 of the Supreme Moot Court of Dalhousie and Halifax with the Honorable Justice Joel Fischot, Honorable Justice Denise Boudreau and Ms. Jill Perry now presiding is now open. All persons who have anything to do with it, draw near and give your attendance and ye shall be heard. God save the Dean. Good evening everyone and welcome to this very exciting event. I would like to begin by welcoming our three judges for the evening. We have tonight kindly sitting as the bench, the Honorable Justice Joel Fischot of the Nova Scotia Court of Appeal, the Honorable Justice Denise Boudreau of the Supreme Court of Nova Scotia and Ms. Jill S. Perry, president of the Nova Scotia Barrister Society. A welcome and a thank you for participating as our panel this evening. I also want to welcome and wish the best of luck to our competitors for this evening. Perhaps I should say participants. James Boyle, Emily Hansen, Lauren Sibolsky and Catherine Pichet. I'd like to just mention a few things about this competition. The Smith-Shield competition began in 1927. It is one of the highlights of our academic year. I can see that is very popular. There is a long line of well-known winners of the shield over time. Among them Bill Charles, Bruce Archibald, Wayne McKay, Phil Saunders, Steve Coughlin and Elizabeth Hughes. And if we go back just a little bit, not too far, but just a few years further back in time, Mr. Justice Louis Dubinsky and Madam Justice Bertha Wilson, Frank Covert, that was in 1928, George Piercy, Bill Cox, Ronald St. John McDonald and David Shipman were also winners of the Smith-Shield. So for those four competitors who are here tonight, you're in good company. Events like this wouldn't be possible without kind support. And I would like to thank the law firm of Sturt McKelvie Sterling Scales for funding this event. This year's representative of Sturt McKelvie is Scott Campbell. He's here this evening, welcome. I'd like to thank Professor Chuter for preparing the problem and Associate Dean Deturbide and his assistant Tatiana for organizing the event. A lot of organizing goes into these things and without the work of people like that, it would not be possible to have these events. The event is being audio and videotaped and I'm told to say that. And also I'm told to say, please turn off your electronic devices. I checked mine before I came into the room, but for those of you who haven't done so, please do. I'd just like to say one thing and this is a special comment to the four participants. As things go this evening, at the end, there will be some winners, but I think it's fair to say that you're all winners. You've come to this competition this evening after rising to the top in your second year moot class. That's quite an achievement. So your winners, regardless of the outcome, the four of you are winners. I also want to say that, of course, mooting like this is a great exercise. It helps to train people for appellate advocacy, but if you never do appellate advocacy, exercises like this are very valuable. The transferable skills that you pick up in exercises like this can't be beat, persuasive oral and written communication, teamwork, and so on. So regardless of where your careers take you, whether to the appellate court or not, I'm sure the skills you gain in this competition will serve you well. And with those comments, I will now turn the matter over to our bench and the proceedings will begin. Thank you, Dean Cameron. So as of now, we're in a roll. This is the queen versus Campbell, Mr. Boyle and Ms. Hansen for the appellate, Ms. Zbulski and Ms. Pichet for the respondent, Mr. Boyle whenever you're ready. Good evening, my lord and my ladies. This is the matter of Her Majesty the Queen and Ron Campbell on appeal from the Supreme Court of Canada. My name is Jim Boyle representing the appellate crown. I'm joined by my colleague, Ms. Emily Hansen. My friends, Ms. Catherine Pichet, Ms. Lauren Zbulski represent the respondent, Mr. Ron Campbell. The facts of this matter are set out at page three of my factum. And unless this honorable court should like me to recite them, I propose to move directly to argument. Thank you. There are two issues of statutory interpretation on appeal today. Whether by using his iPhone to photograph and tweet his marked ballot, Mr. Campbell violated section 95.4 of the Nova Scotia Elections Act by using a recording or communication device in the polling location during voting hours. And whether he infringed section 301b by showing his ballot to permit the name of the candidate for whom he has voted to be done. My lord and my ladies, this case is essentially about the integrity of our electoral system. A well-sighted case coming from 1945 in the Alberta District Court, Aaron Clay, noted that the secrecy of the ballot is the rock on which the whole structure of representative self-government is founded. And more recently, Justice McLaughlin, as she then was of the British Columbia Supreme Court, noted that ballot secrecy is one of the most fundamental principles in elections. My lord and my ladies, the purpose of the impugned provisions is not in dispute today. We agree with our friends as well as the majority and the dissent below that the purpose of both provisions is to help prevent vote buying, selling and intimidation by making it more difficult for those who would seek to control the votes of others to obtain proof or verification of the way that people voted. This in turn protects the public confidence in the fairness as well as the integrity of the electoral process. If voters were allowed to circumvent these provisions by showing their ballots to people in photographic form and thereby verifying in some way the way that they have voted, this purpose would absolutely be subverted. And I put it to the court, this could not have been the attention of the legislature. The Supreme Court of Canada aired in adopting an overly narrow and formalistic approach to the words of the act. They failed to take adequate account to the full range of factors required by the Supreme Court of Canada as well as Nova Scotia legislation. And in particular did not give adequate regard to the purpose and context of the provisions. I alerted my ladies at paragraph 17 of my factum. I begin my laying out the principles of statutory interpretation on which I tend to rely. And without going into detail on those, suffice it to say that the Supreme Court of Canada in RISO, as well as the Nova Scotia Court of Appeal and section 95 of Nova Scotia's Interpretation Act all urge a broad, purposive and contextual analysis where the words of the provisions are looked at in their entire context with their ordinary meaning taking into account the purpose of the act, the scheme of the act and its object. Statutory interpretation is a methodical but not a mechanical exercise. My ladies and my lord, my friends urge you to take a strict approach to the statute, looking only at the words as they are and not importing any meaning relative to the actual purpose. The problem with this approach is that it presumes that a strict construction must apply to penal statutes and presumption with charter values must apply without engaging in a fulsome discussion of all of the criteria and indicia that would be relevant to defining the intention of the legislature and the possible meaning of the words they chose to use with regard to that intention. In particular, the Supreme Court in Canada in Merck noted that even with penal statutes the real intention of the legislature must be sought and no strict construction will be applied if other interpretive factors way more heavily in the scales. And indeed at paragraph 21 of my factum, I reference Nova Scotia Court of Appeal in Coche that noted that these presumptions only arise for a penal statute when there is a real ambiguity. A real ambiguity arises only when two things are present. One, the words of the provision are reasonably capable of more than one meaning which is the case here, my lord and my ladies. But also when each of the meanings is equally in accordance with the intentions of the statute and the purpose of the act in its entire context. My ladies and my lord, I suggest that in the entire context, given that the purpose of the act is to uphold the integrity of the electoral system by making it more difficult for people to engage in these kinds of corrupt practices, it would be fundamentally inconsistent with that purpose to adopt an interpretation that allows individuals to circumvent the act to effectively show their ballot or what the Supreme Court of Canada in dissent below called the functional equivalent of showing your ballot. My lord and ladies, because policy concerns are so important to the resolution of this issue generally, I propose to begin my analysis with section 301b of the statute which is at paragraph 46 of my factum. Mr. Campbell showed his ballot in a way that permitted others to know the name of the candidate for whom he had voted. I do not dispute with my friends that the word ballot as used in the provisions and indeed is defined in the act refers to the ballot itself. It refers to Mr. Campbell's actual ballot. However, in its larger context, the word show should not be taken to mean that it can only refer to the physical ballot itself. The word show has larger import. For example, Oxford English dictionary says show can mean to cause or allow to be seen or looked at. Ordinary meanings of the word show suggests that you can show somebody something by photographic means without actually having to take them to the physical object itself. For example, if we were discussing children and you were to say to me, let me show you my children reaching for your pocket. I would not be surprised when you pull a photograph of your children and not children themselves. Quite the opposite, let's admit. It is not appropriate to gauge in metaphysical discussions about what it means to really see something for the purpose of the act if the function is essentially the same. This is further supported if you read the entire phrase and this is in my factum at paragraph 50. It is to show the ballot not in a vacuum but to permit