Embargo: Yes or No?

The long-awaited decision of the Supreme Court of Canada on election result embargos has just been handed down. R v Bryan is the case.

Brief background: Canada being a big place, it stretches across 5 and a half timezones. (The half is Newfoundland; that’s what you get when you allow people from Waterford to build a province). It’s illegal to publish election results until the polls have closed in all time zones – section 329 of the Canada Elections Act. Easy enough to enforce in ye olde days, but more difficult with Web media. And this case involves a website. And the intrepid reporter lost (5-4 at this, final level).

The Attorney General’s argument is based around ‘informational equality’ (which seems to pay homage to the ‘free and balanced flow of information’ favoured by 1970s UNESCO and others). And this convinces the judges. The reason for the restriction (and indeed for the other feature of electoral law that is relevant – staggered voting hours) is to ensure, in particular, that the election is not ‘over’ before the West finishes polling, which would dampen turnout in the Western provinces. The Lortie Commission in the early 90s discussed these matters in detail. The dissenters argue that the restriction isn’t proportionate, and also takes apart some of the political science / opinion poll work on the impact of early results on turnout.

Interestingly, Fish J says at para 79 (the report is a single HTML page, so I’m not linking directly to opinions):

I recognize, of course, that modern communications technology diminishes the delay’s effectiveness and thereby its salutary effects. 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

A fairly good explanation of the way that courts and legislators are recognising that you can regulate ‘the Internet’ without requiring 100% effectiveness…and an interesting approach to the pleading of the technological issue.

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4 thoughts on “Embargo: Yes or No?

  1. See also Michael Geist, who has a wonderful coda, from Abella J’s dissent. He says that her most:
    “telling quote, however, is the following from a Reform MP in 1996:

    It is important to realize, and anybody who looks at the transcripts of the committee will see that no convincing evidence was provided to the committee that this is creating a serious problem in the functioning of our democracy. . . I asked the various witnesses whether there was any documented evidence or any serious academic study on whether knowing the results in other parts of the country had either of two effects: caused people not to vote or it caused them to vote differently than they would vote otherwise. There is precious little evidence that either of these things are true.

    The MP was Stephen Harper.”

    I suppose this means I’m going to have to start agreeing with Abella J. Bother. I have heretofore found that an almost unerring means to orient myself in Canadian jurisprudence was to disagree with her. Or, this might just be a statistical anomaly. I shall content myself with that thought for the time being, and continue to observe her decisions.

  2. If you want a reason to dislike Abella (whose views I don’t know that well; perhaps you could fill us in on what she’s done wrong?), you could try (para 130): “Similarly, Atlantic Canadians who rely on the Internet as their primary source of news are denied any election news from their medium of choice since the transmission of election results over the Internet is prohibited until the end of the blackout.”

    I don’t understand this at all. Atlantic Canadians have always been denied this news through radio or TV, so why does the fact that some of them choose the Internet change the issue? The Internet-reading Haligonian is treated the exact same as the CBC-watching Newfie. Surely the law is either justified or not? She is appealing to technology as a reason but I don’t get how choosing to use the Internet changes the ‘rights’ of the end user.

  3. Forgive me for not having read the decision yet, Daithi, but from the summary, I still find it difficult to imagine how effective such regulation can be in the future. Mainstream publications will probably need to be careful, but think of the vast numbers now loose on the forums and the blogs. Sure, most blogs have modest little readerships, but we have seen that around specific issues (the Libby trial, eg), suddenly everyone knows where to go all at once, and I should think we’ll be seeing that phenom more and more. And no, most bloggers aren’t ambitious enough to pull together the full list of results — but a few will be.

    The situation isn’t as bad as it once was because we have some staggered opening and closing hours now, I believe, although as you say it’s hard to do that neatly across so many time zones.

    I don’t think I’m bothered by the decision (Fish sounds so Canadian, doesn’t he?) — I just can’t quite grasp how it will work for long.

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