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B.C. limits on election ads don’t violate Charter, top court rules

Thursday, February 09, 2017 @ 7:00 PM | By Cristin Schmitz

The Supreme Court has upheld — but narrowly construed — British Columbia’s election advertising restrictions, while also giving governments some leeway to justify Charter infringements in election laws without presenting social science evidence.

On Jan. 26, seven judges unanimously rejected the appeal of the British Columbia Freedom of Information and Privacy Association (FIPA) which unsuccessfully argued in the B.C. courts below that s. 239 of that province’s Election Act violates the Charter’s guarantee of freedom of expression by requiring all third-party “sponsors” of election advertising during a 28-day campaign period to register with the chief electoral officer before advertising: B.C. Freedom of Information and Privacy Association v. B.C. (A.G.) 2017 SCC 6.

The ruling was hailed by the B.C. government. “The provisions of the Election Act were adopted in 1995, in order to achieve transparency by allowing citizens to inform themselves about who is speaking and seeking to influence their vote,” B.C. Attorney General Suzanne Anton said in a statement. “The court accepted the province’s position that the law is limited to sponsors who pay others for election advertising services or receive services free of charge as a contribution, and that it does not apply to those who wear political T-shirts, put up homemade signs, or other similar expression.”

Free speech advocates had a more mixed reaction. The court has clarified that the act “does not capture expressive activities like displaying handmade signs in windows, placing bumper stickers on cars, or wearing T-shirts with political messages on them, and the court also held that that kind of expression is also not captured by other parts of the act, including the act’s expenditure limits,” said FIPA’s lawyer Alison Latimer of Vancouver’s Underhill Boies Parker, whose co-counsel was Sean Hern of Vancouver’s Farris. “From our perspective this is a really important clarification,” she noted, “because the chief electoral officer…has always said that the law does capture those activities, and that was the interpretation of the act that was accepted by the lower courts in this case so it’s a really positive result for free speech in B.C.”

Latimer suggested gray areas remain, including determining in some cases whether an organization meets the definition of “sponsor” under the act. “For organizations there may be no bright line between what counts as self-expression and what counts as an advertising service from a third party, such as a member of an organization or an officer or an employee,” she explained. “You could imagine an organization…in an election campaign that has a hundred T-shirts made up that say whatever the organization wants it to say, and offers those T-shirts for free to its members or whoever wants them…Once those people are wearing them, is that the organization’s own self-expression? Is it the person’s own self-expression? Or is that an advertising service that the individual [wearing the T-shirt] is providing to the organization?”

Rob De Luca, staff counsel with the intervener Canadian Civil Liberties Association, said the court’s acceptance that governments can sometimes meet their evidentiary burden under s. 1 of the Charter to justify Charter breaches using logic and reason alone, without supporting social science evidence, can make it very difficult to accurately identify all the infringements at play in a case, and “has the potential effect of lowering the burden” on the state under s. 1.

FIPA contended that s. 239 catches and could chill the political self-expression of lone voices or small spenders who wish to remain anonymous. The association urged the Supreme Court to read down the law to exempt from registration third parties spending less than $500 on election advertising.

But the Supreme Court accepted the position of the attorney general of B.C. that, correctly interpreted, s. 239 does not require registration by those engaged in the smallscale self-expressive election activities the association was seeking to exempt from registration. “Individuals who neither pay others for advertising services nor receive advertising services from others without charge are not ‘sponsors’ within the meaning of s. 229(1),” Chief Justice Beverley McLachlin held.

The top court went on to uphold the registration requirement for sponsors spending less than $500 as a reasonably and demonstrably justified limit on the s. 2(b) Charter guarantee of freedom of expression — even though the government did not lead social science evidence to justify the infringement of the right to freedom of expression. “The registration process is simple and unlikely to deter much, if any, expression in which a sponsor would otherwise engage,” Chief Justice McLachlin reasoned. “These limited deleterious effects are outweighed by the benefits of the scheme — permitting the public to know who is engaged in organized advocacy in their elections, ensuring that those who sponsor election advertising must provide the public with an assurance that they are in compliance with election law and providing the chief electoral officer with information that can assist in the enforcement of the act and in informing sponsors of its requirements.”

The province noted it is easy to register by filling out a one-page form. Election officials are available to answer questions. “The B.C. government believes that the B.C. electoral process should be fair, transparent and accountable — and this provision does just that,” Anton said in her statement.

Chief Justice McLachlin held that “the words of ss. 228, 229 and 239 of the act, read in their grammatical and ordinary sense and harmoniously with the statutory scheme, the object of the act, and the intention of the legislature, indicate that a ‘sponsor’ required to register is an individual or organization who receives an advertising service from another individual or organization, whether in exchange for payment or without charge. Individuals who neither pay others for advertising services nor receive advertising services from others without charge are not ‘sponsors’ within the meaning of s. 229(1). They may transmit their own points of view, whether by posting a handmade sign in a window, or putting a bumper sticker on a car, or wearing a T-shirt with a message on it, without registering.”

She went on to rule that although s. 239 infringes freedom of expression by requiring registration of third-party sponsors who spend less than $500, the law should be upheld, under s. 1 of the Charter, as a reasonable and demonstrably justified limit on the s. 2(b) Charter right.

The province was not obliged to lead social science evidence in order to discharge its burden of justification, the chief justice said. “By not leading social science evidence at this stage, the attorney general of British Columbia has seriously diminished its ability to justify the infringement of a Charter right, but it has not eliminated it; though logic and reason, without assistance, can only go so far, they can go far enough,” she wrote. “Where the scope of the infringement is minimal, minimal deference to the legislature may suffice and social science evidence may not be necessary. That is this case.”