Canada’s election laws changing to reflect Twitter reality

 The Harper government will repeal the ban on communicating election results while polls are still open, bringing the law into harmony with the realities of instantaneous communications in the 21st century.

The ban on early communication of election results was adopted in 1938, to prevent western voters knowing the results of the election in the east when they cast their ballots.

Minister of State for Democratic Reform Tim Uppal announced on Twitter Friday that the antiquated law will been repealed.

“Our government is committed to bringing Canadian elections into the 21st century by getting rid of this dated and unenforceable law,” Uppal said in a press release. “Canadians should have the freedom to communicate about election results without fear of penalization.”

Section 329 of the Canada Elections Act prohibits the transmission of election results to a riding where voting is ongoing. Anyone wilfully breaking this prohibition, until now, was liable on a summary conviction to fines up to $25,000.

This law was broken with impunity on a widespread basis since the general election of 2000, when the immediacy of the Internet made keeping the results under wraps unrealistic.

“We’re in the 21st century,” said Uppal. “The ban, which was enacted in 1938, does not make sense with the widespread use of social media and other modern communications technology.”

Michael Geist, the Canada Research Chair in Internet and e-commerce law at the University of Ottawa, said the repeal of this law is “long overdue.” He said the law was clearly in conflict with basic rights to free expression.

“Real time discussion and analysis takes place on Twitter,” he said. “The notion that we would prohibit that with real penalties runs completely counter to our traditional protections for freedom of expression.”

Geist says that the communications reality in Canada has shifted enormously even since 2005, given the widespread rise of instant broadcast capabilities of social media tools like Facebook and Twitter. Regulating the use of social media is nearly impossible, he said.

“The practical enforceability of this is exceptionally difficult,” he said. “We would literally have to move to a China-like system of blocking access to the Internet.”

In recent years, the law has been repeatedly challenged in court, and Canada’s chief electoral officer has admitted that it is unenforceable in the face of current technologies.

Following the 2000 general election, the ban was challenged as being contrary to the freedom of expression protected under the Canadian Charter of Rights and Freedoms. In 2003, the Supreme Court of British Columbia declared the ban unconstitutional.

The Supreme Court of Canada ruled on the law in 2007, finding the limitation justified, but referring the question to Canada’s political class.

“Within constitutional bounds, policy preferences of this sort remain the prerogative of Parliament, not of the courts,” the Supreme Court ruling says.