October 4, 2012
The BC Court of Appeal today has ruled that it’s unconstitutional for the provincial government to impose limits on freedom of political expression prior to an election campaign period.
After its controversial 2008 “gag law” was ruled unconstitutional, the government redrafted its amendments to the Election Act and asked the Appeal Court to rule in advance of bringing them into law. The issue was whether limitations on freedom of political expression before the election campaign period are reasonable and “demonstrably justified in a free and democratic society” as required by the Charter of Rights and Freedoms.
The court, once again, found that the proposed amendments “are not shown to be demonstrably justified in respect of the defined pre-campaign period: they do not minimally impair the freedom of political expression.”
BCTF President Susan Lambert welcomed the court ruling. She said: “This is the third time that this government has tried to limit the rights of British Columbians to publicly express their concerns and opinions in the days and weeks leading up to an election. It’s time the BC Liberals acknowledged that spirited political debate is fundamental to the democratic process, especially at election time.”
In 2008, the provincial government brought in amendments to the Election Act which set limits on the amount of money third parties could spend on election advertising; expanded the definition of “election advertising”; and required third parties to register in order to engage in election advertising. It imposed spending limits for 60 days prior to the 28-day campaign period, resulting in an 88-day period when debate could be stifled. The BCTF and other public sector unions challenged the amendments, noting that they would limit free expression even when the Legislature was sitting, including during the Throne Speech and the provincial budget. These 2008 amendments were found to be unconstitutional.
The new amendments reduced the pre-election period to 40 days from 60, but essentially retained the same restrictions. Once again, the court has found these amendments to be unconstitutional restrictions on freedom of expression.
Neither federal legislation, nor any other provincial jurisdiction, has limits on election advertising prior to the writ being dropped.