SCC upholds election result blackout rules
Published Thursday, March 15, 2007 10:37PM EDT
Canadian voters in the West must continue to remain in the dark about election results in the East on election nights, the Supreme Court has decided.
In a 5 to 4 decision, the country's highest court ruled that provisions of the Canada Elections Act must stand, forbidding the reporting of partial results in areas where the polls haven't closed.
Conservatives -- including Prime Minister Stephen Harper -- have been highly critical of the ban.
Peter Van Loan, the Conservative House leader in the Commons, said the decision appears to leave open the possibility of future legislative action to end the ban.
"I'm not saying that we're going to launch anything and it's certainly not one of our immediate priorities," he told The Canadian Press. "But it is open to Parliament to consider this. ... We have the freedom to act if we decide to."
British Columbia software designer Paul Bryan launched a constitutional challenge of the provisions, arguing that the ban imposed in 1938 has become obsolete. He said that the Internet and other modern communications technology made enforcing the law impossible and impractical.
His challenge was supported by major media organizations, including CTV and The Globe and Mail, and by the Canadian Civil Liberties Association and the National Citizens Coalition.
Federal lawyers argued that the legislation is still needed so that voters in the West are not influenced by Eastern results and do not engage in strategic voting when they cast their ballots.
The majority of the Supreme Court agreed, saying the media blackout was needed to protect electoral fairness, and electoral democracy.
The blackout provision, "by virtue of its objective of ensuring informational equality among voters, is a reasonable limit on" freedom on expression, the court explained.
"The subjective perceptions of Canadian voters that the electoral system is fair is a vital element in the integrity of the electoral system," noted Justice Michel Bastarache, writing for the majority.
Following the 2000 federal elections, Bryan was fined $1,000 for posting vote totals from Atlantic Canada on his website before B.C. polls had closed.
The ruling comes as Parliament Hill buzzes with talk that the next federal election could be imminent. Media lawyer Les Vandor says he thinks Canada can expect more Elections Act violations during the next vote.
"I think it is going to explode," he told CTV Newsnet. "I think there is going to be another case that is going to come along in the next election -- whenever that is -- because the Internet is a reality. Information can be broadcast from the States, overseas from all over the place. You can't restrict that."
Gerry Nicholls of the National Citizens Coalition, notes that when Bryan was charged seven years ago, blogging was still in its infancy.
"There were no bloggers and not that many sites. Today, there are thousands and thousands of bloggers and who knows how many websites out there. How are they going to police this? How are they going to stop people from getting information?"
The court appeared divided on the issue, as evidenced by the close 5-4 split decision.
The dissenting judges wrote:
"The possibility that some Western voters might be influenced by results from Atlantic Canada cannot be completely discounted, but the question is whether the impact will be a harmful one."
They noted that the suggestion that abolishing the media blackout would influence voters' decisions or hurt voter turnout "is highly theoretical and unsubstantiated by cogent evidence."
"Further, any potential benefits of the publication ban are diminished by the reality that it has been rendered obsolete by telecommunications technology."