Michael Geist

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.  

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