British Columbia’s Freedom of Information and Privacy Association challenged section 239 of the provincial Election Act, which requires the “registration” of election “sponsors”; arguing that this requirement infringes the Charter right to freedom of expression.
The Supreme Court accepted that “political expression lies at the core of the Charter’s guarantee of free expression” and “limitations on such speech must be supported by a clear and convincing demonstration that they are necessary, do not go too far, and enhance more than harm the democratic process.” The Court ultimately upheld the law, but only on the basis that it could be construed narrowly so as not to apply to political expression of a purely personal nature (i.e. homemade signs, bumper stickers, etc.).
Despite the Supreme Court’s narrow reading of the legislation, Elections BC went on to issue arbitrary guidelines, insisting that citizens are prohibited from distributing political pamphlets to more than 25 people unless registered. This implies that an unregistered individual who sends 26 political emails during an election campaign, or even a single tweet read by 26 people, may also be risking prosecution for political speech.
Section 239 of BC’s Election Act remains a constitutionally questionable piece of legislation, the scope of which could easily come before the courts again.
Decided by the Supreme Court of Canada on January 26, 2017.
Click here for the full text of the decision.