02/12/2013 04:13 EST | Updated 04/14/2013 05:12 EDT

B.C. Election Gag Law Fix Should Be In Throne Speech

The government had a clear opportunity to fix the gag on free political speech built into our province's Election Act last spring, when the act was being amended by the legislature. For reasons unknown, they chose not to.


Later today, the B.C. government will set out its legislative program for what remains of this legislature in the throne speech. Without question, that program should include a commitment to fix the gag on free political speech built into our province's Election Act.

Under the current act, any communication with the public that "... promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated" is considered "election advertising," even if it doesn't cost a cent.

And f 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, even for something as minor as putting a handwritten political sign in your window.

This is a serious legislative deficiency, and it's one that the government has known about for some time. The Freedom of Information and Privacy Association (FIPA) and others have been telling them this law is unconstitutional since before the last provincial election. In 2010, the chief electoral officer even highlighted it in his report to the legislature.

What's more, the government had a clear opportunity to fix this problem last spring, when the act was being amended by the legislature. For reasons unknown, they chose not to.

When FIPA's legal counsel, Sean Hern, wrote to ask them if they had any constitutional justification for this massive infringement on freedom of expression, or if they planned to fix the problem, they practically dared us to take them to court.

In late January, we took them up on their less-than-kind offer by filing a Charter challenge against them in B.C. Supreme Court. We are still waiting for their statement of defence.

Now, in addition to the pile of taxpayer money they must spend on lawyers for a court challenge that they insisted upon, they will be spending a million dollars to prepare for a Senate election, despite the fact that B.C. has no actual Senate election legislation to justify the expense.

Shirley Bond, B.C.'s attorney general, says she plans on bringing that legislation forward in the coming session, even though the federal government has referred the constitutionality of Senate elections in general to the Supreme Court of Canada. As part of that reference, the feds are asking the court specifically about the provincial election of Senators.

Yet according to a statement e-mailed to the Tyee by Bond, the province is pushing ahead with preparations for elections that would select possible senate candidates. "British Columbians should have real input into choosing the people who represent our province in the senate," she said.

Whatever your views on the election of senators, it would seem prudent to wait to hear what the highest court in the country has to say about the process before passing legislation to make it happen.

And whatever the democratic benefits of having an election for potential senators in this province, the amendment of a law that actually infringes on British Columbians' right to freedom of expression during an election campaign should be a higher priority.

Hopefully today's speech from the throne will correct this democratic deficit.