R. v. Bryan
Encyclopedia
R. v. Bryan 2007 SCC 12 is a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 on freedom of expression and Canadian federal elections
Elections in Canada
Canada holds elections for several levels of government: nationally , provincially and territorially, and municipally. Elections are also held for self governing First Nations and for many other public and private organizations including corporations and trade unions...

. 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
Canada Elections Act
Canada Elections Act is an Act of the Parliament of Canada respecting the election of members of parliament to the Canadian House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts....

 outlawed publishing election results from other ridings in constituencies where polls were still open. However, in the federal election in 2000
Canadian federal election, 2000
The 2000 Canadian federal election was held on November 27, 2000, to elect 301 Members of Parliament of the Canadian House of Commons of the 37th Parliament of Canada....

, one Paul Charles Bryan published results from Atlantic Canada
Atlantic Canada
Atlantic Canada is the region of Canada comprising the four provinces located on the Atlantic coast, excluding Quebec: the three Maritime provinces – New Brunswick, Prince Edward Island, and Nova Scotia – and Newfoundland and Labrador...

 on the Internet despite being told not to by the authorities. Bryan was charged before the Provincial Court of British Columbia
Provincial Court of British Columbia
The Provincial Court of British Columbia is a trial level court in British Columbia that hears cases in criminal, civil and family matters....

, but fought the charges as unconstitutional under section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...

 of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

, which protects freedom of expression and freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....

. Bryan's victory before the British Columbia Supreme Court meant that voters in British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...

 legally learned of election results in other ridings during the federal election in 2004
Canadian federal election, 2004
The Canadian federal election, 2004 , was held on June 28, 2004 to elect members of the Canadian House of Commons of the 38th Parliament of Canada. The Liberal government of Prime Minister Paul Martin lost its majority, but was able to form a minority government after the elections...

. However, Bryan lost his case before the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...

.

Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...

, who later became prime minister, labelled Elections Canada
Elections Canada
Elections Canada is an independent, non-partisan agency reporting directly to the Parliament of Canada. Its ongoing responsibility is to ensure that Canadians can exercise their choices in federal elections and referenda through an open and impartial process...

 "jackasses" and tried to raise money for Bryan. The Canadian Broadcasting Corporation
Canadian Broadcasting Corporation
The Canadian Broadcasting Corporation, commonly known as CBC and officially as CBC/Radio-Canada, is a Canadian crown corporation that serves as the national public radio and television broadcaster...

 also supported Bryan, hoping to "make election night a bigger event it already is."

Decision

The majority of the Court produced three opinions upholding the law, one by Justice Bastarache
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....

 and one by Justice Fish
Morris Fish
Morris J. Fish, is a judge of the Supreme Court of Canada.Born in Montreal, Quebec, the son of Aaron S. Fish and Zlata Grober, he received a Bachelor of Arts in 1959 and a Bachelor of Law in 1962 from McGill University.He practiced law mostly in Quebec for the law firm Cohen, Leithman, Kaufman,...

, 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)
Harper v. Canada (Attorney General)
Harper v. Canada , [2004] 1 S.C.R. 827, 2004 SCC 33, is a leading decision of the Supreme Court of Canada wherein the Court ruled that Canada Elections Act's spending limits on third party election advertising does not violate section 2 and 2 and section 3 of the Canadian Charter of Rights and...

(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, and that the Court should consider the context of the law, citing Thomson Newspapers Co. v. Canada (Attorney General)
Thomson Newspapers Co. v. Canada (Attorney General)
Thomson Newspapers Co. v. Canada , [1998] 1 S.C.R. 877 is a leading Supreme Court of Canada decision on the right to freedom of expression where the Court struck down a law that prohibited the publication, broadcast or dissemination of opinion surveys within the last three days of a federal...

(1998) to say that this involves considering why someone guarded by the law is at risk and why someone would perceive oneself to be at risk. 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. Bastarache felt that voters aware of some results may base their own choices on that knowledge, and Bastarache recognized without demand for much proof that it is a principle of democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...

 that a person cannot base their choice in voting on special knowledge. In this case, Bastarache did not really emphasize the idea that Canadian voters from Western Canada
Western Canada
Western Canada, also referred to as the Western provinces and commonly as the West, is a region of Canada that includes the four provinces west of the province of Ontario.- Provinces :...

 were at risk of being swayed by special knowledge, saying that Canadian voters should be trusted to have some "maturity and intelligence." Instead, Bastarache said what was at stake was the view that Canadian elections are fair, and pointed to polls to reinforce this idea.

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. On whether a violation of freedom of expression could be justified under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...

 of the Charter, Bastarache found that fairness in elections should be a sufficient objective of the law, as should building public trust in elections. Additionally, banning the publishing of election results was needed to achieve this objective, and Parliament considered this to be the best method.

Fish

Justice Fish states election results from other ridings should not be published in a riding before its polls close so voters can vote without knowing how other voters have voted. Fish says section 329 of the Canada Elections Act does violate section 2(b) of the Charter of Rights for a short while, but section 329 is constitutional because it "relates to a pressing and substantial concern in a free and democratic society", thus satisfying one part of section 1 of the Charter which can limit the rights of Canadians. Section 329 is also constitutional because according to Fish, the court is dealing with "an important element of Canada’s electoral system" so section 1 of the Charter of Rights can be invoked. Fish refers to both a Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...

on Electoral Reform and Party Financing publication and a 2005 joint Decima Research-Carleton University Poll; both state Canadians do not want to know election results before their polls close. Fish believes even if there is no harm in releasing results early, the information release would create a "perception" of unfairness, which in itself is a problem.
The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
x
OK