Next generation democracies

Political free speech in Canada
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THE PETITIONER APPLIES FOR THESE ORDERS:

[The General Election and the Single Transferable Vote Referendum are independent events.]


Order 1: The Court is requested in a written disposition to declare -- the Petitioner`s Charter Three Guaranteed Rights are infringed in British Columbia’s Single Transferable Vote Referendum -- by Electoral Reform Referendum 2009 Act Regulations Section 29.4: (Referendum advertising must not, directly or indirectly, (a) promote a registered political party or the election of a candidate or (b) form part of election advertising,) for 3 months and 12 days.

Order 2: The Court is requested in a written disposition to declare -- the Petitioner`s Charter Three Guaranteed Rights are infringed in British Columbia’s General Election -- by Electoral Reform Referendum 2009 Act Regulations Section 29.4: (Referendum advertising must not, directly or indirectly, (a) promote a registered political party or the election of a candidate or (b) form part of election advertising,) for 3 months and 12 days. BC Elections defines Electoral Reform Regulation 29.4 as making it the law that election advertisers could not represent by any means which candidates supported STV directly or indirectly for just the May 09 General Election.

Order 3: COSTS




Part 2: FACTUAL BASIS
[Using numbered paragraphs, set out the material facts on which this petition is based.]



1 The original petition was registered and served on April 9th 2009 during the Single Transferable Vote Referendum. The BC Attorney General waited a month and issued the response on May 11th 2009 the day before the General Election and Referendum. The response postulated the petition is moot as the referendum restrictions would soon expire. The response fails to appreciate it is a colour of law infraction to trespass on civil rights. The Citizens Assembly that created STV did not permit this censorship. In order for Democracy to prevail, this is a mandatory review under both the Federal Laws of Canada and the Laws of British Columbia.

2 The 2009 British Columbia Referendum was the last time a Canadian electorate was honoured with the ability to advance Democracy. In 2005, British Columbia was the first in Canada to have a Legislature Founding Vote with no restrictions. PEI had a similar referendum shortly after 2005 with no restrictions -- and Ontario in 2007 with no restrictions.

3 In a Constitutional Democracy, it should be considered a harmful unfairness, when one group is subject to a regulation, while another is not regardless of whether or not they are the “free press.” At the petition hearing I will present an “empty” folder depicting the number of articles in which the Public was made aware of the gazetted impugned regulation. Regulation 29.4, was referenced to once ; and for ( self- preservation purposes), after the GOVERNMENT was pressured to repeal , was the imminent ( still standing ) disaster referenced to and then only in a gazetted context to elected politicians -- while keeping the people of this province blind through the lack of any information on the matter. The Election Act ``gag law`` is not the referendum regulation 29.4. Surreptitiously so, the mainstream newspapers -- The Times Colonist, The Vancouver Sun, The Province -- failed to inform the citizens of this province of an impending breach to their freedom of speech, thought and association. The people of this province cannot be expected to sacrifice the very foundation upon which our freedoms and justice is based. To allow such tactics to precede (in order to capitulate) citizens’ rights would have the effect of a subliminal brainwashing technique leaving citizens a lobotomized political system. The disadvantaged have to compete with the free press -- some call this the ignored infringement in campaign finance reform.

4 Regulation 29.4 banned most all reasonable topics in our political participation -- and the legal inquiry does not permit digressions into these topics for good reason. Deference must be shown to Democracy. Issues of prejudice are considerations. The agreement is that the political issues are moot only after the Court dismisses the motion to quash this petition. In a nutshell the petition is respectfully in its comments. This petition is for every man, woman, and child in this country.



Legal facts:
[Using numbered paragraphs, specify any rule or other enactment relied on and provide a brief summary of any other legal bases on which the petitioner intends to rely in support of the orders sought.]
1 The Court affirming actions of Malum Prohibitum and limiting political participation in British Columbia is a slippery slope.

