01/29/2014 02:22 EST | Updated 03/31/2014 05:59 EDT

Transit Referendum Should Be Delayed To Avoid Cluster Fiasco

B.C. Premier Christy Clark is thinking about not holding a referendum on Lower Mainland transit funding in conjunction with this November's municipal elections.

In additional to the policy and political reasons for putting off the vote, there is also the potential problem with the spending restrictions governing municipal elections and referendums; if the referendum was held at the same time as the municipal election, there is a real risk that people exercising their freedom of speech on one would be subject to severe penalties under the other.

This is because the B.C. government has imposed draconian penalties (a year in jail, $10,000 fines) for those they define as "election advertising sponsors" in provincial election law. The definition is so broad that anything said by anyone, 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.

However the rules for each referendum held under the Referendum Act are set by regulation by the province. Those rules include items on who is eligible to vote, timing but also spending limits for third party "advertisers."

Since municipal politicians will have to say something about the transit referendum issue, there would almost inevitably be confusion over which spending limits apply to what forms of expression by third parties, and probably also those running for office.

The B.C. Freedom of Information and Privacy Association (FIPA) brought a constitutional challenge to the "third party advertising" part of the Election Act, which was heard in November last year, and we are awaiting the judge's decision.

The B.C. government, in the meantime, has apparently decided to double down on this approach for municipal elections: a draft of the government's Local Elections Campaign Financing Act, includes third party spending provisions similar to those in the provincial Election Act. No such provisions are in the current municipal election laws.

A consultation on the proposed legislation was held last year by Minister of Community, Sport and Cultural Development Coralee Oakes, who plans to introduce the act when the legislature is back in session.

This comes despite the government's own advisory committee stating that it might be advisable to include only "advertising" above a certain cost threshold.

We took the opportunity to remind them of that recommendation, and provided them with a copy of our legal challenge documents to the provincial Election Act.

Interestingly, despite the B.C. FIPA and several others raising these problems, the government merely noted that:

"The Ministry recognizes that the mandatory registration provisions of the Election Act, on which LECFA's proposed provisions are modelled, are presently subject to a challenge before the courts."

So the government recognizes that there is a serious question about the constitutionality of the law it is proposing enacting, but intends to press on regardless.

Premier Clark may well be saving herself and all of us from an even bigger mess by shelving the transit referendum until after the municipal elections, especially if these new restrictions govern the election campaign.

So perhaps it would be for the best to follow the premier's suggestion to put off the referendum and avoid a cluster fiasco this November.