IN THE SUPREME COURT OF BRITISH COLUMBIA

 

Citation:

Bryan v. Regina et al.,

 

2003 BCSC 1499

Date: 20031023

Docket: 22231

Registry: Vancouver

Between:

Regina

Respondent

And

Paul Charles Bryan

Appellant

 

And

Attorney General of Canada

Intervenor

 

 

 

Before: The Honourable Mr. Justice Kelleher

Reasons for Judgment

Counsel for the Appellant:

D.J. Jordan Q.C.

R. Sieg

 

Counsel for the Respondent:

A.I. Nathanson

 

Counsel for the Intervenor:

P. La Prairie

J.G. Johnston

 

Date and Place of Trial:

September 15, 2003

 

Vancouver, B.C.

 

[1]            This is an appeal pursuant to s. 813 of the Criminal Code, R.S.C. 1985, c. C-46, from the conviction of Paul Charles Bryan for having breached s. 329 of the Canada Elections Act, S.C. 2000, c. 9.  Section 329 reads:

No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.

 

[2]            Section 495(4)(d) of the Canada Elections Act provides that a person who contravenes s. 329 is guilty of an offence.  Section 500 of that Act provides that a person who is guilty of an offence under s. 495(4) is liable on summary conviction to a fine of not more than $25,000.

[3]            There is no issue about the elements of the offence.  They are admitted.

[4]            Section 128(1) of the Canada Elections Act sets out the voting hours on election day:

The voting hours on polling day are

 

(a)   from 8:30 a.m. to 8:30 p.m., if the electoral district is in the Newfoundland, Atlantic or Central time zone;

 

(b)   from 9:30 a.m. to 9:30 p.m., if the electoral district is in the Eastern time zone;

 

(c)   from 7:30 a.m. to 7:30 p.m., if the electoral district is in the Mountain time zone; and

 

(d)   from 7:00 a.m. to 7:00 p.m., if the electoral district is in the Pacific time zone.

 

[5]            A federal general election took place on November 27, 2000.  The appellant transmitted the Atlantic Canada results while polling stations remained open in other parts of Canada by posting them on a web site - www.electionresultscanada.com.  The results were thereby available to members of the public in every electoral district in the country.

[6]            Before the election took place, the appellant publicized on the web site and in a newspaper interview his intention to transmit these results.  The Commissioner of Canada Elections warned the appellant before the election that his intended course of action was contrary to s. 329.  This letter of warning was itself posted on the web site.

[7]            The appeal is from the decision of the learned trial judge, reported at [2003] B.C.J. No. 318 (Prov. Ct.) (QL), dismissing the constitutional challenge to the validity of ss. 329, 495(4) and 500(4).  The appellant argued at trial and in this court that these sections are contrary to s. 2(b) of the Canadian Charter of Rights and Freedoms

[8]            The learned trial judge dismissed the constitutional challenge and convicted the appellant.  The sentence was a fine of $1,000.

[9]            On January 29, 2003, the trial judge held that s. 329 of the Canada Elections Act infringes freedom of expression guaranteed by s. 2(b) of the Charter.  The Crown does not appeal that finding.

[10]        In a judgment dated February 11, 2003, the trial judge held that the legislation is a reasonable limit prescribed by law and demonstrably justified in a free and democratic society and could therefore be saved under s. 1 of the Charter.

THE LEGAL FRAMEWORK

[11]        Counsel for both sides agree that the issue before this court is whether the trial judge made a “palpable and overriding error” in concluding that the Crown had justified the infringement of the appellant’s freedom of expression. This standard is a relatively high burden: Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[12]        The Housen case discussed the standard of review in the context of appeals on questions of mixed fact and law.  The constitutionality of legislation is arguably a pure question of law: see Cuddy Chicks v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 and Nova Scotia (Workers Compensation Board) v. Martin, [2003] S.C.J. No. 54 (QL).  A trial judge’s decision with respect to pure questions of law is afforded less deference than decisions involving facts.  However, I will proceed on the assumption that the stricter standard in Housen is appropriate since, on the view I take of this case, it does not affect the outcome.

[13]        The appellant submits that the trial judge erred in concluding that the legislation is aimed at meeting a pressing and substantial concern relating to electoral fairness.  In the alternative, the appellant argues the trial judge erred in holding that the means chosen constitute a minimal impairment of freedom of expression. 

