Cape Breton blogger Parker Donham is threatening a constitutional challenge of Nova Scotia's election act after he ran afoul of the law by tweeting a photo of his marked ballot last fall.
Mr. Donham is a well-known political commentator in the province and admits he was "promiscuous" in tweeting the picture he took on his iPhone when he voted in October's Nova Scotia election. It showed his ballot with an X marked beside the Progressive Conservative candidate's name.
Several weeks later, Nova Scotia's chief electoral officer contacted him saying that posting the photo is an offence under the Elections Act.
But Mr. Donham said he believes it was within his right to freedom of expression guaranteed in the Canadian Charter of Rights and Freedoms.
His lawyer, Jason Cooke, said the case goes beyond what happened in that Cape Breton polling booth.
"My guess is the election processes are going to be struggling to deal with new technologies that were never contemplated under these acts," Mr. Cooke said. "These technologies are also forms of … legitimate expression. So legislatures going forward are going to have to revisit and try to reconcile those technologies with the goals of elections and the goals of ensuring free expression in political discourse."
Each province has its own election act, as does the federal government. Mr. Cooke did not find any cases similar to Mr. Donham's that have been tested under the charter.
The tweet was Mr. Donham's way of protesting against the candidacy of Liberal Pam Eyking, whose husband, Mark, is the MP for the riding. Mr. Donham called her decision to run "opportunistic and unbecoming" as he believed her only expertise was that she is married to the federal MP. (She won.)
"I did not go into this with the intention of testing anything," Mr. Donham told The Globe and Mail. "It was just kind of a spur of the moment thing."
He has made up t-shirts that show the marked ballot and put together an exhibit that includes a polling station for an art show at Cape Breton University.
Elections Nova Scotia says he breached the provision of the act that allows only elections officers to "use a recording or communications device" in a polling station. It says he also contravened the section that makes it an offence to reveal a person's vote by showing the marked ballot.
But Mr. Donham and his lawyer say a photo is not a recording. "When referring to a camera, people say a person has taken a photo or a picture, not a recording," his lawyer wrote in a five-page letter of defence to Elections Nova Scotia.
Mr. Cooke also notes that had the legislature "intended to prohibit taking a photograph, it would have expressly stated so."
Mr. Donham says he did not actually show his marked ballot to anyone. It was handed to the elections official, dealt with in the proper manner and deposited in the ballot box. What he tweeted was a "digitally modified photograph." He said he cropped it slightly and increased the contrast.
However, if these arguments do not convince Elections Nova Scotia, his lawyer will challenge the laws under the charter.
Dana Doiron, spokesman for Elections Nova Scotia, told The Globe and Mail that if Mr. Donham acknowledges he was wrong, a "compliance agreement" spelling out what he did will be posted on its website. A conviction under the act carries a maximum fine of $5,000.
Mr. Donham has rejected this.