07 Oct Moot point: R v Donham, er, Campbell

Tonight at Dalhousie University’s Weldon Law Building, Lauren Soubolsky and Kathryn Piché will stand up for the rule of law and the Charter of Rights and Freedoms when they defend one Ron Campbell against a charge he violated the Nova Scotia Elections Act by photographing his ballot in the 2011 provincial election and tweeting the resulting image.

In reality, there is no Ron Campbell, at least none who used his cell phone camera in a ballot booth three years ago. However his apocryphal actions may call to mind the notorious acts of a blogger familiar to you.

Soubolsky and Piché are third year law students defending an imaginary case with familiar facts before the 2015 Smith Shield Moot Court presided over by Appeal Court Justice Joel Fichaud, Supreme Court Justice Denise Boudreau, and Barristers’ Society President Jill Perry. (A moot court is a mock proceeding at which law students argue imaginary cases for practice.)

R v Campbell hinges on two issues: did the law, as it stood in 2011, forbid the acts committed by Mr. Campbell, and if so, does the law unreasonably infringe the Charter guarantee of free expression.

In the imaginary proceedings, a lower court has already (correctly) thrown out the charges, but the obdurate Crown, represented by law students James Boyle and Emily Hansen, has appealed the decision.

On the first point, the Crown will almost certainly lose. The 2011 version of the law simply did not ban the taking of photographs inside a polling station or their subsequent publication outside a polling station with the clarity required to support a criminal conviction. Hopefully that open-and-shut conclusion will not prevent the learned jurists from commenting on the interesting Constitutional issue of free speech verses the sanctity of the ballot box.

The only solid case against a ballot photo is that it could be used to prove how someone voted, and thus “seal a corrupt bargain” involving vote-buying or extortion. The weakness of this argument is that Elections Nova Scotia permits many ways of voting—by mail, from home, from homeless shelters, from overseas—several of which make it easy to prove how an elector voted. The Crown must argue it is proportional for the law to slam the free-speech window shut, while allowing various barn doors to swing freely open.

The Smith Shield Moot Court convenes at 7:30 pm tonight in Room 105 of the Weldon Law building. The public is welcome, but guests are advised to arrive early, as the courtroom usually fills up by game time.

Best of luck to all participants, especially Mr. Boyle and Ms. Hansen, given the frail position it will be their sad lot to advance.