This case is a challenge to BC’s third-party election advertising registration scheme. Under the current law, ordinary citizens and organizations are required to register before they do any “election advertising” during an election period. The definition of “election advertising” is, however, so broad that it can capture expression that merely related remotely to what political parties or candidates say during an election. And there is no threshold spending amount to trigger registration, so without exaggeration, one cent’s worth of spending on such expression would trigger a registration requirement. This is the focus of the lawsuit being brought by the BC Freedom of Information and Privacy Association (BC FIPA), which argues that this scheme, subjecting individuals and community organizations to large fines and potential imprisonment for non-compliance limits free expression and chills commentary on important public interest issues.
The BCCLA intervened in this case, arguing that the registration requirement would have a chilling effect on individuals who wished to express unpopular, unconventional, or underrepresented views, as well as individuals whose voices might already be marginalized. We have been long-standing opponents of the third-party election advertising scheme, which restricts expressive activities such as photocopying pamphlets or putting information on a website if these are done without registration. Not only does the law limit spontaneous expression because registration is required before the “advertising” takes place, the chilling effects of the law are not merely speculative.
In 2010, the BCCLA partnered with the Canadian Centre for Policy Alternatives and BC FIPA to release a report on the impact of BC’s third-party advertising rules. Election Chill Effect: The Impact of BC’s New Third Party Advertising Rules on Social Movement Groups highlights the impact of third-party advertising rules on public debate in the lead-up to the 2009 provincial election. The research found, most disturbingly, an anti-democratic chill on election discourse, as many groups and movements self-censored to comply with the law.
The BC Court of Appeal issued its reasons for judgment in April 2015. Though the majority of the Court of Appeal did acknowledge that the concerns raised by the BCCLA were legitimate, it nonetheless upheld the constitutionality of the registration requirement. It found that while registration might delay or limit spontaneous political expression, and that it might inhibit political expression by individuals who do not wish their names and addresses to become public knowledge, “the goals of egalitarianism in a free and democratic society” achieved by creating greater transparency in “election advertising” outweighed these deleterious effects.
The BCCLA is represented by Sheila Tucker of Shapray Cramer Fitterman Lamer LLP and Joanne Lysyk of Blakes, Cassells and Graydon LLP.