Op-ed: Updating the early election results law

The past week’s election has been referred to by some as Canada’s first social media election. Increasing use of websites such as Facebook and Twitter has put one of Canada’s election laws in the spotlight. Section 329 of the Canada Elections Act bans the transmission of “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.”

S. 329 used to be easily enforceable, as the only people with the capacity to transmit election results to a large audience were large media organizations. However, using Facebook and Twitter, any individual has the ability to transmit information to a worldwide audience. Twitter, in particular, was used by thousands to violate the election law. #tweettheresults was one of the top trending topics on election night. The rise of social media has rendered the current law unenforceable.

Comments from Elections Canada suggest the agency is not planning on cracking down on Twitter users. Even if the agency wanted to, given the sheer number of violators, doing so would be a massive waste of resources. In addition to the problem posed by social media, it is becoming increasingly difficult for large media organizations to comply with the law. In sum, new technologies are making the current law more and more unworkable each election.

In light of these difficulties, there are two obvious but opposite solutions: repeal the current law and allow unrestricted transmission of election results, or enact a nationwide ban on communicating results until the last polling station has closed. In my view the second option is preferable.

Preventing the early transmission of election results serves an important purpose: preserving the fairness of Canada’s elections by protecting informational equality among voters. As the Supreme Court noted in R. v. Bryan, early transmission of election results would create an informational imbalance between Western Canadian voters and those in the rest of the country. Western voters would have the opportunity to cast their ballot with the knowledge of election results in Atlantic Canada, but voters in the East would not have access to similar information when making their vote. Access to this information could impact the voting behavior of Western Canadians, either by influencing voter turnout or voter preferences.

Though a complete ban on early transmission of election results would infringe on the right to freedom of expression, it is a justifiable limitation. In contrast to the aforementioned benefits of imposing such a ban, there would be minimal negative consequences. A ban would not be suppressing free speech in the traditional sense, but simply delaying the communication of a certain type of speech for a few hours on election night. A nationwide ban would be more infringing than the current law, but not excessively so. Due to staggered polling times, access to election results would not be significantly delayed in most of the country. For example, Ontario and Quebec voters would only have to wait an additional 30 minutes for results to become available.

Many people used Twitter to violate s. 329 in the name of free speech. While freedom of expression is undoubtedly among the most important rights in a democratic society, we should not lose sight of the important purpose served by this legislation. This is not a case of government suppressing dissenting opinions, but simply restricting freedom of expression in a minor way to preserve fairness in the electoral process. Rather than repealing s. 329, it should be strengthened.