Interpretation of Participation Criteria for the Leaders’ Debates

Table of contents

• Overview and Context
• Guiding Principles
• Open and Transparent Process
• Interpretation of the participation criteria
• Decision-making timeline

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Overview and Context

The Leaders’ Debates Commission (“the Commission”) is mandated to organize two debates (one in French and one in English) for the upcoming 2019 federal general election. As part of its mandate, the Commission is tasked with selecting the party leaders who will be invited to participate in the debates. This invitation is predicated on the application of participation criteria set out in Order in Council P.C. 2018-1322, dated October 29, 2018 (“OIC”).

The present document describes the Commission’s guiding principles; the open and transparent process it has and will continue to follow to determine which party leaders will be invited to participate in the debates; the Commission’s interpretation of the participation criteria; and its decision-making timeline.

Based on a preliminary assessment, the Commission communicated with six political parties from whom it sought submissions as to their interpretation of the participation criteria and whether they qualified to participate in the debates based on the participation criteria. Following a review of these submissions along with an analysis and application of the participation criteria, on August 12, 2019, the Commission issued five invitations to the 2019 leaders’ debates. The six letters in respect of each of these political parties are available below:

• Invitation letter to the Bloc Québécois
• Invitation letter to the Conservative Party of Canada
• Invitation letter to the Green Party of Canada
• Invitation letter to the Liberal Party of Canada
• Invitation letter to the New Democratic Party
• Letter to the People’s Party of Canada

These letters should be read in conjunction with this document to understand the Commission’s decision-making process with respect to which party leaders will participate in the 2019 leaders’ debates.

Guiding Principles

As outlined in section 2(b) of the OIC, invitations to participate in the leaders’ debates are to be extended to “the leader of each political party that meets two of the following criteria”:

1. at the time the general election is called, the party is represented in the House of Commons by a Member of Parliament who was elected as a member of that party,
2. the Debates Commissioner considers that the party intends to endorse candidates in at least 90% of electoral districts in the general election in question,
3. the party’s candidates for the most recent general election received at that election at least 4% of the number of valid votes cast or, based on the recent political context, public opinion polls and previous general election results, the Debates Commissioner considers that candidates endorsed by the party have a legitimate chance to be elected in the general election in question.

As part of its assessment of whether the leader of a party should be invited, the Commission is informed by the OIC, including the following provisions:

• Preamble: “it is desirable that leaders’ debates be effective, informative and compelling and benefit from the participation 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”;
• Preamble: “it is desirable that leaders’ debates be organized using clear, open and transparent participation criteria”;
• Section 3(d): “the decisions regarding the organization of the leaders’ debates, including those respecting participation criteria, are made publicly available in a timely manner”; and
• Section 4: “the Leaders’ Debates Commission is to be guided by the pursuit of the public interest and by the principles of independence, impartiality, credibility, democratic citizenship, civic education, inclusion and cost-effectiveness.”

Open and Transparent Process

In light of the above guiding principles and in order to determine how best to interpret and apply the participation criteria, and in recognition of the importance of its decision, the Commission has followed, and will continue to follow, a process that:

• is open and inclusive: registered political parties have an opportunity to show how they meet the participation criteria;
• provides an opportunity to be heard: political parties are provided with an opportunity to make submissions with respect to how they meet the criteria; in addition, should the Commission conclude that a political party does not meet the participation criteria, that party may provide additional information for the Commission’s consideration before a deadline that is communicated to the parties and to the public;
• is independent and impartial: the Commission shall not pre-judge which political parties should be invited;
• is transparent: the Commission will issue written reasons with respect to the application of the participation criteria to political parties, whether they meet such criteria or not; and
• is effective: notwithstanding the above considerations, the Commission will ensure its process is timely and cost effective.

The Commission has been and will be consulting with academics, independent pollsters and the Commission’s Advisory Board and also considered other available relevant information, including publicly available polling data and media coverage. The Commission also sought written submissions from those political parties that, based on a preliminary assessment, the Commission concluded had the greatest likelihood of meeting the participation criteria.

Interpretation of the participation criteria

Following its consultations, the Commission reviewed the political parties’ submissions. The Commission concludes that the application of the mandated participation criteria contains both objective and subjective elements.

While the OIC sets out what appears to be three criteria to be interpreted and applied, these can in fact be divided as follows:

• Criterion (i): the party is represented in the House of Commons by a Member of Parliament who was elected as a member of that party;
• Criterion (ii): the Commissioner considers that the party intends to endorse candidates in at least 90% of electoral districts in the general election in question;
• Criterion (iii):
  1. the party’s candidates for the most recent general election received at that election at least 4% of the number of valid votes cast; or,
  2. based on the recent political context, public opinion polls and previous general election results, the Commissioner considers that candidates endorsed by the party have a legitimate chance to be elected in the general election in question.

Criteria (i) and (iii)(a) do not require an extensive assessment by the Commission as these criteria are applied based on the review of objective evidence.

Criteria (ii) and (iii)(b) on the other hand require an assessment and consideration by the Commission.

