Déjà vu.

Though political support for the party continues to grow, a consortium of Canadian broadcasters has yet again decided not to allow the Green Party to participate in the leaders’ debates.

This is despite the fact that the Green Party, which is headed by Elizabeth May, recently acquired its first Member of Parliament when Independent (former Liberal) Blair Wilson decided to don the party colours.

Previously, the need to have at least one MP was put forth by the consortium as a prerequisite for participation in the debates.

As of last week, the Greens have an MP, but their request for participation was denied anyway.

Public interest – defined as having more than 5% support in a recent national poll – was another requirement.

According to the latest Strategic Council poll (PDF), the Greens have about 9% support across Canada. Out west, this number is as high as 12%, compared to just 18% for the Liberals.

Indeed, the Greens are ahead of the Bloc Québécois in nation-wide support. The Bloc is a separatist party with the explicit goal of tearing the fabric of Canada apart, and one which does not even field candidates outside of Québec. Nevertheless, while Bloc leader Gilles Duceppe will be appearing in the debates, Elizabeth May will not.

Michael Byers, the NDP candidate for Vancouver-Centre, supported the decision of the consortium. He is quoted calling May the leader of a “single-issue party:”

“My leader, Jack Layton, is running to be prime minister and so are the leaders of the other parties,” Byers told CBC News on Monday from Vancouver. “This is a leaders’ debate. It’s not an environment ministers’ debate.”

(Source: CBC)

The wholly incorrect perception of the Greens as a single-issue party is precisely the problem that Elizabeth May is unable to address now that she has been denied access to the debates.

May said in a statement that she is considering pursuing legal action against the TV networks. Not that I have much (read: any) knowledge of election law, but unfortunately I doubt that there’s a case here.

As undemocratic as it seems, the televised leaders’ debates are produced by private TV networks. Though the CBC is a Crown corporation – with the mandate to foster Canadian unity and promote the expression of diverse ideas -  there is good case law suggesting that any legal action on May’s part would fail.

It’s been tried before.

In National Party of Canada v. Canada Broadcasting Corp. (1993), 106 D.L.R. (4th) 568 (Alta. Q.B.), the court decided that the CBC was not subject to Charter scrutiny when it denied the National Party the opportunity to participate in the leadership debates. The Supreme Court of Canada refused to grant expedited leave to appeal.

Along these same lines, in Natural Law Party v. Canada Broadcasting Corp. (T.D.), [1994] 1 F.C. 580, the Federal Court held that:

“In my view, the CBC is acting as a broadcaster and not as an agent of the government in its participation in the Broadcasters’ Consortium.”

and further that

“It is not the function of the government or indeed the courts to dictate to the news media what they should report. The broadcasters are exercising a function that is very central to the democratic process. But it is a function that they perform quite independently of government.

…

What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate.

The Green Party has retained Toronto lawyer Peter Rosenthal to spearhead the legal fight.