BC FIPA Launches Charter Challenge of ‘Gag Law’

Fair Voting BC was an intervenor last fall when the BC government lost yet another bid to have the Court accept their gag law.  However, the Court’s ruling didn’t address our most significant concerns – namely, that the current law imposes unconstitutional restrictions on small entities.  The way the Act reads now, any communication with the public during an election period that is in any way related to an election issue or candidate counts as “election advertising”, so you must register with Elections BC – even if you didn’t spend a penny.  As the Chief Electoral Officer said in his 2010 report, this means that if you so much as put a handwritten sign in your window without registering with Elections BC, you risk a $10,000 fine and/or a year in jail.  This is an obvious and serious affront to free speech in BC.

We are therefore delighted to let you know that our co-intervenor, the BC Freedom of Information and Privacy Association, has filed a Charter challenge in BC’s Supreme Court seeking to have the law struck down if the government fails to make amendments that respect citizens’ rights to free speech. Full information on the case can be found through FIPA’s website.

More Details from FIPA:

The B.C. Freedom of Information and Privacy Association has filed a Charter challenge in B.C. Supreme Court in response to the provincial government’s refusal to fix unconstitutional third-party advertising provisions in its Election Act.

As it stands, the Act states that during an election period, any communication with the public that’s in any way related to an election issue or candidate counts as “election advertising”. This means that before you do something as small as putting a handwritten sign in your window, you must first register with Elections BC. If you don’t, you risk a $10,000 fine and/or a year in jail.

While many jurisdictions across the country have their own third-party advertising regulations, designed to stop big corporate and union donations from unfairly influencing elections, British Columbia is alone in its refusal to implement a lower limit for registration. During federal elections, the government doesn’t require registration unless you spend over $500 on your election “advertising”. In Alberta, the cutoff is even higher, set at $1000.

This is a balanced approach that keeps large election spending accountable and transparent while not interfering with the political speech of individuals and small groups. Unfortunately, B.C.’s provincial government has gone out of its way to avoid adopting this standard.

FIPA has been pressing the government on this issue for years, starting even before the last election. In 2010 they co-published a report with the Canadian Centre for Policy Alternatives outlining how this bottomless definition of election advertising chills political speech among civil society organizations. FIPA was also an intervenor (with Fair Vote BC and others) when the government’s 2012 amendments to the Act were referred to the B.C. Court of Appeal (those amendments, for the record, didn’t fix the missing spending floor). Finally, in early January, when FIPA’s legal council asked the government for a justification of their refusal to address this problem, their lawyers claimed that the Act was valid and insisted that if there was a problem FIPA should take them to court -so they did.

And as if the delays and the stubbornness weren’t enough, it’s worth remembering that a few months ago, Attorney General Shirley Bond promised to bring forward legislation to establish provincial elections to fill Senate vacancies. Elections BC even received a million dollars to prepare for them. It would appear that the government is so deeply committed to democracy that they’re willing to drop $1 million into the possibility of Senate elections, yet won’t fix their truly unconstitutional Election Act, even with a provincial election looming.

If the government has the time to deal with a theoretical Senate election, it should have the time to fix an actual Charter breach that compromises the free speech rights of British Columbians. And they should do it before the next election.


2 thoughts on “BC FIPA Launches Charter Challenge of ‘Gag Law’

  1. I know you had it first (FIPA) but in my mind the other FIPA is much more important and
    I have just signed a petition to have the H of C decline to ratify it. Of course, the other
    FIPA (as it is called) stands for the Canada-China Foreign Investment Promotion and Protection Agreement. That’s the act that, if it gets signed by Harper and ratified, gives China the right to sue Canada if they can’t do whatever they want with OUR resources for
    31 years!

    1. Dear Jean,

      Thanks for pointing this out. For clarity, we were referring to the BC Freedom of Information and Privacy Association. The other FIPPA does raise questions of democratic legitimacy, for sure.



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