[14]        When a court concludes that impugned legislation constitutes an infringement of a fundamental freedom guaranteed by the Charter the government bears the onus of proving that the limits on constitutional rights imposed are justified under s. 1 of the Charter: R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.  Both counsel relied on the two-part test set out by Chief Justice Dickson in Oakes, supra, at ¶69-70:

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.  First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom".  R. v. Big M Drug Mart Ltd., supra, at p. 352.  The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection.  It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

 

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified.  This involves "a form of proportionality test".  R. v. Big M Drug Mart Ltd., supra, at p. 352.  Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups.  There are, in my view, three important components of a proportionality test.  First, the measures adopted must be carefully designed to achieve the objective in question.  They must not be arbitrary, unfair or based on irrational considerations.  In short, they must be rationally connected to the objective.  Second, the means, even if rationally connected to the objective in the first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352.  Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

 

[15]        The onus on the government is to prove its case on a balance of probabilities, but the test must be applied "rigorously"; the evidence must be cogent and persuasive and clearly establish the consequences of imposing or failing to impose the limit: Oakes, supra, at ¶67.

[16]        The s. 1 justification analysis cannot be done in a vacuum, as Lebel J. warned in R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209.  Contextual factors should frame and inform the analysis throughout.  It therefore bears noting the reason this issue has arisen in the first place: as a result of Canada’s vast geography.  There are six time zones and a four and a half hour time difference from one coast to the other.  Until 2000, polls opened and closed at the same local time across the country.  If there had not been a ban on publication, voters from Quebec west would have been able to hear results from the Atlantic provinces before going to vote.  Voters west of Ontario could have heard the results from Atlantic Canada, Ontario and Quebec before going to vote.

[17]        Another contextual factor is the nature of the guarantee that is being infringed.  When the case involves freedom of expression, the degree of protection the Charter will afford will vary depending on the nature of the expression.  For example, expression of racist opinions is valued lower than expression of political ideas.  Certain types of expression will receive a higher degree of protection.  Attempts by Parliament to restrict those types of expression will command a less deferential approach from the courts: see RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at ¶71 and following.

[18]        Mr. Bryan's speech is properly characterized as political expression.  Chief Justice Dickson said this about political expression in R. v. Keegstra, [1990] 3 S.C.R. 697 at ¶89:

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy.  Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.

[19]        However, the type of political expression Mr. Bryan published is not the dissemination of political ideas, which is the true foundation of s. 2(b) protection.  Though linked to the political process, his publication of election results falls at the margins of political speech.  As such, though the nature of this speech affords it a slightly higher degree of Charter protection, I should not be taken as saying that Mr. Bryan’s expression goes to the heart of s. 2(b).

The Oakes Analysis

Pressing and Substantial Objective

[20]        The first step in Oakes, supra, is to determine whether the impugned legislation has a pressing and substantial objective.  Parliament will not be able to justify restricting a Charter right if its objective is not sufficiently important.

[21]        In Thompson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, the Supreme Court of Canada held that the general purpose of the Canada Elections Act is to ensure electoral fairness.  Though that decision referred to the Canada Elections Act, R.S.C. 1985, c. E-2, the principles of the 2000 Act are the same and its general purpose can be characterized the same way.  It is hard to imagine a more pressing and substantial objective than electoral fairness in a country whose identity revolves around democratic ideals.  In fact s. 1 itself places the value of democracy first and foremost by creating a standard of justification reliant on the values of a free and democratic society.

[22]        This is not to say, however, that labelling a statute as protecting electoral fairness obviates the need to scrutinize particular provisions to determine how they interact with the overarching objective.  In considering a particular provision under s. 1, the court must have regard not only to the objective of the Act as a whole but also to that of the particular provision: see Vriend v. Alberta, [1998] 1 S.C.R. 493 at ¶111.

[23]        The Attorney General of Canada argues that the goal of s. 329 is to promote electoral fairness by preventing a potential information imbalance among voters.  He says that voters in the west should not have access to voting results coming out of the Atlantic provinces before those voters cast their ballots.

[24]        In support of that proposition the Attorney General called Dr. Robert MacDermid, a political science professor from York University.  Dr. MacDermid was qualified as an expert in the areas of electoral behaviour, the structure and regulation of elections under the Canada Elections Act, and statistical analysis in relation to voting behaviour. The appellant did not challenge his qualifications.

