The Technology of Political Communication: R. V. Bryan and the Knowledgeable Voter in the 21st Century

The paper examines the recent case of R. v. Bryan, in which the Supreme Court of Canada upheld the constitutionality of section 329 of the Canada Elections Act (a provision that prohibits the premature transmission of election results from one electoral district to another before the close of polling stations). The Court found that the provision breaches the freedom of expression right contained in section 2(a) of the Charter, but that it is saved by section 1. The paper argues that the decision ignores the practical realities of new media and technologies, and the Court’s own appreciation of these trends contained in some of its recent precedents. It then explores the nature of section 1 analysis in this context, suggesting possible reforms of the Oakes test to address the influence of technology on legal rights