the name of the candidate for whom you voted to be known. This implies not just showing but showing with the consequence of imparting the knowledge or some verification about the way you have cast your vote to be known by other people. My Lord, my ladies, my friends have submitted at this juncture that there is a fundamental difference to the extent that showing in this context requires some degree of proof and that in the context of Mr. Campbell tweeting his ballot, there is inadequate proof. My ladies and my Lord, I suggest that this undermines or undervalues the extent to which providing any photographic evidence is substantially more proof than the word of mouth that is the interpretation that I propose the court adopts today. The legislature very carefully chose to limit the expression as to how you voted to simply stating how you voted. They have deliberately taken precautions under 301B to make it such that you cannot show anybody with any degree of proof or verification the way that you have voted. This is further reinforced by the entire context of the provision. My Lord and ladies, you might notice that the subheading of section 301B is breach of ballot secrecy which accords with other sections of the act which discussed ballot secrecy in particular section 114 and 124. The principle of ballot secrecy is one that is firmly established in Canada's democratic tradition. The Saskatchewan Court of Appeal described ballot secrecy as paramount in Boroughman, cited at paragraph 58 of my factum. And in an 1888 Supreme Court of Canada case which has not been overturned and continues to be cited, Walsh and Montague cited at paragraph 57 of my factum. The Supreme Court of Canada held that ballot secrecy is an absolute rule of public policy and cannot be waived. This was in a context where an individual voter wanted to voluntarily disclose the way that he had voted in legal proceedings concerning the viability of electoral results where there was a challenge made to the legitimacy of electoral results. Even in the case where that person wanted to reveal his vote, the court said that is not allowed. They have set a very high standard for ballot secrecy. This accords even with the ordinary meaning of the word secret. The Oxford English Dictionary suggests secret means kept from knowledge or observation, hidden, concealed, kept from public knowledge. It will be inconsistent with the tradition of secret ballot in Canada as well as the plain meaning of the words suggests that somebody could breach the ballot secrecy voluntarily and yet at the maintain uphold the principle it represents. My ladies and my lord, unless there are any questions on 301b, I propose to move my analysis to section 95.4 which begins at paragraph 32 of my factum. As a preliminary matter, I will note that the section requires somebody to use either a recording or communication device. Mr. Campbell needed only to use his iPhone as either a recording or a communication device in order to have contravened the provision. To that extent, I won't be discussing the descent below his use of the case Ferguson as it is not dispositive of the issue and instead we'll discuss how he was in fact using the iPhone as a recording and a communication device. The Supreme Court of Canada in R and Money cited a paragraph 33 of my factum, noted that a legislative phrase should be given the meaning consonant with the purpose of the statutory provision unless the contrary is indicated. Now, I accept that a recording, the word recording as used by the Supreme Court of Canada in the majority below does not usually include a photograph. Although it is possible that recording, as used as a now, could include photograph. For example, section 162 sub two of the criminal code of Canada defines a visual recording as including photographic film or video recording. However, the Supreme Court of Canada aired by relying exclusively on a definition of the word recording without taking into account its associated word device. A recording device is not only a device that can make recordings, but is a device capable of recording or making records or a device that records. Recording as a verb as defined in the Oxford English Dictionary includes to put or set down in writing or some other permanent form to put on record. And again, I agree with my friend in her use of the definition of recording suggesting the gathering of information or the taking of information and putting it in a permanent form. I submit that this could apply to a range of devices that are designed to gather and retain information in a permanent form. For example, audio recording, video recording or even taking photographs, particularly when you look at the context of the provision. While Mr. Campbell may not have been taking a photographic recording, he was certainly making a record of the way that he voted. Even if a single photograph does not constitute a record, Mr. Campbell could be recording a single instance in a larger narrative. For example, tracking the way he voted over several electoral cycles or contributing towards a larger database of the way the individuals voted in a particular writing as represented by online posting of photographs, for example. On that point, can you go to paragraph 36 of your document? Absolutely, Miller. I'm there, Miller. You can stay there while a single photographic image is not commonly referred to as recording and so on, skipping a little bit and later in the sentence, you say, the use of the word recording modifies the word device. In other words, the section prohibits the use of a device that is capable of recording. Or in a narrow sense, the use of the recording capability of that device. So is that your point? You're saying whether or not he was actually recording, when he took the photograph, the device is capable of recording, he used it, so he's covered. That would be, my Lord, an interpretation that is somewhat consonant with Ferguson. Well, is that the interpretation that you're proposing in paragraph 36? What I'm proposing in paragraph 36, my Lord, is that the device that he used is able to record and in fact, he was recording when using it. Okay, so are you saying that if it's capable of recording, then it's not necessary that the court determine that what he was actually doing was recording. He was using a device that was capable of recording and that is enough by itself. Is that what you're saying? My Lord, that would be the argument that was stemming from the descent below from Ferguson, and while I agree in principle with the application of Ferguson to this case, I do not believe that it is dispositive and even if the court does not accept. Okay, but I don't want you to get to your alternate, I just want you to answer my question, is are you asking this court to accept that argument or not? Yes, my Lord, I am asking the court to accept that argument. Okay, so as far as you're asking the court to accept that argument, I got a couple of questions. Suppose that this device clearly is capable of recording, but it's not being used for recording. Is that still an offense? For instance, suppose he's just checking the time on his iPhone, is that an offense? My Lord, the principle as laid out in Ferguson and McDonald as well suggests that the use of a device that can be classified in such a way will only be an offense to the extent that that use of the device infringes on its purpose. In Ferguson in particular, the accused was, there were accused of violating a Motor Vehicles Act provision, prohibiting somebody from using a handheld cellular device. They defended that they were using map quests. However, the court evaluated what the purpose of that provision was. The purpose of prohibiting people from using a handheld cellular device is to prevent distraction while driving. Coming back to this case now, are you saying an example I gave to you that it is an offense or you're not saying that? I'm saying in this case that it is an offense, my Lord, because if it is a use of the device that falls under that categorization. It is an offense. That as long as it is contrary to the purposes of the actual. Oh, if Mr. Campbell was in the polling booth and he just wanted to check the time he used this device that's capable of recording, but only to check the time he's committed an offense. My Lord, I would suggest that he was probably not committing the offense with regards to recording device, but most certainly with regards to communication device. By checking the time. I have a, I think it's a follow up question. I had it originally and I think it's not answered from what you're saying. You had said earlier in your discussion about section 301 that that section talks about ballot secrecy and that being the purpose of the legislation. But at section 95, there's no talk of ballot secrecy. It just talks about none of the person's purpose. The person's present using a recording or communication device. So it says nothing about ballot secrecy. So what are you saying is the purpose or the rationale behind that particular section? And why do you think that? Because perhaps that section is meant to capture the nightly news, not capturing everything that's happening in the room, for example. Maybe that's what they're talking about a recording or communication device. Perhaps that's what they're trying to prevent. Where do you say that in that particular section that the rationale behind it is ballot secrecy? It doesn't say anything about ballots. My lady, the courts below have accepted both in the majority and the dissent that the purpose of these provisions, both 95.4 and 301.B, is to prevent vote buying, selling, and intimidation. The mechanism by which it does that is making it more difficult for people to obtain any information about the way that people have voted. And in fact, the dissent, they took it a step further and said that this upholds confidence in the system. This is intimately related to the notion of ballot secrecy because ballot secrecy is the mechanism whereby public confidence is upheld. If ballots are kept secret in an absolute way, then vote buying, selling, and intimidating practices will be stymied