Extract
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 (1998)
Thomson Newspapers Co. v. Canada
(Attorney General), [1998] 1 S.C.R. 877Thomson Newspapers Company Limited, doing business asThe Globe and Mail, The Evening Telegram, WinnipegFree Press and Times-Colonist, and Southam Inc. Appellants v.The Attorney General of Canada Respondent andThe Attorney General of British Columbia and the Canadian Civil Liberties Association IntervenersIndexed as: Thomson Newspapers Co. v. Canada (Attorney General)File No.: 25593.1997: October 9; 1998: May 29.Present: Lamer C.J. and L'Heureux-Dubé, Sopinka,* Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.on appeal from the court of appeal for ontarioConstitutional law -- Charter of Rights -- Freedom of expression -- Opinion surveys -- Elections -- Federal elections legislation prohibiting publication, dissemination or broadcasting of opinion survey results on last weekend of election campaign and on polling day -- Whether legislation infringes freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1.Constitutional law -- Charter of Rights -- Right to vote -- Access to information during election -- Restrictions on opinion survey results -- Canadian Charter of Rights and Freedoms, s. 3 -- Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1.The appellants brought an application for a declaration that s. 322.1 of the Canada Elections Act violates freedom of expression and the right to vote guaranteed by ss. 2(b) and 3 of the Canadian Charter of Rights and Freedoms. The impugned section prohibits the broadcasting, publication or dissemination of opinion survey results during the final three days of a federal election campaign. The Ontario Court (General Division) denied the appellants' application, holding that s. 322.1 did not violate a citizen's right to vote and that, although the section infringed freedom of expression, it was justified under s. 1 of the Charter. The Court of Appeal affirmed the judgment.Held (Lamer C.J. and L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be allowed.Per Cory, McLachlin, Iacobucci, Major and Bastarache JJ.: Section 322.1 of the Canada Elections Act, which applies only to "new" poll results, infringes s. 2(b) of the Charter. The publication of opinion survey results is an activity that conveys meaning and therefore falls within the ambit of s. 2(b). By prohibiting the broadcasting, publication or dissemination of opinion survey results during the final three days of an election campaign, s. 322.1 restricts freedom of expression.Section 322.1 is not justified under s. 1 of the Charter. All the steps of a s. 1 analysis must be undertaken with a close attention to context. Characterizing the context of the impugned provision is important in order to determine the type of proof which a court can demand of the legislator to justify its measures under s. 1. In the course of a contextual approach under s. 1, the vulnerability of the group which the legislator seeks to protect, that group's own subjective fears or apprehension of harm, the inability to measure scientifically a particular harm, and the efficaciousness of a remedy, are all factors which the court must take into account in assessing whether a limit has been demonstrably justified according to the civil standard of proof. Another factor to be considered is the nature of the activity which is infringed. The degree of constitutional protection may vary depending on the nature of the expression at issue. Here, the speech infringed is political information. Opinion surveys regarding political candidates or electoral issues are part of the political process and, thus, at the core of expression guaranteed by the Charter. The nature of the expression at issue suggests that a deferential approach is inappropriate in this case.While the objective of providing a period of rest and reflection for voters prior to going to the polls is not a pressing and substantial objective, the objective of guarding against the possible influence of inaccurate polls late in the election campaign by allowing for a period of criticism and scrutiny immediately prior to election day is of sufficient importance to meet the first step of the s. 1 analysis. The purpose of this particular limitation on expression is to ensure that information which the evidence indicates has an important influence on the choice of at least some voters is presented according to the standards of accuracy which polls are normally expected to attain. To the extent that the votes of some might be distorted as a result of polls being presented in a misleading fashion, such a distortion is clearly a matter which the government may legitimately be concerned to remedy.The three-day blackout period on the publication of polls will serve, to some degree, the purpose of preventing the use o...See the full content of this document
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