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CANADIAN ELECTION LAW


and fax machine, stated that the ban was “rendered obsolete by developments in broadcasting and telecommunications technology, which have made controlling the diffusion of election results more difficult”.


Changing realities While difficulties in enforcement should not be reason alone for Parliamentarians to repeal rules, the combined effect of escalating restrictions on freedom of expression and the threat of a heavy penalty for infringement of the rules in this case is more than sufficient to reasonably conclude that the law should be amended to reflect present and future realities. Moreover, Parliament adopted


staggered voting hours in 1996. The implementation of staggered hours across provinces and time zones reduces the difference between polls closing on the east and west coasts from four and a half hours to three hours. Should the ban be repealed, staggered voting hours means that results from less than 10 per cent of constituencies could be available to late voters in Western Canada, since the majority of polls across Canada open and close at the same absolute time. Accordingly, it is not possible for voters anywhere in the country to know the outcome or the formation of a government before they vote. There is also an antecedent


transmission is quickly eroding” and stating that Parliament should “consider revoking the rule.” Even a 1991 Royal


Commission on Electoral Reform and Party Financing (the Lortie Report), prompted by the widespread use of the telephone


example for repealing the ban. Following the 2000 general election, a blogger named Paul Bryan was charged with an offence for having posted the results from Atlantic Canada on his website while the polls were still open in the rest of the country. Mr Bryan challenged the constitutionality of the ban as being contrary to his freedom of expression protected under the Canadian Charter of Rights and Freedoms. In 2003, the Supreme Court of


British Columbia declared the ban unconstitutional as a result of Mr


Bryan’s challenge. Although the decision was subsequently appealed, the judgment would not be delivered until after the 2004 general election. Consistent with past practice, the Chief Electoral Officer of Canada relied on the existing state of the law and suspended the ban during the 2004 general election. The temporary repeal of the


ban in 2004 is, very much, a suitable example for the outright repeal of the ban. There was no evidence of an effect on voter behaviour.


Parliament’s right to reform In 2007, the Supreme Court of Canada released its decision in R v. Bryan. While the Court was unanimous that the ban limited freedom of expression, a majority of the Court found the limitation to be reasonably justified. Although the Court upheld the validity of the ban, it accorded significant deference to Parliament to alter or repeal the ban as it sees fit, noting that “within constitutional bounds, policy preferences of this sort remain the prerogative of Parliament, not of the courts”. It’s now time for Parliament to


assert its prerogative. Canada’s ban on early transmission of election results no longer makes sense given the widespread use of modern communication technologies, the considerable difficulty in enforcing an obsolete rule and the sizeable restriction on freedom of expression. That is why our government has


committed to introducing legislation repealing the ban. We are asking Canadian Parliamentarians to support us in this action. We aim to bring the electoral process in line with 21st century realities. We believe there is little value in


maintaining elements of our electoral system that have out-lived their relevance. This is especially true when such elements restrict fundamental freedoms that are for every Canadian to enjoy.


The Parliamentarian | 2012: Issue Two | 107


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