R. v. Bryan

R. v. Bryan
Collection
Supreme Court Judgments
Date
2007-03-15
Neutral citation
2007 SCC 12
Report
[2007] 1 SCR 527
Case number
31052
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 31052
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Bryan, [2007] 1 S.C.R. 527, 2007 SCC 12
Date: 20070315
Docket: 31052
Between:
Paul Charles Bryan
Appellant
and
Her Majesty the Queen and Attorney General of Canada
Respondents
‑ and ‑
Canadian Broadcasting Corporation, CTV Inc., TVA Group Inc.,
Rogers Broadcasting Limited, CHUM Limited, Sun Media
Corporation, Sun Media (Toronto) Corporation, Canadian
Press, Globe and Mail, CanWest MediaWorks Inc., CanWest
MediaWorks Publications Inc., Canoe Inc. and Canadian Civil
Liberties Association
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 53)
Concurring Reasons:
(paras. 54 to 82)
Joint Concurring Reasons With Those of Bastarache and Fish JJ:
(para. 83)
Dissenting Reasons:
(paras. 84 to 134)
Bastarache J.
Fish J.
Deschamps, Charron and Rothstein JJ.
Abella J. (McLachlin C.J. and Binnie and LeBel JJ. concurring)
______________________________
R. v. Bryan, [2007] 1 S.C.R. 527, 2007 SCC 12
Paul Charles Bryan Appellant
v.
Her Majesty The Queen and Attorney General of Canada Respondents
and
Canadian Broadcasting Corporation, CTV Inc., TVA Group Inc.,
Rogers Broadcasting Limited, CHUM Limited, Sun Media
Corporation, Sun Media (Toronto) Corporation, Canadian
Press, Globe and Mail, CanWest MediaWorks Inc., CanWest
MediaWorks Publications Inc., Canoe Inc. and Canadian Civil
Liberties Association Interveners
Indexed as: R. v. Bryan
Neutral citation: 2007 SCC 12.
File No.: 31052.
2006: October 16; 2007: March 15.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Freedom of expression — Federal elections — Premature transmission of results — Federal elections legislation prohibiting dissemination of election results from one electoral district to another if polling stations in that other district still open — Whether temporary ban on publication of election results infringes freedom of expression — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) — Canada Elections Act, S.C. 2000, c. 9, s. 329 .
Constitutional law — Charter of Rights — Reasonable limit — Sufficiency of evidence adduced by government to justify infringement of constitutional right — Canadian Charter of Rights and Freedoms, s. 1 .
During the 2000 federal election, B transmitted the election results from 32 ridings in Atlantic Canada while polling stations remained open elsewhere in Canada, by posting the information on a website. He was charged with contravening s. 329 of the Canada Elections Act , which prohibits the transmission of election results in one electoral district to another electoral district before the close of all polling stations in that other district. B’s application for a declaration that s. 329 was unconstitutional for unjustifiably infringing his freedom of expression guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms was dismissed, and B was convicted of the offence. The summary conviction appeal judge declared the provision unconstitutional on the ground that it infringed the Charter right and was not saved by s. 1 , and overturned B’s conviction. The Court of Appeal held that s. 329 was a justified limit on freedom of expression and restored the conviction.
Held (McLachlin C.J. and Binnie, LeBel and Abella JJ. dissenting): The appeal should be dismissed.
