A sharply divided Supreme Court of Canada this morning upheld an Elections Act provision that bans publication of election results before the close of all polling stations in that district. The case stems from the posting of election results on a website during the 2000 election. The majority of the court (written by Bastarache with concurring reasons from Fish) ruled that the infringement of freedom of expression is justified given the desire for informational equality among all voters. The majority was unpersuaded by the ineffectiveness and inconvenience (to broadcasters) of the law, noting that "it cannot be allowed to override as important a goal as the protection of Canada’s electoral democracy."
As was the case in the Robertson v. Thomson copyright case, the dissent was written by Abella (there is nearly the same split in the court). Justice Abella was entirely unpersuaded by the evidence marshalled to justify the limit on freedom of expression. She states that
"Any evidence of harm to the public’s perception or conduct in knowing the election results from Atlantic Canada before they vote is speculative, inconclusive and largely unsubstantiated. The harm of suppressing core political speech, on the other hand, is profound. The benefits of the ban are, accordingly, far outweighed by its deleterious effects."
The dissent is also far more concerned with the interplay between the ban and new technologies.
Abella rightly notes that "any potential benefits of the publication ban are also diminished by the reality that, as the Lortie Commission pointed out, the s. 329 publication ban was 'rendered obsolete' by broadcasting and telecommunications technology." She later focuses squarely on the Internet, adding that "Atlantic Canadians who rely on the Internet as their primary source of news are denied any election news from their medium of choice since the transmission of election results over the Internet is prohibited until the end of the blackout." This is exactly right – a ban on posting election results lasts for several hours for those in Atlantic Canada, leaving those seeking news online shut out. Indeed, the delay is so long that many will have gone to bed before learning about the results in their own ridings.
Abella's most telling quote, however, is the following from a Reform MP in 1996:
It is important to realize, and anybody who looks at the transcripts of the committee will see that no convincing evidence was provided to the committee that this is creating a serious problem in the functioning of our democracy. . . I asked the various witnesses whether there was any documented evidence or any serious academic study on whether knowing the results in other parts of the country had either of two effects: caused people not to vote or it caused them to vote differently than they would vote otherwise. There is precious little evidence that either of these things are true.
The MP was Stephen Harper.