and will not be such a worry for the legislature, allowing the public to have confidence in the system, knowing that there are no loopholes whereby somebody might be able to show the way that they voted in such a way that provided some verification to somebody who wants to subvert the purposes of the act. I would suggest that based on the common purpose, that section 301.B and 95.4 should be both understood in light of the principle of ballot secrecy, which is not a standalone principle applying to that provision of itself. And I might refer again to what Justice McLaughlin, as she then was head of the BC Supreme Court, that it is an important feature of elections generally. So the principle of ballot secrecy pervades the entire legislation and will be present in every provision. So just to follow up, I guess, on what the Chief Justice was saying, using a cell phone to call for a pizza, that would be caught by this section? It would presumably be caught by this section because the legislature intended to restrict information that may be related to the way that people vote, from reaching from inside to the outside. I would submit that if somebody was calling for pizza genuinely on a very theoretical understanding, they would not be subverting the purpose of the act. But the legislature has chosen to phrase the act in such a way to capture a broad range of behavior, knowing that it would be fundamentally impossible to police people's intentions in every case. If somebody is calling to order for pizza, it could very easily be called for something else. The legislature wasn't concerned with that. They were concerned with upholding this principle. Can the code for something else? Pardon me? Is there some way that checking the time can be called for something else? It certainly could, my lord. You mean example? Well, pardon me, I may have misunderstood. You, checking the time. The time and the polling booth will be an offense. So I'm trying to connect that to the purpose of the legislation. It would be an offense in that it violates the plain use. The actual use in and of itself is difficult to police. Well, it's either an offense or not. It's either a guilty verdict or it's a not guilty verdict. And I take it from what you answered before that it would be a guilty verdict. So what's the connection between checking the time and a ballot booth to the purpose of the legislation? My lord, I will try and answer your question quickly to the best of my ability because we are out of time. What I would suggest is that the purpose is not actively being subverted. However, the legislature has chosen to phrase the words broadly in order to capture activity that they cannot police. For example, the amendments to the act have banned any electric devices whatsoever. That is because it is very difficult for the people who are operating the electoral area to determine whether somebody is checking their phone or communicating outside. And with that in mind, to ensure that the elections are not invalidated or have any suspicions cast on them retrospectively, the legislature has chosen to limit the use in broad terms of anything that could be used to violate the purpose of the provisions. So the overbreath issue that your colleague will discuss later. Exactly. So your colleague, no doubt, will be able to answer some questions about the point I just put you. Thank you very much, my lord, my ladies. My colleague Emily Hansen will now rise to discuss the issue of section one. Thank you, Ms. Hansen. And my ladies, my name is Emily Hansen. I'm appearing for the crown. And I will adjust the section one justification issue. The question before the court is in its most basic terms whether Nova Scotia will retain the secret ballot. If this court upholds the Supreme Court of Canada decision, Nova Scotia will no longer have a secret ballot, will no longer satisfy one of the basic requirements for democracy, and will fall offside Canada's international obligations. Before moving to the substance of my argument, I should note for the court that my friend argues at paragraph 41 of her factum that it is not open to the crown to further particularize the objectives of the impugned provisions. For my part, I noticed that my friend has sought at paragraph 43 to overturn an uncontested finding of the court below without bringing across appeal. I endeavored to research these points, but was unable to locate a recent version of the rules of practice governing this court. As the Supreme Moot Court of Dalhousie is the highest court in this land, it is my submission that the court can and should avoid getting bogged down in these matters and focus on the merits of the appeal. I will address first the type of evidence the crown needed to bring forward to satisfy its burden of proof, second, the proportionality of salutary and deleterious effects, and third, the mentally impairing nature of the impugned provisions. Turning first to the type of evidence required. Simply put, traditional social science evidence was not required. The manner in which the crown can satisfy the balance of probability standard varies with the context. Thompson newspapers outlined four contextual factors to assess the appropriate type of proof required of the crown. You have seen my analysis of the four factors in my factum at paragraph 66 to 75, and I do not propose to repeat that analysis except to highlight the two most important factors. On the first factor, the nature of the harm and inability to measure it, which begins in my factum at paragraph 69. Brian has recognized that some objectives are by their nature so fundamental that traditional evidence is either so impractical or impossible to obtain that it is not required. The objective of the impugned provisions is to maintain the integrity of the Nova Scotia electoral process and public perceptions thereof. To maintain means to preserve the status quo as opposed to stamp out a rampant problem. This was recognized at the pressing and substantial objective stage by the court below, and it is almost perverse to then turn around at the proportionality stage and demand proof of a problem requiring eradication. My friend says that the cases recognizing such evidentiary difficulties are simply too different to apply to this case. I disagree. In particular, I would draw the court's attention to Brian, which dealt with a prohibition on transmitting election results from one riding to another where the polls are still open. In particular, that prohibition had been in place since 1938, so to determine the effect of removing that ban or the effect of having it was virtually impossible. This is effectively the same problem that we face in this case. Ballot secrecy in one form or another has been in place in Canada since 1874. Justice Basterash for the majority in Brian said that the contextual factors determine to what extent the section one case will, and I quote, rightly consist of approximations and extrapolations. This is a case that relies, in part, on extrapolations and common sense to supplement the evidence that does exist. That is permitted and the crown should not be granted, and the crown should be granted leeway in this respect. Turning now to the fourth factor, the nature of the infringed activity, which begin. In your fact and the second factor you have is vulnerability of the groups that have to be protected. Were you going to speak to that or were you going to leave that to your fact? I was going to leave that to my fact unless there are any questions. Just a couple of points on that. You say the groups ought to be protected here in paragraphs anyone is the voters. Indeed. I will include Mr. Campbell. It would. Mr. Campbell here is the one who ends up with the criminal record, right? Yes. Okay, even though, and you say the purpose of the legislation is to protect from voter fraud, intimidation, buying and selling of votes. Indeed. And we have a finding a factor by the Supreme Court. I don't think there's any challenge to it that there was none of that involved in this case with Mr. Campbell. So we have Mr. Campbell, the person to be protected. He's going to be left with a criminal record. He hasn't engaged in the conduct which is the purpose of the provision. Why isn't that a big target for overbred from the minimum impairment under proportionality? Indeed, it is an unfortunate occurrence, but I would note that the manner in which the legislation is implemented did not necessarily need to leave Mr. Campbell with a criminal record. The chief electoral officer first offered Mr. Campbell a compliance agreement, likely in recognition that Mr. Campbell's conduct was simply not the conduct that the legislation is directed at. Well, that's like, you know, the crown offering accused a chance to plea bargain. If the accused thinks I'm not guilty, then is he required to accept the plea bargain and plead guilty to something when he thinks he didn't do anything wrong? Is that a relevant factor later when he's tried for the offense? I'm not entirely sure that the situations are analogous. Mr. Campbell was not requested to take responsibility for his actions. He was simply asked to delete the tweet. Okay, so anyway, the fact that he won't take it to court because he wanted the issue determined, you're saying that counts against him somehow in his proportionality analysis for his charter challenge? I don't think that it's necessarily a factor that counts against him. This is a provision that is designed to protect the voting public as a whole, in particular by protecting those who might be subject to these types of corrupt practices. And while it is true, the crown has admitted that Mr. Campbell's freedom of expression was infringed. We've never contested that point. The question that falls to be determined here is whether that infringement is justified. But the question before you get to that or after you get to that and one of them anyway that you're dealing with with the factors is proportionality, which would include minimum impairment. So I guess my question to you on that, which is the point that interests me, is if you have an individual is in the group, the involvement