Per Bastarache J.: Although s. 329 of the Canada Elections Act infringes freedom of expression, this infringement is justified under s. 1 of the Charter . The true objective of the Canada Elections Act in the context of the provisions under scrutiny is to ensure informational equality by adopting reasonable measures to deal with the perception of unfairness created when some voters have general access to information that is denied to others, and the further possibility that access to that information will affect voter participation or choices. In determining the nature and sufficiency of the evidence required to justify an infringement of s. 2 (b) of the Charter , s. 329 must be viewed in its context. Here, given that the harm associated with the loss of public confidence in the electoral process or with a breach of the principle of informational equality is difficult to measure, logic and reason assisted by some social science evidence could constitute sufficient proof of the harm. Furthermore, the subjective perceptions of Canadian voters that the electoral system is fair is a vital element in the integrity of the electoral system. Since prevention of Canadians’ subjective fears and apprehension of harm is a goal of s. 329 , evidence of those subjective fears must be taken as important. As for the nature of the infringed activity, while political expression lies at the core of the guarantee of free expression, the right at issue is the putative right to receive election results before the polls close; restricting access to such information before polls close carries less weight than after they close. [10] [14] [16] [19] [23] [25] [27] [30]
Section 329, by virtue of its objective of ensuring informational equality among voters, is a reasonable limit on s. 2 (b) of the Charter . Under the first branch of the s. 1 analysis, the government has established that ensuring informational equality is a pressing and substantial objective on the basis of logic and reason applied to the evidence brought by the Attorney General. Further, the Court has already determined in a previous decision that the objective of maintaining public confidence in the fairness of the electoral system is a pressing and substantial one. [35] [37] [53]
Under the second branch of the s. 1 analysis, the government has also demonstrated that the s. 329 ban meets the proportionality test. Logic and reason, combined with the Lortie Commission’s report and the 2005 poll produced as fresh evidence sufficiently establish that s. 329 is rationally connected to the objective of maintaining public confidence in the electoral system. To allow some voters to access the results of voting in other districts would patently violate that objective. The suggestion that such information could be available to voters in spite of the ban, through private communications, does not detract from this conclusion. With respect to minimal impairment, the Lortie Commission’s report also supports the view that maintaining public confidence in the electoral system requires some method of restraining publication of election results until most or all Canadians have voted. Staggered hours cannot alone perfectly address the problem of voter confidence. Parliament debated the advantages and disadvantages of various approaches to the problem, including the alternative options proposed by the Lortie Commission, and determined the s. 329 scheme to be the most effective and least intrusive. There is also sufficient evidence in the particular context of this case showing that Parliament’s policy choice in adopting s. 329 is a rational and justifiable solution to the problem of informational imbalance. Finally, the salutary effects of s. 329 outweigh the deleterious effects. The salutary effects of s. 329 are clear. Of primary importance is the fact that s. 329 maintains the integrity of the principle of informational equality, and is the only effective legislative response available to Parliament to address that objective. Secondarily, logic and reason suggest that, given that 70 percent of Canadians surveyed in the 2005 poll believe in the importance of informational equality in elections, s. 329 contributes to the maintenance of public confidence in the electoral system. These salutary effects are real, not merely potential. Moreover, s. 329 contributes in a positive way to the fairness and reputation of the electoral system as a whole. Regarding deleterious effects, there is no evidence that s. 329 harms the electoral process or the general right of Canadians to be informed that is manifestly superior to the evidence of its salutary effects in promoting electoral fairness. The s. 329 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. 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. [40-41] [45-52]
Per Fish J.: Section 329 of the Canada Elections Act is but one element of a comprehensive, elaborate electoral system that temporarily restricts various forms of expression. Care must be taken not to usurp Parliament’s role in determining the rules of the electoral game most appropriate for Canada as a whole. The role of the courts is simply to decide whether Parliament’s impugned preference passes constitutional muster. Here, the government has discharged its burden under s. 1 of the Charter . The object of s. 329 , which is to avoid or restrict the information imbalance that would otherwise result, relates to a pressing and substantial concern. Without the limit imposed by s. 329 , voters in Central and Western Canada would have access to the results from the Atlantic provinces before casting their ballots, while voters in the Atlantic provinces would lack similar information. The s. 329 ban also meets the proportionality test. There is a rational connection between the objective and the limitation, and the limitation minimally impairs the affected Charter right. The deleterious effects of the limitation are also outweighed by its salutary effects. The justification invoked by the government must be assessed in light of the inherent resistance of the relevant harm to precise measurement. In this regard, the Lortie Commission’s report and