The British Columbia Civil Liberties Association is pleased that the B.C. Court of Appeal has dismissed the B.C. government’s appeal of a finding that the provisions of Bill 42 relating to limits in the pre-election campaign period on third party election expenditures were constitutional. The effect of the ruling is to uphold the right of all British Columbians to engage in robust debate on matters of political interest up to the date on which a provincial election is actually called. The government had sought to gag individuals and non-parties from making more than minimal expenditures for a period of several months before the election was even called. The government’s professed motive was to ensure “fairness” in public debate, so that its message and that of the opposition party could be heard above the voices of everyone else. But the courts found that the deleterious effects on the rights of the people to voice their views and concerns in the period leading up to an election campaign outweighed any such notion.
“This decision is important because it turns the tide on politicians who have made a practice of feigning concern about having orderly debate during election campaigns, but whose legislation has had the effect of stifling public discussion,” said Robert Holmes, Q.C., President of the B.C. Civil Liberties Association, who also acted as counsel for the association on the case.
“While we view the restrictions during election campaigns themselves as of suspect validity, particularly given that the internet makes regulation of speech increasingly difficult for governments who think they “know best” about what the public should hear, the government’s case for extending restrictions into the pre-election period was hopeless. The government aimed to shut people up during the period that encompassed the final legislative session before an election. It didn’t want fair and open debate about its budget, about its throne speech, about its legislative proposals or about its record. The fact that we have needed a court battle to remind the government that it serves the people and should listen to them, rather than the other way round, is a sorry testament to how out of touch public officials can become.”
The lawsuit was brought by the BC Teachers Federation, the B.C. Nurses Union and other trade unions. At present it is not clear whether the B.C. government will seek leave to appeal this decision to the Supreme Court of Canada.
The legislation provided for fines and penalties for anyone who disobeyed the government’s regulations on when and how they could advertise and get their message out during the pre-election period. Similar provisions remain in place for anyone who participates in advertising
on any issue that a political party or candidate is connected with during election campaigns. “There may be many reasons for the decline in political participation and voter turnout, but having a maze of restrictions on what and how public expression of views can be done and penalties for non-compliance surely represents one more turn-off for people who otherwise might get involved,” said Holmes.
Robert Holmes, Q.C., President, (604) 838-6856
Grace Pastine, BCCLA Litigation Director, (604) 630-9751