The ban on tweeting election results is a question of fairness to voters.
Since 1938, Canada has had a law on the books forbidding the “premature transmission” of election results to parts of the country where polls haven’t yet closed. In the age of social media, that amounts to a ban on tweets and Facebook posts referring to election results until the last polls close in British Columbia. That has led to angry editorials calling Elections Canada’s application of the law “draconian,” and calls for a “tweet-in” to protest and challenge the law. But it would not be right for some voters to have the benefit of knowledge that other voters don’t.
The objective of Section 329 of the Canada Elections Act is a noble one. It exists to make sure that Canadians from coast to coast have the same knowledge before they actually cast their ballots. It ensures that no one knows how one segment of the population has voted before they themselves go to cast their ballot. The statute was designed to address the concern that the knowledge of results in one part of the country could directly influence other people to change their vote – to vote in a different way because of what they knew to be the results elsewhere.
The point of the statute is not to prevent strategic voting. Voters can decide to cast their vote strategically and that is entirely their right. The statute is meant to ensure that voters make their decision based on the same knowledge earlier voters had going into the booth; that they should not be allowed to benefit from additional knowledge related to the results.
Section 329 was reviewed and revised in the mid-1990s by a parliamentary committee that spent a long period of time critically analyzing its efficacy. The result was the development of the staggered-hours strategy that Canada now has in place. In Canada, the polls close for everyone east of the Ontario-Manitoba border at the same time and the results are delivered at the same time. However, the public release of these results is postponed by two hours to the west of that same border to allow the polls to close.
In light of the widespread use of social media, many Canadians ask, “Why don’t we just release the results two hours later in the east so that everyone receives them at the same time?” One of the practices you want to maintain in a democracy is for the results to come out and be made public as soon as they are available. Those with experience in elections on the international scene know how vital the prompt release of election results is. So the results are released in the eastern portion of the country as soon as they are available but are staggered so as to ensure western Canadians do not have additional knowledge when they go to cast their votes.
The issue of the use of new technologies does not impact on the principle of the statute. Transmitting a result prematurely is still transmitting a result prematurely, irrespective of how it is being done – technologically speaking, through social or traditional media. If you are taking the results from east of the Manitoba border and letting them be known publicly in the western portion of the country, you are breaking the law.
If it can be demonstrated by gathering evidence that someone is responsible for this offence, that person can expect to be investigated and prosecuted with a fine of up to $25,000. There was a previous case, known as the Bryant case, where the constitutionality of this statute was questioned. In that case, the courts ruled that the section was in accordance with the Constitution. The emergence of new mediums of transmission does not prevent Elections Canada from enforcing this law.
It is important to clarify that when it comes to Section 329, Elections Canada does not police or actively monitor social networks or any other medium. The system of enforcement relies on complaints that are filed by ordinary citizens, candidates, or political parties when there is an infraction of the statute or the perception of an infraction of the statute. These complaints are referred to the Commissioner of Canada Elections, also an independent officer. The Commissioner studies and investigates the case, gathers evidence, and transmits that evidence to the public prosecutor. The prosecutor decides if the case will go to the courts and, once in court, it is the judge who makes a decision.
Elections Canada is not watching or monitoring Canadians and will not be doing so on May 2. But if this electoral law is broken, citizens will have a means to do something about it by reporting it to Elections Canada.
Photo courtesy of Reuters.