2 Our Constitutional Democracy -- in the 1982 Constitution Act Part One Canadian Rights and Freedoms Section 15(2) -- authorizes statutory provisions granting rights to appeal affirmed action to restrict political reform free speech. Those who seek to uphold discriminatory laws, programs, or activities as affirmative action are accordingly obliged when challenged to demonstrate that the object of the measure it to relieve the disadvantaged. The petition involves the disadvantaged and invokes this right.

3 All Courts share the mandate to encourage voter participation. No international law in the English Common Wealth advancing Legislature Democracy bans as many topics as does Regulation 29.4 in a free and democratic society. International Law enshrines the right to information. The Universal Declaration of Human Rights, G.A. Res. 217 a (III), U.N. Doc. A/810, at 71 (1948), and the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 – are inconsistent with the impugned regulation.

4 The Doctrine of Deference also includes the responsibility of saying no when the local politicians repeal the law only for themselves. It includes the responsibility of saying no when there is no disclosure of the new restrictions -- in the Legislature’s public record in the three readings of the BC Referendum Act. Prudence speaks to this in B.C. Teachers’ Federation v. B.C. (Attorney General), 2011 BCCA 408: Quote “[265]”To the extent that the Attorney General’s position rests on the proposition that restrictions on third party election advertising are necessary during the pre-campaign period to protect the financing regime, since spending restrictions have been imposed on political parties and candidates during that same period, the reasoning is circular. If those limits on political parties and candidates did not exist (and there is no evidentiary or logical basis for their necessity), then that rationale for restricting third party spending evaporates. Consequently, the legislation does not achieve the objectives of promoting equality in the political discourse and protecting the integrity of the financial regime applicable to candidates and parties.”

5 The Court of British Columbia has now spoken three times against this extreme election advertising definition. The Court has repeatedly said,” 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.” This suggests that referendum advertising was banned from virtually all political expression.

6 Electoral Reform Regulation 29.4 would not pass the fundamental consideration in Canada’s leading jurisprudence in political participation Harper v. Canada (Attorney General), [2004] 33 SCC. Quote, “The first inquiry in determining whether the infringement is proportionate to the harm done is whether there is a rational connection between the infringing measure and the pressing and substantial objective that the infringement is said to serve.” The dissenting justices argued that the spending limit in the Canada Elections Act is inconsistent as the third party limits were too restrictive.” If and only if the political restriction limit is not too restrictive would a free and democratic society bow to said political affirmative action. The Prime Minister sought to safe guard our political participation rights. “It is important to recognize that the spending limits do not constrain the right of only a few citizens to speak. They constrain the political speech of all Canadians, be they of superior or modest means.”

7 The Supreme Court of Canada has rejected referendum spending limits and said no in Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569. The Highest Court declared the Referendum Act which limited third party expenditure infringed the Charter, and overturned the Court of Quebec, the Quebec Superior Court Quebec Superior Court, and the Quebec Court of Appeal . Quote, [84] However, it is clear from our analysis that protecting the fairness of referendum campaigns is a laudable objective that will necessarily involve certain restrictions on freedom of expression. Freedom of political expression, so dear to our democratic tradition, would lose much value if it could only be exercised in a context in which the economic power of the most affluent members of society constituted the ultimate guidepost of our political choices. Nor would it be much better served by a system that undermined the confidence of citizens in the referendum process.” ”The Supreme Court of Canada found that the objectives of the Act "to permit an informed choice to be made by ensuring that some positions are not buried by others" and "to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money" are valid and praiseworthy. However, ruling out third party expenditure altogether was too restrictive to be justified as a reasonable limit.”

8 The Courts have said no before in British Columbia’s Thomson Newspapers Co. v. Canada (Attorney General)1997 File No.: 25593 and protected the rights of pollsters to the election process. Quote, ``As part of this s.1 analysis, the court must also consider the importance of the free exchange of ideas which has recognized to be an essential democratic value of our society.`` The Supreme Court of Canada impugned Canada Election Act S.322.1 and but did not comment on the Charter 3 test.

