Supreme Court upholds blackout on early election night results

Last Updated: Thursday, March 15, 2007 | 12:05 PM CT

CBC News

The Supreme Court of Canada has upheld a legal ban on reporting early vote results on federal election nights in regions of the country where the polls are still open.

In a 5-4 decision, the top court ruled the section of the Canada Elections Act that bans the publication of voting results until all federal polls close on election night does not violate the Charter of Rights.

Paul Bryan, a British Columbia software developer, outside the Supreme Court in Ottawa on Oct. 16, 2006.
(Fred Chartrand/Canadian Press)

British Columbia software designer Paul Bryan had challenged the 1938 ban, saying modern communications technology, such as the internet, rendered it obsolete.

He argued it violates the Charter of Rights' guarantee of freedom of expression and another section of the Charter that protects freedom of political association.

Federal lawyers argued the law should be maintained to ensure electoral fairness for all Canadians.

Court rules ban 'reasonable'

The court wrote that the ban is a "reasonable limit" on the Charter because it maintains "informational equality" among voters and contributes to "the fairness and reputation of the electoral system as a whole."

"The … ban is only operative for a matter of two to three hours, only on election day, and it is only the late voters who will be affected," wrote the court.

"While the ban may be inconvenient for the media, this argument cannot be allowed to override as important a goal as the protection of Canada’s electoral democracy."

Dissenting judges agreed with Bryan that telecommunications technology has rendered the ban obsolete, and argued that any influence results from Quebec and Ontario may have on Western voters is alleviated by staggered hours at the polls.

Elections Canada staggered voting hours in 2004 so that the majority of results from polls across the country are available within a few of hours of each other.

Bryan had the backing of the Canadian Civil Liberties Association and the National Citizens Coalition, along with a number of media organizations, including the CBC.

"We're disappointed, there's no doubt about it," said Mark Bulgutch, senior executive producer for CBC News and CBC Newsworld.

"We can't expand on what we do … the potential is not realized. It prevents us from engaging people in the story. We thought we could make election night a bigger event that it already is."

Broke law in 2000

Bryan, a software developer from Coquitlam, deliberately broke the election gag law during the 2000 federal election. He posted results from Atlantic Canada on his website before the polls closed in B.C.

He was convicted in B.C. provincial court and fined $1,000.

The province's Supreme Court overturned the conviction in 2003, striking down the gag law section of the Elections Act.

That decision allowed media organizations to tell voters in Western Canada the results of the 2004 federal election while polling stations in B.C. were still open.

In 2005, the B.C. Court of Appeal reversed the lower court decision and upheld the ban, saying it promotes fairness and ensures all voters receive equal treatment on voting day.

In a motion filed with the top court, the CBC, Canadian Press, CTV, the Globe and Mail, Sun Media and CanWest argued any impact on voters would be minimal and should "not justify infringing the expression rights of literally several millions of Canadians."

Prime Minister Stephen Harper, then a private citizen, criticized the reporting ban in 2001 when he circulated a fundraising letter soliciting support for Bryan.

At the time, Harper called Elections Canada officials "jackasses" and referred to Chief Electoral Officer Jean-Pierre Kingsley — who stepped down last December — as a "dangerous man."

The prime minister has been more careful in office, offering no comment on the legal battle.