01/30/2013 12:56 EST | Updated 04/01/2013 05:12 EDT

B.C. privacy watchdog launches charter challenge of election advertising law

VANCOUVER - An independent privacy watchdog concerned that British Columbia's election laws violate freedom of political expression has mounted a legal challenge just months before a provincial election.

The B.C. Freedom of Information and Privacy Association filed a civil claim this week aimed at modifying rules around election advertising, so that any third-party who spends $500 or less is exempt from registering with Elections BC.

The organization argues section 228 of the Election Act is so broad it could potentially capture someone who posts a hand-drawn sign in their window, and its members fear it will create a chill effect by threatening violators with up to a year in jail and a maximum $10,000 fine.

Vincent Gogolek, the group's executive director, said the law should instead be written so it only captures deep-pocketed donors.

The goal should be to prevent those who might be trying to sway the election by dominating the public sphere with paid messages, he said.

"We don't want to prevent ordinary people from expressing themselves. We're after the big spenders, we're not after the little guy," Gogolek said.

The organization is encouraging the government to make moves now to adopt new regulations before the official election campaign period gets underway for the May election.

It points to the federal elections act and provinces including Ontario, New Brunswick and Nova Scotia which already permits advertising under $500 without registration. Alberta's laws exempt third-party advertising below $1000.

It also notes the province's chief electoral officer identified the same problems with the law in a 2010 report, and the B.C. Court of Appeal agreed last year during a related reference case.

Under both those circumstances, the government was not ordered to act.

The Appeal Court also refused the government's request to limit third-party spending in a 40-day lead up to the May 14 election. Freedom advocates hailed the decision at the time, which included a judgment that faulted the definition of election advertising as "overly broad."

Attorney General Shirley Bond responded to a request for comment with an email statement noting the requirement for election advertisers to register with Elections BC has been in place since 1996.

"These rules are not in place to prevent the average citizen from having his or her say. They provide for transparency so the public knows who is engaging in paid advertising around elections," she said.

The province is now in the process of considering its response and will not comment further while the challenge is before the courts, she added.

Gogolek said the organization was forced to go to court after B.C.'s attorney general advised the group to bring a charter challenge forward if it wanted to learn the reasons its law remains intact.

He believes voter engagement and turnout will be dampened if the current laws remain.

"You have a law that threatens people expressing themselves about political issues during an election campaign, threatening them with jail time. How does that encourage voting or engaging in the political process?" he said.

"The ideal solution is for the government to come to its senses and bring in legislation to fix this problem. This is not a radical concept."

A lawyer who represented the organization as an intervener in the B.C. Court of Appeal case is working this case pro bono.

The organization says in its statement of claim it plans to engage in public communication that could constitute election advertising under the current laws, including placing a hand-made sign in its office window.

The sign would point out the lack of records it believes is being released by the government in response to freedom of information requests.