The B.C. Freedom of Information and Privacy Association is taking the provincial government to court over its election-advertising legislation. That shouldn’t be necessary — the legislation is flawed and should be fixed.
In 2008, the government passed legislation limiting third-party spending on advertising in the 60 days leading up to an election campaign. Section 228 of the Election Act stipulates that any person or group must register with the chief electoral officer before issuing any public communication that “promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated.”
The legislation is well-intended, aimed at preventing big money from unduly influencing an election, but it casts too wide a net. It does not set a spending threshold — in fact, it could apply even if the advertising cost no money at all, such as a handwritten sign in a window.
The act specifies penalties of up to a year in jail and a $10,000 fine. While the government is unlikely to prosecute someone for putting up a homemade sign, it unnecessarily puts a chill on participation in an election campaign. Worse, it’s a restriction of free speech.
And experience indicates such a charge would not stand up in court. The government has been in court twice before because of the act and has lost both times.
The legislation was overturned in 2009 after public-sector unions challenged the law. The government appealed and lost. Instead of taking the hint, the B.C. Liberals then tweaked the legislation, shortening the restricted time period and pushing the amended law through in the final days of the 2012 spring legislature. They sent it to the Court of Appeal for scrutiny, where Justice P.D. Lowry ruled that shortening the time of restriction didn’t change the fact that the law limits freedom of expression.
Attorney General Shirley Bond said the government would abandon parts of the law ruled unconstitutional, but the legislation is still too restrictive.
Most jurisdictions require third-party registration only when the advertising spending exceeds a certain limit. Ontario, New Brunswick and Nova Scotia permit advertising under $500 without registration, while Alberta has set the threshold at $1,000. B.C. should follow suit.
The B.C. government has had plenty of broad hints from the courts about fixing the legislation. It shouldn’t require another court case, with its attendant costs and controversy, to resolve the issue. The Liberals are right in trying to cast a net that covers special-interest groups with deep pockets, but the law needs refining to keep small groups and individuals from being bycatch.
At a time when the dry rot of apathy threatens the political process, restrictions should not be placed that inhibit public participation.
