In the Wild West of B.C. politics, free expression comes with tight rules

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British Columbia's political fundraising season is now in high gear, as New Democrats and Liberals alike hit up their friends and allies to help pay for the election campaign, which begins in April. Both Premier Christy Clark and Opposition Leader John Horgan shrug off criticism for starring in high-priced, private fundraisers – intent as they are on raising as much cash as they can to pay for the best advertising campaigns that money can buy.

But for third parties who have something to say about the election – unions, corporations, NGOs and individuals – the rules are different. While Ontario and Alberta lead campaign-finance reform, B.C. increasingly looks like the Wild West.

However, this province is the only one in Canada that requires people or groups to register to engage in election advertising, no matter how small a statement they make. Election advertising, under B.C. law, is so broad in its definition that it includes making a lawn sign with cardboard and crayons.

The Supreme Court of Canada is expected to decide before the next provincial election if those restrictions are unconstitutional.

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The Charter case has been pursued up to the highest court in the land by British Columbia's Freedom of Information and Privacy Association. The non-profit organization spent less than $500 during the 2013 election to raise issues of concern, but still was required to register with Elections BC, with forms signed by a lawyer, in order to avoid the risk of fines or even jail time.

"Right now, it's a ban on unregistered speech," Vincent Gogolek, FIPA's executive director, said in an interview.

"The government's rationale is to prevent large spenders from chewing up all the oxygen during a campaign. You can agree with that or not, but what doesn't make any sense is why you would have such draconian measures for people who spend little or even zero dollars."

For large unions and business organizations, the paperwork is a minor matter. In its court filing, FIPA argued that the rules restrict spontaneous or unplanned political expression at a critical time in the democratic process: "Prohibitions includes the display of even home-made signs created at low or no expense in windows and bumper stickers. It captures even the smallest expense; the signs of the small voices, lone voices and independent voices are forbidden during election campaigns unless the person has registered."

Elections BC, an independent office of the legislature, has to work with the laws that are written by government. But the Chief Electoral Officer has urged legislators to lessen the burden. "Election advertising rules do not distinguish between those sponsors conducting full media campaigns and individuals who post handwritten signs in their apartment windows," Harry Neufeld wrote in a 2010 report. He noted that the Canada Elections Act only requires registration by those who sponsor election advertising with a value of $500 or more. "Having a consistent threshold would prevent the considerable confusion and administrative burden that currently exists."

It was only as the court challenge approached the steps of the Supreme Court of Canada this year that the message seemed to have an effect. No matter what the court decides, the rules will be less onerous in 2017 than they were during the 2009 and 2013 elections.

In August, Elections BC wrote to Mr. Gogolek to announce a "recent interpretation" of the law, which will allow people to use social media to comment on election matters without fear of running afoul of the law, so long as there is no promotional cost.

In September – six weeks before the oral hearing at the Supreme Court – the registration requirements were watered down, allowing Minister of Justice Suzanne Anton to say that the paperwork is really no burden at all.

"The Election Act requirement that those who pay for third-party election advertising register with the Chief Electoral Officer ensures transparency in B.C.'s electoral process, by letting voters know who is trying to persuade and influence them," Ms. Anton said in a written statement on Friday. "Registering with the Chief Electoral Officer is not onerous, it can be done online in a couple of minutes, and it doesn't cost anything."

Mr. Gogolek, whose small organization has led this challenge through years of court battles, wasn't impressed with the last-minute changes.

"It's funny that they decided to change these requirements just before they had to justify the law in the Supreme Court of Canada, but I'm not laughing. The government should have amended the law years ago."

It is still something of a victory for the small voices, no matter the final outcome of the courts.