Alison Latimer of Underhill Boies Parker Gage & Latimer LLP, in Vancouver, who acted as lead counsel for the appellant, hailed the decision for providing clarity on election sponsorship.
Bumper stickers, sandwich boards, pamphlets and handmade window signs expressing views on potential political issues in British Columbia do not require their creators or holders to register with British Columbia’s chief electoral officer under that province’s Election Act, the Supreme Court of Canada ruled today; however, “sponsors” of election advertising are required to register, no matter how little they may have spent on the advertising.
At issue in the case was the registration requirement that s. 239 of B.C.’s Election Act imposes on sponsors of election advertising. In 2009 and 2013, the B.C. Freedom of Information and Privacy Association sponsored election advertising, and was therefore subject to the registration requirement. The Association sought a declaration that the registration requirement, to the extent that it applied to sponsors of election advertising who spend less than $500 in a given campaign period.
In dismissing the appeal in B.C. Freedom of Information and Privacy Association v. Attorney General of British Columbia, the Supreme Court found that although the imposed registration requirement did limit sponsors’ right of expression as guaranteed by s. 2 of the Charter, the limit was justified under s. 1 and “the scope of the infringement is minimal.”
Writing for the court, Chief Justice Beverley McLachlin also found that “the [Election] Act does not catch small-scale election advertising” such as homemade window signs, bumper stickers or T-shirts with political slogans on them.
“By confining the registration requirement to sponsors and exempting individual political self-expression by persons who are not sponsors, s. 239 tailors the impingement on expression to what is required by the object of the Act,” the chief justice wrote, with Justices Michael Moldaver, Andromache Karakatsanis, Richard Wagner, Clément Gascon, Suzanne Côté and Russell Brown concurring.
Alison Latimer of Underhill, Boies Parker, Gage & Latimer LLP in Vancouver, who acted as lead counsel for the appellant, hailed the decision for providing clarity on election sponsorship.
“The chief electoral officer in B.C. has always said that [the requirements of] this Act applies to anyone expressing personal views,” Latimer told Legal Feeds; “the lower courts agreed. The Supreme Court ruled today that the law does not capture those activities. Individuals … can express their own views without registering” with B.C.’s chief electoral officer during an elections campaign.
“So, from our perspective, this is a really positive development for free speech in B.C., because it's a much narrower interpretation of the Act.”
Latimer also notes that this case turned in part on the concept of “sponsorship” of election advertising that exists in British Columbia.
Chief Justice McLachlin noted that Parliament had selected a quantitative threshold under the Canada Elections Act, while B.C. had opted for a qualitative one. Under the federal legislation, only third parties who incur election advertising expenses of a total amount of $500 must register, while in B.C. only third parties who “sponsor election advertising” need register.
“Each threshold is low, but each permits small-scale individual election advertising without registration,” she wrote.
Rob De Luca, staff lawyer for the Canadian Civil Liberties Association, an intervener in the case, suggests that privacy concerns remain from this decision. “The [B.C.] registration provision includes ‘sponsors’ who either pay for election advertising services or receive some benefit without paying for it,” he says. This might include someone who receives a number of hats with a political slogan on them, or someone who pays someone else to deliver flyers in their neighbourhood. As “sponsors,” these individuals might wish to remain anonymous, but would still be required to disclose their name and contact information to the chief electoral officer.
Individuals would then have the choice to either sponsor and publicly register their support for an issue, or not sponsor in order to maintain their anonymity, De Luca said.
In a published statement, the respondent Attorney General of British Columbia, Suzanne Anton, said:
“Today, the Supreme Court of Canada affirmed Election Act provisions requiring third-party sponsors of election advertising to register with the Chief Electoral Officer. … The Court accepted the Province’s position that the law is limited to sponsors who pay others for election advertising services or receive services free of charge as a contribution, and that it does not apply to those who wear political t-shirts, put up homemade signs, or other similar expression. …
“Our government believes that the B.C. electoral process should be fair, transparent and accountable – and this provision does just that.”