group to be protected, if he's gonna be left with a criminal record, but if he hasn't engaged in the conduct of the offensive conduct, which is the purpose of the legislation, then why isn't that just the definition of something which is not minimal impairment? I'm not sure if I can speak directly to that question, but if the minimal impairment branch of the analysis is what's concerning the court, I could present my arguments on that point. Well, whatever you have to do, answer my question. Okay. With respect to the minimal impairment analysis, the reason that the legislation is minimally impairing in the Crown's submission is not in relation to the temporal or geographic limitations that were identified by the Supreme Court of Canada dissent. What does genuinely narrow the scope of the infringement is the form-based nature of the restriction. Mr. Campbell was not prevented from tweeting how he voted. He was only prohibited from photographing his ballot. And the reality is there's simply no alternative. If you can photograph your ballot, your marked ballot, we no longer have a secret ballot. By its very nature, the secret ballot means that secrecy is mandatory and not optional. And be that as it may that you've pointed out that this may create some sort of unfairness for Mr. Campbell who wanted to challenge whether his conduct was indeed caught by the legislation. There is simply no other way for Nova Scotia to retain the secret ballot. If we permit people to take photographs of their ballot, then we do not have a secret ballot. Can you, can the province legislate against the offensive conduct without creating a criminal offense? Because when you create a criminal, in some sort of regulatory way. Because when you create a criminal offense, you raise some special protections for the individual who's left with the criminal record, including a concern about his vulnerability. And since he's one of the defined people who was vulnerable here to be protected by the proportionality analysis, I'm having difficulty seeing how you break out of that circle. I'm not prepared to answer this question, but perhaps if I continue in my argument, a better answer would come to me. At this point, I will wrap up on the minimal impairment analysis to address the Supreme Court of Canada's alternative, which was an intent-based prohibition. Basically, you can't take a photograph if you're doing so to further corrupt purpose. While this alternative is less infringing, it is not equally effective. This argument is in my facatum, beginning at paragraph 78, and I only want to expand on one point, namely why the Supreme Court of Canada alternative is inadequate. Violating the impugned provisions does not accuse the individual of fraud or corrupt practices. There are separate offenses for actual corrupt or fraudulent practices, which are listed in my facatum at paragraph 77. What the impugned provisions do is simply prohibit a particular kind of conduct, and they do so to protect the right in accordance with one's conscience, even if someone else has attempted to coerce, intimidate, or buy the voter. What the Supreme Court of Canada did, and what my friend supports, is merging these two aspects. The government has chosen to prohibit both the wrongdoer's conduct, as well as protecting a voter subject to such wrongful conduct through the impugned provisions. In this respect, the provisions may be seen as something akin to the prosecution regardless policies for domestic abuse, where it removes the choice from the voter so that they don't have to be left with that. Somebody tries to tell them, your job is at stake if you don't vote for candidate X. They can say, sure, I'll vote for candidate X, and walk into the secrecy of the polling location, mark their ballot in secret for candidate Y, walk out and tell this person, oh yes, I did vote for candidate X, my job is secure. These are protective provisions, not punitive ones, while it is most unfortunate that Mr. Campbell was caught by the edge of this provision that that is not their true purpose, and there is simply no alternative. Well, how can you say their purpose is not punitive when section 301 says every person is guilty of an offense, who, A and B? Isn't that punitive by its very nature? It doesn't say it's not punitive. If there is actually someone out there who is vote buying or who is coercing people, that person is not caught by this section. That behavior is caught by other sections, which one might argue covers the problem. If there actually is coercion going on out there, those people can be caught by certain sections. This section is not talking about we don't like that behavior, it says every person is guilty. You are creating criminal offenses, penal offenses for these people. And so it's not just presumably Mr. Campbell is caught, it's any person who does this is now gonna be subject to a trial. I'm not sure how you can say that the intent is not, seems to me the intent is clearly to squarely focus on these people and bring them to court. Isn't that the intent of at least section 301? With respect, I would disagree with that characterization. While they do impose, there is a punishment associated with violating the provision. They are not meant to brand this person as a wrongdoer, except in the most regulatory of fashions. What these provisions do is they create a protective sphere where there is no choice. There is no choice for the voter about whether they do or they do not photograph their ballot. It is prohibited to photograph your ballot. By doing so, they protect the polling location and the secrecy of the ballot and thereby they ensure that people who have been subject beforehand to intimidating practices, to people trying to buy their vote, to people telling them how to vote, to people saying, your position in the union is really at stake here if you don't vote for candidate X. These people can take those pressures, unfortunate as they are, but they can vote as they choose freely and in accordance with their conscience. What the actual, the other offenses for corrupt and fraudulent practices don't capture, they're after the fact. They say, you did a wrong thing, someone reported you and now we're going to take you to justice. What they can't bring back is the person who lost their free vote in that election. You're saying in response to my colleague's question that this, even though it's an offense, it's not an offense with criminal stigmas like undersized lobsters. Indeed. Which I can understand except the purpose of the legislation that you've advanced both parties have agreed to is that it's a conduct which fosters vote fraud. Fraud is a word with stigma. It's not like undersized lobsters. With respect, the provisions aimed to, the wording used by the Supreme Court of Canada was to maintain the integrity of the electoral process and what the Supreme Court of Canada particularized as things that could potentially undermine that integrity were practices like vote-buying, intimidation, coercion, these sorts of fraudulent practices. However, that is not to say that the prohibition which prevents those practices should be branded in the same way. I have a question on another line. So your argument hinges quite strongly on the importance of secret ballot and this particular version of voting in person in a polling station with a ballot in front of you, no photograph, no communication device. How do you reconcile that with the fact that Elections Canada does allow for voting in other manners in exceptional circumstances? So not the pure physical presence in a polling station with a physical ballot. How do you reconcile Mr. Campbell being caught up with the possible punitive consequences with the possibility that other people are within the Elections Canada scheme themselves permitted to vote in other manners? Indeed, I assume that you mean primarily voting by mail by special ballot. Yes, exactly. Indeed, while the, in the broadest sense, there are still ballot secrecy protections in place for those voting by mail. There were reference both in my friends' factum and in my own argument references to the other sections that are sort of the broad ballot secrecy provisions in sections 114 and 124 of the Nova Scotia Elections Act. However, that protection is indeed attenuated when one isn't present at the polling location. However, it has been long recognized by the Supreme Court of Canada, most notably in RJR McDonald, that the legislature is not required to tackle every aspect of a problem. They are allowed to adopt a partial solution to a recognized problem. But does a weakness in their attempt to tackle a problem highlight any difficulties for you when mounting your proportionality argument? In my assessment, it does not. These are important provisions. The polling, like voting at the polling place has a historic status. And while there is an increase in voting by special ballot, the polling location is still the place where the largest number of Canadians vote and that the legislature has not yet found a way to provide this same protection to those who vote by special ballot is no reason to strip those who do vote at the polling location of it. Thank you. I believe we're beginning to run a little bit short on time. So I would like to just spend my last moments highlighting the evidence that does support the salutary effects of these provisions. In particular, the necessity of the secret ballot for democracy itself is internationally recognized in the International Covenant on Civil and Political Rights at Article 25. In Thompson newspapers, it was recognized that where other forms of social science evidence are scarce, it is appropriate to look at other nation's democratic practices. The weight to be accorded to this evidence depends on the level of international consensus. Here, the Covenant has been signed by 74 different states and it is my submission that this evidence should consequently be given great weight. In addition to the history of corrupt and violent coercive tactics in Canadian elections prior to the introduction of the secret ballot, referenced in my fact on my paragraph 87, I would like to