Thursday, March 15, 2007

R. v. Bryan -- Thumbs Down

For many years now, political junkies on Canada's west coast have faced an irritating choice on federal election nights: the smug visage of Peter Mansbridge or the partially-reanimated corpse of Lloyd Robertson telling us either who had already won or (with patronizing smile or barely detectable eyebrow movement respectively) that we would for once have an impact on who governs us as a result of divisions among our fellow citizens in more easterly time zones.

By law, we are not supposed to know which of these things are true, or which party will form the government, until our own polls close. The theory is that ignorance will boost the number of lotus eaters putting down their joints long enough to exercise their franchise. (Although actual evidence for this theory is, as we shall see, scarce.) Section 329 of the Canada Elections Act makes e-mailing the results in Cape Breton-Canso to a pal in Vancouver Kingsway is committing an offence punishable by imprisonment.

Today, the Supreme Court of Canada ruled 5-4 that the law is OK by the Charter of Rights. Bryan posted federal election results in Nova Scotia on his web page before the polls closed in the West. He was charged and convicted, and the Court has now upheld that conviction. They thereby revealed a number of alarming things about the protection of freedom of speech in this country.

In Canadian constitutional law, all analysis comes in at least two stages. It is never enough to know just that a right has been violated: the court also has to determine whether the violation is a reasonable one, saved under section 1 in accordance with the jargon.

Under Canadian freedom of expression doctrine, the first step is pretty much always a foregone conclusion. Any activity capable of conveying a meaning is taken to be expression and any government action that makes that activity a little more difficult counts as a "prima facie breach". The real issues are always addressed when figuring out whether the violation is reasonable. The Pithlord has no particular objection to this -- free speech absolutists either haven't thought very hard about their position or are total nutbars. The trouble in Bryan lies with what the majority is prepared to accept as a justification for infringing what they concede is the core of the freedom of expression guarantee -- talking before voting.

First, the Court tells us that governments can legitimately limit freedom of expression to obtain "informational equality" among voters. This is a concept Robert Mugabe would love, since it could justify any act of censorship. Anything anyone says, or writes, or posts obtains a limited audience, and therefore creates an informational imbalance between those who hear or read or download it and everyone else. It follows that all political expression creates informational inequality. According to Sitemeter, even Pith & Substance fails to reach the entire Canadian electorate. To the extent this post has informational content, you, dear reader, are now part of an informationally advantaged group. Shame on you, you informational kulak.

It is true that the movement of the Earth provides BC voters the opportunity of knowing how Nova Scotians have voted prior to voting themselves. But I fail to see even a cosmic injustice in this. If this knowledge does not affect how BCers vote, then it doesn't matter. And if it does, then it magnifies Nova Scotian power. It's win-win.

Second, it turns out that quantitative studies provide no evidence that the availability of eastern electoral results affects western voting. The trial court listened to expert evidence on this point and -- as trial courts are expected to do -- concluded that it undermined the government's rationale for the legislation. But Justice Bastarache has shown that this was precisely where the trial court went wrong -- evidence is no substitute for uninformed hunch. Or, in his deathless prose:

The contextual factors are essentially directed at determining to what extent the case before the court is a case where the evidence will rightly consist of “approximations and extrapolations” as opposed to more traditional forms of social science proof, and therefore to what extent arguments based on logic and reason will be accepted as a foundational part of the s. 1 case.

Bastarache uses the terms "logic" and "reason" -- both rather foundational to Western thought -- in precisely the opposite sense that they have traditionally been given. It appears that logic and reason depend not on the best analysis of the available evidence, but on uninformed public opinion:

This evidence includes the Lortie Report, which found that “Canadians feel very strongly about premature release of election results” (vol. 2, at p. 84), and the Decima Research/Carleton University Poll, which found that 70 percent of those surveyed believed in the principle of informational equality, suggesting that a failure to adhere to this principle would harm their view of the electoral system. Clearly this evidence is not conclusive, but the Attorney General is not required to demonstrate an “empirical connection” between the objective and the provision: Harper, at para. 104. Logic and reason, combined with the evidence that is available, establish that s. 329 is rationally connected to maintaining public confidence in the electoral system.

In other words, there is no reason to think that releasing the information actually reduces turnout, but 70% of Canadians tell one pollster that they think it might, so that is good enough.

The reductio writes itself. What kind of protection of expression depends on the expression being approved by more than 30% of the populace? How many Québécois in the 1950s thought it was a good idea to suppress communism and criticism of the Catholic Church? How many Americans like flag burning, or Maoist newspapers?

Finally, Bastarache says the suppression is "only for a few hours", so it is no big deal. Here, the Court shows an (unsurprising) lack of understanding of new media (or, as I prefer to refer to us, "loser obsessives with blogspot accounts"). The MSM can -- at least in theory -- restrict its broadcasting to permitted time zones. The Internet doesn't work that way. If this law is to be enforced, every election is going to require investigations of a whole slew of political bloggers. The RCMP will be poking into pseudonyms, IP addresses and all that other stuff I don't understand. It's going to be ugly.

And for what? There is absolutely no concrete benefit that the federal government was able to establish on the evidence. That's the nastiest implication of this case, by far. The state can suppress political speech without having to show a reason of any kind.

Case Comment of R. v. Bryan, 2007 SCC 12

Photo credit Phillipe Landreville, Supreme Court of Canada collection

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