- Posted: May 10, 2021
- Non-IA Decisions of Interest
The Lieutenant Governor in Council of British Columbia referred to the British Columbia Court of Appeal (“the Court”) a question in respect of the constitutionality of amendments to provincial legislation that sought to limit the amount of money third parties may spend on what is defined as election advertising both before and after the commencement of the campaign period.
The Miscellaneous Statutes Amendment Act (No. 2), 2012 amended the BC Election Act by introducing an amended definition of “election advertising” and a new definition of “pre-campaign period”. Similar amendments had been introduced in 2008 and found to be unconstitutional in British Columbia Teachers’ Federation v British Columbia (Attorney General), 2009 BCSC 436, aff’d 2011 BCCA 408 (“BCTF”). The main difference between the 2012 amendments and those introduced in 2008 was with respect to the duration of “pre-campaign” limitations: 60-days under the 2008 amendments compared to 40 days under the 2012 amendments.
Specifically what was at issue was whether the proposed legislated violated Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) which guarantees freedom of expression. Political expression is at the core of the expression protected by the Charter and, generally, interference with this freedom is justifiable only where there are clear and compelling reasons. The Court held that by limiting the freedom of political expression in the pre-campaign period, the amendments interfered with the rights guaranteed by s. 2(b) of the Charter.
As a result of the Court’s finding with respect to s. 2(b), the Court undertook to determine whether or not the limitation on the freedom of expression was justified under Section 1 of the Charter. Further, the amendments in respect of the pre-campaign period were not demonstrably justified, as required by s. 1 of the Charter. The Court accepted that the amendments to the Election Act were directed toward a pressing objective (election fairness) and were rationally connected to their objective. However, the Court held that they did not minimally impair the freedom of political expression as the new definition of “election advertising” was overly broad and captured a seemingly limitless range of activities in which the government may be engaged. By including “an advertising message that takes a position on an issue with which a registered political party or candidate is associated,” the definition of election advertising appeared to capture any public communication on government action and any issue that may be the subject of political expression. Further, no clear and compelling evidence was presented to prove that the limitations on election advertising were equally necessary to the preservation of fairness in the campaign and pre-campaign periods. Therefore, the Court held that the amendments to the Election Act were not justified under Section 1 of the Charter.
As are result, the Court held that the amendments to the Election Act governing advertising of a political nature by entities other than political parties and candidates before the commencement of an election campaign violated s. 2(b) of the Charter, were not demonstrable justifications as required by s. 1 of the Charter and therefore were unconstitutional.