highlight that the general absence of vote buying today and the general absence of public concern about this is itself evidence that the provisions are achieving their purpose of maintaining electoral integrity, of maintaining public confidence in the voting system. Finally, I would just like to highlight for the court that there are still instances of corrupt election practices in Canada today, including vote buying. In particular, I would draw your attention to Hudson, cited actually wrongly as keeper in my fact on paragraph 72, though the citation was correct, which involved an election of a chief on a Manitoba First Nation, where there were widespread allegations of vote buying and while the original administrative decision found that there was not vote buying, the federal court overturned that decision as unreasonable because the evidence was simply overwhelming. In conclusion, the only issues on appeal this evening were minimal impairment and proportionality. The proposed alternative is less effective so the Crown did not have to adopt it. The Supreme Court of Canada rejected the provisions at the balancing stage of the analysis on the basis that there was no evidence. I have shown that international instruments, Canadian history and modern experience provide sufficient evidence to meet the Crown burden on proportionality. The question for the court this evening is whether Nova Scotia will retain the secret ballot and remain a true democracy. Thank you. So, Ms. Sibulski, I'm going to... Good evening, my lord and my ladies. My name is Lauren Sibulski and I'll be representing the respondent tonight. And I will show that Mr. Campbell did not contravene section 95.4 or 301.B of the Nova Scotia Elections Act by taking a picture of his ballot and then subsequently tweeting it after leaving the polling location. Mr. Campbell should not be penalized for his actions because he was exercising his right to political free speech and encouraging others to do the same. The weight of ambiguous legislation should not fall on Mr. Campbell. It should fall on the legislature, which brings me to my first important principle of statutory interpretation, that it is not the court's role to fix deficient legislation. More Alaskan and the attorney generals in Viking houses in Peele stated that courts cannot turn their role of construction into one of naked legislating. However well-disposed they may be to solutions proposed for problems that arise under deficient legislation. The proper recourse in such situations is to the legislature to repair the deficiencies in its statute. Mr. Campbell committed no moral wrongs and his actions will not be repeated in free show elections because of the 2015 amendments. The principles of statutory interpretation have been well covered by my friend and in the respondents' factum, paragraphs nine through 13. I would however like to emphasize the importance of strict construction. These sections are penal, so there is a presumption in favor of the accused when interpreting them and they also violate important charter rights and legislation is presumed to comply with constitutional law. Keeping strict construction in mind, I will show that the purpose will not be subverted and an ordinary contextual analysis will show that Mr. Campbell's actions are not caught by these acts. At the heart of the appeal is whether a strict construction will subvert the purpose which is to prevent vote buying, selling and intimidation and maintain confidence in the electoral system. These goals can be reached by excluding Mr. Campbell's behavior. There's no evidence that Mr. Campbell was involved in vote buying, selling or intimidation and without evidence of such, confidence in the electoral system will not be shaken. What Mr. Campbell was involved in was political free speech which the Supreme Court has said is the single most important and protected type of expression. It lies at the core of the guarantee of free expression. When considering the breadth of this purpose, the courts have to achieve a balance between the interest at stake which are to prevent vote buying, selling and intimidation and maintain an essential Canadian right and value political free speech. Moving on now to the specific words of the section. Section 954 requires the use of a recording or communication device in the polling location. And I'd just like to take a moment to point out a typo in my factum at paragraph eight. The section 954 does indeed say recording or communication device. Phones can undoubtedly be used as recording or communication devices in many instances. However, for the purposes of this section it must be used as such in the polling location. As outlined in paragraphs 18 to 23 of the respondents factum, I argue that you should not be so broadly interpreted as the Supreme Court of Canada did in Ferguson and McDonald when interpreting the Motor Vehicles Act. And unless the court would like me to elaborate I propose to move on to recording or communication device and the interpretation of those words. Taking a picture with an iPhone does not fall under recording because it does not fall under the ordinary meaning of recording. Recording is used in the Elections Act, it's used in other Nova Scotia legislation and in the Canada Elections Act. The Oxford English Dictionary defines recording as of a measuring instrument able to reduce a record of readings obtained. This refers to a collection of meaningful information. In plain meaning this refers to things such as medical records or election results and can refer to several photos as long as they convey meaningful information. So you agree then with the Supreme Court's interpretation that in order for a recording of a photograph to be a recording it's got to include several photos. It's got to be in the plural. A collection is your word. It doesn't necessarily need to be in the plural so a single photograph of the ballot does not convey a collection of meaningful information but neither does several photos of the same ballot. Are you saying that it's possible for a single photograph to create the offense into the section? Not in this section, no. You need more than one. You would need more than one but they would also need to convey meaningful information. So it wouldn't be sufficient for it to just be the same. How many would five do it? Well it's not a matter of numbers my lord. It's a matter of the information that it shows. So you're saying it's more than one. So I hear you saying it is about numbers. One won't do it you say. One won't do it but two won't do it if it's the same photo. You're in a court of law though. The court needs to know the rules to decide whether someone is guilty or innocent. So is it just some vague thing? The number changes depending on what the judge feels like in each case or is there some number that you say constitutes a photograph as a recording? It's not so much the number as what the information it is that it conveys. So there's one photograph that conveys meaning. Is that an offense? It does not convey a collection of meaningful information so it's not more than one that convey meaning. As long as it conveys meaningful information. So one won't do it it has to be more than one. One will not do it. Okay and you won't tell me how many. No because it depends on the amount or not the amount sorry the meaningful information that it portrays. So if there's two photographs with a whole lot of meaning would that be enough? If say the photographs were of subsequent elections then that would convey meaningful information but if they were of the same ballot that conveys no collection of meaningful information. So two photographs with a whole lot of meaning might do it. Even if the court does not accept that. No I don't want to answer my question. Are you asking this court to come up with a decision that says recording in this section as a matter of law means more than one. If so what are you asking this court to say is the rule? I'm asking this court to say that it is more than one as long as that multiple or those multiple images convey meaningful information. Now in this case it conveyed the meaning that according to the tweet it conveyed the meaning that this is how I voted. Is that not meaning? It's not a collection of meaningful information to fall under recording. Because it's not more than one. It is not more than one correct. Okay thanks. So even if the court does not accept my argument on plain meaning the rest of the elections act uses recording and record consistently with this definition throughout the entire act. For example section 250 sorry 235-2 states that the information recorded by an official agent or financial agent under subsection one must be recorded in a single ledger. Paragraph 26 has other examples of sections in the elections act that were similarly referred to recording and record. The legislature is also assumed to be consistent with itself. Therefore it is significant that there are several other Nova Scotia statutes that differentiate photography from recording and these can be found at paragraph 27 of the respondents factum. And finally the Canada elections act which has the same purpose as the Nova Scotia elections act also differentiates photography from recording in section 136-4. All of these examples show that a photograph does not fall into the meaning of recording under the act. Similarly taking a picture with an iPhone is also not caught under the act under communication device. The Oxford English dictionary definition of communication is transmission or exchange of ideas. A single photo is not a transmission or exchange and since the iPhone was being used as a camera to take a single photo it was not being used as a communication device. With regards to my friend's single transaction argument where how could you have tweeted the photo without first have taken the picture. This would actually lead to an absurd consequence. This would lead to a consequence where a person would be able to take in a simple camera without internet capabilities or even a film camera, take it into the ballot box with them, take a picture of their ballot, go home and develop