Supreme Court decision a victory for freedom of expression

MEDIA RELEASE
January 26, 2017

Supreme Court of Canada forces Elections BC to use proper interpretation of Third party advertising law

VANCOUVER, January 26, 2017 – In a decision released this morning, the Supreme Court of Canada has made it clear that election advertising laws do not apply to those who are merely expressing their own views during an election, rather than engaging in actual advertising campaigns.

The BC Freedom of Information and Privacy Association (FIPA) brought the Charter challenge just before the last provincial election in 2013 after years of fruitless campaigning to get the government to amend the law to get rid of the offending provisions.

“Today’s decision means individuals and groups who are expressing themselves will no longer be considered to be ‘advertising sponsors,’” said FIPA Executive Director Vincent Gogolek. “People will be able to express themselves in the coming election without fear of jail or fines.”

Elections BC, charged with enforcing the law, interpreted the law as covering any activity that fell within the very broad definition of advertising, including handwritten signs and other types of expression that cost little or no money. The BC government insisted on defending the law, despite repeated reports by the Chief Electoral Officer stating that the provision was unnecessary, caused confusion and should be replaced with a requirement (used in other Canadian jurisdictions) that ‘advertisers’ spend at least $500 before they have to register.

FIPA argued that this absolute ban on unregistered expression is unconstitutional, as it applies to things like handwritten signs or other low cost communications. Studies have shown people and groups have avoided public comment in past elections, for fear of hefty fines and even jail time for inadvertently violating the law.

FIPA again thanks lawyers Sean Hern of Farris Vaughn and Alison Latimer of Underhill, Boies Parker, Gage & Latimer, who have represented FIPA pro bono in this case.

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Contact:

Vincent Gogolek, Executive Director

BC Freedom of Information and Privacy Association

vincent@fipa.bc.ca | (o) 604-739-9788 | (c) 604-318-0031

 

Supreme Court of Canada decision on Election Act expected this Thursday

MEDIA ADVISORY
JANUARY 20, 2017

Supreme Court of Canada to hand down decision on striking down ban on unregistered speech in BC’s election law on Thursday, January 26, 2017

Ottawa, January 20, 2017 – On Thursday, January 26, 2017, the Supreme Court of Canada will hand down its decision on the BC Freedom of Information and Privacy Association’s Charter challenge to protect freedom of expression during elections in British Columbia.

The challenge was launched in 2013 when we asked the court to strike down provisions that require everyone to register with Elections BC before undertaking “election advertising” during a provincial election – even if they spend little or no money. This absolute ban on unregistered expression violates Charter right to freedom of expression.

BC FIPA’s position is that this law, which forces people who have spent little or nothing to register with the government before engaging in political expression, infringes upon the right to free expression guaranteed by section 2(b) of the Charter. Failure to register could mean up to a year in jail and/or a fine of up to $10,000.

FIPA again thanks lawyers Sean Hern and Alison Latimer of Farris Vaughan, who have represented FIPA pro bono in this case.

 

FIPA’s intervention re VPD’s refusal to disclose records relating to their use of IMSI-catchers

On March 23, 2016, FIPA filed an intervention in response to BC Information and Privacy Commissioner’s inquiry into the Vancouver Police Department’s refusal to disclose records relating to their use of IMSI-catchers (“Stingrays”), in response to an FOI request from Pivot Legal Society. You can read the submission in full here.

We argued that:

“…the Applicant [Pivot] is entitled to the records requested for the following reasons:

  • The Applicant is entitled to the information because the records are in the custody
    or control of the VPD and no exception to release applies.
  • VPD failed to consider severing information from responsive records, as required
    under s.4(2) of the Act.
  • There is no justification for the VPD to refuse to confirm or deny the existence of
    records under s.8(2).
  • VPD has not shown how harm would be likely to be caused to the effectiveness of
    investigative techniques and procedures currently or likely to be used in law
    enforcement under s.15(1)(c) and,
  • The release of this information is in the public interest, and therefore should be
    released under s. 25 of the Act.”

Other appeals/interventions on this matter:

BC Election Act Challenge goes to Supreme Court of Canada

On June 22, 2015, FIPA filed an Application for Leave to appeal the judgment of the Court of Appeal for British Columbia on our Election Act challenge.

voting keith Ivey copyThe BC Election Act 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 submitted that the restrictions on 3rd party election advertising and the registration requirements for 3rd party election advertisers in the BC Election Act are an unjustified violation of the right to free expression guaranteed by section 2(b) of the Charter.  We sought to change the legislation so that anyone with expenditures below $500 is exempted from s. 239 of the Election Act, as they are under other Canadian election laws.

Last 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 took the case to the BC Court of Appeal. In 2015, the BC Court of Appeal issued a 2-1 ruling upholding the BC Supreme Court’s decision. The Application for Leave at the Supreme Court of Canada is the next step in the process. FIPA would like to thank lawyers Sean Hern and Alison Latimer of Farris Vaughan for their extensive pro bono work on this case.