Fair Voting BC Challenges Constitutionality of ‘Gag Law’ in Court of Appeal

Fair Voting BC Director Jude Coates (left) and President Antony Hodgson (right) appear as intervenors in BC Court of Appeal

Fair Voting BC appeared in September as intervenors in the BC Court of Appeal reference case regarding the so-called ‘Gag Law’, in which the provincial government sought a ruling that their extension of third party advertising limits into a ‘pre-campaign’ period was constitutional.

In the original case, which was brought by the BC Teachers’ Federation, the primary concern was whether or not the government had the right to impose restrictions prior to the official campaign period.  A number of organizations, most notably the Canadian Centre for Policy Alternatives, in co-operation with the BC Civil Liberties Association, (see their Election Chill Effect report) argued that the law requiring anyone (even an individual) to register as an election advertising sponsor before communicating with the public about anything political made it impossible for many organizations to engage in public political debate during (and before) an election.  The government lost the BCTF challenge in 2008 and a subsequent appeal in 2011, and then introduced slightly modified legislation in 2012, but referred the updated legislation to the Court of Appeal (Reference Case) for a ruling on its constitutionality prior to enacting it.

Fair Voting BC applied for and received permission to appear as an intervenor in the Reference Case and we sought to represent the concerns of small entities:  individuals, charities, and issue-focused non-profit, non-partisan organizations.  We argued that, though the legislation is ostensibly aimed at curbing the influence of the wealthy, the provisions have not been tailored so as to exempt or exclude ordinary citizens and legitimate small third parties whose Charter rights to freedom of political expression ought not to be infringed according to the aim of the legislation.  In particular, we argued that the definition of election advertising is so overbroad that it captures even individuals wishing to post a handwritten sign in their own window (an example provided by the BC Chief Elections Officer), that it imposes onerous registration and labeling requirements on small entities and that it fails to exempt charities and voluntary contributions of labour, neither of which are targetted by or intended to be captured by this legislation.

We proposed that the legislation could be readily altered to address these unjustifiable infringements on the Charter rights of small entities by redefining election advertising to exempt pure issue advocacy, exempting charities, defining the concept of a non-wealthy (small) entity and exempting them from the registration and labeling requirements, and explicitly exempting volunteer labour.  You can view our entire submission here.

Unfortunately, the Court ruled last week primarily on the constitutionality of the government’s requested extension of the limits into the pre-campaign period (which they did find to be unconstitutional) and did not substantially engage with our (and others’) arguments that the existing provisions are unconstitutional (see story by Vancouver Sun columnist Vaughan Palmer), so the chill provisions will remain in force during the upcoming 2013 election campaign.  We will be considering how to respond to this continuing threat to our free speech rights in the coming year.