[25]        Dr. MacDermid gave his opinion on the objective Parliament was trying to meet in imposing a publication ban under s. 329 and on the potential effects if the ban were lifted.  He stated that it is central to democracy that no one have knowledge, or partial knowledge, of the outcome of an election before casting a ballot and no voter have information about the election results that others do not have.

[26]        The appellant does not vigorously dispute the Attorney General’s characterization of s. 329’s objective.  Rather, he disputes the value of Dr. MacDermid’s evidence as proof of s. 1 justification.  He argues that Dr. MacDermid’s testimony does not establish that s. 329 meets a pressing and substantial concern.

[27]        What is the nature of the evidence the government must adduce to satisfy its burden under s. 1?   The Supreme Court of Canada said this about justifying infringement of the Charter by way of social science evidence in Sauvé v. Canada (Chief Electoral Officer) (2002), 168 C.C.C. (3d) 449 (S.C.C.) at ¶18:

Legislative justification does not require empirical proof in a scientific sense. While some matter can be proved with empirical or mathematical precision, others, involving philosophical, political and social considerations, cannot…. What is required is “rational, reasoned defensibility”: RJR-MacDonald, at para. 127. Common sense and inferential reasoning may supplement the evidence.

 

Dr. MacDermid’s evidence must be evaluated in that light because he is a social scientist by trade.  The nature of political procedure and human behaviour are such that scientific proof is impossible to obtain.  However, this does not mean that the government is relieved of its burden of proof.  Though scientific proof is not necessary, there must be a reasoned or logical basis for assuming a particular fact or state of events is true.

[28]        The appellant argues at paragraph 54 of his argument that:

[T]here was no evidence before the trial judge that established that it is necessary to maintain the publication ban. That is because, in the Canadian context, there is no evidence that an information imbalance, simpliciter, has an impact on voter turn out or voter choice or that it leads to unfairness in elections.

 

The essence of his argument is this: preventing informational imbalance cannot be a pressing and substantial objective if the fact that some voters have an informational advantage does no harm to the democratic process.

[29]        Dr. MacDermid supported his opinion that preventing informational imbalance between voters is a pressing and substantial concern by remarking on possible effects if Parliament lifted the ban.  His opinion was that, in the absence of a publication ban, some voters would not vote if they knew which party would form the government.  He made this assertion referring to studies conducted in the United States. These studies indicate that voter turnout could be reduced in congressional districts where the polls closed after 8:00 p.m. Eastern Standard Time, when the television networks had already declared a winner.

[30]        However, Dr. MacDermid agreed in cross-examination that what really affects voter turnout is a projection from the media as to the outcome of the vote as a whole. In the absence of such a projection there is no evidence that there is any impact on voter turnout.

[31]        Dr. MacDermid also suggested that voters could use an information imbalance to vote "strategically".  He explained that if it is known that one party will not form the government and that two other parties are in a tight race, a supporter of the first party might choose between the other two parties rather than vote for the party she or he truly supports. Variations on this concern are “bandwagon” or “underdog” voting where one is influenced to abandon one’s choice in favour of either the sure winner or the sure loser, respectively.

[32]        Dr. MacDermid’s evidence was premised on the assumption that results from the ridings in Atlantic Canada could indicate who would or would not form the government.  Yet Dr. MacDermid agreed in cross-examination that the ridings in Atlantic Canada cannot determine the outcome of the election.

[33]        The persuasiveness of Dr. MacDermid’s evidence is further undermined by the report of the Royal Commission on Electoral Reform and Party Financing Commission appointed in 1989.  It was chaired by Pierre Lortie and is known as the Lortie Commission.  Part of the Commission’s mandate was to examine the federal election procedure and recommend changes and improvements to the Canada Elections Act.  It published its recommendations in 1991.

[34]        The Commission dealt with the premature disclosure of election results in the context of recommendations related to voting hours.  At that time, polls were open from 9:00 a.m. to 8:00 p.m. local time in all parts of the country and the unofficial results of a riding were publicized as soon as the votes cast in regular polling stations in that riding were counted.  The Commission was concerned with the feeling among western Canadian voters that their votes counted for less because they believed that the outcome was decided before they voted.  The Commission used the 1980 federal election as an example.  The results from Ontario released before voting was over in the west indicated the Liberals had won enough seats to form the government.

