“I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts, and beer.”
― Abraham Lincoln
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
― George Washington
Is democracy served by a first-past-the-post electoral victory? I don’t think so. There are very few democracies now that have our system. Most have gone over to proportional representation, which we desperately need.
― David Suzuki
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Legal Arguments
For the Petitioner
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1. This is a challenge to the propaganda regulation restricting the general public from combining messages on the STV referendum with support or opposition for a particular party or candidate. It is part of the Electoral Reform Referendum 2009 Act Regulation B.C. Reg 266/2008 which sets out, inter alia, the rules regarding referendum campaign communications to be allowed. Section 29(4) of the Regulation bans:
S.29(4) Referendum advertising must not, directly or indirectly,
(a)Promote or oppose a registered political party or the election of a candidate, or
(b)Form part of election advertising.
2. The burden rests upon the Attorney General to establish that the impugned provisions constitute a reasonable limit that can be demonstrably justified in a free and democratic society. The relevant analytical framework was set out in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, with certain refinements regarding the third step of the proportionality test in Dagenais v. Canadian Broadcasting Corp. [citations omitted], as follows:
a. the law must be directed towards an objective that is sufficiently pressing and substantial to justify limiting a Charter right; and
b. the law must be proportionate, in the sense that
i. the measures chosen are rationally connected to the objective;
ii. those measures impair as little as possible the Charter right in question; and
iii. there is proportionality both between the objective and the deleterious effects of the statutory restrictions, and between the deleterious and salutary effects of those restrictions.
The Supreme Court of Canada’s instructions to Canada’s Courts are that overly restrictive political participation restrictions do undermine voting rights.
3. The Prime Minister, and (the interveners) and the former Attorney Generals of Ontario and Quebec and Manitoba, all felt political participation is Charter S.3 territory. The Supreme Court of Canada stated they could not be faulted for their position.
4. This philosophy is expressed by the majority in Harper: Per Iacobucci, Bastarache, Arbour, LeBel, Deschamps and Fish JJ.: Quote,“Spending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to the voter; if overly restrictive, they may undermine the informational component of the right to vote. Here, s. 350 does not interfere with the right of each citizen to play a meaningful role in the electoral process. “The harm that Parliament seeks to address in this case is electoral unfairness. Given the difficulties in measuring this harm, at the stage of the justification analysis a reasoned apprehension that the absence of third party election advertising limits will lead to electoral unfairness is sufficient.”
There are difficulties with using Harper v. Canada[Attorney General] as the definitive precedent, because that challenge was complex and involved several sections of laws (times) several charter sections.
5. The Appeal Court of Alberta for good reason uttered one statement. “[30] I conclude ss. 323, 350 and 351 violate the Charter. [31] The definition of “election advertising” is not unconstitutionally vague. [32] The impugned sections are not saved under s. 1 of the Charter. The government has failed to establish the sections address a pressing and substantial concern.”
6. This affected the Supreme Court of Canada decision. This illustrates the difficulty (the same or not the same). Quote, “The Court of Appeal erred in considering the provisions on third party spending limits globally. While the regime is internally coherent, its constituent parts stand on their own and the constitutionality of each set of provisions must be considered separately.”
The legal reasons to accept S.350 are not transferable to S.29(4) -- Combining messages (a publication ban on content) is not a spending limit.
7. It cannot be said that S.29(4) is the same as quote, “The limits set out in s. 350 allow third parties to inform the electorate of their message.”
8. The impugned Section 29(4) obstructs referendum advertising messages to debate and use rhetoric. In addition, the regulation creates a feed back loop on election advertising, restricting election advertisers from disclosing candidates’ position on STV and political reform.
9. It has nothing to do with fostering debate in the referendum. The AG’s stated purpose was to serve the unlawful pre campaign period election advertising regime. S.29(4) is not in place to promote disclosure in the referendum. It is in place precisely to stop disclosure. In Constitutional analysis, if the restriction has nothing with referendum advertising, that is a problem.
