R. v. Bryan

SCCInfoBox
case-name=R. v. Bryan
full-case-name=Paul Charles Bryan v. Her Majesty the Queen and Attorney General of Canada
heard-date=October 16, 2006
decided-date=March 15, 2007
docket=
citations=2007 SCC 12
history=
ruling=Appeal dismissed
ratio=Section 329 of the Canada Elections Act is constitutional and justified under section 1 of the Canadian Charter of Rights
SCC=2006-2007
Majority=Bastarache
Majority2=Fish
JoinMajority=Deschamps, Charron and Rothstein
JoinMajority2=Deschamps, Charron and Rothstein
Dissent=Abella
JoinDissent=McLachlin, Binnie and LeBel
LawsApplied=

"R. v. Bryan" 2007 SCC 12 is a decision by the Supreme Court of Canada on freedom of expression and Canadian federal elections. The Court upheld a law that prevented the publicizing of election results from some ridings before the polls closed in others.

Background

Section 329 of the Canada Elections Act outlawed publishing election results from other ridings in constituencies where polls were still open. However, in the federal election in 2000, one Paul Charles Bryan published results from Atlantic Canada on the Internet despite being told not to by the authorities. [Para. 2.] Bryan was charged before the Provincial Court of British Columbia, but fought the charges as unconstitutional under section 2 of the Canadian Charter of Rights and Freedoms, which protects freedom of expression and freedom of association. Bryan's victory before the British Columbia Supreme Court meant that voters in British Columbia legally learned of election results in other ridings during the federal election in 2004.CBC News, " [http://www.cbc.ca/canada/story/2007/03/15/election-law.html Supreme Court upholds blackout on early election night results] ," March 15, 2007, URL accessed 17 March 2007.] However, Bryan lost his case before the British Columbia Court of Appeal.

Stephen Harper, who later became prime minister, labelled Elections Canada "jackasses" and tried to raise money for Bryan. The Canadian Broadcasting Corporation also supported Bryan, hoping to "make election night a bigger event that it already is."

Decision

The majority of the Court produced three opinions upholding the law, one by Justice Bastarache and one by Justice Fish, with the remaining three judges writing a brief opinion of agreement.

Bastarache

Justice Bastarache pointed to the Supreme Court case "Harper v. Canada (Attorney General)" (2004) which had also considered the Canada Elections Act. The "Harper" decision stated that the Court should be deferential to the government with respect to election legislation, [Para. 9.] and that the Court should consider the context of the law, citing "Thomson Newspapers Co. v. Canada (Attorney General)" (1998) to say that this involves considering why someone guarded by the law is at risk and why someone would perceive onself to be at risk. [Para. 10.] In this case, Bastarache found the purpose of section 329 was to promote the idea of each voter in Canada knowing as much as each other, as it may be unfair if some voters already know election results in other ridings while earlier voters do not know of any outcomes. This idea of section 329 would also build public trust in elections. [Para. 12.] Bastarache felt that voters aware of some results may base their own choices on that knowledge, [Para. 14.] and Bastarache recognized without demand for much proof that it is a principle of democracy that a person cannot base their choice in voting on special knowledge. [Para. 22.] In this case, Bastarache did not really emphasize the idea that Canadian voters from Western Canada were at risk of being swayed by special knowledge, saying that Canadian voters should be trusted to have some "maturity and intelligence." [Para 24.] Instead, Bastarache said what was at stake was the view that Canadian elections are fair, and pointed to polls to reinforce this idea. [Para. 25.]

On the topic of freedom of expression, Bastarache questioned the value of spreading election results, and said that there was no evidence this could outweigh the principles of democracy of section 329. [Para. 27.] On whether a violation of freedom of expression could be justified under section 1 of the Charter, Bastarache found that fairness in elections should be a sufficient objective of the law, [Para. 35.] as should building public trust in elections. [Para. 37.] Additionally, banning the publishing of election results was needed to achieve this objective, and Parliament considered this to be the best method. [Para. 47.]

Fish

Dissent

References

External links

*lexum-scc|2007|12