[35]        The Commission discussed the prohibition now contained in s. 329, previously contained in s. 328 of the 1985 Canada Elections Act, at volume 2, page 84 of the report.  It concluded that the provision was obsolete:

The Canada Elections Act makes it an offence to publish election results in any area before voting ends in that area.  This provision, adopted at the time the telegraph was used to communicate election results, has been rendered obsolete by developments in broadcasting and telecommunications technology, which have made controlling the diffusion of election results more difficult.  U.S. border stations can broadcast election results from eastern Canada before viewers or listeners in western Canada have finished voting.  It is also impossible to stop results being relayed to the West via telephone or facsimile before the polls close and increasingly difficult to block eastern Canadian television stations carrying election news from being received in the West by satellite or cable.

 

[36]        The Commission did accept that early transmission of results was a problem but recognized that the prohibition on transmitting results was not stopping voters in western Canada from getting eastern results.  It found that the most pressing concern was ensuring that voters in the west did not hear results from Quebec and Ontario before the polls closed, since these two provinces have the potential to determine who will form the government.  Therefore, it looked for a solution that ensured that voters in the west would not know which party formed the government before the polls closed.  The Commission was considering the various options on the assumption that Parliament would no longer need the ban on early publication of results.  This measure was not effective and one of the Commission’s goals was to find an alternative.

[37]        The survey the Commission conducted indicated that most of the public favoured having all regions of the country vote during the same hours.  Returning officers and party officials apparently favoured some changes but pointed out potential difficulties with simultaneous voting.  They were concerned about staff getting fatigued and about the poll officials’ personal security if the rules were changed such that they had to work late into the evening.

[38]        The Commission considered uniform voting hours of 11:30 a.m. to 10:30 p.m. in Newfoundland, meaning 7:00 a.m. to 6:00 p.m. in British Columbia and the Yukon, but it rejected this option because it would require poll workers to work until midnight in Atlantic Canada.  It would also eliminate two hours of traditionally heavy voting in British Columbia and the Yukon, between 6:00 p.m. and 8:00 p.m.

[39]        The Commission’s preferred solution was to stagger voting hours.  Parliament adopted this solution when it enacted the new Canada Elections Act in 2000, though it did not adopt the precise hours the Commission recommended.  Both the recommended and the adopted voting hours would allow results from the 32 Atlantic ridings to be available to voters in the rest of Canada before their polls closed.  The Commission did not see a difficulty with releasing the results from Atlantic Canada, stating at volume 2, page 84 of its Report that:

We have concluded that the release of some election results before polls close in the West - specifically, results from the 32 seats in Atlantic Canada - would not constitute a major problem so long as other results from eastern Canada were not available until after the polls closed in the West.

 

It did not recommend retaining the restriction in what was then s. 328 on publishing results in areas where polls were not yet closed. 

[40]        The trial judge did not explicitly state what he found was the objective of s. 329.  With respect to s. 329, he said at paragraph 12 of the February 11, 2003 judgment that it “is clearly intended to address the information imbalance that can result from early disclosure of Eastern results.”  He went on to conclude that electoral fairness is sufficiently important to render the objective of preventing early disclosure "clearly pressing and substantial". 

[41]        With respect, there is no evidence to support a finding that preventing an informational imbalance that could result from early disclosure of the election results from Atlantic Canada is a pressing and substantial objective.

[42]        The objective of the Canada Elections Act as a whole is to ensure fair elections.  Fairness in elections is crucial to a free and democratic society.  Indeed, it defines such a society.  But an analysis of the purpose of the Act as a whole does not answer the constitutional question in the case at bar on its own.  The court must have regard to the purpose of the specific provision as well: see Vriend, supra.

[43]        The specific aspect of fairness Parliament was trying to address in s. 329 is equality of access to information or, put another way, the prevention of information imbalance.  It was concerned with the potential unfairness of a situation where, in the absence of s. 329, some voters in western provinces and the territories would have access to election results from ridings in Newfoundland, Nova Scotia, Prince Edward Island and New Brunswick when they voted, where voters in the Atlantic provinces would have no equivalent information.

