There's an adage which gets thrown around in law school: the Supreme Court is not final because it is correct, it is correct because it is final. They definitively pronounce on the laws, in other words, but they don't always get it right - reliance on their authority is a function of deference to the political order, not some sort of recognition that they are infallible (it isn't unheard of for a court to reverse its own prior decision, sometimes within the space of a couple of years).
Having now had a chance to review the Supreme Court's decision in the Bryan case (a searchable .pdf of the decision can be found here), the Court is certainly relying on the second portion of that adage: the majority decision in this case is, frankly, bizarre. The "majority" actually consists of three separate decisions: those of Justice Bastarache (by far the longest at 53 paragraphs), Justice Fish (concurring with Bastarache in the result and providing his own 28 paragraphs) and Justices Deschamps, Rothstein and Charron, who split the difference and in one paragraph assert that they agree with both Fish and Deschamps. Which is interesting, because it seems to me that Bastarache and Fish fix their decisions on very different rationales: for Fish, upholding section 329 of the Canada Elections Act turns on the fact that what is involved is a "brief delay ... of three hours' duration at most" - it is not the suppression of information, in short, it is only a deferral (para. 80). For Fish, to the extent that there is an infringement on a guaranteed right, it is so minimal that it is permissible. Bastarache, on the other hand, builds his decision on the hitherto unknown right of "information equality", the first glimmerings of which were created by the Supreme Court in the Harper decision, which upheld prohibitions on third party election advertising.
Referring to these as two contrasting visions of the case should not, however, be taken to mean that they are roughly equivalent in their intellectual robustness. The Fish position at least presents a semblance of an argument, the contours of which are cognizable: in assessing the infringement on the right of free expression, Fish is determining that, because of such a short duration, it is not so grave that it requires remedial action by the courts. That's a debateable conclusion, but it's at least debateable. The Bastarache position is essentially that whatever the government says it is trying to accomplish is super-awesome and the court isn't going to get in its way. That's not a "decision", that's a capitulation.
Andrew Coyne, in his column reflecting on the decision, aptly describes what has happened: the concept of "information equality" as given function via section 329 of the Canada Elections Act, a concept previously unknown and not expressly reflected in any previous decision or statute of which I am aware, other than some vague allusions in the Harper decision noted above where the concept is never actually articulated, has been held to override the Charter-protected right of freedom of expression. But that ultimately is only half of the story, which can be best seen by the different coverage accorded the matter from the political/news perspective (see Gerry Nicholls' post) and the legal perspective (see TheCourt.ca) (to his credit, Coyne hits both aspects in his column). Deplorable as the ruling may be from a freedom of expression standpoint, it is just as concerning from a government accountability standpoint: the Supreme Court has essentially ruled that, in some circumstances, the government needs to provide next to no justification of its aims or methods, forcing the onus onto those challenging government power.
The Bastarache decision really should be read - since that's the only way you'll believe it. As Justice Abella, writing for the dissent, described it, the government's argument (which was accepted whole by the majority) consists of "a combination of speculation and theory, unsubstantiated by cogent evidence”. To properly describe the situation, note that the entire government argument rested on (1) a single survey from 2006 conducted by Decima Research/Carelton University School of Journalism and Communication, and (2) a Royal Commission (the "Lortie Report") report which is more than fifteen years old and which, and this is important, itself did not recommend a "black-out" of the type used in section 329 (the Lortie Report recommended the use of staggered voting hours). Other than that (and we all know how exact opinion polls are), there is literally no "there" there.
The majority decision is so poorly reasoned it almost beggars belief. The majority accepts at face value the Attorney-General's argument that "the mere fact that one voter could have general access to information about election results that another voter does not have is in and of itself problematic" [emphasis in original] (para. 12). [It should also be noted that even this is undermined by Bastarache's later contention that he's not bothered by "a small number (less than 25 percent) of voters seeking out information privately" (para. 40).] Also lending an air of unreality to the decision is that the majority repeatedly acknowledges that the law is unenforceable and ineffective (see, e.g., para. 79: "modern communications technology diminishes the delay's effectiveness ... [it] cannot and does not entirely prevent voters in central or western Canada who are determined to learn before casting their ballots what has transpired in the Atlantic Provinces from obtaining that information by telephone or e-mail, for example") - yet trundles forward despite that.
The Bastarache decision goes something like this:
- the government says "informational equality" is a "central assumption of electoral democracy" - and we won't question that assertion [para.12];
- section 329 of the Canada Elections Act protects "informational equality" - and we won't question that assertion [para. 12];
- section 329, and the protection of "informational equality", is a "direct result of the requirement that elections be fair" [para.22];
- courts should defer to the decisions of the legislature when it comes to how the legislature has erected the legislature framework for elections [para. 27];
- the objective of "informational equality", once asserted by the government, is "simply accepted by the Court as always pressing and substantial" [emphasis in original] [para.34];
- the government has this survey - therefore section 329 bears a rational connection to the "pressing and substantial" goal of ensuring "informational equality" [para. 40];
- in the aforementioned survey, a bunch of people said they would not seek out information about poll results if doing so was illegal - therefore, no one should be allowed to know this information [para. 40];
- section 329, based on the foregoing, has beneficial effects and no deleterious effects - and should therefore be allowed to stand [paras. 49-51]
Every time there is a gap in the reasoning (which is quite often), Bastarache invokes a totem: "logic and reason". Can't quite see how we went from assertion A to conclusion B? Logic and reason. The phrase "logic and reason" is used eleven (11) times in Bastarache's decision, yet not once does he actually apply either logic or reason to the propositions set before him. Instead, he takes the arguments of the government, says "I am applying logic and reason" and then jumps to the government's preferred conclusion.
What is truly bizarre is that section 329, over the course of the majority reasons, acquires the strength of, if not a Biblical commandment, then perhaps a law of physics: by paragraph 51 overturning section 329 apparently constitutes an assault on "the protection of Canada's electoral democracy". For all the murmuring of deferring to Parliament, by paragraph 47 Bastarache seems to be implying that if section 329 is not kept in the Canada Elections Act, then the Supreme Court might just have to read it back in ("staggered hours, even if more extensive, as proposed in the Lortie Report, cannot alone perfectly address the problem of voter confidence. Informational imbalance remains if s. 329 of the Act is not retained").
There's really only one way around the decision: section 329 should be repealed by Parliament. If there are concerns about poll results in the east materially affecting voting decisions in the west (something which is not supported by the evidence presented), then, as recommended by the Lortie Report, stagger voting hours or simply hold off on counting all ballots until all polls are closed. But even doing that will not address the more pressing concern raised by the decision in Bryan: the dramatic lowering of the threshold when it comes to requiring the government to prove its case in relation to legislative action which affects our fundamental rights and freedoms.