This has to be one of the strangest election stories in recent times.
It all started with the B.C. government's 2008 attempt to expand the reach of its gag law restricting third party political advertising beyond the election period. That plan was promptly shot down by the courts.
Undeterred, the Liberals put the law back on the hoist at the legislative garage. After some adjustments, the government referred it directly to the B.C. Court of Appeal for their opinion. Last week, the Court of Appeal ruled once again that the amendments are unconstitutional, and urged the government to knock off the attempts to limit freedom of expression. The government says it will not appeal the decision.
The truly strange part is that at no point in this comedy of errors did the government try to fix another major problem with B.C.'s Election Act. Unlike federal or other provincial election laws, British Columbia's law fails to define a bottom spending limit in the registration requirements for third party advertisers. This means that anything said by anyone (except in very limited circumstances), if it is at all related to a party or candidate participating in the election, is considered to be "election advertising" -- even if not a single penny is spent communicating the message.
As the B.C. Court of Appeal described it in their judgment last week:
"Further, and more significantly, s. 239 prohibits third-party sponsoring of any election advertising unless the third party has first registered. There is no minimum amount that may be spent without registration. In the result, in both the pre-campaign and campaign periods, individuals and organizations must formally register before engaging in any form of election advertising however minimal"(pp.10-11).
This requirement -- that anybody exercising their right to freedom of expression during an election must first register with Elections BC or face jail -- must go. In fact, with all the legal jostling around the act over the last few years, it's a mystery to us why it hasn't already been scrapped.
The B.C. government knew about this problem before the last election, and in 2010, the chief electoral officer highlighted it in his report to the legislature.
A 2010 report by the Canadian Centre for Policy Alternatives (co-published by Freedom of Information and Privacy Association and the B.C. Civil Liberties Association) entitled Election Chill Effect, found that these faulty advertising rules caused extensive problems for small spenders such as non-profit and charity groups during the 2009 provincial election.
The rules led to widespread confusion, wasted resources, anxiety and, most dangerously, self-censorship among organizations that spent little or nothing on election advertising.
The government should have (and could have) fixed this situation when it was amending the law this spring, but chose not to. It seems they're just fine dangling jail time over the heads of British Columbians who have the nerve to act on their constitutionally protected rights.
Perhaps it all has something to do with the possibility of an upcoming Senate election, an occasion that Elections BC recently received $1 million to prepare for.
Or maybe they just want to go back to court again -- third time's the charm?