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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Reasonable limits on Charter rights - Demonstrably justified in free and democratic society - Fundamental freedoms - Freedom of expression

Monday, February 13, 2017 @ 11:04 AM  

Appeal by the BC Freedom of Information and Privacy Association from a judgment of the British Columbia Court of Appeal affirming a decision that s. 239 of British Columbia’s Election Act infringed s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter), but was saved by s. 1. Section 239 of the British Columbia’s Election Act (Act) required individuals or organizations who wished to “sponsor election advertising” to register with the province’s Chief Electoral Officer. This registration requirement applied to all sponsors of election advertising, regardless of how much they spent during the writ period. It was common ground that British Columbia’s registration requirement limited the right of expression guaranteed by s. 2(b) of the Charter. The question on appeal was whether it was a reasonable and demonstrably justified limit on persons who conveyed political messages through small-scale election activities like displaying homemade signs in their windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them. The appellant was a non-profit society that engaged in public advocacy in respect of freedom of information and privacy rights. In 2009 and 2013, the appellant sponsored election advertising within the meaning of the Act. It was therefore subject to the impugned registration requirement in s. 239. The appellant sought a declaration that the registration requirement, to the extent that it applied to sponsors of election advertising who spend less than $500 in a given campaign period, infringed s. 2(b) of the Charter, was not saved by s. 1, and was therefore of no force and effect. The trial judge dismissed the appellant’s application, concluding that s. 239 of the Act was an infringement of the right of free expression under s. 2(b) of the Charter, but that the infringement was justified under s. 1. A majority of the Court of Appeal reached the same conclusion. Both the trial judge and the Court of Appeal accepted as correct the Chief Electoral Officer’s interpretation of the provision, which supported the view that s. 239’s registration requirement applied to essentially all “election advertising”, as that term was defined in s. 228 of the Act. On this interpretation, an individual who posted a handmade sign in her window was a “sponsor” of that advertising within the meaning of s. 239.

HELD: Appeal dismissed. Properly interpreted, s. 239 did not catch the categories of expression upon which the appellant relied. The words of ss. 228, 229, and 239 did not support the interpretation given to them by the appellant, British Columbia’s Chief Electoral Officer, or the courts below. The words of the Act, read in their grammatical and ordinary sense and harmoniously with the statutory scheme, limited the registration requirement to “sponsors” who either paid for advertising services or who received those services without charge as a contribution. In no case did the registration requirement apply to those engaged in individual self-expression. Sponsorship necessarily involved at least two people, namely the person providing the service (whether for money or without charge) and the sponsor. A person who posted a handmade sign in her window was neither paying for nor receiving the service of conducting advertising. She was not receiving a service from someone else, and thus was not a “sponsor” under the Act. The purpose of the registration requirement was to allow the public to know who was behind, or “sponsoring”, election advertising. Interpreting s. 239 as imposing a registration requirement only on individuals and organizations who received services from others in undertaking election advertising campaigns, and who thus “sponsored” election advertising within the meaning of the Act, was consistent with the purpose of the Act and the intention of the British Columbia legislature. The registration requirement for sponsors of election advertising was rationally connected to the legislature’s objective. The limit was minimally impairing. By confining the registration requirement to sponsors and exempting individual political self-expression by persons who were not sponsors, s. 239 tailored the impingement on expression to what was required by the object of the Act. The registration requirement’s deleterious effects were limited. The benefits of requiring sponsors of election advertising to register outweighed the deleterious effects on sponsors’ s. 2(b) right. By not leading social science evidence, the Attorney General of British Columbia seriously diminished its ability to justify the infringement of the Charter right, but did not eliminate it. Although s. 239 of the British Columbia Election Act trenched on s. 2(b) of the Charter, the infringement was saved by s. 1.

B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), [2017] S.C.J. No. 6, Supreme Court of Canada, McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ., January 26, 2017. Digest No. 3638-001