9 The Courts have said no before to political participation spending limits in Somerville v. Canada (Attorney General) [1996] 37 C.R.R Quote, “The first stage of the test concerns the importance and significance of the objective(s) that the measures in question are designed to pursue. While the objectives might be one thing, the reality in the light of the expansive restrictions on rights and freedoms that they entail might be quite another.” “The Court did not accept that the objective is sufficiently important or pressing to justify the breach of the Charter rights, Since the impugned provisions failed the test of importance in terms of the objective they were designed to meet, there was no real need for the trial judge to assess the proportionality of the provisions in relation to the objective.”

10 It is postulated that if we the political reformers had won the referendum -- and if the Court entertained an action on this Electoral Regulation 29.4 -- then the Court would be challenged and would have to set aside the referendum results. Unfortunately, because of this shut up regulation, if we won, we lost and if we lost, we lost. The legal quagmire is not fair to the Courts to overturn a super majority; and thereby it is not fair to the Courts such a law would do this, so the Court has to impugn.

11 In a Section Three Charter challenge, the constitutional question is not directly whether the “right to information” was breached -- but whether a restriction placed on information has diminished or undermined the right to vote in a genuine election. It is therefore necessary to examine the information restriction in the context of the whole electoral process before finding a S.3 was violated. Figueroa v. Canada (Attorney General), [2003] SCC 37 S.C.R. 912 the Court rejected the 50 candidate rule and the expropriation of party funds. The case law's guiding legal principle was: “The democratic rights entrenched in S.3 ensure that each citizen has an opportunity to express an opinion about the formation of public policy and the function of public institutions through participation in the electoral process.”

12 Why only a Section Three Charter challenge? The logic is both Canada and the Court have inalienable rights to participate in changes in Provincial Democracies. Nevertheless, Charter Section 33 translates the Charter can be set aside if a Province so wishes. In other words, the fate of Canadian Democracy -- rests on whether or not -- political participation infringements in switches in democracy are inalienable rights and are registered as Charter S.3 rights. The only difference between an order that states an infringement is Charter S.2b and Charter S.3 -- is our democratic rights and the jurisdiction of the Court to hear a political participation petition are shielded from Charter S.33. In Baier v. Alberta [2004] ABQ 669 dealing with school board democracy the decision commented that S.3 challenges carry doctrine of deference Charter S.33 rights (both for the petition and the Court.) The legal question that plebiscites are within government discretion -- and that S.3 of the Charter does not include plebiscites – this rule of thumb is not applicable to switches in a Legislature`s Democracy. In the case law Haig v. Canada [1993] S.C.R it makes sense that a plebiscite to affirm constitutional amendments of Canada was public relations which most Provinces just signed off on was not sufficient in Haig to claim a Charter S.3 infringement.

13 To quash the petition and yet not address the infringement would be an error of law. The motion to quash the petition requires special consideration because this is censorship. Though the Court is not tasked with invoking Charter Section 52 and declaring the law is of no force and effect -- this does not moot the right of the Court to judge this infringement -- as the law was in force and infected both events. Just because mundane regulations (that do not involve censorship) are moot when repealed, does not make the founding vote regulation moot when its job was accomplished. The doctrine of deference would be placed in peril if after a founding vote cheating issues are moot. The honour of Canada and British Columbia would be tarnished to declare the infringement moot. The Courts of the past protect Democracy in the womb. This is a fiduciary duty of the Court of British Columbia. In America the land of the most referendums in history, referendum legal proceedings are after the vote for good reason, which is a guiding rule in referendum dispute hearings. There are specific issues that remove the right of the government to claim the petition is moot. Out of respect, these issues are moot.