the 2005 poll provide a sound basis for concluding that the information imbalance is a real and significant harm and that Canadians value the principle of information equality. Further, they support the government’s assertion that the information imbalance alone creates a perception of unfairness in the electoral system, which is itself a harm that Parliament may address. While modern communications technology diminishes the delay’s effectiveness, and thereby its salutary effects, s. 329 does curb widespread dissemination of this information and thus contributes materially to its objective of information equality between voters in different parts of the country. The deleterious effects of the delay, in contrast, are minimal. The s. 329 limitation on freedom of expression involves no suppression of any information at all, but only a brief delay in its communication to voters who have not yet cast their ballots. Lastly, while political expression is at the core of the s. 2 (b) guarantee, restricting the publication of election results in other provinces before all votes have been cast carries less weight than would a similar restriction after the close of polls. As most voters have no access to electoral results until after the close of polls, these results, before one has cast one’s own ballot, cannot form an important part of the political discourse. [58-62] [68] [71] [78-81]
Per Deschamps, Charron and Rothstein JJ.: The analytical approaches adopted and the result reached by Bastarache and Fish JJ. were agreed with. The appeal is resolved at the proportionality stage of the Oakes test, and in this regard, their reasons are complementary. [83]
Per McLachlin C.J. and Binnie, LeBel and Abella JJ. (dissenting): The s. 329 publication ban is an excessive response to an insufficiently proven harm and a violation of s. 2 (b) of the Charter that cannot be justified under s. 1 . The government’s s. 1 justification falters fatally in its submission that the benefits of the limitation on the freedom of expression are proportional to its harmful effects. While the government may not be required to demonstrate that its policy judgment is justified with evidence that is amenable to precise measurement, the social science evidence supported by reason and logic must convincingly establish the consequences of imposing or failing to impose the limit. Here, when the harm at which the blackout period in s. 329 is aimed is considered in the context of staggered hours, there is only speculative and unpersuasive evidence to support the government’s claim that the information imbalance is of sufficient harm to voter behaviour or perceptions of electoral unfairness that it outweighs any damage done to a fundamental and constitutionally protected right. [103] [106] [108] [110] [133]
At issue are the core democratic rights of the media to publish and of Canadians to receive election results in a timely fashion. The possibility that some Western voters might be influenced by results from Atlantic Canada cannot be completely discounted, but the question is whether the impact will be a harmful one. The inference that the information imbalance created by lifting the ban in s. 329 would have a harmful impact of any kind on voter turnout, choice or perception is highly theoretical and unsubstantiated by cogent evidence. The evidence of the expert witness at trial indicates that there is no impact on voter turnout unless the outcome of the election is known or knowable, something that cannot realistically occur based on knowing the results from 32 ridings. Moreover, the evidence from the Lortie Commission suggests that there is no harm to public perception from knowing the results from the 32 ridings in Atlantic Canada. The real harm perceived by the Commission — the influence on voter perception generated by knowing the Ontario and Quebec results, since these two provinces have the potential to determine who will form the government — is alleviated by staggered hours. Further, any potential benefits of the publication ban are diminished by the reality that it has been rendered obsolete by telecommunications technology. [110] [117] [120-126]
The evidence adduced by the government fails to demonstrate either that the ban in s. 329 , in the context of staggered hours, promotes public confidence in the fairness of elections or that harm will occur in the absence of the limitation. On the other hand, the s. 329 ban impairs the right both to disseminate and receive election results at a crucial time in the electoral process. To suggest that the limitation at issue involves only a delay, not the suppression of information, unduly minimizes the significance both of the information and of the delay. Canadians are entitled to know, as soon as possible, who their elected representatives are. [127-129] [131]
Furthermore, the media’s role in disseminating election information to the public is critical. The technical challenges they face when implementing the ban are considerable, and mean that individuals in certain areas may not receive radio or television election coverage even though the polls have closed in their area of the country. All of this harm to the Charter right is demonstrable; the benefits of the ban are not. [130-131 ] [133]
Cases Cited
By Bastarache J.
Applied: Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; referred to: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Oakes, [1986] 1 S.C.R. 103; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Keegstra, [1990] 3 S.C.R. 697; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74.
By Fish J.
Referred to: Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; R. v. Oakes, [1986] 1 S.C.R. 103; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.
By Deschamps, Charron and Rothstein JJ.
Referred to: R. v. Oakes, [1986] 1 S.C.R. 103.
By Abella J. (dissenting)
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; R. v. Oakes, [1986] 1 S.C.R. 103; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
Statutes and Regulations Cited
Act to amend the Canada Elections Act , the Parliament of Canada Act and the Referendum Act, S.C. 1996, c. 35, s. 44.1.
