November 7, 2014
Ms. Jackie Tegart, Chair
Special Committee on Local Elections Expense Limits
BY E Mail: LocalElectionsCommittee@leg.bc.ca
Re: Submission to public consultations on principles for local elections expense limits
Dear Ms. Tegart,
I am writing to you in response to the consultation your Special Committee has undertaken on principles for establishing expense limits for third party advertisers.
In particular, I wish to draw to your attention a serious problem which involves election laws at both the provincial and municipal levels in this province. The problem is that both statutes currently require registration of individuals and groups whose ‘advertising’ during the election period costs little or nothing. Failure to register before exercising what is the constitutionally guaranteed right to freedom of expression can lead to incarceration and financial penalties.
The objective of these provisions relating to third party election advertising expenditures is presumably to ensure there is fairness in elections by preventing third parties with substantial means to dominate or overwhelm the election discourse in the campaign period.
However, the registration of very small spenders is unnecessary to achieve this goal, and its effect is grossly disproportionate to the claimed benefit. British Columbians should not be liable for up to a year of imprisonment because they failed to register before putting a sign in their apartment window which contains a comment about an issue with which a political party or a candidate is associated.
That the registration scheme is unnecessary for expenditures of less than $500 is demonstrated by:
- the fact that the Canada Elections Act exempts from registration third party election advertising expenditures under $500;
- where comparable legislation exists in other provinces, including Ontario, New Brunswick, and Nova Scotia, they exempt from registration third party election advertising expenditures under $500 (and Alberta exempts third party advertising expenditures under $1000);
- the Chief Electoral Officer of British Columbia has repeatedly called for the institution of a minimum amount of spending before registration is required. His 2010 recommendation is set out below [emphasis added]:
Part 11 – Election communications
Prior to the 2009 General Election, there was a successful legal challenge to the advertising limits for independent election advertising sponsors during the pre-campaign period. The court decision is currently under appeal. Clarity regarding the application of the advertising limits and registration requirements for election advertising sponsors is required.
Election advertising rules do not distinguish between those sponsors conducting full media campaigns and individuals who post handwritten signs in their apartment windows. The Election Act does not establish a threshold for registration, resulting in all advertising sponsors being required to register and display disclosure information – including individuals with a simple handmade sign in their window.
The Canada Elections Act only requires registration by those who sponsor election advertising with a value of $500 or more. Having a consistent registration threshold would prevent the considerable confusion and administrative burden that currently exists.
Some advertising sponsors conduct election advertising when not registered. This is often the result of not understanding the rules, and the likelihood of a prosecution being approved in such cases is low. However, advertising conducted by unregistered sponsors can still have an effect on a campaign and those who do not comply with the Act should be subject to penalties. It would be helpful if the Chief Electoral Officer could impose administrative penalties in such instances.
The definition of election advertising was substantially changed in 2008.
One significant change was the intent of the sponsor is no longer a factor in determining whether an advertisement meets the definition of election advertising. The current definition of election advertising includes any advertising message that takes a position on an issue with which a registered political party is associated. This created some concern regarding the ability of individuals and organizations to comment on issues unrelated to the election campaign. This report does not contain any recommendations in this regard. However, legislators may wish to consider these issues when reviewing the Act.
The CEO repeated his call in his 2014 report to the legislature:
These problems with the provincial election law also apply to the legislation this Special Committee is currently examining. The government has been advised of this a number of times, and not just by BC FIPA.
A minimum spending threshold is something the Local Government Elections Task Force suggested in its 2010 report. It can be found at page 15 of the report in the first recommendation:
- Establish that third party advertisers must register and must disclose what they spent on ads and who contributed to them (possibly for advertising expenditures over a certain threshold)
The government’s White Paper and subsequent legislation (Bill 20) contained no such threshold. This means that anyone doing anything that falls within the very broad definition of election advertising is required to register with Elections BC before exercising their constitutional right to speak on election issues. That definition includes communication—by almost any means—of a message not just related to candidates, but also taking a position on an issue with which a candidate or party is associated. That could be almost anything.
