.

JCT: The route suggested did not offer relief by mandamus
that forces them to give me my fair share of time.

14. The respondent also notes that the order sought by the
applicant in his memorandum of fact and law differs from the
order sought in the original application for judicial
review. In his memorandum of fact and law, the applicant
states that the order he is seeking is a declaration that a)
the format of the allocation of the free-time partisan
political broadcast was inequitable, and that b) wearing a
party button is insufficient reason to refuse to conform to
the respondent's requirements.

15. In the respondent's view, this declaratory relief is
aimed squarely at whether Rogers, who is not a party to this
proceeding and against whom the applicant has not taken any
action, failed to abide by the respondent's regulations and,
as such, also does not engage a decision, order, act or
proceeding of the respondent. If this is the relief the
applicant is truly requesting, then the respondent submits
that it is outside the scope of the relief that is can be
granted under paragraph 18.1(3)(b) of the Federal Courts
Act.

JCT: Okay, so Section 18.1(3)(b) of the Federal Courts Act:
18.1(3) On an application for judicial review, the Federal
Court may:
(b) declare invalid or unlawful, or quash, set aside and
refer back to determination in accordance with such
directions as it considers to be appropriate, prohibit or
restrain, a decision, order, act or proceeding of a federal
board, commission or other tribunal.

JCT: So they say the Court doesn't have the power under
18.1(3)(b) to help me. Luckily, I'm asking them under
18.1(3)(a) that the court may:
a) order a federal board, commission or other tribunal to do
any act or thing it has unlawfully failed or refused to do
or has unreasonably delayed in doing.

JCT: Is not answering me until it's too late an unreasonable
delay? I think so.

b. whether the respondent is under a legal duty to inquire
into alleged breaches of its regulations
----------------------------------------

16. The respondent further submits that even if it could be
said that there was a decision, act or proceeding of the
respondent, the respondent is not under a positive duty to
inquire into and enforce its regulations in response to
every complaint.

JCT: Just the important ones that affect elections.

17. The respondent notes that subsection 12(1) of the
Broadcasting Act empowers the respondent to hold an inquiry
when it appears that a person has contravened any regulation
made by the respondent. Subsection 12(2) grants the
respondent the power to issue an order requiring any person
to do any act or thing that the person is required to
pursuant to any regulation made by the respondent.

18. However, these powers are clearly discretionary. The
respondent is under no obligation to hold an inquiry or to
issue an order in every case where a complainant alleges
that there has been a breach of the regulations.

JCT: Not every but certainly in the important ones concerned
with federal elections.

Under subsection 12(1), it must appear to the respondent
that there has been a contravention of its regulations,

JCT: And barred from the debate does not so appear...

and, even where this is the case, the "Commission may
inquire into, hear and determine the matter." [Emphasis
added.]

JCT: Just like the Ontario Press Council ducked adjudicating
my complaint against Brantford Expositor's editor David
Judd's for libels against me after Judd refused to answer
when I had produced the tapes of the event, they say they
can duck their stated responsibility too.

19. Finally, it is well-established that the decision as to
whether to hold a public inquiry into a complaint is a
discretionary decision of the respondent that is subject to
great curial deference.
National Indian Brotherhood v. Juneau No 3 [1971] F.C. 498
(T.D.)

JCT: This proves my point that they don't need an inquiry to
do something. They may have an inquiry before doing
something but they can decide without having one. This
inequity obvious enough that it shouldn't need an inquiry
but they make my point that they had the power to act
without inquiry. And I never asked for an inquiry.

20. As such, the respondent could not be said to have acted
unlawfully in this case by not holding an inquiry into the
applicant's complaint and not taking action to enforce its
regulations.

JCT: I admit I have no problem with them having the
discretion to not hold an inquiry but that doesn't mean they
have the discretion not take action to enforce its
regulations too. Just because they don't need to have an
inquiry doesn't mean they don't have to take action.

c. whether the respondent's regulations apply to the debate
program in question
-------------------

21. In addition, the respondent submits that its regulations
regarding the equitable distribution of broadcast time for
programs of partisan political character do not apply to
debate programs, and that, as a result, there are no grounds
on which the declaratory relief is requested by the
applicant can be granted.