Canada Elections Act, S.C. 2000, c. 9, ss. 128 , 323 , 328 , 329 , 495(4) , 500(4) .
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d).
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 813 .
Dominion Elections Act, 1938, S.C. 1938, c. 46, s. 107.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 134, 2nd Sess., 35th Parl., November 26, 1996, p. 6723.
Canada. Royal Commission on Electoral Reform and Party Financing. Final Report. Reforming Electoral Democracy, vol. 2. Ottawa: The Commission, 1991.
Choudhry, Sujit. “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter ’s Section 1 ” (2006), 34 S.C.L.R. (2d) 501.
Decima Research/Carleton University, School of Journalism and Communication. “Most Canadians Prefer Election Night Results Blackout”, 2006.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2006, release 1).
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C., Rowles and Saunders JJ.A.) (2005), 253 D.L.R. (4th) 137, 213 B.C.A.C. 52, 352 W.A.C. 52, 196 C.C.C. (3d) 369, 130 C.R.R. (2d) 348, [2005] B.C.J. No. 1130 (QL), 2005 BCCA 285, reversing a decision of Kelleher J. (2003), 233 D.L.R. (4th) 745, 112 C.R.R. (2d) 189, [2003] B.C.J. No. 2479 (QL), 2003 BCSC 1499. Appeal dismissed, McLachlin C.J. and Binnie, LeBel and Abella JJ. dissenting.
Donald J. Jordan, Q.C., and Rodney W. Sieg, for the appellant.
Andrew I. Nathanson and Brook Greenberg, for the respondent Her Majesty the Queen.
Graham Garton, Q.C., and Sean Gaudet, for the respondent the Attorney General of Canada.
Joseph J. Arvay, Q.C., Brent Olthuis and Daniel Henry, for the interveners Canadian Broadcasting Corporation, CTV Inc., TVA Group Inc., Rogers Broadcasting Limited, CHUM Limited, Sun Media Corporation, Sun Media (Toronto) Corporation, Canadian Press, Globe and Mail, CanWest MediaWorks Inc., CanWest MediaWorks Publications Inc. and Canoe Inc.
Mahmud Jamal and Colin Feasby, for the intervener the Canadian Civil Liberties Association.
The following are the reasons delivered by
Bastarache J. —
I. Introduction
1 The sole issue on this appeal is whether s. 329 of the Canada Elections Act, S.C. 2000, c. 9 , which prohibits the broadcasting of election results on election day until polling stations are closed in all parts of Canada, constitutes a violation of the freedom of expression guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms that cannot be justified under s. 1 . As such, this case is a direct application of this Court’s decision in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33.
II. Facts and Judicial History
2 During the federal general election of November 27, 2000, the appellant transmitted the election results from Atlantic Canada while polling stations remained open in other parts of Canada by posting the results on a website. The results were therefore available to the public in every electoral district in Canada. The appellant had made his intention to do so public before the election, and the Commissioner of Canada Elections had warned him that such publication would be contrary to s. 329 of the Canada Elections Act .
3 The appellant was charged under s. 329 of the Act. The appellant brought an application in the Provincial Court of British Columbia challenging the constitutional validity of ss. 329, 495(4) and 500(4) of the Act on the basis that the provisions infringed ss. 2 (b) and 2 (d) of the Charter , and that they were not saved by s. 1 of the Charter . The Commissioner of Canada Elections, who was the respondent to the appellant’s application, took no position on the application, but the Attorney General of Canada appeared before the Provincial Court as an intervener to defend the constitutionality of s. 329 .
