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BC Court Upholds 'Chilling' Restrictions on Election Advertising

In 2-1 decision, justices find the 'registration requirement is not terribly onerous.'

By Andrew MacLeod 24 Apr 2015 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative bureau chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, April 2015). Find him on Twitter or reach him here.

In a split decision, the B.C. Court of Appeal upheld a law restricting what people can say during elections, but the advocacy group that launched the legal challenge said the province should fix the law anyway.

"It's an unfortunate day, and it's unfortunate for freedom of expression during election time," said Vincent Gogolek, the executive director of the B.C. Freedom of Information and Privacy Association, reacting to the decision released Thursday.

In 2013, Gogolek's organization asked the B.C. Supreme Court to declare unconstitutional parts of the Election Act that require groups or individuals to register with Elections BC if they plan to say or distribute anything that might be considered election advertising during an election period.

The law defines election advertising as "the transmission to the public by any means... of an advertising message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate." It specifically includes "an advertising message that takes a position on an issue with which a registered political party or candidate is associated."

Other jurisdictions, including Canada and Alberta, don't require people to register until they spend $500 or $1,000 on election advertising, said Gogolek. B.C.'s law, however, has no lower limit, meaning that during a B.C. election, individuals who put political messages on handwritten signs in a window, on a T-shirt or bumper sticker could be subject to a $10,000 fine and a year in jail, he said.

A 2010 Canadian Centre for Policy Alternatives report found the B.C. laws had a "chill effect" on advocacy groups during the 2009 B.C. election, and The Tyee reported a similar "chilling" effect during the 2013 campaign.

'Insubstantial burden,' says court

FIPA lost the decision at the Supreme Court in 2014, and the Court of Appeal upheld the ruling in Thursday's split 2-1 decision.

Writing for the majority, Justice Mary Newbury found "the registration requirement is not terribly onerous" and that it was balanced with other goals, such as allowing the chief electoral officer to enforce advertising restrictions.

"Given the insubstantial burden it places on third parties during an election period, I conclude that it falls within the 'zone of discretion' that should be accorded to the legislature in promoting equality of participation and influence among the proponents of political views," she wrote.

In her dissent, Justice Mary Saunders said the provision is overly broad and "unduly muzzles expression of individuals who, without great expenditure of funds, act alone." She added, "It smothers the small and independent voices whose participation in public discourse should be encouraged and celebrated, not deterred."

The B.C. government is pleased the court upheld the Legislation, said Kurt Sandstrom, assistant deputy attorney general, in an emailed statement.

"These rules are not in place to prevent the average citizen from having his or her say," he said. "We believe that the registration requirement has an important function, which is to increase the transparency, openness and accountability of B.C.'s electoral process, and that it promotes an informed electorate."

He said that people can register as advertisers by filling out a simple one-page form, and that staff at Elections BC will help anyone who has questions about whether or not they need to register. He also pointed out that any person or group who spends less than $500 does not need to fill out a financing report or do anything beyond registering.

Noting that the government is making other changes to the Election Act, Gogolek said the province should take the opportunity to introduce a spending floor under which it would be unnecessary for people to register as election advertisers.

"Make it the same as everywhere else, then you've gotten rid of the problem," he said. "The legislature always has the power to make these changes... What we have now is madness."

The chief electoral officer has twice recommended making the change, in reports released in 2010 and 2014, he said.

It's ironic that a government that says it is opposed to red tape and unneeded bureaucracy would keep a law like this, Gogolek said. "Maybe that's only for business. Maybe individuals who put up signs should be wrapped in red tape. Maybe that's their view."  [Tyee]

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