Tim Uppal, the Minister of State for Democratic Reform, just announced via Twitter that the government plans to introduce legislation repealing sections of the Election Act that create a ban on communicating election results before all polls have closed across the country. The change reflects the reality of modern communications tools, which render such bans outdated and virtually impossible to enforce.
I served as an expert witness in the most recent challenge to the rules, launched last year by Bell Media and the CBC. My conclusion:
In 2005, Internet communication tools such as instant messaging and email did not have widespread, instant broadcast capabilities such that a communication ban appeared feasible. Given the current popularity of social media tools that did not exist at the time, a similar ban today is simply not possible without inflicting enormous harm to freedom of expression and public confidence in the election system.
Today’s announcement recognizes those harms and rightly removes the restrictions. When the Supreme Court last examined the issue in 2007, Justice Rosalie Abella wrote the dissent (arguing that the evidence in favour of a ban did not justify the limit on freedom of expression). In support, she quoted a former Reform MP from 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.