R v Bryan: Off By One Vote
Last Friday, Tom Schreiter wrote on the recent Supreme Court of Canada (“SCC”) decision R v Bryan, 2007 SCC 12 [Bryan], with a decided focus on the evidentiary issues raised by the case. The case, however, warrants further examination due to the nexus of 2(b) of our Charter and the Canada Elections Act, SC 2000, c 9 [CEA], with which the case deals. The dissent delivered by Abella J. in this case and joined by McLachlin C.J. Binnie and LeBel JJ. raises the issue of technological advances impacting 2(b), which the majority decision seems to brush aside.
The evil that the ban in s. 329 of the CEA is attempting to address is that of information imbalance between voters going to the polls. Just on principle, it seems odd that in an information based society our Supreme Court is attempting to uphold bans on dissemination of information to the public. The comments of Bastarache J. in the majority decision seem out of touch with the use of information technology in today’s society when he states,
Section 329 cannot and does not entirely prevent voters in central or western Canada who are determined to learn before casting their ballots what has transpired in the Atlantic Provinces from obtaining that information by telephone or e-mail, for example. But it does, at the very least, curb widespread dissemination of this information and it contributes materially in this way to its objective – information equality between voters in different parts of the country.
One is left to wonder what forms of technology would run afoul of s. 329. In this case, a website was used but what about a mass email list? Is this something that could be considered a more private form of communication still covered? The CEA states in s. 329,
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.
The effectiveness of the s. 329 ban, as is the case with many other legal publication bans, is questionable on several grounds. The most obvious challenge to the ban is the technological issue that the dissent raises. This is evidenced by Abella J. in dissent, quoting Prof. Chris Waddell’s comments on the poll admitted into evidence. These comments suggest that the majority of Canadians support a media blackout under s. 329 of the CEA.
[T]hanks to technology, there are more and more ways for people to get around the blackout if they wish. Unlike phone calls to a single person or web sites where content can be controlled, e-mails, instant messages and cell phone text messages can all be distributed simultaneously to a broad cross-section of people. So while a majority support the blackout, the blackout itself is … more a fiction for those who are really interested in how the votes are being counted on election night.
There is also the further question of foreign transmission of results in today’s current telecommunications environment. While section 331 of the CEA states that foreigners are not to interefere with our electoral process, enforcement of such in the context of premature publication of polling results seems problematic.
In short, it seems that in Bryan we have the majority decision of the Supreme Court ignoring the realities of today’s information based society and upholding a provision that serves only to create a greater divide between the law and our Election Day reality. It is unfortunate that the majority felt that such an ineffectual ban is in proportion to the objective of achieving information balance among the electorate.
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