October 22, 2012
Industry reacts to B.C. election gag law decision
Unions and a civil liberties group are applauding a decision by a B.C. court to reject an attempt by the provincial Liberal Party to limit political advertising before the next election in May 2013, but the local open shop contractors association is disappointed by the ruling.
“The legislation was a partisan attempt by a governing party to limit the success of the opposition. In a democratic society, people have the right to express their opinion,” said Tom Sigurdson, executive director of the British Columbia Yukon Territory Building Construction Trades Council.
“The Campbell/Clark government has tried to gag the opposition from proposing their political agenda. They love democracy when it works for them, but they are not so fond of it, when people freely express opinions that influence how other people vote.”
Earlier this month, the B.C. Court of Appeal struck down Liberal government legislation to limit pre-election advertising by third parties. It said the laws were unconstitutional and violated freedom-of-expression guarantees.
“They (the current amendments) fail to meet the requisite criteria to be constitutionally sound in the main for the same reason the 2008 amendments were held to be constitutionally flawed,” said Justice Peter Lowry in the judgment.
“The definition of election advertising is overly broad. It captures virtually all political expression regardless of whether such is intended to influence the election, and, as explained, all individuals and organizations are affected even if their election advertising is voluntary.”
In addition, Justice Lowry said there is no clear and compelling reason to conclude the limitations on election advertising, and hence the freedom of political expression to preserve election fairness, in the campaign period are equally necessary in the pre-campaign period.
“This is an important day for democracy in British Columbia. Another attempt to stifle political speech, particularly from individuals and groups likely to oppose government policy, has been thwarted,” said Robert Holmes, counsel for the B.C. Civil Liberties Association in this case and past president of the organization.
“The court’s holding that the amendments pushed through the Legislature last spring are an unjust interference with the rights and freedoms of British Columbians should be taken to heart not just by this government, but by all politicians.”
The ruling by Judge Lowry concluded that current amendments are almost identical to the 2008 legislation that placed limits on third-party spending.
The essential difference is that the amended legislation would be applied to a 40-day pre-campaign period, as well as the 28-day campaign period.
In sharp contrast, the president of the Independent Contractors and Businesses Association is disappointed with the ruling.
“What we supported in this case were the intervenors, who wanted to limit spending on political advertising because union members have no control over how unions spend money,” said Philip Hochstein.
“Unions have unlimited resources, which they get from mandatory union dues. Members don’t have any ability to opt out.”
Justice Lowry spoke to this argument and said this view was not relevant to his analysis in the case and it had already been addressed in previous court decisions.
The ruling by the B.C. Court of Appeal marked the third time in three years that the Liberal government’s efforts to limit third-party advertising in the pre-election period have been rejected in provincial court.
The Liberal government passed Bill 42 in 2008, which imposed a spending limit of $150,000 on third-parties for the 28 days of the election campaign, as well as the 60 days preceding the start of the election campaign.
On the final day of the 2008 session, the Liberal’s used their majority in the provincial legislature to pass the bill through the house in five minutes.
Seven unions launched a legal challenge in B.C. Supreme Court, which argued the Liberal government was using Bill 42 to silence critics and control the airwaves for months before an election.
On the eve of the 2009 election, Supreme Court of B.C. Justice Frank Cole ruled that Bill 42 was unconstitutional and violated freedom-of-expression guarantees.
Next, the B.C. Court of Appeal quashed the Liberal government’s last minute attempt to stop third-party advertising in the period before an election.
In this case, Justice Lowry refused to grant a stay that would have suspended the initial B.C. Supreme Court’s judgment, just days before the writ was dropped on April 14, 2009.
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