14 Concern and Consideration one: The Province is to produce an affidavit from BC Elections. The independent agency BC Elections has stated that they will only do what the Court directs them to do in regards to this matter before the Court. The BC Elections disposition is critical to attach the referendum regulation to the general election. The definition given by BC Elections is that – referendum advertisers were banned from any topic that could be defined as election advertising. It would assist all parties concerned that BC Elections provide their interpretation of the definition on how the regulation affected both events -- rather than having the Court make the order.

15 Concern and Consideration two: In protecting political civil rights -- it is vital to see the free press as a political lobby: See fox news. British Columbia does have this media political lobby issue.  The Occupation Wall St movement wishes to compete. Pareto Optimal Questions. The disadvantage has a right to reject said affirmative action political free speech laws, because the affirmative action makes them worse off. Freedom of the Press represents special interests and therefore the Court cannot limit the individual as he or she has to compete with that. Catch 22.


16 History of Regulations: On 12 September 2005, the Speech from the Throne, indicated that the government would schedule another referendum at the same time as the November 2008 municipal elections. On May 25th 2006 the date scheduled for the second referendum was then changed to occur in tandem with the May12th 2009 General Election. The Parliament of Canada states the BC Elections Chief Electoral Officer requested the Referendum date be changed. The original Electoral Reform Referendum Regulation 29 was gazetted on Oct 9th, 2008 and then repealed by the Lieutenant Governor in Council on Dec 11th, 2008 which at first banned Members of the Legislature and candidates from combining election advertising and political reform advertising. The Legislature dates were: the first reading was on Thursday, March 6th 2008; the second reading Monday, March 10th, 2008; and third reading Monday, March 31st 2008. The petition forwards the date was changed to give hope, as a lost referendum before the election was an election issue. See BC Elections disposition.

17 This executive privilege passage does not authorize the legal authority to create election law!
BC Referendum Act S.1.1: If the Lieutenant Governor in Council considers that an expression of public opinion is desirable on any matter of public interest or concern, the Lieutenant Governor in Council may, by regulation, order that a referendum be conducted in the manner provided for in this Act. R. v. Heywood, [1994] S.C.R. 761 A law that is over broad is one in which the means are too sweeping in relation to the objective British Columbia Interpretation Act, S41.1(a): The Lieutenant Governor in Council is restricted from enacting regulations that are inconsistent with carrying out the enactment.
18 Electoral Reform Referendum 2009 Act Regulations Section 29.4: (Referendum advertising must not, directly or indirectly, (a) promote a registered political party or the election of a candidate or (b) form part of election advertising.) Electoral Reform Referendum 2009 Act Regulation Definition: The referendum campaign period means, in relation to the referendum, the period beginning on February 1, 2009 and ending at the close of general voting for the referendum [May 12th, 2009.]

19 Gag law BC Election Act S.228: Election adverting is defined as the transmission to the public by any means, during the period beginning 60 days before a campaign period and ending at the end of the campaign period, of an advertising message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated with. B.C. Teachers’ Federation v. B.C. (Attorney General) 2009 BCSC 436: The Justice issued a finding of fact that practical speaking the BC election advertising definition includes all topics. [246] ”Practically speaking, it is not readily apparent when an issue is not associated with a candidate or political party. The Liberal Party’s campaign platform for the 2005 election demonstrates the extent to which this is the case. Entitled A Proven Plan for a Golden Decade, the document (BC Liberal Party: 2005) sets out the party’s platform regarding a wide range of topics: education, including life-long learning and advanced education; the arts; cultural diversity; healthier living and physical fitness; health care; seniors; children and families; First Nations; women; public safety; democratic reform; partnerships with local governments; parks; environmental protection; job creation; free enterprise; income taxes; research and technology; forestry industry; sustainable development in the energy and mining industries; the 2010 Olympics; tourism; new “gateways” to the Asia Pacific; transportation; northern development; regional growth; and relations with the federal government and other provinces.``