The Supreme Court of Canada has upheld a B.C. election law requiring all who sponsor advertising to put their names on a public registry, even if they spend little to no money.
Critics said the B.C. Election Act muzzles the poor by requiring that all third-party sponsors of election advertising register with the chief electoral officer, who documents their names and addresses in a permanent public record. Even individuals with a simple handmade sign in their window would need to register, under the chief electoral officer's interpretation.
The B.C. Freedom of Information and Privacy Association, a non-profit group that challenged the law, said that interpretation would cast a chill on the expression of political views. It said registration should start when anyone spends $500 on advertising, a threshold found in a federal election law.
But the Supreme Court rejected the challenge by a count of 7-0, saying the chief electoral officer was mistaken and that the law leaves homemade signs and individuals speaking out on their own behalf alone. The law is "directed only at those who undertake organized advertising campaigns – that is, 'sponsors' who either pay for advertising services or who receive those services without charge as a contribution. In no case does the registration requirement apply to those engaged in individual self-expression," Chief Justice Beverley McLachlin wrote for the court.
She said the law's purpose is to ensure the public knows who is behind advertising during elections, to promote informed voting. "It was intended to require individuals and organizations who 'conduct parallel advertising campaigns' – and who can be described as 'forces' that 'influence' provincial elections – to register, so the public knows who they are," Chief Justice McLachlin wrote. She said the law's benefits outweigh the harms, which she said would be felt by very few. It is therefore a reasonable limit on the constitutional right to free expression, she said.
Laura Track, a lawyer with the B.C. Civil Liberties Association, which intervened in the case to say the law requires a $500 threshold to be lawful under the constitution, said the ruling "is an affirmation of freedom of speech for individuals engaged in political expression and debate." But she said the group remains concerned that small community groups may self-censor because of the requirement to register.
The election law is under a spotlight as voters head to the polls on May 9 in the province's 41st general election. British Columbia will not make any changes to the rules around third-party advertising as a result of the court ruling, Justice Minister Suzanne Anton said in an interview. But she may introduce legislation this spring to ensure greater transparency around party fundraising activities.
"This has never been about t-shirts, bumpers stickers, or signs in windows saying you love or hate a particular candidate. This is about paid advertising and the public's ability to know who is paying," she said. "There is no reason why anyone should feel stifled."
Transparency is the government's refrain when it comes to party fundraising as well. Faced with criticism around cash-for-access fundraisers and big-money influence in politics, the governing B.C. Liberal party has started releasing some details of its political contributions in "real time."
Now, Ms. Anton said, changes to provide more frequent disclosure of campaign contributions could become law. The proposal falls short of demands for a ban on corporate and union donations, a measure proposed by both the opposition New Democrat Party and the B.C. Greens. This month, Premier Christy Clark abandoned her annual $50,000 stipend from her party, saying media coverage of the payments had become a "distraction."
Two lower courts had also upheld the constitutionality of the law, but both had accepted the chief electoral officer's interpretation and failed to recognize the law's narrow scope, the Supreme Court said.