The Ottawa Citizen
Saturday, May 31, 1997

`Absurd, elitist' legal ban means all polls now secret

by Chris Cobb

Ottawa hamburger and ice cream vendor Don Richardson wants his customers and staff to have a good helping of fun and get a scoop or two of political awareness in the process. But going to jail isn't among his ambitions, so at midnight last night he tore down his customers' election predictions.

Sensible hamburger pollsters across the country will have taken the same precaution because, as harmless and unscientific as they are, hamburger polls became illegal at midnight and will remain so until after voting booths close on Monday.

"It's an over-reaction on the part of somebody", says Mr. Richardson, who owns one of 15 Lick's franchises in Ontario. "Our poll isn't totally frivolous, but it is a fun thing and completely unscientific. When we started this in 1978, part of our company's original aim was to give staff a greater level of awareness.

Opinion polls, new, old or hamburger, have been banished from public sight because of a 1993 amendment to the Canada Elections Act and a court decision last summer. The ban is total.

From midnight last night to the end of voting Monday, news media cannot report on polls. A public opinion poll published yesterday cannot be referred to today.

If a reporter calls city car dealerships and writes a fun political projection based on the colour of cars sold this past month (red for Liberal, blue for Tory etc.) it is illegal to publish or broadcast that story.

During this three-day blackout, the parties will continue intensive polling and base all their last-minute strategies on those polls. News media can report on the strategies, but not on the polling data.

The pre-voting day censorship came out of recommendations from an electoral reform commission that said there is a possibility that Canadians can be unduly influenced by the publication of polls just before an election.

The amendment was interpreted by Elections Canada during the last federal election as a ban only on new polls.

However, during an appeal by newspapers at the Ontario Court of Appeal last year, media lawyers tried to illustrate the silliness of the law by telling the court that if strictly enforced it should also include old polls and even hamburger polls. Media lawyers expected to see the ban scrapped. Instead, the appeal court agreed with them and banned the other polls too.

Media say the ban is unconstitutional and will argue such at a Supreme Court of Canada hearing this fall.

Lawyer Peter Jacobsen, who argued the appeal court case for Southam Inc. and Thomson Inc., says there is no proof polls published just before voting day have any effect.

"The government is presuming to tell us what information we can and cannot have during an election campaign. Polling information is banned, yet any number of authoritative opinions can be published in the last three days of the campaign. If an authoritative think tank comes out with a major report on the effects of separation, it can be published. What is the difference between that and an opinion poll?"

Edmonton Journal editor Murdoch Davis says there is a vital principle at stake.

"The law is absurd, elitist, and paternalistic. I find it grossly offensive that the political elite is going to have access to information with which to manipulate the public but the public can't have access to that same information. I've come to have less and less regard for the value of polls, but it isn't the role of government to tell us what to do with them.

"Even with a bad law, you have to obey and respect it, but I'm confident the Supreme Court will set aside this amendment as unconstitutional. If it upholds the law then we have to decide whether to engage in civil disobedience."

Obeying the law may not be easy, especially for broadcasters. CBC Newsworld, which has been broadcasting live during the campaign, has no control over politicians who might mention the p-word.

"We plan to obey the law", says Newsworld head Vince Carlin, "but we will not stop covering live events because someone might blurt out the results of a hamburger poll. And there's not much we can do if the leader of a political party mentions a poll during a live broadcast. We have sent internal memos reminding everyone about the law and will do all we can. It's a difficult situation and one we have to do something about after the election."

Pollster Conrad Winn, president of COMPAS, agrees that the ban is nonsensical.

"The only polls that should be banned are those published before voters are paying attention to the election. They are the most influential because they have a powerful impact on where the political money goes. At the end of the campaign people are juggling so much information, polls are just a tiny piece of the scenery."

A couple of Internet companies say they will defy the law. But the Internet is seen by a minority of voters and the pledge to defy the law on the information highway is little more than grandstanding.

Canada will not be subject to the unseemly sight of newspaper publishers and hamburger flippers being hauled off to jail this weekend. There are no polling police patrolling the streets. Elections Canada will only investigate infringements of the law after the election and will do nothing unless someone files a complaint.

One statistic worth monitoring will be voter turnout on Monday. At Lick's in Ottawa, participation in the hamburger poll ran at 75 per cent. Turnout on voting day is unlikely to be so healthy.

Copyright © 1997 by The Ottawa Citizen. All Rights Reserved. Reprinted with permission.