4 Judge Smith of the B.C. Provincial Court held, in two separate judgments ([2003] B.C.J. No. 542 (QL), 2003 BCPC 65, and (2003), 104 C.R.R. (2d) 364, 2003 BCPC 39), that s. 329 infringed s. 2 (b) of the Charter , but that the Attorney General had established that it was a demonstrable limit on s. 2 (b) and so was justified under s. 1 . The trial judge based this second conclusion on two pieces of evidence. One was a government report, Reforming Electoral Democracy (1991), the Report of the Royal Commission on Electoral Reform and Party Financing (the “Lortie Report”), and the other was the report and evidence of Dr. Robert MacDermid, a professor of political science at York University. Dr. MacDermid was qualified as an expert witness; this qualification was not challenged by the appellant. It is also important to note that the appellant brought no evidence of his own. The Lortie Report and the evidence of Dr. MacDermid remained essentially the only evidence in this case until I granted leave to adduce new evidence to the group of media organizations which intervened before this Court and subsequently to the Attorney General by Orders dated March 22, 2006 and July 25, 2006 respectively. I will refer to the evidence in some detail in my analysis below.
5 The appellant’s constitutional application having been dismissed, a summary conviction trial took place on the basis of an agreed statement of facts. The appellant admitted to having committed the elements of the offence. He was convicted of the offence and fined $1,000.
6 Pursuant to s. 813 of the Criminal Code, R.S.C. 1985, c. C-46 , the appellant appealed the summary conviction on the basis that the trial judge erred in dismissing the constitutional challenge. That appeal was allowed by Kelleher J. of the B.C. Supreme Court on the basis that the evidence before the trial judge did not support the conclusion that s. 329 was supported by a pressing and substantial objective ((2003), 233 D.L.R. (4th) 745, 2003 BCSC 1499). Kelleher J. also held that, if his conclusion regarding a pressing and substantial objective was incorrect, the Attorney General had failed to meet its burden of establishing minimal impairment and proportionality. By judgment dated October 23, 2003, the conviction was overturned and the appellant was acquitted.
7 On May 18, 2004, this Court released its judgment in Harper. In light of this Court’s ruling in that case that the Canada Elections Act ’s third party advertising limits were constitutional, the Attorney General sought, and received, leave to appeal the decision of Kelleher J.
8 The British Columbia Court of Appeal unanimously agreed that s. 329 of the Act violated s. 2 (b) of the Charter and that the only real issue was whether s. 329 could be justified under s. 1 ((2005), 253 D.L.R. (4th) 137, 2005 BCCA 285). A majority of the Court of Appeal held that the Attorney General had met its burden under s. 1 and that s. 329 was a justified limit on freedom of expression. The conviction ordered at trial was restored.
III. Analysis
9 This Court’s decision in Harper contains two important principles that are applicable to this case. First, it establishes that courts ought to take a natural attitude of deference toward Parliament when dealing with election laws: “Given the right of Parliament to choose Canada’s electoral model and the nuances inherent in implementing this model, the Court must approach the justification analysis with deference” (Harper, at para. 87).
10 Second, it reaffirms that, in determining the nature and sufficiency of evidence required for the Attorney General to establish that a violation of s. 2 (b) is saved by s. 1 , the impugned provision must be viewed in its context: see Harper, at paras. 75-76, and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 88. This context can be best established by reference to the four factors which this Court set out in Thomson Newspapers and Harper: (i) the nature of the harm and the inability to measure it, (ii) the vulnerability of the group protected, (iii) subjective fears and apprehension of harm, and (iv) the nature of the infringed activity.
11 However, the contextual factors must be understood as being about the provision. As this Court noted at para. 87 of Thomson Newspapers:
The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes, [1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right. [Emphasis added.]
I take this passage to mean that only once the objectives of the impugned provision are stated can we turn to an examination of the context of those objectives to determine the nature and sufficiency of the evidence required under s. 1 .
12 The Attorney General has asserted two distinct but related objectives of s. 329 . First, the Attorney General claims that s. 329 is directed at ensuring informational equality among voters. The Attorney General’s expert witness in this case, Dr. MacDermid, refers to informational equality as “a central assumption of electoral democracy”. The Attorney General has presented the promotion of informational equality as an inherently worthy goal; by this he means that the mere fact that one voter could have general access to information about election results that another voter does not have is in and of itself problematic. The Attorney General’s second proposed objective is, as I said, related to the first: the Attorney General asserts that s. 329 promotes public confidence in the electoral system, and a principal reason that it does so is because such public confidence depends on the public’s belief that the principle of informational equality is maintained by the electoral system.
