Our challenge to BC’s Election Act in the Supreme Court of Canada

FIPA has been fighting against free speech restrictions in BC’s Election Act for years, and that battle will culminate in our upcoming appeal in the Supreme Court of Canada. This is an important case for freedom of speech during BC elections – and for setting the standard the government must meet in order to impose these kinds of restrictions on citizens.

In November, the Supreme Court of Canada granted FIPA leave to appeal the BC Court of Appeal’s split decision to uphold third-party ‘advertising’ restrictions in the provincial Election Act. Those rules require a person or group to register with authorities in order to discuss election issues – even if they spend little or no money, and even if they are not necessarily encouraging a particular party or candidate.

FIPA argued that this absolute ban on unregistered expression is unconstitutional, as it applies to things like handwritten signs or electronic communications with a value of zero. Studies have shown people and groups avoid public comment, for fear of hefty fines and even jail time for inadvertently violating the law.

However, in a 2-1 decision earlier this year, the BC Court of Appeal upheld a lower court decision, and found that although the Election Act provisions violate the Charter right to freedom of expression, the violation is “justifiable”. FIPA disagreed, so we took the case further – to Canada’s highest court.

The November decision—the result of a rare oral hearing of the application for leave to appeal—allows FIPA to argue our case in Ottawa.

“Shouldn’t this issue be decided for the voters of British Columbia one way or the other?” asked Chief Justice Beverley McLachlin rhetorically, after she heard FIPA’s arguments for leave. We say yes, absolutely.

With a provincial election coming up in 2017, it’s more urgent than ever that our challenge to limitations on election-time speech be heard.

The hearing has been scheduled for this fall, and FIPA will once again be represented by our pro bono lawyers Sean Hern and Alison Latimer of Farris Vaughn.

Read more from the February 2016 Bulletin »