it or upload it onto the internet and then tweet it to their followers and not being contravention of the act. When similar situations are treated differently this leads to an absurd consequence which is against the principles of statutory interpretation. Suppose that this individual took 20 photos of him moving towards the ballot box with his ballot dropping it in the box, the last photo being the ballot disappearing into the box. Instead of a movie which the Supreme Court of Canada said would do it, we have 20 photos sequentially and it showed meaning namely this is how I voted and the name of the person I voted for is apparent on the early photographs. Would that be enough to constitute the offense? It may be enough to constitute the offense but that's not the issue that we're faced with in this. Well it's the issue of my question. It's enough to constitute the offense. So I guess my next question is what's the difference between that and a fewer number of photos which convey the same meaning? Namely this is how I voted. The way that this definition is used under the act with recording and record, I think that this would actually fall under that meaning because it does convey a series of meaningful information. However, the appeal that we're dealing with in this case is only a single photograph posted to Twitter after Mr. Campbell left the polling location. So are you conceding then that if he took that series of photographs of him approaching the ballot box that that would be a different matter? It would be probably fall under recording device but not communication device because it doesn't have that transmission or exchange element. Thank you. Moving on to section 301B which states every person is guilty of an offense who shows a person's ballot to permit the name of the candidate for whom the person is voted to be known. Mr. Campbell's actions are not caught by this statute either because a ballot refers to the physical ballot and showing requires a level of proof that does not include a photograph. The ballot's definition in the act is a prescribed form used by an elector to vote. This would be nonsensical if it included a photograph because a photograph cannot be used by an elector to vote. It is similarly inconsistent with the rest of the act, for example, section 112, which demands that the ballot be marked, folded and deposited and a picture of a ballot on an iPhone can do none of those things. Even if the court decides that ballot refers to a picture of the ballot, Mr. Campbell did not show his ballot for the purpose of 301B because showing requires proof and a photograph is not proof. I'm sorry, I don't understand what you're saying there. A photograph is not proof of what? The way the person voted. Well, neither is the ballot necessarily unless you see it go in the box. I could show someone my ballot and then immediately spoil it, they wouldn't know. So the ballot itself really isn't necessarily proof of how I voted either, similarly to a photograph. What's the difference? I think that the mischief that the legislature's trying to avoid in the spoiling the ballot instance would actually be someone who is over your shoulder looking and seeing if you spoil the ballot because the act doesn't contemplate the ballot ever leaving the polling location. So there are other parts of the act that would actually prevent that behavior. Okay, but I guess I'm wondering when you're saying that a photo doesn't prove it but the ballot does, that's the distinction I'm not getting because I see either of them potentially I guess couldn't necessarily prove it unless you saw the person put it in the box, right? Correct. So in that way, a photograph might not really be much different than a ballot. What the legislature and the courts have decided is required in order to subvert this section is a level of proof that is either showing the ballot or testifying under oath. So as my friend relies on Walsh and Montague to impress upon the secrecy of the ballot, this case was actually about a person in a union vote who wanted to testify under oath. The court has allowed this because secrecy of the ballot extends to people who want to prove how they voted and that is exactly the point of section 301B. It is to prevent people from proving how they voted. And wasn't that the point of the tweet to show how he voted? Well, a photograph is not proof primarily because it can be so easily photoshopped. The hashtag of his tweet was I voted. And it shows a picture, a photograph of his ballot with the name. So, I mean, isn't the court entitled to draw an inference? That's who we voted for. As Walsh and Montague demonstrates that there is a sort of sliding scale of proof that is required for this show element in section 301B. But where the courts and the legislature have drawn this line specifically in Walsh and Montague is that you're not allowed to show your ballot and that's from the plain meaning of the act and you're not allowed to testify under oath. Both of those demonstrate a very high threshold of proof where taking a picture is more equivalent to saying how you voted. Given the nature of social media today, young people now describe their lives through photographs and most people in the room have a friend who tweets almost every meal that he eats. And given the nature of social media and how young people describe their lives, tweeting a picture of your ballot is simply an extension of political free speech and saying how you voted. It may be an extension of it, but what I'm troubled by is the suggestion that we've gotten to a point where using pictures to express your political belief is integral to that charter protected freedom of political expression. So I'm wondering if you could back that up a little more. With respect to this specific section, I don't think that the level of proof which is testifying or showing your ballot is reached by a photo, mainly because it can be photoshopped. And if you consider the other purposes of the act, like preventing vote buying, selling and intimidation, it would be an easy $100 to just go into the ballot and vote for who you want and leave and then say you voted for a different candidate. So it also would subvert the purpose of section 301 being that way as well. And taking a picture is just not equivalent to the amount of proof that the legislature and the courts have decided is required for this section. But you are concerned about the discouraging impact that any decision that limited people's ability to take photos of their ballots as a form of political expression. You see that as a trampling of that form of political expression for young people. That's critical to your argument, is it not? Correct. Subject to any other questions from the bench, I think I'll move on to my conclusion. In conclusion, Mr. Campbell's actions did not violate section 95.4 or 301.B of the Nova Scotia Elections Act. Using a strict interpretation and reading their words in their context and ordinary meaning and appropriate balance is struck when preventing vote buying, selling and intimidation and maintaining the crucial constitutional right of political free speech. The purpose of the act is maintained by a strict reading because without evidence of vote buying, selling or intimidation, confidence in the electoral system will not be shaken. And finally, the court should be cognizant of their role in interpreting statutes. The benefit of the doubt should be given to the person. Let's change the facts a little bit. Suppose he comes out of the ballot box booth and he actually shows his ballot, waves it around. But he doesn't do that with any intention getting involved with both buying or selling or intimidation or vote fraud. He just is an extrovert and he wants to show his ballot. Now, would that be an offense under 301.B shows the ballot? That would clearly be an offense because ballot refers to the physical ballot. In that case, it doesn't matter whether what he did connects to vote fraud or buying and selling, it would just be an offense because the statute says so. Correct. But 301.A, different approach. There we infuse the section with the purpose of preventing vote fraud and buying and selling and we read that into the wording of 301.A. Or sorry, we read that into the showing the ballot We read that into 301.B, rather, when we're dealing with a fact situation of a photograph of the ballot, instead of actually showing the ballot. Correct, because as I stated before, the plain meaning of the act or the statute story in this case, the legislature has decided that showing your ballot, the physical ballot is unacceptable. If you use it with purpose analysis, when we're dealing with the physical document, we're just looking at the wording of the statute. I think that there's no ambiguity in the case that you're suggesting, so it's not necessary. So it's the ambiguity with the photograph which lists the infusion of that. Yes, there's an ambiguity in terms of the photograph. And my last concluding line is, the court should be cognizant of the role in interpreting statutes. Benefit of the doubt should be given to the person whose charter rights are at stake. Now my colleague, Ms. Catherine Pichet, will show that the impugned provisions are not saved by section one. Good evening, my lord and my ladies. The effect of this decision will, it will have the effect of confirming or denying real content to the Canadian citizens' right to their constitutional rights. This is not about, this case is not about the ability to take a photograph at a certain time in a certain place. It's about the evolution of constitutional rights. It's about the denial of the most important aspect of an individual's right to freedom of expression, and that is freedom of political expression. Mr. Campbell was denied this right when he was unable to take a photo of this ballot. Mr. Campbell was denied his ability, he was denied his ability to be protected because of a baseless concern, the concern that the government cannot back up with one shred of evidence. This is an opportunity for the court to give effect to a modern mechanism that facilitates freedom of expression. Given