With respect to criterion (ii), in determining whether a party “intends to endorse candidates in 90% of electoral districts”, the Commission has considered and will consider the following:

1. Evidence provided by the party in question, including but not limited to a declared intention by the party leader;
2. Evidence of the party’s record in previous elections, if applicable;
3. Evidence of registration with Elections Canada;
4. Evidence of the party’s nomination processes; and
5. Evidence of the party’s number of riding associations.

With respect to criterion (iii)(b):

1. In determining “recent political context, public opinion polls and previous general results”, the Commission has considered and will consider the following:
   1. Evidence provided by the party in question in relation to the criterion;
   2. Both current standing and trends in national public opinion polls;
   3. Riding level polls, both publicly-available and internal party polls if provided as evidence by the party and riding projections;
   4. Information received from experts and political organizations regarding information about particular ridings;
   5. Parties and candidates’ performances in previous elections;
   6. Media presence and visibility of the party and/or its leader nation-wide;
   7. Whether a party is responsive to or represents a contemporary political trend or movement;
   8. Federal by-election results that took place since the last general election;
   9. Party membership; and
   10. Party fundraising.
2. In interpreting the phrase “candidates endorsed by the party”, the Commission, in accordance with principles of statutory interpretation, considered the words of the OIC in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the OIC, the object of the OIC, and the intention of the OIC. The Commission concludes that the word “candidates” in the context of the OIC should be interpreted as plural. In other words, political parties will need to demonstrate that more than one candidate endorsed by the party has a legitimate chance to be elected. This is because:
   1. First, some parties argued that “candidates” should be interpreted as a collective noun meaning a field or spectrum made up of individual parts and that the threshold for inclusion in that field could be as low as one. However, this argument is inconsistent with the plain wording of the provision which explicitly refers to candidate as plural;
   2. Second, the drafters of the OIC were explicit in using the singular when that was the intention. Indeed, criterion (i) refers to “a member of Parliament”. Moreover, the preamble to the OIC provides that for the leaders’ debates to be effective they would benefit from the participation of leaders who have the greatest likelihood of becoming Prime Minister or whose political parties have the “greatest likelihood of winning seats in Parliament”; and
   3. Third, some parties argued that provisions in the Commission’s OIC related to the principle of inclusion suggested a more expansive interpretation of the word “candidates”. While “inclusion” is to be considered by the Commission in fulfilling its mandate (OIC, section 4), the OIC also mandates that the leaders’ debate be effective, informative and compelling. It further provides that the leaders’ debates would “benefit from the participation of the leaders (…) whose political parties have the greatest likelihood of winning seats in Parliament”. This provision suggests a more restrictive number of candidates participating in the debates.
3. In interpreting “legitimate chance to be elected”, the Commission considered the French version of the same provision which refers to “véritable possibilité d’être élus”. Based on the common interpretation of both versions, the Commission is of the view that “legitimate chance” means “a reasonable chance of having someone elected”.

Overall, in its consideration of criterion (iii)(b), the Commission is of the view that its primary decision for the application of criterion (iii)(b) is assessing the chance of candidates to be elected. The factors listed above will be considered in this light. Additionally, the Commission notes that the OIC is silent with respect to a specific threshold for electability.

Decision-making timeline

On July 12, 2019, the Commission sought submissions from those parties that a preliminary assessment concluded had the greatest likelihood of meeting the participation criteria.

Upon review of the submissions from these six political parties and in consideration of the above interpretation of the mandated participation criteria, on August 12, 2019, the Commission invited those political parties that the Commission was of the view met two of the mandated criteria. Each invitation that the Commission issued contained the party-specific reasons underpinning the Commission’s determination. These invitations have been issued at this time in order to ensure that the Commission fulfills its mandate to make public its decisions with respect to participation in a timely manner. In addition, it is important for the producer of the debates to begin to meet with the participants to plan an orderly and well-executed leaders’ debate. This will improve the quality and ensure the high journalistic standards of the leaders’ debates as is mandated by the Order in Council.

The Commission also provided provisional reasons to the party that, at that time, had not met the participation criteria. This party has the opportunity to provide updated evidence to the Commission by September 9, 2019. The Commission also concluded that it required more evidence regarding specific electoral districts in which candidates endorsed by that political party have a legitimate chance to be elected. It therefore asked that party to identify, by August 23, 2019, three to five such electoral districts. The Commission will then seek additional information on the legitimate chance of candidates endorsed by that party being elected in any of those ridings. The Commission will then disclose this information to that party for an opportunity to comment.

The Commission intends to make its final decision with respect to that party by September 16, 2019. The date of September 16, 2019, is necessary as it balances:

1. the need for the Commission to have access to the best evidence available in order to assess whether political parties satisfy the debate participation criteria; and
2. the need to ensure that both the debates producer has sufficient time to produce a debate of high quality, as required by the OIC, and that the political parties can properly prepare for the debates in order to ensure they are informative for Canadians. The debates are scheduled for Monday, October 7, 2019 (English) and Thursday, October 10, 2019 (French).