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How Gag Law May Bite Its Makers

Election free speech without fines? Start your own BC party.

By Robert D. Holmes 17 Jul 2008 | TheTyee.ca

Robert D. Holmes is president of the board of the British Columbia Civil Liberties Association and is a member of Holmes & King, Barristers and Solicitors in Vancouver.

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AG Wally Oppal: Sowing chaos?

The Election Act amendments' outrageous limits on free speech rights of ordinary people are an uncommonly silly law passed without debate by an undemocratic legislature. They are apt to lead to chaos - and to some unorthodox citizen responses never bargained for by the smug politicians.

Now that the bill has passed, those who want to speak out during the 60 days prior to and 28 days of a provincial election must reflect on what they can do. By waiting until the last moment, politicians have left little time for a court to review this law before the next election. Some may consider defying the law and think it unlikely the government will get around to enforcing the fine of 10 times any excess expenditures. If the government tried, the defense will likely argue that the Charter of Rights makes the law unconstitutional.

Another defense may be that since the law says candidates do not become "candidates" until 21 days before the election, banning advertising for or against them before that point is nonsensical. But who knows what a court might do in striving to interpret poorly drafted legislation?

Form your own party

No lawyer would counsel a client to break the law, even a vague and silly law. So where does that leave us? An alternative for British Columbians who object to being gagged but recoil from civil disobedience may be implicit in the words of Chief Justice Beverley McLachlin. She wrote that laws like Bill 42 deny citizens' rights to be heard "unless the citizen is able or willing to speak through a political party."

The Election Act provides that a registered political party is created by filing a form with the chief electoral officer, making financial reports and certifying that a primary purpose of the party is to field candidates for election. Under provincial laws, donors to registered political parties may receive a tax credit. Tax credits vary, depending on amount, but the first $100 in donations leads to a $75 credit. This subsidizes political parties. Such is the result of having politicians determine the rules by which they are elected. Non-parties get no such benefit.

There are rules about party names: "independent" and "non-affiliated" are not allowed. Pretty much anything else goes. There are 39 parties listed at present, including the Advocational International Democratic Party, the Sex Party and Your Political Party of B.C. To stay official, a party has to field at least two candidates, each requiring a nomination form signed by 75 voters. Some minor party candidates door-knocking can quickly accomplish this. Nominators need not turn up and vote for any particular candidate (it being a secret ballot, after all).

Another oddity is that even though we have shifted to single-member districts, a party appears to be entitled to run its two candidates in the same riding. Running against each other seems unreasonable. But maintaining the primary purpose of fielding candidates is likely met by running two candidates in separate ridings, even in ridings you have no hope of winning. You would still enjoy the rights that parties do to advertise your point of view.

The best laid plans

Thus, politicians have messed up (again). They aimed to channel support to major parties: Give us your money. We'll spend it on election ads that we choose. The last thing we want is the public raising issues it thinks are important. Yet given the simplicity of forming a party, the tax subsidy for donations, the lack of limits on how much can be donated and the meager requirement of fielding two candidates, entities and groups that want to publicize their point of view can simply form a new party and run election ads.

What are the advantages of that? Suppose a victims' rights group spent $1 million on ads during the election period about the government’s woeful inaction on compensating victims of crime and wrongful death law reform. As a non-party, it could be prosecuted for a fine of 10 times what it spent in excess. But if a new party -- let's call it the BC Victims' Rights Party -- was formed, it could spend up to $1.1 million in the 60 days before the election period and $4.4 million during the 28-day election period. And have donations subsidized by tax credits. Not bad, when you consider that the gag limits non-parties to $150,000.

Chief Justice McLachlin questioned "the draconian nature" of a law that would "effectively deprive all those who do not or cannot speak through political parties of their voice during an election period." The irony is that in rushing to force voters to speak through major parties, politicians have encouraged the opposite. The unintended consequence of their lack of thought may be electoral chaos as many single issue "parties" are formed whose reason for existence is simply to be heard.

No doubt the aim of Bill 42 was to squelch union-backed ads. But any union can simply funnel money to a new party that runs ads the union wants. So too, could pro-life, business, religious, or other groups. If any new party splits off votes in marginal seats, election results could be affected. The last election was decided by a few thousand votes.

All of this points out the silliness of this law. Free speech, thought and expression rights are precious things. Politicians who seek to compromise them do a disservice to us all and, one may reasonably hope, will get what they deserve.

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