Elizabeth May takes her quest to join the leaders' debates to court

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The Greens are heading to court Tuesday morning to try to force their way into the leaders' debates.

The first fight, at a hearing in the Federal Court of Appeal, is to convince a judge that their case has to be heard in a rush, before the first election debate on April 12.

Green Party Leader Elizabeth May has argued the decision to exclude her was undemocratic and arbitrary - and will hurt her party's chances in the current campaign.

But even if they get an expedited hearing, either on Friday or Monday, the party's lawyers still have to convince a court that the consortium of broadcasters that left Ms. May out had a legal duty to set objective rules for participation.

The consortium, made up of the major TV networks, decided not to invite her this time. Canada's broadcast regulator, the CRTC, has ruled the networks do not have a legal obligation to set rules on who gets in and who doesn't. Now Ms. May's lawyers are asking the courts to overrule them.

The broadcasters let Ms. May into the 2008 televised debates after then-Liberal leader Stéphane Dion helped her push for a place. But back then, the Green Party had one MP in the House of Commons, Blair Wilson, who had been booted from the Liberal caucus over allegations of campaign-finance irregularities.

This time, though, Ms. May doesn't have a sitting MP to backup her case, and the other party leaders aren't helping her. Still, a Nanos Research poll conducted for The Globe and Mail shows that 63 per cent of Canadians support her inclusion, while only 28 per cent oppose it.

But what's the standard for letting a leader into the debates?

The Green Party hasn't yet argued in court for a particular new standard, but it filed an affidavit from Frederick Fletcher, a York University emeritus professor of political science, who offered some potential standards.

"If the broadcast consortium is searching for a formula other than representation in the House of Commons, it could require that participants be required to represent a political party that is either represented in the House of Commons OR has nominated candidates in a specified number of constituencies AND received a minimum share of the popular vote in the previous election," he stated in the affidavit.

That first standard - representation in the Commons - would keep Ms. May out. The second one would let her in, as long as the share of votes needed is low enough.

The Greens won about 6.8 per cent of the vote in the last election.

One of the party's lawyers, Peter Rosenthal, said one possible standard is to allow leaders whose parties received more than 2 per cent of the vote into the debates, since that's the threshold required to get a public, per-vote subsidy from taxpayers. Five parties - the four in the Commons and the Greens - received more than 2 per cent of the vote in 2008.