Reference re Amendments to the B.C. Elections Act

This reference concerns amendments to the B.C. Elections Act establishing new third-party spending limits in connection with provincial elections. The amendments at issue were intended by the government to address the constitutional defect identified by the B.C. Court of Appeal in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 (“BCTF Case”), in which the BCCLA intervened.

In the BCTF Case, the Court of Appeal ruled that restrictions on third-party spending in the 60-day “pre-campaign period” unjustifiably violated freedom of expression as protected by the Charter of Rights and Freedoms. In response to this ruling, the government enacted another set of amendments to the Elections Act proposing, among other things, restrictions on third-party advertising for up to 40 days before the election campaign period. The amendments also defined “election advertising” very broadly, placing limits on speech that “directly or indirectly” concerns issues with which a registered party or candidate is merely “associated.” The amendments further required third parties to formally register if they wanted to sponsor election advertising.

The BCCLA therefore intervened in the reference on the amendments, arguing that the amended legislation is yet another attempt by the government to unjustly and unjustifiably interfere with the fundamental expression rights of British Columbians. The registration requirements, and the over breadth and vagueness of the definition of “election advertising” unconstitutionally limit who can speak and about what.

In its decision on the Reference, the Court of Appeal unanimously rejected the Government’s proposed amendments. Mr. Justice Lowry, speaking for the panel, affirmed the central role of free expression in democratic societies, observing that third-party advertising “enriches the political discourse.” As such, interference with political expression is allowed “only where there are the clearest and most compelling reasons for doing so.” The government had failed to demonstrate any such reason.

The BCCLA is represented by Robert D. Holmes, Q.C. of Holmes & King.

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