Tag: Web, Blogging and Computers

Interesting to note discussion of the wording of section 329 of the Canada Elections Act:

Prohibition — premature transmission of results

329. 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.

Pretty clear that blogging is transmission but is reporting popular vote at a national level? That is not the vote in an electoral district but it is a aggregation of votes and votes are only cast in electoral districts. This handy dandy timeline explains the back story and here is the May 2005 ruling from the BC Court of Appeal on the constitutionality of the transmission ban in s. 329. Here is the nub:

[59] In my opinion, when the s. 329 publication ban is seen as having the same purpose or objective as the staggered voting hours, that is, to eliminate the information imbalance that can result from disclosure of results before all of the polls have closed, the respondent’s argument concerning the lack of evidence to support the ban falls away.

[60] One of the contextual factors referred to in Harper was the apprehension of harm in relation to the electoral process. While the Lortie Commission Report stated that the availability of election results in Newfoundland and the Maritimes before the close of the polls in western Canada was not of “great concern”, assuming staggered voting hours were in place, it was clearly open to Parliament to decide what measures to adopt in meeting public concerns about the information imbalance. Parliament chose to implement the solution of staggered voting hours but also chose to maintain the publication ban on election results. Public perception of electoral fairness is obviously critical in a democracy. Given the extent of the public concern the Commission had identified about voter information imbalance, Parliament’s choice to leave the ban in place appears to me to be unremarkable.

[61] In determining that the Attorney General had failed to demonstrate by the evidence adduced that the objective of the s. 329 ban was pressing and substantial, it appears to me that the appeal judge overlooked the findings of the Lortie Commission about the very large percentage of Canadians who had expressed concern about information imbalance coupled with perceptions of electoral unfairness. In my opinion, this was not a case in which scientific proof of harm was required to justify the limitation on freedom of expression. What was required, and what the trial judge had before him, was evidence from which it could be inferred that there was a reasoned apprehension of harm to the legitimacy of the electoral regime if the publication ban, aimed at preventing information imbalance, was not continued.

[62] I note as well that McLachlin C.J.C., for herself and Major J, dissenting on the third party spending issue in Harper, agreed that the promotion of electoral fairness was a pressing and substantial objective. Her observations respecting the characterization of electoral fairness as a pressing and substantial concern are instructive in the present context (at para. 26):

Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy, even in the absence of evidence that past elections have been unfair; see Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para. 38. A theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis; see Thomson Newspapers, supra, at para. 38; Harvey, supra, at para. 38; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 191; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 281; Edmonton Journal [Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326], at pp. 1343-45.

[63] Two of the other important contextual factors that need to be considered in this case are the nature of the expression the s. 329 ban limits and the period of time during which the ban operates. I agree with the appeal judge’s description of the type of expression being limited by the ban as falling “at the margins of political speech”. The ban in issue here is directed at information about election results and is intended to operate for only a brief period. The nature of the expression to which the ban applies and the brief time period in which the ban operates does not limit participation in political debate.

[64] It is convenient to note here that the respondent submitted that the ban in s. 329 is now obsolete because the advent of such things as satellite and cable television and the Internet makes enforcement difficult, if not impossible. He referred to some passages in the Lortie Commission Report to support his argument. In my view, difficulty in enforcement of the publication ban is irrelevant to the constitutional question. Many criminal and quasi-criminal offences are difficult to enforce but that does not mean that Parliament ought not to make them offences. The fact that the ban may be violated does not logically lead to the conclusion that the information imbalance between voters the ban seeks to remedy is not pressing and substantial. I would not accede to the argument that the relative ease by which the ban may be violated demands its constitutional demise.

Mind your step tomorrow.