The following post is written by Colin Feasby, one of Canada’s top legal experts on campaign finance regulation:

British Columbia Teachers’ Federation et al v. British Columbia (A.G.,) 2009 BCSC 436.
Many observers were of the view that the question of third party election spending limits had been settled by the Supreme Court of Canada in Harper v. Canada, 2004 SCC 33. The Court held there that in the federal context third party spending limits were justified on egalitarian grounds and that the Court would defer to Parliament and not second guess the specific limits.
The BCTF and several other unions challenged British Columbia’s provincial campaign finance law restricting third party expenditures. The law restricted expenditures during the campaign period (28 days prior to voting) and the 60 days prior to the campaign period.
The Court observed that BC’s adoption of fixed date elections correlated with an increase in third party expenditures from 12% (2001 election) of political party expenditures to 120% (2005 election). The Court went on to observe that the third party expenditures were mostly made by unions and their advertising can be seen to mostly favour the position of the social democratic party, the NDP. The Court, however, declined to infer that the Liberal Government was in a conflict of interest or acted in bad faith in adopting the third party spending limits.
The Attorney General acknowledged that the restrictions violated s. 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”) which protects freedom of expression. Accordingly, the question for the court was whether the restrictions were justified and proportional. The Court followed Harper in finding that the legislative objective was pressing and substantial and that the means chosen were rationally connected to the objective.
The plaintiffs attacked the spending limits which were the same dollar value as the federal limits in Harper ($3,000 per district and in $150,000 aggregate). The plaintiffs led evidence showing that even modest advertising in print and broadcast media cost far more than the spending limits. The Attorney General countered by citing almost costless campaigning on the internet (Web 2.0 — Facebook, Twitter, etc.) as being permitted and sufficient. The Court agreed with the Attorney General and held that the spending limits allowed for a reasonable informational campaign.
The Court departed from Harper on the question of overbreadth. The Supreme Court in Harper held that the law was not overbroad because third parties could advertise on issues not associated with political parties and candidates. The B.C. Court observed that the Supreme Court’s view “does not accord with the reality of election advertising in this province. Practically speaking, it is not readily apparent when an issue is not associated with a candidate or political party.” The Court went on to review the Liberal Party platform and concluded that “it is difficult to conceive of an issue that is not associated with the Liberal Party.” The Court further noted that the Chief Electoral Officer’s discretion to determine what was or was not election advertising was not “prescribed by law” and, accordingly, not an answer to overbreadth.
The Court went on to find that the extension of third party spending limits to the pre-campaign period was overbroad. During the 60 day pre-campaign period the Legislature was in session and important public business was done, including the Throne Speech and Provincial Budget. Third parties should be able to express their views on these important political events. The Court held, “[t]o curtail the ability of third parties to engage in political speech at that crucial time in the absence of any evidentiary or logical basis as to why it is necessary to do so is not a minimal impairment of freedom of expression.”
The Attorney General has appealed and sought a stay given that there is presently an election underway in BC. The stay was denied and the third party spending restrictions are not in force during the current election (2009 BCCA 156: http://www.courts.gov.bc.ca/jdb-txt/CA/09/01/2009BCCA0156.htm). If the Liberals win the election, it can be expected that either the appeal will proceed or new third party spending limits will be introduced. If this case proceeds, it should be of interest to the Supreme Court of Canada as it tests some of the soft spots in the Harper decision.