that the deference factors in this case align well with the various factors in the Oaks test, I will adjust these as they come up in relation to my arguments. The first argument centers around the lack of evidence of harm in this case. The second is that this legislation is not minimally impairing. And finally, that the solitary effects of this legislation are heavily outweighed by the deleterious ones, and this law should be struck down. Section one is about whether or not there is a harm that is calling for protection that is worth the infringement in the case at hand. In this case, there is a complete lack of evidence of harm. Although cell phones have been around that have been equipped with cameras for a number of years, the court has failed to identify a single instance of vote buying or voter coercion. Now, your friends would say that that's because 95 and 301 have worked, and so how can they possibly produce evidence of harm because 95 and 301 are out there doing their job? So, I mean, what possible evidence could there be of the situation if those two sections were not the law? It's, yeah, I would submit that it's entirely speculation that it is those provisions that are doing their jobs in this case. I have provided in my fact in contrary reasoning that suggests that it may be something entirely different that is responsible for this not being a problem today. Okay, well, actually, let me just put to you some of the contrary reason. Can you go to paragraph 69 of your fact? So this is me putting your side of the case that deleterious effects are substantial, you say, and paragraph 69, four lines into paragraph 69. You say, another significant benefit is that encouraging behaviors such as posting ballot photographs to social media could have a profound impact on youth engagement and the electoral process. What evidence is there of that? I wouldn't say that I have any, but in- What's that different than what you're criticizing the appellants for? The difference is the evidentiary burden, which is on the crown in this case, in every aspect of the Oaks test, it's on the crown to establish that there is evidence of harm, that there are no solitary- Is there an evidentiary burden to show what you, what I just read to you from your paragraph 69? Sorry, can you repeat yourself? Is there an evidentiary burden to show the court the facts that you recited that I read in paragraph 69? Do I have that? Yes. No. You can just say it and we should accept it without evidence? It's contrary reasoning. It's just, it's analogous to the ability that I have to propose an alternate and less impairing measure that could have been in place. Respondents and charter cases, the lawyers can state facts without evidence and the court just accepts it? No. You have authority for that? No, but the point that I was getting at here was just that there is contrary reasoning to what the crown has suggested in this case. Okay. There's a complete lack of evidence of harm in this case, as I was suggesting. We can't allow speculation as a justification for an encroachment on this charter rate. As the deference factors have shown, more is required than a reasoned apprehension of harm in this case. As the court in Thompson stated, little deference should be given when the government has not established that a harm is widespread or significant. However, given that there is no evidence suggested in this case, a law cannot stand on any deference standard. The infringement must be shown to be reasonable and demonstrably justified in a free and democratic society. As the court stated in RJR, the word demonstrably is critical. The process is not one of mere intuition, nor is it one of deference to parliament's choice. An apprehension in this case simply is not reasonable. Reason suggests common sense and logic, and as the court stated in Thompson, common sense reflects common understandings. There is no common understanding that vote-buying or coercion is a systemic issue today. The court should not abandon its role of review and let a law stand that has not been justified in any sense of that word. Not only is there a lack of evidence that vote-buying or coercion is a serious problem today, but in the context of the changed socioeconomic landscape, it suggests that this proposition is unlikely. The secret ballot may have been necessary to combat vote-buying and coercion in an era of widespread poverty and power imbalance. It may have even been necessary to trigger the decline in such electorally fraud practices. However, the Stokes article indicates, it's more likely that industrialization and economic growth are responsible for the continued suppression of such fraudulent practices. Economic growth has led to a wealthier electorate and in turn the economic inefficiency of vote-buying. At the very least, like I had addressed with the bench earlier, this provides contrary reasoning to the provision's necessity for the to counteract the resurgence of vote-buying. So excuse me, your, am I understanding you to say that you do not, the appellants have said that the concept of the secret ballot is a fundamental principle in Canadian elections and in a number of countries around the world, et cetera. So are you saying the secret ballot is not a fundamental principle in Canadian elections, that it's something that we should not worry about? Not at all. The secret ballot is integral to our society, but I do put that the ability to take a photograph in a ballot booth does not compromise the secret ballot. Being able to take a photograph of one's own ballot does not compromise the right to the secret ballot. It's a right, it's not a general thing that needs to be enforced in all cases. If one decides to take a photograph of their ballot, that does not hinder another individual's ability to keep their own ballot secret. But isn't that very different from suggesting that we don't need to worry because secret ballot is, we've got it locked up and there's no problem? I mean, in response to my colleague's question, you return to the fact that the taking of the photo doesn't interfere with it, but my understanding of the question was more that you seem to have been suggesting before this that secret ballot is, you acknowledge it's something important, but you were just going to great lengths to point out the ways in which we don't need to worry about it anymore because of changes in our society. I'm more addressing that it is not necessarily the fundamental reason that vote buying and coercion are not a prevalent issue today. Well, can I just get my two bits on this? We go to paragraph 50 of your fact then, please. And paragraph top of page 29, second line. You say, the advent of the secret ballot may have been necessary to prevent vote buying and coercion in an era when poverty and extreme power imbalances were widespread, but the fear of electrical unfairness is simply not relevant today in the same way. Now, is it an assumption of your argument that we have to agree with that in order for you to win? Not at all. Okay, so that's a bit of a throwaway, is it? It's more of, like I said earlier, it's contrary reasoning to show that we cannot just accept on the government's speculation that it is these factors specifically. You weren't suggesting that this court should base its decision on the principle that the secret ballot is an anachronism, we don't have to worry anymore because we're not as poor as we used to be. You weren't suggesting that, were you? Not at all. I apologize if that is how it came across. I'll turn to my next argument, which is that this law is not minimally impairing. The limitations imposed by this law are far from narrow. This law unnecessarily catches a great deal of innocent behavior, individuals who are simply trying to express themselves politically. It hinders the type of behavior that we should be encouraging in a democratic society. It's true that the prohibition of taking a photograph only prohibits it in one time, in one place, but in effect, this means that an individual will never have access to that photograph. Well, as I understand it, the law doesn't prohibit anything except taking a recording, whatever that means, of the actual ballot that you're going to put in the ballot box. In any other way, you can communicate to anybody at any time who you voted for, who you will vote for, have a political debate, all of that, right? All it prevents is taking a recording and communicating that of the actual ballot that you're going to put in the ballot box. Is that it? Mm-hmm, okay. And that is something which has been protected by the notion of a secret ballot long, long time ago for over a century. So what's the big problem? I mean, you say I'm just, in your fact in paragraph 62, when you make this argument, you say at the bottom of paragraph 62, there is sanctity and tradition in the process of voting and the restriction and the voters' ability to express themselves by sharing visual record of the process is a significant limitation. I guess my question is, where is the sanctity and tradition in preventing the disclosure of something which has been the subject of a secret ballot law for over a century? What I was referring to with the sanctity and the tradition of the process is simply that voters, they value their ability to be able to be in that ballot booth and to, in the process of voting generally, so. Where's the tradition? I mean, it's not, for a hundred years, you haven't been able to disclose your secret ballot. That's why it's secret. Where's the tradition in being able to disclose it? I'm not saying that the act itself is traditional. I'm saying- But that's the only thing that's prohibitive. Nothing else is prohibitive. What I was getting at with this argument is that there is a value in the photograph that is independent of the words of a tweet. There is an alternative measure that would have been less impairing and no less effective than the current measure that is in place at the moment. Instead of making it, instead of the complete ban of not allowing a photograph to be taken, there could have been a ban on taking a photograph for the purpose of furthering a