Jul 14, 2016

A little-known election is limiting your free expression rights


You might not have noticed it, but since June 4th there has been an election going on in British Columbia – and legislation that governs that election severely limits what people can say about the issues relating to that election (and how they can say it) until the election is completed on July 20.

The election in question is for the Francophone School Board (Conseil scolaire francophone), and the legislation is the Local Elections Campaign Financing Act (LECFA).

Unlike other school boards the CSF has schools throughout the province, and as such the whole province is currently covered by the legislation. In response to an inquiry Elections BC responded that, “yes, the third party advertising provisions of the Local Election Campaign Financing Act apply to the [Francophone School Board] by-election.”

BC’s third party advertising limits, as currently structured, are at best confusing and arbitrary; at worst they are harmful to democracy

The provisions of the LECFA mirror the legislation for provincial elections, the BC Elections Act, which severely restrict third-party “advertising” to a ridiculous degree.

The Elections BC website defines third-party advertising as “advertising for or against a candidate or elector organization and/or advertising on an issue (emphasis added)”. The legislation specifically defines third-party advertising as “a communication respecting an issue of public policy”..

There is probably a general agreement that third-party advertising should be limited – in order to prevent organizations with deep pockets from influencing a campaign through massive spending. But BC’s Elections Act and the LECFA go much further than that: there is no minimum amount you can spend before you are caught by the legislation.

If, for example, you were moved to put a poster in your window expressing an opinion on provincial funding of school boards, you may be considered a third-party advertiser by Elections BC chances. If you didn’t register as such, you could, at least in theory, be subject to “a fine of not more than $5,000 or imprisonment for a term not longer than one year, or both.”

Shannon Daub and Heather Whiteside wrote a paper on the BC Elections Act in 2010 for the CCPA, the BC Civil Liberties Association (BCCLA) and the BC Freedom of Information and Privacy Association (BC FIPA). The paper looked at the impact of these election advertising rules and found they had a chilling effect even on organizations that would have spent next to nothing. The organizations self-censored, some even to the point of stopping postings to their websites. Their paper is detailed and is well worth rereading. Among their conclusions was that “the experiences of social movement groups in the lead up to the 2009 provincial election suggests that BC’s third party advertising limits, as currently structured, are at best confusing and arbitrary; at worst they are harmful to democracy.”

The overly restrictive legislation at the provincial level faces a constitutional challenge at the Supreme Court of Canada this October in an action brought by  BC FIPA. This follows earlier decisions in BC’s provincial courts that found the restrictions were justifiable. BC FIPA is seeking to have third parties that spend less than $500 exempted from the legislation.

They are hoping the Supreme Court of Canada will agree with the dissenting judge of the BC Appeals Court, who found:

The impugned provision is overbroad because it captures political expression of people with small and independent voices, for whom registration may be a barrier. Without an exception for inexpensive expression the advantage of the public interest in the registration requirement does not overcome the infringement of freedom of expression, such that the legislation cannot be described as demonstrably justified in a free and democratic society.

This is an important case that will affect the way the organizations, particularly small organizations, are treated in the provincial election next year. While the court case affects only the provincial election legislation it is hard to imagine the government would not change the same provisions in local government election legislation if they lose the court case.

In the meantime, if you do happen to have that poster I mentioned earlier in your window, you might want to check in with Elections BC.

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