In the pre-Internet and pre-social media age, it was a simple matter for the Canadian government to prevent radio and television stations from broadcasting election results in the East to those in the West while polls in the latter part of the country were still open. Today, it is impossible to prevent election results from being communicated to anywhere in the world, and the government will now recognize reality and repeal section 329 of the Canada Elections Act.
Section 329 of the Canada Elections Act
The section currently in force states: 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 closing of all the polling stations in that other electoral district.
Canada currently has six times zones. There is a four and one half hour time difference between British Columbia and Newfoundland and Labrador. The original purpose of the section was to prohibit people living in the West from learning the results in the East when they still had an opportunity to cast their ballot. It was felt that this knowledge would prohibit at least some Canadians from voting if they already knew how the election was trending and possibly which political party would form the next government.
The section was first enacted into law in 1938 when radio was the only mass medium capable of instantaneously transmitting such information. And the government was able to easily enforce the section as long as radio and television remained the only methods of providing information in real time. But then the Internet came along.
Supreme Court of Canada Upheld Section 329
In 2007, Canada's highest court was faced with the argument that section 329 breached Canadians rights to freedom of expression. Paul Bryan, a resident of British Columbia. obtained election results from Atlantic Canada and posted them on his website while polls in B.C. were still open. Bryan was charged with violating the Canada Election Act.
In a 5-4 decision, the court found that although Bryan's freedom of expression was breached, that breach was justified. The court found the law was a reasonable limit on freedom of expression to deal with the unfairness of some people having knowledge before they voted, while other Canadians did not. The majority held that this freedom of expression was not denied; just merely delayed.
Government Now Set to Repeal Section 329
With the advent and high use of social media sites such as Twitter, dissemination of election information is no longer limited to radio, television, and people like Bryan who have their own websites.
On Jan. 13, 2010, Tim Uppal, Minister of State for Democratic Reform announced the government's plans to eliminate this restriction in the Canada Elections Act. Uppal said,
"Our Government is committed to bringing Canadian elections into the 21st century by getting rid of the unenforceable law."
The Minister then added, "Canadians should have the freedom to communicate without fear of penalization."
Uppal's last comment seems somewhat disingenuous. The right of Canadians to freedom of expression concerning election results is no worse now than it was in the 1930s or in 1982 when the Charter of Rights was enacted. He should have restricted himself to the fact there are too many social media users to ever enforce the law.
The decision follows a recommendation made by Canada's Chief Electoral Officer, Marc Mayrand, in his report following the last federal election on May 2, 2011.
In an unsurprising but someone ironic move, Uppal first released the government's intention on Twitter.
Sources:
• Canada Elections Act.
• R v. Bryan, [2007] 1 S.C.R. 527.
• "Report of the Chief Electoral Officer of Canada on the 41st General Election of May 2,
2011," Aug. 11, 2011.
• " Harper Government Committed to Repealing Dated Ban on Existing Communication of
Election Results, Marketwire, Jan. 13, 2012.
Arthur Weinreb - Weinreb is an author, associate editor and columnist with Canada Free Press and the Canadian Affairs Feature Writer for Suite 101.
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