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BC Freedom of Information and Privacy Association (FIPA) is a registered sponsor under the Election Act


BC Court of Appeal tells Government its Election Act changes are unconstitutional
October 4th, 2012 11:27am
FIPA is calling on Premier Christy Clark to call back the Legislature to amend election legislation the BC Court of Appeal has just declared unconstitutional.

The government made a number of changes to the Election Act during the spring sitting, and then referred those changes to the Court of Appeal for an opinion on their constitutionality. A similar attempt to impose restrictions on third party ‘advertising’ was struck down by the courts in 2009 for infringing the right to freedom of speech.

This is a victory for all British Columbians. The government has been told quite clearly that their attempt to restrict free speech is unconstitutional.

In its judgement released this morning, the Court of Appeal stated that the problem the court had with the original definition of “election advertising” still remains:
“…insofar as they limit political expression in the pre-campaign period, this Court has held the 2008 amendments to be constitutionally invalid principally because of the overbreadth of the definition of election advertising, it is difficult to see on what basis the current amendments could be said to be constitutionally sound in respect to the same period when they contain essentially the same definition.” (p. 17)

The court also took exception to the lack of a lower spending limit in the registration requirements for third party advertisers:
“Further, and more significantly, s. 239 prohibits third-party sponsoring of any election advertising unless the third party has first registered. There is no minimum amount that may be spent without registration. In the result, in both the pre-campaign and campaign periods, individuals and organizations must formally register before engaging in any form of election advertising however minimal.“ (pp.10-11)


The current requirement that anybody using their right to freedom of expression must first register with Elections BC or face jail time has to go. The government asked for the Court’s opinion, and we at FIPA presume they intend to follow it.


A 2010 report by the Canadian Centre for Policy Alternatives (co-published by FIPA and the BCCLA) entitled Election Chill Effect found that BC’s third party advertising rules caused extensive problems for “small spenders” such as non-profits and charities during the 2009 provincial election. The rules led to widespread confusion, wasted resources, anxiety and self-censorship among organizations that spent little or nothing at all on election advertising.

The government should have fixed this situation when it was amending the law this spring. The Legislature must now be recalled to get rid of this ‘registration before speaking’ requirement.


Sean Hern and Alison Latimer of Farris Vaughn represented FIPA pro bono in this case.


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