Don’t Try Again

The BC Court of Appeal recently delivered an important decision in the area of election law. The case, Reference Re Election Act (BC), 2012 BCCA 394, is the Court’s take on the provincial legislature’s attempt to respond to the Court’s earlier judgment in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408, which struck down the spending limits the legislature had imposed on so-called “third parties” for a “pre-campaign period” preceding general election campaigns.

Before the 2009 election, British Columbia did not limit the expenditures that “third parties”―that is, everyone except candidates and political parties―could incur during election campaigns. For that election, however, it imposed a limit of $150,000 on expenditures incurred not only during the official campaign period, but also during the 60-day “pre-campaign period” immediately preceding it. (Unlike at the federal level, in B.C. elections are held on fixed dates, so the timing of such a period is known in advance. Indeed fixed-date elections were the reason for the introduction of this restrictions―the legislature feared, apparently, that third parties would overwhelm the voters with their advertising in advance of an election, to compensate for their inability to do so during the actual election campaign.)

Trade unions―the main victims of third-party spending restrictions in Canada, as I pointed out here―challenged these restrictions in Teachers’ Federation, and succeeded. The Court held that although the Supreme Court had upheld restrictions on third-party spending during a campaign period in Harper v. Canada (Attorney-General), 2004 SCC 33, [2004] 1 S.C.R. 827, the rationale of that decision could not be stretched to extend to a pre-campaign period, resulting in restrictions on political speech well beyond those held to be justifiable in Harper. For example, said the Court, these restrictions could apply to discussions of legislative debates if the legislature were sitting during the pre-campaign period.

Seizing on that example, the B.C. legislature sought to remedy the constitutional defect identified by the Court of Appeal by enacting amendments to third-party spending limits shortening the pre-campaign period to 40 days, and excluding from it any time within 21 days of the end of a sitting of the legislature. In other words, “the pre-campaign period may then be as long as 40 days or, depending on the length of a legislative sitting prior to an election, no time at all.  The limitations may apply from 28 to 68 days varying from one election to the next.” (Par. 18) These amendments were not proclaimed into force; rather the government decided to assure itself of their constitutionality by referring the question to the Court of Appeal.

It did well, because the Court was not impressed by the amendments. In a fairly brief decision, it pointed out that the issue was not whether the amendments were less restrictive than the rules struck down in Teachers’ Federation, but whether they were minimally impairing of freedom of expression, as required by s. 1 of the the Canadian Charter of Rights and Freedoms as interpreted by the Supreme Court: “[i]nterfering with the freedom of political expression must then be justifiable only where there are the clearest and most compelling reasons for doing so.” (Par. 25) This they were not, said the Court. The real problem identified by both the trial and the appellate judgments in Teachers’ Federation was that restrictions on third-party advertisements during the pre-campaign period were over-broad, because they applied to all sorts of communications, including those on issues not directly implicated in the election campaign. And so,

[g]iven that, insofar as they limit political expression in the pre-campaign period, this Court has held the [rules struck down in Teachers’ Federation] to be constitutionally invalid principally because of the overbreadth of the definition of election advertising, it is difficult to see on what basis the current amendments could be said to be constitutionally sound in respect to the same period when they contain essentially the same definition. (Par. 37)

The Court also observed that Harper did not resolve, or even address, the issue for the pre-campaign period, and the restrictions acceptable during the actual campaign are not so before. The government adduced no evidence to show that restrictions on third-party spending are necessary during the pre-campaign period, and so the amendments are not minimally impairing of freedom of expression, and are thus unconstitutional.

Although I am very skeptical of limits on third party spending, as I have already suggested on this blog, I suspect that this is a somewhat wilful, or at least wishful, interpretation of Harper. That case was decided in the context where the election date was not fixed, and, unlike the BC Court of Appeal, I think that its rationale can easily be stretched to apply to the pre-campaign period in that context. It is an unsound rationale, but that is a different matter. And in Harper, the majority did not care much for evidence of the necessity of spending limits. “Common sense” inferences were enough for it. Although the Court here pays lip service to that reasoning, I do not think it follows its spirit. Here too, it is a bad spirit, but it constitutes, until proof of the contrary, the Supreme Court’s position. I wonder if the BC government intends to appeal.