The Final Verdict to our Election Act Challenge: An Unusual Victory
Our 4 year battle has finally come to an end. Late last month, the Supreme Court of Canada dismissed our appeal but ultimately sided with FIPA by making it clear that election advertising, in its “grammatical and ordinary sense,” does not apply to those who are merely expressing their own views during an election. Rather, the Court defines ‘sponsors’ as those “who either pay for advertising services, or who receive those services without charge as a contribution. In no case does the registration requirement apply to those engaged in individual self-expression (emphasis added).”
Elections BC, charged with enforcing the law, interpreted the law as covering any activity that fell within the very broad definition of advertising, for example, placing a handmade sign in a window or a bumper sticker on a car, or by wearing a T-shirt with a political message on it. However, the Court made it clear that:
The object of the Act, and the intention of the legislature, indicate that a ‘sponsor’ required to register is an individual or organization who receives an advertising service from another individual or organization, whether in exchange for payment or without charge. Individuals who neither pay others for advertising services nor receive advertising services form others without charge are not ‘sponsors’ within the meaning of [the Act].
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 or have the court read in a $500 minimum spending limit as exists elsewhere in Canada. With the next provincial election set for May 9 of this year, the timing of the Court’s decision ensures that individuals, groups, and organizations can openly and freely express themselves without fear of jail or fines.
Or so we thought.
Earlier this month, Elections BC released a bulletin to clarify its policies following the court’s decision. It states “individuals who make their own election advertising materials on a small scale are not election advertising sponsors under the Election Act,” however, “produc[ing] and personally hand[ing]-out more than 25 copies of homemade signs or pamphlets during the campaign period” is considered election sponsorship, and “[they] must be hand-delivered directly to another person, not dropped in a mailbox or otherwise distributed anonymously.”
It goes further to state that this is only applicable to individuals as “groups of individuals and organizations that conduct any sort of election advertising are advertising sponsors and must register with Elections BC before sponsoring the advertising.”
There is no doubt that Elections BC’s guidelines are inconsistent with the court’s interpretation of ‘sponsors’, and in a joint letter with the BC Civil Liberties Association we told them as much.
Fortunately, just before FIPA’s challenge was heard by the Supreme Court of Canada, Elections BC did make a major climb down from their previous position regarding communications over the internet.
In a Bulletin posted last September, Elections BC stated that electronic communications such as tweets, Facebook posts, web posts or emails would no longer be considered to be advertising, so registration would not be required for those activities.