March 21, 2007
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.
9 Comments
The interesting thing, in my opinion, to watch is Parliament's response. Will it repeal s.329?
I didn't really go into my stance on the judgement in my post, but I actually do support it.
First of all, lots of the laws of Canada are very difficult to enforce because of a broad range of behaviour, and that does not detract from their constitutionality. The prohibition on marijuana and assault are good examples. Both are pervasive on a small scale, but prosecutorial discretion has so far provided a sufficient basis to allow the laws to function well.
Moreover, if the laws cannot function well in that paradigm, the solution is a challenge based on s. 7, not on s. 2(b).
My second reason for supporting the judgement is because the reasoning of Justice Bastarache provides a valid distinction between TV and website on the one hand, and telephone and email on the other hand. TV, and increasingly website browsing, are fairly passive behaviours. One may stumble upon the election results, as well as complex election predictions that would stem from media scrutiny.
Telephone, and even mailing-list emails are far more personal. Mailing-lists are more analogous to CB or Ham radio than to actual radio or television. And, if there was a mailing list to millions, then a future judgement could easily establish the limits of the law as it applies to email.
In short, the fine distinctions between the thousands of ways to communicate are problematic to the law. They may make it extremely difficult to enforce in the future. But none of that is really applicable to a freedom of expression constitutional challenge.
Although I realize that the dissent based their argument mainly on the lack of evidence for the beneficial effect of a publication ban, it nevertheless seems troubling to me the proposition that they raise: i.e., a law could be rendered inoperative just because it is out of sync with technological realities.
With the quickening pace of technology in enabling people to communicate and express themselves, what is covered under s. 2(b) of the Charter will continue to expand and grow. This obviously enables expression that might otherwise be illegal, and challenges established norms of what is appropriate.
Ultimately, it just seems odd that technology can in essence extend the scope of a constitutional right by creating a new avenue of communication, without any formal statutory or common law enactment.
^^^ Unbelievably well said.
Tom,
Your examples are both from a criminal context where deterrence is often considered an ends in and of itself. I do not see the how the claim would be made under s. 7 as opposed to the more appropriate 2(b) claim. The 2(b) claim properly decided precludes any discussion of s. 7.
The majorities balancing of what has been acknowledged as a less than effective measure over what is supposed to be a constitutional right is absurd. If this is the sort of balancing that passes for Charter rights then why bother?
Julian,
The notion that technology can change the scope of a right should not seem odd at all. Constitutional rights are not simple rules that are frozen in time. The majority in this case only holds back the law from recognizing new challenges and evolving to a form more appropriate to deal with today's social realities.
By adopting the approach that they have the Supreme Court has simply perpetuated what they said they would like to avoid. The information imbalance will simply be restricted to those members of society that have the time and interest to actively seek out this information. Where as if s. 329 was struck access to the information would be more widespread and equitable.
I think that technology can clearly affect - for the better or for the worse - a legal right, and if statutes or the courts don't keep up, then the policy balance of the law will necessarily be changed. That said, I like the publication ban, though I see the benefit of well-informed strategic voting too.
The courts from time to time (and the legislatures ditto) do stand in the path of technology. Maybe they slow it down or divert it a bit.
I suspect that the answer to the challenge of information bans is to further skew the polling times, and when that reaches its limit - one has to be able to vote at reasonable hours - then defer the counting. No doubt those of us in the eastern parts of the country would not really like to wait for an extra couple of hours to find out our results, but if (as opinion polls suggest) we approve of the information ban, then that's the price we may have to pay.
And if we used federally a machine-read paper ballot like that in some municipal elections, then we could find out the results within minutes of the start of counting in any event. So if we had to wait till 10 p.m. local time, or 11, so be it. What's the hurry? The results we will have to live with for years in any event.
I would not disagree that technology can render existing legislation ineffective. Rather, I was merely expressing a concern at the proposition that legislation should be struck down just because it is out of sync with the current technical landscape, i.e., a new technology rendering a legislative objective inoperable doesn't seem like a good reason to strike down a piece of legislation.
If such a line of reasoning were carried through to its full, then current copyright and child pornography prevention laws would be struck down because those activities can be considered expression, but can't effectively be curtailed in the current technological landscape.
Again, the dissent clearly did not make their decision on this proposition, but rather on the notion that there was a lack of evidence for any benefit from a publication ban (which clearly there would be for copyright enforcement and child pornography prevention). Nevertheless, even citing such an argument seems troublesome, no matter how little weight was afforded it.
Parliament, I suppose, has the last word in that they have the ability to respond to technological changes, and re-caliber laws accordingly. To respond to Corey's point then, I would suggest that instead of upholding the law, the court might've delayed suspension of the law, so that Parliament could appropriately reconfigure the law so as to properly take into account internet transmissions.
I think there is validity in John Gregory's idea of delaying the counting. Although I think it would be more realistic, rather than asking each person at the polling station to wait to count the votes and then report them back to the electoral office.
Each office could report the results to Election Canada. However, Elections Canada would be under no duty to make the Atlantic province results public until after the BC polls close. Having worked at a riding office before, I know it is possible.
Is there some policy which requires riding results to be made available real time to the media?
Stoner v. Skene (1918), 44 O.L.R. 609 (S.C.) at p. 617: “Legal fictions are not always set up for the advancement of justice, to wit, in this case. Fiction must stop somewhere.” (internal quotation marks removed). The case is worth reading, too, if only for the look into the social values of another era.
About 2 decades ago, an acquaintance who was then head of an important lawyers' organization wrote a column in the organization's journal. Part of his article dealt with the impact of technology on law. I'll paraphrase (because I can't remember) his conclusion: on departing, would the last Luddite please remember to turn off the lights."
David Cheifetz