Election-night blackout a silly law that should go

Let's hope this isn't another subject on which Prime Minister Stephen Harper changes his mind.

Harper, who has significantly changed his stances on several issues, was once a strong supporter of Paul Bryan, the British Columbia man who was fined $1,000 for putting Atlantic Canada vote results on his Web site in the 2000 federal election before polls had closed in Western Canada.

In 2001,when he was still a private citizen, Harper circulated a fund-raising letter soliciting support for Bryan's appeal. At the time, the future prime minister called Elections Canada officials who prosecuted Bryan "jackasses," and termed chief electoral officer Jean-Pierre Kingsley a "dangerous man."

Last Thursday, the Supreme Court of Canada upheld the conviction, albeit by the narrowest possible margin (5-4), rejecting submissions that the law was an unreasonable infringement of Bryan's constitutionally protected freedom of expression.

Interestingly, Conservative House Leader Peter Van Loan noted that in this modern era the law requiring rolling information blackouts across the country on election night is virtually unenforceable and may have to be changed. Although the government had not made any decisions on the issue, he questioned the advisability of the provision, telling a Toronto Star reporter, "There's no effective way we can enforce a ban."

As is so often the case, the stronger reasoning is to be found in the dissent authored by Justice Rosalie Abella and supported by Chief Justice Beverley McLachlin and Justices Ian Binnie and Louis LeBel.

Justice Abella noted that the current practice of staggering the polling hours, with polls closing in B.C. only 30 minutes after they do in Ontario and Quebec, means that the only results that might be disclosed while B.C. voters can still cast ballots are from the 32 ridings in the four Atlantic provinces.

"Any harm to the public's perception or conduct in knowing the election results from Atlantic Canada before they vote is speculative, inconclusive and largely unsubstantiated," she wrote. "The harm of suppressing core political speech, on the other hand, is profound. The benefits of the ban are, accordingly, far outweighed by its deleterious effects."

We couldn't agree more.

In fact, if the other five judges were to emerge from their ivory towers, they would realize that it's totally inconceivable that in the real world disclosing East Coast results on the West Coast can have any significant impact, much less the impact it had in the days when polls in Ontario and Quebec closed three hours before those in B.C.

Now that the staggered hours mean that the B.C. polls close just 30 minutes after those in Ontario and Quebec, the most a B.C. voter will glean from knowing the East Coast voting patterns is whether they mirrored recent opinion polls.

Accordingly, in the real world, what Bryan did in challenging the law was utterly harmless, and certainly undeserving of any fine, much less one of $1,000 - about what you'd expect for someone endangering lives by driving 150 km/h on a two-lane highway.

Interestingly, the Bryan appeal brought supportive interventions by the CBC, CTV, Rogers Broadcasting, CHUM Limited, Sun Media Corp., Canadian Press, the Globe, CanWest Media, Canoe Inc. and the Canadian Civil Liberties Association, among others, but no similar interventions in support of this stupid law and the prosecution it permitted.

One is left to wonder what lay in the minds of the five judges who dismissed the appeal, apart from a belief that they would otherwise be seen as "activist" in an era when some conservatives are railing against what they see as judicial activism.

Writing for the majority, Justice Michel Bastarache conceded that the law infringes free speech but asserted that the infringement was reasonable, because its objective of "maintaining confidence in the electoral process" by leaving all voters equally in the dark about results was "pressing and substantial."

Contending that the staggered polling hours had only "imperfectly" addressed the issue of premature disclosure, he said Parliament's decision to maintain the 69- year-old ban was "a rational and justifiable solution to the problem of informational imbalance."