By Gerry Nicholls
The Elections Canada bureaucrats have finally checked their calendar and now realize we are living in the 21st century, with things like email, the internet and social media.
Accordingly, chief electoral officer Marc Mayrand recently recommended Parliament revoke Section 329 of the Canada Elections Act.
For those of you who are not up on your Canada Elections Act, Section 329 prohibits the “premature transmission” of election results.
In other words, it’s illegal for somebody to post election results from a region of the country where the polls are closed to a region where they are still open.
Now back about 80 years ago, when Section 329 was first enacted and when basically the only way to broadcast information was over the radio, such a black out law was enforceable.
But it isn’t any more.
Today, thanks to blogs and to social media like Facebook and YouTube and Twitter, it’s impossible to stop Canadians from spilling the election night beans.
Indeed, in the most recent federal election many Canadians openly mocked the law by tweeting election results with reckless abandon.
In response, Elections Canada officials had three options: 1) they could enforce the law with their usual Spanish Inquisition-style zealotry and charge Twitterers 2) they could unplug the country’s power grid to stop unlawful transmissions or 3) they could face reality.
Mayrand wisely opted for the third choice.
As he put it in a report, “The relevance of the existing legal framework must be reconsidered …. the growing use of social media puts in question not only the practical enforceability of the rule, but also its very intelligibility and usefulness in a world where the distinction between private communication and public transmission is quickly eroding.”
This represents a stunning turn around for an agency which for years insisted not only that the law could and should be enforced, but that individuals who used technology to transmit election information should be legally persecuted.
Just consider the case of British Columbia software developer, Paul Bryan, who on election night 2000 defied the ban.
He did so because he believed the election black out law infringed on free speech.
And so acting on this principle, he posted real-time election results from Atlantic Canada on his website.
Please note, Bryan didn’t project winners or provide analysis. He simply gave British Columbians a chance to see how voters in Newfoundland were casting their ballots.
Elections Canada officials took notice and were not amused.
The next day they dispatched police toBryan’s home; his computer hard drive and other equipment was seized and he was officially charged him with a crime.
But if Elections Canada thought he would meekly apologize and seek forgiveness, they were gravely mistaken.
In fact, Bryan decided to challenge the ban in the courts.
And he had a powerful friend, the National Citizens Coalition, once a leading conservative organization which back then was headed by none other than Stephen Harper.
Harper was outraged with the way the bureaucrats were bullyingBryan. As he put it in an NCC fundraising letter “the jackasses at Elections Canada are out of control.”
And so the NCC helped pay forBryan’s legal challenge.
However in 2007, the Supreme Court of Canada ruled against Bryan, which is why the black out rule remains in effect to this day.
But that could soon change now that Elections Canada has at long last admitted the black out law is unenforceable and archaic.
Hmmm, I wonder if the agency’s sudden conversion had anything to do with the fact that instead of leading the NCC, Harper now leads a majority government?
(Gerry Nicholls is editor of Freedom Forum. This article originally appeared in the Ottawa Hill Times.)