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Had Rodriguez — or any voter — expressed antipathy to the choices on the ballot, such as writing in the name of an alternate person, crossing off all the names, writing the words “none of the above,” or even leaving it blank, no one would know.

Federal election results are only recorded as the number of votes cast in favour of each candidate on the ballot, followed by the total number of all improperly cast ballots — without any explanation of the reason for rejection.

Rodriguez represented himself in the case.

The public will never know how many ballots, if any, were cast with a view to rejecting all the available candidates

Norris accepted that demonstrating a rejection of all candidates standing for election was a form of political expression, but said the federal election laws do not actually prevent him from writing “none of the above” on his ballot. The laws only prevent people from knowing about it.

“The public will never know how many ballots, if any, were cast with a view to rejecting all the available candidates,” wrote Norris.

As such, the government was not interfering with Rodriguez’s expression; it just wasn’t amplifying it.

Rights and freedoms are often loosely referred to as “positive” and “negative” obligations on government. The right to vote requires government to take a positive action — to hold free and fair elections, Norris noted. The right to freedom of assembly, on the other hand, requires government to maintain a negative action — not to shut down a lawful gathering.

Freedom of expression is often seen as a negative obligation.