Proponents of restricting political advertising expenses beyond the official campaign period are faced with overcoming a difficult constitutional issue: can such limits on freedom of expression be justified by section 1 of the Charter?
Pursuant to section 1 of the Charter, the rights and freedoms contained in the Charter (including freedom of expression) can be restricted by “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The issue of whether limitations on political advertising prior to a campaign period are constitutional have been before the BC Court of Appeal twice, with each decision turning on the question of whether the limits on third party election advertising minimally impairs the right to freedom of expression.
In BC, third parties election advertising expenses during a campaign are limited to $150,000 in total, with a $3000 limit for specific electoral districts (plus an inflation factor).
The first attempt by the BC Government to address this issue was to extend the limits on third party election advertising expenses into a 60-day pre-campaign period. This extension was held to be unconstitutional in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 (CanLII). This ruling focused on the fact that these limits could apply while the BC legislature was in session, limiting the ability of third parties from expressing their views on matters of public policy.
After the 60-day pre-campaign period was held to be unconstitutional, the BC government tried again by amending the 60-day period to a shorter period that would not overlap with a session of the legislature. The BC Court of Appeal held again that this limit on third party election advertising was unconstitutional: Reference re Election Act (BC), 2012 BCCA 394 (CanLII). This time the Court focused on the inclusion of “issue advertising” in the definition of election advertising that was being restricted. According to the Court, “The definition of election advertising is overly broad. It captures virtually all political expression regardless of whether such is intended to influence the election”.
In these two decisions the BC Court of Appeal never really addressed the question of how the exact amount of the expense limit (which is the part of the measure that restricts expression) failed to meet the minimum impairment test. In addition, the Court made no effort to interpret in any depth how “issue advertising” was captured in the definition of election advertising; this is a far more complex and nuanced issue from how the Court considered it.
While the judgments of the BC Court of Appeal can be criticized, and circumstances can change in the years since these decisions, these judgments still represent the constitutional challenges that any limit on third party election advertising outside of a campaign period must overcome. Whether it is a change in the definition of election advertising, higher limits, or just more evidence of the harm caused by dark money, more will be required for these limits to pass a constitutional challenge, at least in the BC Court of Appeal.