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Election laws under siege in social-media age

Karen Green is a Toronto mom blogger who has teamed up with a few others to start an election Twitter hashtag #momthevote.

JENNIFER ROBERTS/jennifer roberts The Globe and Mail

The law hasn't changed. But the people expected to follow it - and the way they communicate - certainly have.

If you tweet, blog or Facebook local election results before polls have closed in all parts of Canada, you could be fined under the same law that would have prosecuted someone for revealing the same information via radio nearly 80 years ago.

Elections Canada said Thursday it has no plans to change the law because it can't: That's up to Parliament.

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But the millions of Canadians on Twitter and Facebook, who've grown accustomed to transmitting anything and everything that comes to mind in real-time, 140-character tidbits, are not taking the restriction lightly.

"It's unreasonable for the government to, on the one hand, provide information to the public and then, on the other hand, order that public to remain silent about it, to not discuss it, not engage in debate over it," said Paul Bryan, who felt the brunt of the law himself more than a decade ago, when posting Atlantic Canada results from the 2000 election online earned him a $1,000 fine. "This is political speech. … It's arguably the speech most worthy of protection."

So far, though, the government and judges don't agree with him. The Supreme Court ruled in 2007 that while this part of the Elections Act does breach Canadians' right to freedom of speech, that breach is justified under Section One of the Charter of Rights and Freedoms. CBC and Bell Media Inc. were in Ontario Superior Court this month challenging the law's constitutionality, but Madam Justice Susan Himel denied their request for an urgent and expedited hearing.





The law itself prohibits transmitting "results or purported results" to the public in a province where the polls haven't yet closed. The wording is simple, but Elections Canada must parse exactly what constitutes a "public" transmission in a digital age. For example, a private Facebook message to someone in a western province would be kosher, but a public wall post would not, said Elections Canada spokesman John Enright. Tweets are likewise verboten.

Elections Canada investigates violations on a complaints basis and forwards cases to the public prosecutor if warranted. Mr. Enright wouldn't say how many investigators Elections Canada has, only that the number has been "sufficient" so far. He wouldn't speculate on what would happen if Elections Canada were flooded with complaints after thousands of Twitter users flagrantly violated the blackout rule, as many have threatened to do.





In his affidavit to the Ontario Superior Court on April 7, University of Ottawa law professor Michael Geist noted the growing role social media such as Twitter and Facebook are playing when it comes to political mobilization - and authorities' inability to fully censor them.

Attempting to enforce a ban on transmitting results "is simply not possible without inflicting enormous harm to freedom of expression and public confidence in the election system," he wrote.

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But arguments that new methods of communication render this law obsolete miss the point entirely, contends former chief electoral officer Jean-Pierre Kingsley. The law was put in place in 1938 to prevent spoilers in any medium, he says. And the intent hasn't changed.

"People will say, 'Oh, you didn't foresee this and you didn't foresee that,' " he said. "But transmission is transmission. You could do it with the radio, you could do it with the Internet, you could do it with smoke signals. Perhaps it is important that we see a prosecution."

When the Elections Act was amended in 1993, Mr. Kingsley says, there was an opportunity to ease restrictions. But nobody thought it was a good idea.

He argues the current system balances the need for local results to be known quickly, with the desire not to discourage voters in other times zones from participating because the results seem like a foregone conclusion. It also prevents strategic voting in western provinces.

"The objective here is so clear, and it is such a wonderful objective," Mr. Kingsley said. "The goal is to treat everyone the same - it is a fundamental Canadian value."

With a report from Laura Conrad

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