Public Opinion Poll Restrictions, Elections, and the Charter

COLIN C.J. FEASBY

ABSTRACT

In this article, the question posed is whether or not restrictions under the Canada Elections Act on the publication of public opinion poll results violate Charter guarantees of freedom of expression and the right to vote. The article begins with a discussion of the shortcomings of the recent Ontario Court of Appeal decision in Thomson Newspapers v. Canada. The author then outlines the extent of the effects of polls on voter behaviour. The bandwagon effect - rushing to support a candidate or party perceived to be leading or to have momentum - is given particular attention. The author proposes a new framework for considering the regulation of elections. It is suggested that elections are an intrinsically different milieu from customary speech situations and that the jurisprudence that has developed around s. 2 of the Charter is inappropriate for judging the regulation of elections. Instead, it is posited, the right to vote is a more suitable forum for considering issues relating to the regulation of elections. Within the right to vote, the interests in a free flow of information may be balanced with limits on that flow, in the name of the fairness of integrity of the electoral process. Failing this, the author maintains that even if the polling blackout is found to violate freedom of expression, there is, on the basis of social science evidence and logic, a reasonable apprehension of harm that is sufficient to justify upholding the polling blackout under s. 1.

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Citation: (1997) 55(2) U.T. Fac. L. Rev. 241.
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