[44]        However, the evidence does not show that preventing an information imbalance is a pressing and substantial concern. There was no evidence before the trial judge of any effect on voter behaviour.  The evidence of Dr. MacDermid was that an information imbalance could have harmful effects: it could reduce voter turnout, it could influence how citizens vote by causing strategic voting, it could cause “bandwagon” voting, and it could cause "underdog" voting. But the evidence does not show that any of these harmful effects occurs in the context of staggered voting hours.  There is no evidence of reduced turnout where any early results information relates to no more than 11% of the ridings.  Similarly, strategic voting, “underdog” voting or “bandwagon” voting occurs where the likely outcome of the election is known from the results published from another part of the country.  As noted above, the 32 ridings in Atlantic Canada cannot determine the likely outcome of the election, a point that Dr. MacDermid admitted in cross-examination.

[45]        This is not a case where one can apply common sense to what is known in order to find that the Attorney General has met its burden under s. 1, as was sanctioned by the Supreme Court of Canada in RJR-MacDonald Inc., supra.  Dr. MacDermid’s own informed opinion when questioned on cross-examination goes against the Attorney General’s position and does not provide an adequate basis from which to draw a common sense inference.

[46]        For those reasons, I conclude that there is no pressing and substantial objective.  The trial judge erred in deciding that the Crown had justified the infringement of the appellant's freedom of expression because the weight of the evidence is overwhelmingly in favour of the opposite conclusion.

[47]        If I am wrong, however, I find that this appeal can be disposed of at the proportionality stage of the Oakes test.  I will therefore proceed through the next three stages of analysis.

Rational Connection

[48]        The next question is whether or not the law is rationally connected to its objective.  Neither party argued this point and for good reason.  If the objective is to prevent the informational imbalance created by transmitting election results from Atlantic Canada to the west, banning these transmissions is an entirely rational way to fulfil that objective.

Minimum Impairment

[49]        The minimum impairment stage recognizes that in order to justify an otherwise acceptable restriction on Charter rights the government must not infringe individual rights more than is reasonably necessary.  Parliament deserves a degree of deference at this stage because of the complex political and social considerations that are involved in making this kind of legislation.  Parliament need not choose the least intrusive measure available: see R. v. Sharpe, [2001] 1 S.C.R. 45, R. v. Chaulk, [1990] 3 S.C.R. 1303.

[50]        The impairment on the appellant’s rights in this case is slight.  Section 329 prohibits the transmission of election results in approximately 11% of ridings for about two and a half hours.  Though there are other options to prevent early transmission of results, such as delayed counting of votes and delayed reporting of results, Parliament rejected those options and it was entitled to do so.

[51]        I agree with the trial judge that the Crown met the minimum impairment aspect of the Oakes test.

Proportionality

[52]        In this final stage of the Oakes test, the court must weigh the effects of the measures responsible for infringing the Charter right against the importance of the objective.  The court must also take into account the proportionality between the deleterious and salutary effects of the measures chosen to meet the objective: Dagenais v. CBC, [1994] 3 S.C.R. 835 at 889.

[53]        Neither party addressed this step in argument other than in passing. I address it because I think that many of the arguments I discussed in relation to the first stage of Oakes are applicable at this stage as well.  I have concluded that s. 329 does not address a pressing and substantial concern but if I am wrong then s. 329 fails the Oakes test because the deleterious effects of the prohibition are not proportional to its salutary effects.

[54]        I agree that s. 329 does not represent a great intrusion on Mr. Bryan’s right to free speech and therefore the deleterious effects are slight.  However, the salutary effects of the legislation do not outweigh the deleterious effects because the legislation, in effect, has virtually no salutary effects.  This is so for the same reasons cited above in the discussion of the pressing and substantial concern stage of Oakes.

[55]        Dr. MacDermid’s evidence relates to the potential salutary effects of the publication ban, which is really the reverse angle of the harm s. 329 is aiming at: it could prevent a reduction in voter turnout, it could reduce “bandwagon” and “underdog” voting, and it could prevent other kinds of strategic voting. But all these effects are hypothetical. There is insufficient evidence here to conclude that s. 329 will have these positive effects or any positive effect at all. There remains only the deleterious effects of infringing free speech.  With weight on only one side of the balance, there can be no proportionality.

[56]        Therefore, in the alternative, I find that s. 329 cannot be upheld under s. 1 because its deleterious effects are not proportional to its salutary effects.

CONCLUSION

[57]        In the result, I allow the appeal and declare that s. 329 of the Canada Elections Act is contrary to s. 2(b) of the Charter and cannot be saved under s. 1.

[58]        The accused, Paul Charles Bryan, is acquitted.

“S. Kelleher, J.”
The Honourable Mr. Justice S. Kelleher