The Supreme Court of Canada keeping us guessing - R. v. Bryan

Bryan reminds us that it is never wise to think we know what the Supreme Court will do. The lengthy 5/4 decision with two sets of reasons for the majority will keep us guessing.

Paul Bryan must have thought it would be pretty safe on the night of the November 27, 2000 general election to post results from the 32 ridings in Atlantic Canada on a website before the polls had closed in the rest of Canada. He announced he was going to do it and ignored a letter from Elections Canada warning him not to. It was forbidden by Section 329 of the Canada Elections Act, but two years before in Thomson the Supreme Court had struck down Section 322.1 of that Act, which banned publication of polls in the last three days before an election. Surely the Court would strike down Section 329, particularly as the judges in Thomson who would have kept the ban on publishing polls were concerned that the polls might be inaccurate while Bryan was posting accurate, if partial, results.

As the Court reads the Charter Bryan's freedom of expression under Section 2(b) had obviously been breached so the Court had to decide whether Section 329 was a reasonable limit under Section 1. From the earliest cases the Court has read the Charter's rights and freedoms abstractly and strictly, readily finding breaches. If the Court understood the rights and freedoms concretely in their historic legal meaning its power would be less. "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" protected under Subsection 2(b) of the Charter are threatened when governments try to control what people think and to hold power by censorship and persecution. Whatever its merits, Section 329 was not that kind of measure. By reading the protected rights and freedoms abstractly and strictly the Court brings the reasonable limits of Section 1 into play and sets itself free to do what it likes.

The majority writes of deferring to Parliament and all the reasons employ the Oakes jargon of "rational connection" "proportionality" etc. with which the judges pretend to be engaged in subtle legal analysis when they are deciding whether they like a piece of legislation or not. But there is no mistaking that the judges are doing nothing different from what a politician, a journalist or a drunk in a bar would be doing in saying whether we should get results from the East while polls are still open or not. Real deference to Parliament would be the Court upholding legislation it did not like. That it does not do.

The Court's other ruse for concealing its political activity is to say that it relies on evidence of social and political facts. In the best of cases such evidence falls short of what the natural sciences can provide, making it easy for the Court to take it or leave it as it pleases. In Bryan there was an embarrassing dearth of evidence on the effect of results being released before the polls close. The Court had to resort to "logic and reason". This amounted to little more than the notion of "informational equality". The phrase describes the objective of the legislation: all voters should have the same information when they vote; none should know how others voted before voting themselves. Giving a concept a name, even a nice and imposing sounding one like "informational equality", does not make it a value. The Court accepted that it was a value.

The government's expert witness, a political science professor, testified that "informational equality" is "a central assumption of electoral democracy". This would have surprised voters before the days of the secret ballot. We may accept that secrecy of voting is now "a central assumption of electoral democracy" but the secret ballot was not adopted to prevent voters from knowing how their fellows had voted.

The other factor that weighed with the Court was a poll from 2005 that found 70% of those questioned "thought people should not be able to know election results from other provinces before their polls close". The Court would not say "If 70% of the people want the law they can have it." Whatever the talk of deferring to Parliament the Court has never talked of deferring to the people. It claims to be a bulwark against a tyranny of the majority. The Court took the poll as evidence of a subjective anxiety that would undermine confidence in democracy whether reasonable or not. It was not that publishing results before the polls close is unfair but that many people think it is unfair that mattered and justified the law. Concerned about the reliability of polls in Thomson the Court took the 70% at face value not considering whether a different wording of the question or a different context would yield a different result.

Resentment of results reported while polls were still open has been sustained because the West saw elections decided before they had finished voting. Staggered voting hours now mean practically that only results from Atlantic Canada are available before polls are closed everywhere. The minority would have struck down Section 329 on the ground that withholding the results from the 32 Atlantic ridings was not important enough to justify the breach of freedom of expression they found.

If Westerners have objected to hearing results from the East before they have finished voting it was not so much hearing as the results themselves they did not like. With a great majority of seats in Ontario and Quebec and those provinces tending to vote in blocs the West was powerless and saw it. More seats in the West and more open contests in Ontario and Quebec would relieve the West and late voters might even want to know the state of play before voting.

The Court held that it was important that Western voters should vote in ignorance of what Atlantic voters might be doing even though, after Thomson, eve of voting polls as indicative as partial official counts are now a constitutional right. Who can blame Bryan for thinking he was safe? We can predict elections but not Supreme Court decisions.