OTTAWA - In a decision pitting free speech against electoral fairness, the country's top court is set to rule on whether Canadians who haven't yet cast their ballots should be kept in the dark about how others have voted on election night.
At issue are provisions of the Canada Elections Act that have long forbidden the reporting of partial results from the rest of the country in areas where the polls haven't closed.
The judgment Thursday by the Supreme Court of Canada will centre on a constitutional challenge mounted by British Columbia software designer Paul Bryan, who contends the ban imposed in 1938 has been rendered obsolete by the Internet and other modern communications technology.
"This law can't be enforced, it's not practical,'' Bryan insisted last fall as his lawyers argued the case before the high court.
He has the backing of the Canadian Civil Liberties Association, the National Citizens Coalition, and media groups including The Canadian Press, CBC, CTV, the Globe and Mail, Sun Media and CanWest.
Bryan's lawyers, in their submissions to the Supreme Court, also tried to enlist Prime Minister Stephen Harper, citing criticism of the reporting ban he voiced while he was a private citizen.
In a fundraising letter soliciting support for Bryan in 2001, Harper called Elections Canada officials "jackasses'' and referred to former chief electoral officer Jean-Pierre Kingsley -- who stepped down last December -- as a "dangerous man.''
The prime minister has been more careful in office, offering no comment on the legal battle while lawyers for the federal Justice Department have doggedly continued to defend the law.
The top court's ruling comes with Ottawa abuzz over persistent rumours that the minority Conservative government is preparing to hit the campaign trail this spring.
Bryan was convicted and fined $1,000 for posting vote totals from Atlantic Canada on his website before B.C. polls had closed during the 2000 federal election.
He says the law violates the Charter of Rights guarantee of free speech, as well as another section of the Charter that protects freedom of political association.
Federal lawyers maintain the legislation is justifiable in the wider interest of ensuring electoral fairness. They say voters in every region of the country should have the same information -- or lack of information -- when they cast their ballots.
It's not the first time the Elections Act has come under fire on constitutional grounds.
In 1998, the Supreme Court struck down provisions that banned the reporting of public opinion polls during the last 72 hours of federal campaigns, saying the time period was excessive. The Liberal government of the day responded with legislation shortening the ban to the final 24 hours -- essentially voting day itself.
In 2004 the court upheld stringent limits on campaign advertising by private lobby groups -- another Liberal-inspired provision that had been challenged by Harper during his time as head of the right-leaning National Citizens Coalition.
The court ruled that although the restrictions infringed free speech the infringement wasn't serious enough to overturn the rules. By a 6-3 count the judges said the limits could be justified by Parliament's wider aim of levelling the financial playing field among political parties.
