Monday, April 04, 2005

The Oakes Test and the Publication Ban

Here is an interesting comment on the Gomery Commission's publication ban by Colby Cosh:
Under the metaconstitutional Oakes test, any infringement of individual Charter liberties, such as a publication ban, must have a "rational connection" to the intended benefit and must be the most minimally restrictive measure that can bring about the benefit. The argument here is that if a ban doesn't work in practice--say, because American webloggers are all printing the mind-blowing stuff Canadian ones cannot--it can't meet Oakes. With due respect to the ban, which I consider myself to have observed herein, it would actively help free the hands of Canadian webloggers and reporters if our foreign cousins were to be aggressive about "publishing" the substance of the Brault testimony outside the reach of Canadian law.
As much as I respect Cosh's argument, which makes the Canadian law seem absurd, Blogger is hosted on American soil. Why can't I publish something in America that defies the ban? Thus, I am not sure if it even makes sense to even go through this trouble of aggressive reporting down south.

UPDATE - I wonder if the old Election Gag Law, ruled as unconstitutional, has anything to do with the current publication ban, which prohibited people "from transmitting the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district." Would that mean that Gomery's publication ban is unconstitutional, since some Canadians are seeing the Gomery information published in one jurisdiction while others in another are not to publish that information? The publication ban seems sensible to me at the time of its creation. But now that it has leaked, there is no way of unlearning information.

At any rate, Mader Blog's analysis makes it clear that merely linking to the illegal information does not violate the ban.

No comments: