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B.C. Byelection Rules Restrict Freedom Of Expression

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CANADA VOTE
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Unbeknownst to many, a gag was put on free expression across British Columbia.

When the B.C. government called the long-awaited byelections in the districts of Vancouver-Mount Pleasant and Coquitlam-Burke Mountain, public communication about many of the important issues facing the province suddenly became "election advertising."

Until both byelections are concluded on February 2, public communications about any issue even indirectly related to one "with which a registered political party or candidate is associated" are considered advertising by B.C.'s Election Act -- even if the communication takes place elsewhere in the province, even if no money was spent and even if the communication began before the elections were called.

Under the B.C. Election Act, ordinary citizens, community groups and other organizations big and small must register as "election advertising sponsors" in order to publicly display any communication that "...promotes or opposes, directly or indirectly, a registered political party or the election of a candidate," including messages that take "a position on an issue with which a registered political party or candidate is associated."

If you neglect to register with Elections B.C. before engaging in these acts of so-called advertising, you could be looking at a year in jail and/or a $10,000 fine for something as minor as putting a handwritten political sign in your window or making a public post on Facebook.

Things get a bit more confusing during byelections. An individual inside one of the two ridings who put up a sign in their window without registering would be violating the law. However, the same sign in a window in Fort St. John would be just fine.

"The risk of ugly consequences for violating this provision is more than a theoretical possibility."

However, because electronic communication like social media or a website can be seen by potential byelection voters, Elections B.C. has stated that any electronic communication produced jointly by two or more people anywhere in the province could require registration. Clear as mud?

The risk of ugly consequences for violating this provision is more than a theoretical possibility. In 2012, for example, the B.C. Government Employees Union (BCGEU) was running a province-wide television advertising campaign when the provincial government called a byelection. They found themselves unable to stop to the ads quickly enough, and were handed a $3.2-million dollar fine by Elections B.C. for exceeding the third-party advertising limits.

The BCGEU did successfully appeal the fine by convincing a judge that they had done everything possible to stop their previously legal campaign as soon as the byelection was called, but this remains a cautionary tale for organizations big and small.

B.C. courts have already found that these provisions of the Election Act, which amount to a ban on unregistered free expression, infringe the Charter right to free expression -- but they have so far refused to force the government to change the law.

B.C. FIPA has been fighting against this law for several years, and our constitutional challenge will be heard by the Supreme Court of Canada later this year.

Unfortunately the high court won't be able to rule before the end of these two byelections, but we hope they will overturn this unjust and unconstitutional law before the next provincial general election takes place in 2017.

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