Apr 22, 2011 Comments Off
Now that it is election time once again, perhaps it is important to review some of the laws that govern the process in this country. Article 329 of the Canada Elections Act has come under scrutiny and criticism of late, quite rightly in my opinion, even among American journalists who tend to pay scant attention to Canadian affairs. It reads as follows:
No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.
According to article 500(4) of the same, a person who violates this rule is liable on summary conviction to a fine of at most $25,000.
One could argue that this rule is a clear violation of article 2b) of the Canadian Charter of Rights and Freedoms as a violation of freedom of expression. In fact, a constitutional challenge to this bizarre relic of the 1930s went all the way to the Supreme Court. In 2007, a 5-4 majority in R. v. Bryan found that while article 329 violates article 2b) of the Charter, it is saved under article 1. Bryan was charged with an offense under this law for having published the results of the 2000 election in Atlantic Canada while others in the rest of the country were still voting. The majority argued that the law is necessary to ensure “public confidence in the electoral system” and the fact that voters in the West could find out results in the East while they are still voting could in fact prejudice the westerners and cast doubt on the system. The dissenters, quite rightly in my view, questioned whether the fallout of allowing access would indeed be so harmful as to necessitate such a law. Moreover, the rights to freedom of expression had to be balanced against harmful effects, if indeed there were to be any.
It is quite clear from decades of Supreme Court Charter jurisprudence that violations of fundamental freedoms should not be taken lightly and if rights must indeed be limited, it should only be done in the most pressing of circumstances. To borrow from the words of Cory J. in Edmonton Journal v. Alberta:
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.
There are of course cases where it may in fact be appropriate to limit freedom of expression for example in Keestra, where the Court found it reasonable to limit the right to freedom of expression in the case of wilful promotion of hatred against an identifiable group. However, it seems quite unjustifiable to limit freedom of expression in elections based on largely speculative grounds.
Even if one is to accept that restrictions on access to voting information at the time the first Bryan court came down with their decision in 2003 could be justified, it is quite fair to say that the world is not at is was back then, particularly relating to technology. There was no Twitter, there was no Facebook. Blackberries were rare and the I-Phone didn’t exist. Methods of transmitting information these days are far more sophisticated than they were back then. Even the political candidates must make with the times and ensure that their messages are being followed on Twitter! Taking this into account, it would seem far from reasonable to impose a fine of $25,000, or any amount for that matter, because some guy in Halifax posts a Tweet saying “Hey, the NDP just took 3 new seats in Nova Scotia!” where his buddies from Vancouver can see. Because of these new methods for transmitting information, we must also ask whether it is even practical to enforce such a law. Certainly we would hope and expect that there aren’t any Elections Canada internet police watching to see if anyone violates article 329. The point is, this law is out of date, stupid and unenforceable, it is time to repeal it.