FIPA on short end of 2-1 split in Court of Appeal in Charter challenge to BC Election Act

In a 2-1 ruling handed down April 23, the BC Court of Appeal has upheld an earlier decision which found that although third party ‘advertising’ provisions of the Election Act violated the Charter, they could still be justified.

The law makes something as simple as putting a handwritten sign in your window during the election period without registering with the authorities an offense, which could result in a year in jail and a $10,000 fine. FIPA has been fighting against this law since 2009, in court since 2012.

voting keith Ivey copyLast year a BC Supreme Court judge ruled that although these third party spending provisions did violate the right to freedom of expression under the Charter of Rights and Freedoms, and the violation was not ‘trivial or insubstantial’ as claimed by the government, it could be justified under section 1 of the Charter.

FIPA’s appeal of that decision was earlier this year, and links to our submissions in this case can be found here.

Although the result is not what we were hoping for, there was a strong dissent from Madame Justice Saunders, who stated:

“I have no doubt that the effort required for registration and the nature of the private information required to be disclosed for public record will chill some who otherwise could muster the courage to stick their head over the parapet and publically advocate a view on a public issue. Last, certain members of the community, for reasons of personal security, will not register their addresses in a public record. For people in the circumstances I have described, the mere requirement of registration will be a complete barrier, so that compliance with the legislation will be achieved by diminishing their participation in public discourse during the election period…”

The two judges in the majority said they would not interfere with the decision, and took a different view of the importance of registration before being allowed to speak.

“Given the insubstantial burden it places on third parties during an election period, I conclude that it falls within the “zone of discretion” that should be accorded to the Legislature in promoting equality of participation and influence among the proponents of political views and furthering the other objectives found to be pressing and substantial in Libman and Harper.”

Of course the legislature can amend bad laws like this one, and conveniently enough, Bill 20, which amends the Election Act is now at First Reading.

The BC government should bring in amendments to put an end to this absolute ban on unregistered freedom of expression during elections. No other jurisdiction in Canada has this type of total ban on unregistered speech. If the BC government thinks this ban is a good idea, they should be up front and explain why.

FIPA would like to thank lawyers Sean Hern and Alison Latimer of Farris Vaughan for their continued pro bono representation in this matter.