One example is a handwritten sign related to a municipal issue put in a window by an individual. If the individual has not registered with Elections BC as a Third Party Advertising Sponsor, they have committed an offence and are liable to a $5000 fine and up to a year in jail.
BC FIPA is currently before the BC Court of Appeal in a constitutional challenge to this requirement to register with the government before exercising the right to express oneself during an election campaign:
We were also in the BC Court of Appeal as an intervenor in the 2012 Reference case brought by the government regarding proposed amendments to the Election Act:
Although the question of third party registration was not directly before the Court of Appeal in that case, they did have things to say about the scope of the law:
 Given that the content of what constitutes election advertising is now no different than in the 2008 amendments, it remains the same as was considered in BCTF. Clearly the provision that such advertising includes “an advertising message that takes a position on an issue with which a registered political party or candidate is associated” means it encompasses virtually any issue that may be the subject of political expression because political issues are almost always if not invariably associated with individual politicians and their parties whether they are members of the government or otherwise. It captures a seemingly limitless range of activities in which the government may be engaged, or some may consider it should be engaged. Labour relations, health and education services, consultations with First Nations, and environmental management may be cited as an indication of the scope of the issues that invite political expression in the form of third-party advertising on a continuing basis. It appears that any public communication on government action would be seen as “taking a position” on an issue “associated with” a political party and limited accordingly during the pre-campaign as well as the campaign period. The definition is very broad indeed.
We also provided Minister Oakes with a warning about the dubious constitutionality of the Local Elections Campaign Financing Act in response to her consultation last fall. Sadly she chose not to follow our recommendation to include a minimum spending threshold below which registration would not be required:
The relevant provisions of the Local Elections Campaign Financing Act are as follows:
Prohibition against sponsoring third party advertising if not registered
37 (1) An individual or organization that is not registered under this Division must not sponsor third party advertising.
(2) An individual or organization that contravenes subsection (1) commits an offence.
The definition of “election advertising” is found in section 7 of the Act and it closely resembles the definition in the provincial Election Act:
7 (1) Subject to subsection (2), election advertising is the transmission to the public by any means, during the election proceedings period for an election, of any of the following:
(a) a communication that promotes or opposes, directly or indirectly,
(i) the election of a candidate, or
(ii) an elector organization that is endorsing a candidate or is an established elector organization, including a communication that takes a position on an issue with which the candidate or elector organization is associated;
(b) assent voting advertising that is election advertising under section 8 (3) [assent voting advertising that is election advertising];
(c) any other communications prescribed by regulation.
(2) Subject to any applicable regulations, election advertising does not include the following:
(a) the publication without charge, in a bona fide periodical publication or a radio or television program, of news, an editorial, an interview, a column, a letter, a debate, a speech or a commentary;
(b) the distribution of a publication, or the promotion of the sale of a publication, for no less than its market value, if the publication was planned to be sold whether or not there was to be an election or assent voting;
(c) the transmission of a communication directly by an individual or organization to the employees, members or shareholders of the individual or organization;
(d) the transmission of an expression by an individual, on a non-commercial basis on the internet, by telephone or by text messaging, of his or her personal views;
(e) any other transmissions prescribed by regulation.
The penalties for breaching these provisions are as follows:
86 (1) This section applies to offences under this Act other than offences to which section 85 applies.
(2) An individual who commits an offence to which this section applies is liable to a fine of not more than $5 000 or imprisonment for a term not longer than one year, or both.
(3) An organization that commits an offence to which this section applies is liable to a fine of not more than $10 000.
These amounts are half what the provincial Election Act imposes but are still considerable penalties for an individual or small organization.
In our view, the justification for the inclusion of these provisions in the current local elections law is even more tenuous than in the provincial law because of the absence of spending limits for candidates or third parties.
The restrictions on third party ‘advertising’ including the registration requirement, is intended to maintain a relatively level playing field between parties/candidates and third parties. If there is no upper limit on spending, then the registration requirement for those spending little or nothing on expressing their views is unjustifiable.
We urge you to follow every other jurisdiction in this country, the advice of the Chief Electoral Officer of this province and the Local Government Elections Task Force and recommend a minimum spending threshold below which registration is not required.
We would be pleased to provide you with additional information if you require it.