Blackout law 'obsolete', Supreme Court told

POSTED ON 17/10/06
BRUCE CHEADLE
Canadian Press

OTTAWA -- Pulling the plug on the country's power grid would be the only way to enforce federal election-night blackout laws made obsolete by the Internet age, the Supreme Court of Canada was told yesterday.

Paul Bryan, a software developer from British Columbia, is fighting the law that bars publishing any election results before all polling stations across Canada's six time zones are closed.

He was charged in 2000 after posting results from 32 Atlantic ridings on the Internet before polls had closed on the West Coast.

"This law can't be enforced, it's not practical," Mr. Bryan said. "It's not feasible for us to enforce this law across Canada."

The federal government argues otherwise. All Canadian voters should go to the polls with the same set of facts, the court heard, a concept that is overwhelmingly supported in public-opinion polling.

As for unenforceable laws, Crown lawyer Graham Garton said that the Supreme Court has been wary of that argument previously, "because if that were so, every law would be at grave constitutional risk."

Mr. Bryan's court challenge is financially backed by the National Citizens Coalition, and his case received support by intervenors from the Canadian Civil Liberties Association and from a group representing most national news outlets.

Their arguments, which engaged the nine justices in a lively debate, followed several lines of reasoning: Section 329 of the Elections Act, which makes it an offence to publish results before all polls close, dates back to the telegraph age.

In the 1990s, Canada brought in staggered voting hours to help ease Western frustration that elections were decided in the East before British Columbians had even cast their ballots. The gap between polls closing in Newfoundland and B.C. has been reduced to 2½ hours, a narrow window for limited Atlantic results to influence last-minute B.C. voters.

Donald Jordan, Mr. Bryan's lawyer, told the high court there is no evidence that early results from 11 per cent of Canada's 308 ridings can exert such influence, and quoted Prime Minister Stephen Harper to bolster his view.

"What difference does the blackout make . . . ?" Mr. Harper was quoted asking, as a private citizen, during his failed challenge of Canada's third-party advertising law. "The results are available: So what?"

Mahmud Jamal, a lawyer for the Canadian Civil Liberties Association, said nothing in the law stops 2.3-million Atlantic Canadians from phoning, e-mailing or text-messaging local election results to people across Canada.

"The law is obsolete," he argued.

And Joseph Arvay, arguing for a group of major news outlets, said the ban stops media from posting news on the Internet and on national newscasts for almost three hours after the first polls close -- "effectively not telling all Canadians their most pressing news story."

"The only way to get fairness is to get rid of Section 329 or to shut the power off on election day so no one gets any results," Mr. Arvay said.

The court reserved judgment.