Jeffrey O’Brien is a JD candidate at the University of Alberta.
On election day many voters discussed results before the polls closed, but broadcasting such conversations to the public would violate s. 329 of the Canada Elections Act.
Section 329 of the Canada Elections Act reads as follows:
Premature Transmission
Prohibition — premature transmission of results
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.
This law primarily affects the media. Before the most recent election CBC pledged to abide by it. However, the network was unable to meet this standard. Upon realizing its error, CBC pulled the plug on broadcasting in Western Canada and feigned technical difficulties for half an hour. CBC was not the only network to contravene s. 329 during this election; even TSN broadcast results while some polls were still open.
However, much of the criticism of s. 329 comes not from the conventional media, but from social media. After the election of 2000, a blogger named Paul Bryan challenged the validity of s. 329 and the case went up to the Supreme Court of Canada. The law was upheld and interpreted to extend to all forms of communication. Today’s most vocal opponent of s. 329 is a website called Tweet the Results. The page allows anyone to post their views on the publication ban and all the feedback appears negative.
Widespread disobedience certainly does not justify breaking a law and is not sufficient cause for the court to strike it down. That does not end the challenge against s. 329, however. According to Professor Robert MacDermid the law was enacted to prevent news outlets from transmitting fraudulent election results. Tweets, Facebook updates, and text messages were not contemplated by the legislators. Furthermore, when s. 329 was enacted in 1938, spreading false news was an indictable offense under s. 181 of the Criminal Code, but the Supreme Court of Canada struck down that provision in 1992.
Professor MacDermid has also noted that the validity of s. 329 may be a moot point if Elections Canada chooses not to prosecute anyone. The Globe & Mail reports that no one was charged under that legislation in either this election or in the 2008 election. Nevertheless, Professor MacDermid was quoted as saying he hopes the courts will revisit the issue. Despite the aforementioned problems, the Bryan case tells us that s. 329 is still good law, but the government’s recent inaction could make private persons believe they have a right to broadcast election results. The law’s breadth is unclear and I believe a vague law is a bad law.