Don’t get any ideas from the U.S., ‘ballot selfies’ aren’t allowed in Canada, election officials say

NationalPost.com
Aug. 27, 2015
Jake Edmiston

With the so-called “ballot selfie” driving a legal debate in the U.S., Elections Canada officials warned Thursday that sharing a photo of a marked ballot in the upcoming federal election could mean jail time.

In Canada, the Elections Act stops voters from “show(ing) his or her ballot, when marked.” That means any one seen taking a photo of their ballot at a polling station will be told not to share it online or show it to anyone. If they do, they could face up to a $1,000 fine or three months in prison, Elections Canada spokesperson Diane Benson said.

But constitution lawyers say the Canadian law could be open to a legal challenge similar to the controversial court case in New Hampshire earlier this month. There, a judge sided with the American Civil Liberties Union, deciding that the ban infringed on the free speech rights of voters who “use images of their completed ballots to make a political point.” In that case, one of the plaintiffs had posted a photo of himself alongside his ballot, showing he had voted for his dead dog, the New York Times reported.

Proponents of the New Hampshire law, however, argued that the “ballot selfie” risks a return to the rampant vote buying that marred 19th-century elections. And Elections Canada appears to agree.

“The vote is kept secret to minimize coercion and vote-buying,” Benson said.

Peter Rosenthal, a law professor at the University of Toronto, said the ban on voting booth photos in Canada could be argued as a violation.

“It would be an interesting case on freedom of expression,” he said. “It’s not clear which way it would go.”

But his U of T colleague, law and political science professor Yasmin Dawood, noted that while a Canadian court would likely find the ban to be an infringement of free expression, it would be deemed a “reasonable limitation.”

“My guess is that the government would provide good reasons for the ban on ballot box selfies such as the prevention of vote buying etc.,” she said, “and that a court would likely find that the ban is reasonably justified in a free and democratic society.”

Nova Scotia recently changed its election laws after political blogger Parker Donham was investigated by the RCMP for tweeting a photo of his ballot during a provincial election in 2013. At the time, Donham dismissed vote-buying concerns, saying, “They know I didn’t get a package of nylons or a bottle of rum for my vote. They know I was making political point.”

Crown attorneys decided not to prosecute Donham, “because they felt there was some ambiguity in the way the act was written,” Elections Nova Scotia spokesman Dana Doiron said. At the time of the incident, the provincial law banned “a recording or communication device” at polling stations. The province changed the law to specifically prohibit taking “a photograph with an electronic device of the person’s ballot.”

“If we allow photography of ballots, then the proof is available to [vote-buyers],” Dorion said.

For his part, Donham said the ban is miguided, since Canada has several voting methods that could be used by in vote-buying scheme.

“Mail-in ballot … equally enable a voter to furnish proof as part of a vote buying or extortion scheme,” he said.