fraudulent scheme. It's entirely appropriate that individuals be investigated before being charged. And the requirement of having a police officer or the crown put in additional effort is no excuse to not enact a less impairing law. As the court stated in RJR, a partial prohibition, such as the alternative proposed in this case, should be enacted when the evidence is unclear as to whether a denial would be as effective as a complete ban. I'll move on to the proportionality argument. The salutary effects in this case are heavily outweighed by the deleterious ones. Now, my friend argues that the secret ballot, I have already addressed my friend's secret ballot argument, so I'll move on to the general idea of salutary effects in this law. In order for there to be any salutary effects, a law must be at least on some level effective. The ineffectiveness of this law undermines any salutary effects that this law could have. Elections Nova Scotia promotes a number of alternative methods of voting as Melody has pointed out. And any one of these, a number of these could circumvent the purpose of preventing vote buying or combating vote buying. As well, there's no demonstrated harm in this case as I've already pointed out. These factors demonstrate that there are no salutary effects associated with this law. In contrast, the deleterious effects of this law are substantial. The infringed activity in this case is political expression. This is at the heart of freedom of expression, and it is crucial to the democratic commitment. It ensures that the electoral process remains open and that every individual can play a meaningful role in the electoral process. There are political culture benefits from a broad range of ideas and opinions. Excuse me, all of that is true, but how does, I'm still lost on why the photograph is such a big deal, frankly. I can sign an affidavit saying I voted for Joe Smith. I can put up a sign, I can put up a billboard, I can go on television, I can do anything other than take a picture of that ballot. And I'm missing why that's, as my colleague mentioned, what's the big deal? I'm still not understanding why that matters. I would put that it matters because it is violating a fundamental right of political speech. It's a bit of a circular argument in that way. But that's been, we accept that it is a limitation. Everybody accepts that. But the question is, is it reasonable? Is it, do its benefits outweigh its unfortunate effects? And so that's what the court is gonna have to weigh is, yes, it is a limitation, but is it a reasonable limitation? And in order to try and help us make that decision, what I'm trying to get from you is, why is this photograph such a big deal? Why is all the numerous other ways that we can engage in political discourse? Why doesn't that cover it? The ability to tweet a photograph would likely mean a lot to a voter in terms of they can actually put that photo forward and say this is how I voted, rather than just the words which do not carry as much weight, as much indication that this is who I voted for. Which is why your colleagues say it's important to prohibit that in order to constrain vote fraud because it's that proof that someone who wants to buy a vote wants to see before he gives whatever he gives to the person who voted. But in order for that to be a relevant argument, there has to be some indication of that harm, of that voter fraud. And there simply is none in this case. Another deleterious effect is the effect on youth engagement in this process. These provisions hinder political speech in the realm of social media, which has a great potential for a profound impact on youth engagement. Youth voter turnout has been expressly identified by the government as an area for needed improvement. Social media appeals to and is heavily used by young Canadians and sparking political debate in that arena could have a profound impact. The government should be encouraging young voters to celebrate their decision to vote, especially in a way that could encourage others to follow suit. This is a law that has serious, tangible, detrimental effects all in order to correct an intangible harm. Social media is a revolutionary modern tool for communication and it has a massive potential to facilitate political speech rights. This court should not hinder progress. It should not maintain an unjustifiable status quo at the expense of a critical charter right. The court should facilitate the evolution of freedom of expression. I ask the court to dismiss this appeal. Before you go there, and you're listing deleterious effects for the portionality analysis, I hear you refer to the political deleterious effects and you refer to youth engagement. Is that it? Are those the main deleterious effects you're asking us to consider? The deleterious effects are, I mentioned, okay, the ones that I've mentioned as well. Is there anything else? They're the fundamental ones. I'd say that perception, the perception of the average voter would likely be that this is suppressing the political speech of an individual. I haven't heard you mentioned as a deleterious effect, the fact that your client is being prosecuted criminally for doing this, which has a lot of deleterious effects for him. It's not political, it's not broad, it's not youth engagement. It's Mr. Campbell who is gonna have a record. I haven't seen that in your fact and I didn't hear it from you today. Are you asking us to discount that as a deleterious effect? Not at all. Why haven't we heard it before now? I felt that these were my stronger arguments. I ask the court to dismiss the appeal. Thank you. Okay, so rebuttal, then. The rebuttal from the balance. So, please hand something. Good evening. I wish only to address one point raised by my friend and that is the contention that the protection of the secret ballot in the impugned provisions is simply not needed because the secret ballot is a quote right and therefore people can choose. There are two fundamental issues here. The first is related to what we've already covered, which is that the secret ballot means that secrecy is mandatory. What we didn't get to is why. And there are two reasons. The first is one recognized by the Supreme Court of Canada in the court below, which is that corrupt individuals who will go so far as to try and buy someone's vote or intimidate a voter will not stop if they can also demand proof. However, the second that was not recognized by the court below is that where a sufficient number of people voluntarily disclose their vote, the remaining votes can be deduced by process of elimination. Thus, while some won't have chosen to disclose their vote, their vote will nevertheless be exposed. The second core problem with characterizing this as a choice as opposed to a fundamental protection is that the argument that selling one's vote is elective ignores the fact that where there is a power imbalance between the parties, this can effectively negate one's choice. If one is supporting one's family and one is told that your job is on the line if you don't vote for Stephen Harper, one may indeed vote for Stephen Harper if your employer can demand proof. That is all. Thank you very much. Okay, thank you. Knocked on there. Okay. So thank you. I guess that's it. So we retire now and we come back shortly. But thank you all. The county is now in a brief adjournment. God save the dean. Okay. Well, thank you all and especially the contestants. You're not really competitors, you're just competitors, your contestants. There's not gonna be a decision on the merits of the election act. As far as our contestants are concerned, the performance was extremely close. It's just like trying to identify fish from a school of fish, it's not easy to pick one over another, although we have to do that. All I can say is all four of you are winners because you've reached this pinnacle and all four of you end up with your names on the smith shield, just so you know, in case you've seen it. And two of you have the privilege of not just be having your names on the smith shield but also winning the LA Kits Prize. Which was won by my colleague in the terror court of appeal, Jim McPherson last year when he was here and by my colleague in the Nova Scotia Court of Appeal, Linda Holand, two years ago when she was here and it was won by me. And all three of us have been proud winners of the LA Kits Prize ever since. So LA Kits formed a partner of mine and that recognizes that all four of you are winners because you've reached this pinnacle. So don't forget that. Very hard to choose, I would say among all the points which might have tipped the scale a little bit, it's that it's very important in appellate advocacy to be able to leave your script when you have to and to be able to roll with the tides of what's going on in the courtroom. So if one of the judges indicates he's interested in this point or she's interested in that point and what's your answer on it to be able to roll seamlessly to that without sort of feeling that, you know, taking a stutter step or looking a little awkward and it's hard to do when you're a law student. It's hard for many lawyers to do and the four of you performed here than most of the lawyers I see in the Court of Appeal. But it's a mark of an excellent advocate that he or she can do that seamlessly and make it look like the question isn't an interruption at all, it's just a welcome punctuation to his or her submission. That probably might have just slightly turned the tide among all the other factors but having said that the winners of the L.A. Kids Prize are Jim Boyle and Lauren Sipolsky and the winners of the Smith's Shield are Catherine Pichier and Emily Hansen. So that's that. So I'd just like to say congratulations again to everyone. Thank you again to our panel. There's going to be a few minutes now for pictures for the judges and the competitors and then we invite you all to a post moot reception which will be on the third floor. It's in the faculty lounge. I'm assuming there's signage but if not just follow the crowd. So we'll see you all there as soon as the pictures have been taken. And again, thanks very much.