Court strikes down BC Government’s gag law on pre-campaign political ads

The BCCLA is pleased to report that the BC Court of Appeal unanimously rejected the BC Government’s latest attempt at gagging third parties from advertising about political issues. The government had tried in the lead up to the 2009 election to impose restrictions on advertising for 60 days before the election campaign period. The court struck down that law as an infringement of free speech rights. The government pushed another set of amendments to the Elections Act through the Legislature earlier this year. This time, they proposed restrictions for up to 40 days before the election campaign period and provided for a shorter duration of restrictions if the Legislature was in session. The government referred the constitutionality of those amendments to the court and asked if they violated the Charter. The court ruled that these amendments violate the Charter of Rights as well.

Mr. Justice Lowry wrote the decision of the court. He quoted from Supreme Court of Canada decisions saying “It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.” He added that advertising by individuals and groups other than political parties and candidates is something that “enriches the political discourse”. Some issues are unlikely to get attention if parties and candidates are the only ones who set the public agenda. The court said that interfering with political expression is allowed “only where there are the clearest and most compelling reasons for doing so.” It then found that the government had failed to show any such reason.

Robert Holmes, Q.C., counsel for the BCCLA in this case and past President of the BCCLA, said, “This is an important day for democracy in British Columbia. Another attempt to stifle political speech, particularly from individuals and groups likely to oppose government policy, has been thwarted. The court’s holding that the amendments pushed through the Legislature last spring are an unjust interference with the rights and freedoms of British Columbians should be taken to heart not just by this government, but by all politicians. Twice now politicians have been reminded that they are the servants of the people. Attempts to restrict the people’s ability to speak out are undemocratic and reflect an attitude by government that it knows best.”


Link to the court decision >>
Link to the BCCLA’s Factum >>