Premature Transmission of Election Results

With another federal election and $300 million in the books, Canadians are left with parliament in similar shape as it was before. The popular perception of a stagnant government may have given more reason to push some citizens to go that extra step to shape a desired outcome, and to try to influence the votes of others. This type of activity is of course nothing new in elections, but the problem is that some of these seemingly innocent steps taken by such average citizens were illegal.

According to section 329 of the Canada Elections Act, “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.” Due to the increasing ease of sharing information to a large audience in real time through the internet, it has become more common to see citizens relaying election results from the east coast of the country to the west coast, before polls have closed in the latter. During this past election, there have been reports of many online sites being a hub for this sort of activity, especially the popular social networking sites. In fact, even television stations were responsible for transmitting illegally, though some of these occurrences have been officially explained as genuine mistakes.

This law was challenged a few years ago as being in breach of the fundamental freedoms laid out in section 2 of the Charter, namely, our freedom of expression. In 2007, the Supreme Court of Canada decided that freedom of expression was in fact infringed by that particular provision of the Elections Act, but that this was a reasonable limitation and was justified under section 1 of the Charter. The decision considered major policy reasons: to ensure informational equality among voters and to maintain confidence in the fairness of the system as perceived by the public. It might be argued that there exists a strong possibility that individuals can anyway easily access illegally transmitted election results online, and this is enough to damage the confidence of the public and also put some voters at an informational advantage. The court responded by stating that there is a difference in impact between “a small number (less than 25 percent) of voters seeking out information privately, and, on the other hand, a national broadcast of election results from Atlantic Canada which would be difficult to ignore for those who did not wish to see it.”

Though the Supreme Court’s decision raises the rationale that “perfect enforcement is not a requirement of a law’s validity”, it may be considered quite unfair if such enforcement is imperfect in such a way so as to systematically disfavour some forms of business and not other forms. It is probably a lot easier for Elections Canada to successfully prove that specific television or radio stations have broadcast election results prior to the end of a blackout period, as compared with identifying a similar proportion of individuals or websites that pass on the information online. Traditional media outlets can be said to be in competition with new online sources and the difficulty in equally enforcing laws allows for these newer mediums to gain an unfair competitive edge. It will therefore be interesting to see how strongly the authorities act if they receive official complaints regarding violations of section 329, and whether the actions will be equally measured against both traditional and online broadcasters.