A Supreme Court of Canada decision that upheld a registration requirement for those sponsoring election advertising in British Columbia could be important for other provinces, says University of Ottawa assistant law professor Michael Pal.
A Supreme Court of Canada decision that upheld a registration requirement for those sponsoring election advertising in British Columbia could be important for other provinces, says University of Ottawa assistant law professor Michael Pal.
The 2017 SCC decision in B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General) could be particularly important in a social media age, Pal told a constitutional cases conference organized by the Osgoode Hall Law School in Toronto April 6.
In B.C. Freedom of Information and Privacy Association, the SCC dismissed an appeal that argued a registration requirement for parties who spent less than $500 on election advertising during a campaign period was an infringement of s. 2 of the Charter.
That section states each Canadian has a right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
The issue is of particular concern given increased concerns about privacy in Canada when it comes to information shared with social media sites such as Facebook, and the fact Ontarians head to the polls on June 7, 2018.
“We have strict campaign finance laws for T.V. and radio advertising that require registration, disclosure of who’s paying for the ad, information about the group that’s paying for it, and then a spending limit. Those rules either don’t apply online, or even if they do, they’re not enforced, so it creates a huge problem where people are being advertised to and they don’t know who the source is and how much money is being spent,” says Pal, who is director of the public law group at the faculty of common law at University of Ottawa.
In B.C. Freedom of Information and Privacy Association, a non-profit organization that advocates for privacy rights brought the challenge to the SCC over s. 239 of British Columbia’s Election Act, questioning whether a registration requirement of people who took part in the political process by posting homemade election signs, wore T-shirts with political messages, or put bumper stickers on their car was a “reasonable and demonstrably justified limit.”
The SCC ultimately upheld the rulings of lower courts and dismissed the appeal.
“The purpose of the registration requirement — increasing transparency, openness, and public accountability in the electoral process and thus promoting an informed electorate — is pressing and substantial, and the registration requirement is rationally connected to this objective. The limit is also minimally impairing,” said the ruling.
In its decision, the SCC said “small-scale election activities” would not fall under the act’s definition of sponsorship, and that those involved in sponsorship of election advertising under $500 would need to register.
“Sponsorship necessarily involves at least two people — the person providing the service (whether for money or without charge) and the sponsor. A person who posts a handmade sign in her window, or puts a bumper sticker on her car, or wears a T-shirt with a political message on it, is neither paying for nor receiving the service of conducting advertising. She is not receiving a service from someone else, and thus is not a ‘sponsor’ under the Act,” said the ruling, adding that people “who neither pay others to advertise nor receive advertising services without charge are not ‘sponsors.’”
Pal says if the SCC ruling had been in favour of the association, it could create problems tracking advertising through social media sites during Canadian campaigns.
“Thankfully, the court upheld the B.C. statute on sponsoring advertising, but had it gone the other way, that would have made it very difficult to envision any realistic campaign finance laws that we could use to apply to Facebook. If even registration rules are suspect, than that makes it very difficult to craft registration, and disclosure and spending limit rules for the new digital campaign,” says Pal.
The SCC decision stated “the purpose of the registration requirement is to allow the public to know who is behind, or ‘sponsoring,’ election advertising. It was intended to require individuals and organizations who ‘conduct parallel advertising campaigns’. . .to register, so the public knows who they are.”
“The legislative purpose, at the time of the Act’s enactment, was to allow ‘ordinary citizens’ to ‘clearly see’ who is behind the messages they receive during a campaign period, thus promoting informed voting,” said the ruling.
Pal says there are takeaways for lawyers from the decision, in terms of how it pertains to other campaigns.
“It means that the campaign finance rules on the ground in Ontario — which were different from B.C. but related — are on stable constitutional ground in terms of their registration rules and disclosure rules, so challenging Elections Ontario’s requirement that you disclose who you are, or their enforcement mechanisms is not going to be likely to succeed at all,” he says.
Pal says “where the harm is minimal, the court will be permissive of restrictions if it meets its larger goal of creating a level playing field.”
“The registration rules further the goals of transparency, openness and public accountability in the court’s view, so that outweighed any relatively minimal harm to the individuals who are forced to register if they spend money to advertise,” he says.