22. Paragraph 10(1)(e) of the Broadcasting Act empowers the
respondent 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 that time on an
equitable basis to political parties and candidates. It is
important to note that the respondent's regulation making
power under this provision is restricted to programs,
including advertisements or announcements, that are of a
"partisan political character."

23. Under paragraph 10(1)(e) the respondent 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. The
relevant provision in this case is subsection 27(4) of the
Broadcasting Distribution Regulations but similarly worded
provisions are found in the Radio Regulations, the
Television Broadcasting Regulations, and the Specialty
Services Regulations.

24. In R. v. Canadian Broadcasting Corp, the Ontario Court
of Appeal was asked to decide whether the failure to include
the Green Party of Canada in a nationally televised leader's
debate contravened section 8 of the Television Broadcasting
Regulations. The court held that election debates did not
constitute the programs of a "partisan political character"
since they presented a number of different political
viewpoints.

JCT: But not all viewpoints. Har har har har. The Ontario
Court of Appeal screwing up again. Can't wait to read this
one.

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

JCT: True if all the parties are there. But if some parties
are excluded, if giving one party free time but not the
other five is wrong, why should giving two parties free time
but not the other four be right? Why should giving five
parties free time but not the other one be right? Of course,
lawyer-judges don't have the math to do logic.

Leave to appeal the decision to the Supreme Court was
denied.

JCT: And we all know what little that really means.

25. The respondent respectfully submits that R. v. Canadian
Broadcasting Corp. established that paragraph 10(1)(e) of
the Broadcasting Act and the regulations made thereunder, do
not apply to debate programs since they are not programs of
a partisan political character.

JCT: So, since debate with everyone include are not
partisan, debates with some excluded are not partisan too?

As such, the fact that the applicant was ejected from the
debate program and the reasons for his ejection, do not
engage the respondent's regulations. The organization and
conduct of the debate program fall within the broadcaster's
editorial discretion and are not subject to government
interference.
Trieger v. Canadian Broadcasting Corp (1988) 54 D.L.R. (4th)
(Ont. H.C.J.)

JCT: So Rogers' moderator Tim "Fuhrer" Philp didn't have to
include me his debate and had the perfect right to cut me
off and throw me out because it was still democratic if he
didn't let me participate in the first place. Big Brother in
complete command. Heil Fuhrer Philp!

d. whether exclusion from a debate program violates the
equitable distribution of time requirement
------------------------------------------

26. Finally, the respondent submits that even if its
regulations did apply to debate programs, the exclusion from
a debate program does not constitute a violation of the
requirement that broadcasting time be distributed on an
equitable basis.

JCT: More lawyer-logic coming up...

27. Prior to the Ontario Court of Appeal's decision in R. v.
Canadian Broadcasting Corp., the Federal Court made clear to
the applicant on several occasions that the requirement for
"equitable time" does not mean "equal time.
Turmel v. Canadian Radio-Television and Telecommunications
Commission [1981] 2 F.C. 411 (F.C.T.D.); Turmel v. Canada
(Canadian Radio-Television and Telecommunications Commission
[1983]]] F.C.J. No. 1132 (QL) (F.C.T.D.); Turmel v.
Canadian Radio-Television and Telecommunications Commission
[1985] F.C.J. No 325 (QL) (F.C.T.D.)

As such, the fact that the applicant was excluded from
participating in a debate would not, on its own, constitute
a violation of the respondent's regulations.

JCT: So it's okay for broadcasters to exclude candidates
from televised debates.

PART IV: ORDER SOUGHT

28. The respondent respectfully requests that the
application be dismissed.

All of which is respectfully submitted
August 14 2008

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

JCT: I've sent my request for a hearing date so stay tuned.