13 The Attorney General argues that these two objectives, while causally quite closely linked, are in fact different in nature. The first objective, ensuring informational equality, is presented as an inherently important goal: as such its existence and importance are to some degree conceptual matters, and evidence to establish them will be hard to come by. The second objective, on the other hand, is presented as based on actual sociological fact: the Attorney General claims that confidence in the electoral system will (or would) actually decrease if some voters were to have general access to information about the results of the election that other voters cannot have. As this second objective is framed in terms of a sociological argument about the link between informational equality and voter confidence, it is the kind of objective for which the Attorney General should be expected to lead some evidence establishing the claimed link.
14 As I see it, the true objective of the Canada Elections Act in the context of the provisions under scrutiny is to ensure informational equality by adopting reasonable measures to deal with the perception of unfairness created when some voters have general access to information that is denied to others, and the further possibility that access to that information will affect voter participation or choices. In Harper, this Court unanimously held that “ensuring that all voters receive the same information where possible”, was an important objective: see para. 47, per McLachlin C.J. and Major J. and para. 133, per Bastarache J. This objective is measurable to some degree, as we shall see.
15 With this understanding of the objective of s. 329 , I now turn to a consideration of the four contextual factors from Harper and Thomson Newspapers to the facts of this case.
A. Contextual Factors
1. The Nature of the Harm and the Inability to Measure It
(a) Maintaining Public Confidence in the Electoral System
16 In Harper, this Court held, at para. 77, that when social science evidence of a harm is conflicting or inconclusive, “the court may rely on a reasoned apprehension of . . . harm”. I noted in that case that, absent determinative social science evidence, logic and common sense could be relied upon to assist in the s. 1 analysis. In Thomson Newspapers, I relied on logic and common sense as an aid to interpretation of the uncertain social science evidence about the influence of polls on voters, and held that the possibility of such influence was a matter that the government was legitimately concerned to remedy: see paras. 104-7. Similarly in Harper, I noted that the presence of several factors, such as the subtle influence of advertising on individual decision makers, the presence of other influencing factors and the complexity of electoral decisions, meant that the harm at issue there was difficult, if not impossible to measure and so concluded that “logic and reason assisted by some social science evidence [were] sufficient proof of the harm”: see para. 79.
17 The situation with respect to the maintenance of public confidence in the electoral system is no less complicated. Public confidence is important for instrumental reasons. As this Court noted at para. 82 of Harper:
Perception is of utmost importance in preserving and promoting the electoral regime in Canada. Professor Aucoin emphasized that “[p]ublic perceptions are critical precisely because the legitimacy of the election regime depends upon how citizens assess the extent to which the regime advances the values of their electoral democracy” (emphasis in original). Electoral fairness is key. Where Canadians perceive elections to be unfair, voter apathy follows shortly thereafter.
The Attorney General, following the Court’s logic in Harper, asserts that public confidence in the electoral system is important because, if public confidence is lost, voting patterns could change, and, ultimately, the outcomes of elections could be affected.
18 The Attorney General did provide some evidence on this point. Dr. MacDermid’s testimony was as follows:
. . . I think, based on the evidence in the States, based on some partial aspects about Canada that the — that the result would be the same as we’ve seen in the United States, and that’s most — most clearly a decline in — in participation, a decline in voting rates. Also — it may also affect, differentially, partisans of different parties. And while these would not be enormous, as they are not in the United States, I think it’s important to note that we are talking about effects from one to five percent. That is certainly an ample number to change — to have a very important effect in close races, which can never be predicted from one election to another. [Emphasis added.]
Similarly, the Lortie Report based some of its recommendations on the “perception that elections are decided before [Western] voters have even finished voting” (Lortie Report, vol. 2, at p. 83).
19 The somewhat speculative nature of this evidence is not unexpected, as some form of the s. 329 ban has been in place since 1938. Thus, the effect of the s. 329 ban on voting patterns and election results is almost impossible to measure. I am therefore forced to resort to logic and common sense applied to the Attorney General’s evidence as proof of the harm of loss of public confidence in the electoral system as a result of premature release of results.
