R. v. Bryan

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March 15, 2007

It’s official. Ignorance is bliss… at least according to the majority of Supreme Court of Canada judges ruling in the Bryan case. On federal election night, Canadians who want to ignore election news from polling locations further East than they live now have a constitutionally approved right to vote in ignorance of that news, and to require fellow Canadians who’d rather know what’s going on, almost one in three of us, not to learn that news from radio, television or the internet.

All this, in the service of the myth of “information equality” among voters across the country, which the majority judges had to acknowledge was an elusive goal. Even the law that was upheld by the majority doesn’t stop Canadians who live anywhere from Quebec west from hearing from those in the east who know the election results, and passing the results on to others, one by one. With millions of Atlantic Canadians having that information “to themselves” for hours, it’s ridiculous to believe massive numbers of us in the rest of the country won’t learn those results until we’re supposed to. On that night, millions of Canadians focused on finding the latest election results will take advantage of their family, friends, business, or political connections to get the answers. Telephone calls, e-mail, and text messaging will pass on that information instantly.

The Supreme Court did not write this law, of course. The majority merely upheld Parliament’s right to enact it, and they did not appear to do so with a great deal of enthusiasm. Justice Fish, whose reasons were concurred in by three of the other majority judges, went out of his way to say “I take care to add that Parliament can of course change its mind. Within constitutional bounds, policy preferences of this sort remain the prerogative of Parliament, not of the courts”.

Clear evidence that the law does not, in fact, maintain information equality did not deter the majority from upholding the constitutionality of the law. Instead, they relaxed the court’s evidentiary requirement considerably, relying instead on “logic and common sense”. Curbing widespread dissemination of information, they held, “contributes materially” to the government’s objective of maintaining public confidence in the electoral system, which they found, citing a 2005 public opinion poll, is important to 70% of Canadians. It may “contribute materially” to that objective, but it fails mightily to achieve it.

The majority’s reliance on a public opinion poll is disturbing. They appeared to put more stock in the “perception” of election fairness than election fairness itself.

Like beauty, logic and common sense are in the eye of the beholder. The strength of our legal system has been that courts rely instead on carefully considered tests and evidence. Abandoning that approach makes litigation both more uncertain and more likely.

The majority found that the law was a proportional response to Parliament’s objective. The minority found that it was not. The majority felt that the benefit of the law outweighed the “inconvenience” to the media for a few hours. The minority recognized that the imagined benefit was outweighed by the significant harm to free expression interests of the media and millions of Canadians.

On the issue of harm, Justice Abella, writing for the minority, made a number of important observations:

"128 … the harm caused by the ban to the expressive rights in s. 2(b) is considerable. For the duration of the ban, the Atlantic election results are denied to all Canadians west of the Atlantic provinces, many of whom have already voted. It is difficult to imagine a more important aspect of democratic expression than voting and learning the results of their vote. The s. 329 ban impairs the right both to disseminate and receive election results at a crucial time in the electoral process. To suggest that this is only a delay, not the suppression of information, unduly minimizes the significance both of the information and of the delay.
129 The fact that the suppression of information is of limited duration is not determinative. News is news precisely because of its immediacy, especially during an election, where a great deal of information and analysis must be passed on to the public in a short period of time. Canadians are entitled to know, as soon as possible, who their elected representatives are.
130 There is, in addition, harm of a more practical nature. The technical challenges faced by the media when implementing the ban are considerable, and mean that individuals in certain areas may not receive radio or television election coverage even though the polls have closed in their area of the country. The media’s role in disseminating election information to the public is crucial. Election coverage is how the public learns the outcome of its defining democratic right — voting. It is in this country’s interest to enhance, not impede, the media’s ability to transmit this evolving information as it becomes available. 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."

The majority decision takes us a long way from the words of a previous Supreme Court judge, Justice Cory, who wrote that:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.

This was not the “clearest of circumstances”, by any stretch of the imagination.

I suspect that this decision is not the final word on the subject. The majority practically invited Parliament to reconsider its position. The minority provided cogent reasons for it to do so. If Prime Minister Harper’s government addresses the issue, given his position against this ban before he became Prime Minister, the minority position may yet carry the day.

See: R v Bryan

Submitted by: Daniel Henry

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