Court strikes down B.C. gag law

(Victoria, 4 October 2012) – IntegrityBC applauds the B.C. Court of Appeal’s decision today in the B.C. government’s constitutional reference over its Election Act amendments regarding third party election advertising.

In May, the government sought the Court’s approval of restrictions on third party advertising in what the government euphemistically calls a “pre-campaign” period. Trying to diminish its significance even further, the government – before the Court – claimed: “that it is, at most, an additional 40 days every four years.”

However that argument and the broader issues surrounding the idea of a pre-campaign period were rejected by the Court.

“While God may have needed 40 days and 40 nights to cleanse the world, fortunately the Court concluded that the B.C. government didn’t,” said IntegrityBC executive Dermod Travis.

In its decision the Court stated: “While the breadth of the definition of election advertising does not impair the constitutionality of the limitations on political expression imposed by the current amendments in the campaign period, the same cannot be said for the same limitations the definition serves to impose in the pre-campaign period. The current amendments unjustly interfere with the rights guaranteed by s. 2(b) of the Charter to the extent the freedom of political expression is limited in the pre-campaign period.”

For IntegrityBC, the government’s reference was ultimately about the right of chambers of commerce, ratepayer associations, churches, homeless shelters, environmental organizations, Rotary Clubs and ordinary citizens to speak out on the future of their communities in a reasonable, equitable and constitutional manner.

The Court accepted the position of IntegrityBC and other Intervenors that the government’s amendments simply didn’t pass constitutional muster.

B.C.’s third party spending restrictions are among some of the most severe and ill-defined of any province.

It’s why IntegrityBC sought additional clarity from the Court on these restrictions, including the definition of what constitutes political advertising in a B.C. election campaign.

For instance, in B.C. the term encompasses “advertising that takes a position on an issue with which a political party or candidate is associated,” even though in Ontario the rule exempts such policy-based advertising. As well, the disparity in the size of electoral districts in B.C. is so great that the existing $3,000 riding limit in Stitkine is equivalent to 24.4 cents per voter, while in Comox Valley it’s only 6.3 cents per voter.

“Laws which govern one of the most fundamental rights in a democratic society, should never be drafted behind caucus doors and then tossed into a Miscellaneous Statues Amendment Act like a cheap suit,” said Travis. “British Columbians were never given the opportunity to help the government fashion an approach on these questions before the amendments were presented to the Legislature and British Columbians deserve better.”

It now falls on the government and the legislature to accept the Court’s decision and to consider its points regarding other aspects of the Election Act with the ultimate and urgent goal of reforming what amounts to a hodge-podge of often contradictory and ill-defined rules that govern elections in B.C.

In addition to IntegrityBC, Intervenors included Fair Voting BC, the B.C. Civil Liberties Association and the Freedom of Information and Privacy Association. The Amicus Curiae was Vancouver lawyer Mark Underhill. Respondents were Gloria Laurence and Garry Nixon.

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IntegrityBC is a non-partisan voice championing accountability and integrity in BC politics. By empowering British Columbians, IntegrityBC hopes to changes politics in BC and allow citizens to regain trust in our government.

For more information:
Dermod Travis
Executive Director, IntegrityBC
250-590-5126

Court of Appeal decision

IntegrityBC Factum

IntegrityBC Oral Statement

Resource Centre on reference