(b) Ensuring Informational Equality
20 In a series of cases on freedom of expression, this Court gradually reached the recognition that the paucity of social science evidence in some cases required that a reasonable apprehension of harm could be sufficient as a grounding to a s. 1 argument: see R. v. Butler, [1992] 1 S.C.R. 452, at p. 503; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 768 and 776; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 137; Thomson Newspapers, at paras. 104-7. In Harper, the Court extended this line of reasoning to the realization that some harms are “difficult, if not impossible, to measure scientifically” (at para. 79), and that in such cases logic and common sense become all the more important. At least one commentator has suggested that the impetus for this move lies in the origins of the Oakes test itself (R. v. Oakes, [1986] 1 S.C.R. 103), in that the test was formulated without explicit contemplation of situations such as those discussed above, in which “cogent and persuasive” evidence does not exist: see S. Choudhry, “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter ’s Section 1 ” (2006), 34 S.C.L.R. (2d) 501.
21 Section 1 analysis must always be done in a manner consistent with the warning set out by Dickson C.J. in Oakes, at p. 136:
A second contextual element of interpretation of s. 1 is provided by the words “free and democratic society”. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. [Emphasis added.]
22 In some cases, the objective asserted by the government will be largely a matter of the “values and principles essential to a free and democratic society”. In such cases it may not be appropriate to require proof according to the usual civil requirements. I believe that this is such a case. The Attorney General submits that informational equality is important in particular because democracy requires that no individual should have a general access to information, unavailable to others, that can play a role in the exercise of his own right to vote. It is thus a logically direct result of the requirement that elections be fair.
23 In Harper, this Court unanimously held that “ensuring that all voters receive the same information where possible” was an important objective: see para. 47, per McLachlin C.J. and Major J. in dissent, but not on this issue, and para. 133, per Bastarache J. The harm associated with a breach of that principle is not of the class of harms which are easily measured.
2. The Vulnerability of the Group Protected
24 Section 329 is broadly addressed at protecting the Canadian electoral system, which suggests that the group protected is Canadian voters taken as a whole. The Attorney General also claims that Western voters in particular are protected, for it is Western voters who could be most directly influenced by the release of election results from the Atlantic provinces. But, as we noted in Thomson Newspapers, Canadian voters “must be presumed to have a certain degree of maturity and intelligence” (para. 101). The expression at issue in this case does not seek to influence voters as did the advertising in Harper.
3. Subjective Fears and Apprehension of Harm
25 As noted above, the subjective perceptions of Canadian voters that the electoral system is fair is a vital element in the value of the system. The Attorney General, with leave, provided fresh evidence before this Court, in the form of a 2005 Decima Research/Carleton University Poll, which supports the view that Canadians subjectively believe that informational equality is an important aspect of the electoral system: 70 percent of Canadians surveyed “thought people should not be able to know election results from other provinces before their polls close”. Moreover, the Lortie Report stated that “western Canadian voters generally may feel that their vote counts for less if the election outcome has been determined before their votes are cast, and some may have decided not to vote for that reason”: vol. 2, at p. 83. This evidence regarding the subjective views of Canadians must be taken as doubly important in a case such as this, where the harm that the law is seeking to address is itself about those very same subjective views.
4. Nature of the Infringed Activity: Political Expression
26 This Court has held that “there can be no question that opinion surveys regarding political candidates or electoral issues are part of the political process and, thus, at the core of expression guaranteed by the Charter ”: Thomson Newspapers, at para. 92. The same logic can be applied in this case: election results are of fundamental importance in a free and democratic society.
27 At the same time, to suggest that election results are an important political form of expression in the hands of those still to vote is to prejudge the entire s. 1 inquiry. Whether the s. 2 (b) interest in receiving or disseminating political information, or both, is at the centre of this case, it is not at all clear that that interest can supersede the value of the countervailing principle that no voter should have general access to information about the results of the election unavailable to others. As we noted with respect to restrictions on referendum spending in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 61:
Thus, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to arbitrate between the democratic values of freedom of expression and referendum fairness. The latter is related to the very values the Canadian Charter seeks to protect, in particular the political equality of citizens that is at the heart of a free and democratic society. [Emphasis added.]
The same may be said of the restrictions in this case.
5. Summary on Contextual