Supreme court | Public Law
Elections
Advertising
Election Act (B.C.) registration requirement should be imposed only on those paying for advertising services or receiving services
Section 239 of BC’s Election Act (Act) required everyone sponsoring election advertising during campaign to register with province’s Chief Electoral Officer (CEO), regardless of amount spent during writ period. 2010 Report of CEO did not distinguish between sponsors conducting full media campaigns and individuals engaged in such activities as putting bumper stickers on cars, posting handwritten signs in windows, or wearing T-shirts with political messages (individuals). Non-profit association brought unsuccessful application for declaration that registration requirement in respect of sponsors of election advertising spending less than $500 in given campaign period infringed s. 2(b) of Canadian Charter of Rights and Freedoms, was not saved by s. 1, was of no force and effect, and should be read down to include exception for individuals. Trial judge and majority of Court of Appeal found that s. 239 infringed s. 2(b), but that infringement was justified under s. 1. BC Attorney General (A-G) took position that s. 239 did not force individuals to register. Association appealed. Appeal dismissed. Individuals who neither paid others to advertise nor received advertising services without charge were not “sponsors” and could transmit their own points of view by posting handmade signs in windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them, without registering under Act. Act was consistent with position taken by A-G. Courts below did not determine scope and nature of limitation on free expression imposed by s. 239 but accepted CEO’s interpretation as including individuals in definition of “sponsor”. When words of s. 239 were read in entire context and in grammatical and ordinary sense harmoniously with scheme of Act, object of Act, and intention of Parliament, it was clear that provision was directed only at those undertaking organized advertising campaigns who paid for advertising services or received those services without charge as contribution. While definition of “election advertising” in s. 228 was broad enough to cover expressions by individuals, ordinary meaning of “sponsor” was not. Act defined “sponsor” as “individual or organization who pays for election advertising to be conducted”. Interpreting s. 239 as imposing registration requirement only on those who pay for advertising services or receive services from others in undertaking election advertising campaigns was consistent with purpose of Act, intention of legislature, and legislative history.
B.C. Freedom of Information and Privacy Assn. v. British Columbia (Attorney General) (2017), 2017 CarswellBC 161, 2017 CarswellBC 162, 2017 SCC 6, 2017 CSC 6, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1035, 2015 BCCA 172, Newbury J.A., Saunders J.A., and Lowry J.A. (B.C. C.A.).