10. Quote from Harper: “Section 350 is justified under s. 1 of the Charter. While the overarching objective of the third party advertising expense limits is electoral fairness, more narrowly characterized, the objectives of the scheme are threefold: (1) to promote equality in the political discourse; (2) to protect the integrity of the financing regime applicable to candidates and parties; and (3) to ensure that voters have confidence in the electoral process. Section 350 also meets the proportionality test. First, the third party advertising expense limits are rationally connected to the objectives. They prevent those who have access to significant financial resources, and are able to purchase unlimited amount of advertising, to dominate the electoral discourse to the detriment of others; they create a balance between the financial resources of each candidate or political party; and they advance the perception that the electoral process is substantively fair as it provides for a reasonable degree of equality between citizens who wish to participate in that process. Second, s. 350 minimally impairs the right to free expression. Third party advertising is unrestricted prior to the commencement of the election period, and third parties may freely spend money or advertise to make their views known or to persuade others. Further, the definition of “election advertising” in s. 319 only applies to advertising that is associated with a candidate or party. The limits set out in s. 350 allow third parties to inform the electorate of their message in a manner that will not overwhelm candidates, political parties or other third parties while precluding the voices of the wealthy from dominating the political discourse. Third, the s. 350’s salutary effects of promoting fairness and accessibility in the electoral system and increasing Canadians’ confidence in it outweigh the deleterious effect that the spending limits permit third parties to engage in informational but not necessarily persuasive campaigns.” Emphasis added
The Law’s Objective: Is It Pressing and Substantial?
11. ” It appears the ban has nothing to do with the improving the messages for the referendum and a fair referendum. Response Quote, “Section 29(4) operates to prevent third parties from circumventing electoral advertising limits under the guise of referendum spending.”
12. Quote, Harper: “[22] Under this head we consider the reasons given by the Attorney General to justify limiting the right of citizens to freely express themselves on political issues during the election period. The Attorney General states that the objective of the legislation is to promote fair elections.”
Proportionality and Rational Connection
13. Referendum’s needs should determine the advertising restrictions.
14. Quote, Harper: “[28] 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. In this case, the question is whether the limits on citizen spending are rationally connected to ensuring electoral fairness in the sense of giving citizens an equal voice in elections, informing the public on electoral issues and preserving public confidence in the electoral system.”
Minimal Impairment
15. It is believed that the lack of substance in the referendum yes and no side TV commercials actually caused people to vote No. The Government funded the exploiting of emotions in the NHL PLAYOFFS. Tax dollars paid for the CANNUCK’S GAME SCORE BOARD TO FLASH -- “VOTE NO” -- TO SUGGEST EQUALS A GOOD CANNUCK. It is endless; the ballot used does not use the same amount of words and looks longer and more complicated for the STV ballot. This is anti-democratic behaviour.
16. Quote, Haper: “[32] The question at this stage is whether the legislation infringes the right to free expression in a way that is measured and carefully tailored to the goals sought to be achieved. The “impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary”: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160. The difficulty with the Attorney General’s case lies in the disproportion between the gravity of the problem — an apprehended possibility of harm — and the severity of the infringement on the right of political expression.”
Minimal impairment dispute
17. The petitioner respectfully disagrees and asserts that he could not post his posters as the AG claims. The respondent without qualifying the statement asserts that response quote, “In his case, this might require that he both register and report spending as election advertising, but it does not otherwise restrict him from postering as he proposes." The petitioner claims his referendum advertising is referendum advertising. “
18. If the petitioner’s referendum advertising is not referendum advertising -- this fact proves the point, the impairment is not minimal. Referendum advertising (with specifics) could not exist! How can there be effective representation without information in a referendum message?
Anti trust concern -- The impugned regulation is collision originating from an antiquated political monopoly
19. Quote from a UVic political science professor Dennis Pilon, “This is a typical kind of dirty pool.” “It’s a referendum on democracy and they want to limit people’s democratic rights.” Quote from Provincial Green Party Leader, “Since we’re the only party that’s advocating electoral reform for 25 years… it’s primarily restricting us.”
20. Quote, “Political parties can’t advertise [support for electoral reform] in print advertising,” said Sterk. “During the pre-election period from February 1 until May 12 the party will have to remove references to the referendum on changing the voting system from its website, she said.” Party officials are also cancelling plans to promote a ‘yes vote’ on Green Party brochures. Yes regulation 29(6) was introduced to remove this obstruction for the Green Party, BUT not for private citizens.
21. This anti competitive, predatory regulation remained in place to obstruct private citizens like you and me. Quote from Elections B.C. director responsible for electoral reform, “We’re glad to have it clarified.” When the petitioner registered during the referendum pre-campaign period the petitioner was informed that election advertising was not permitted in referendum advertising by private citizens. The petitioner was also informed that private citizens’ election advertisers must not advertise candidates positions for the referendum in election advertising for just the 09 election.”
Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33
22. The Supreme Court of Canada’s mandate to refute the petitioner in Harper v. (Attorney General) is founded on political affirmative action’s claim to serve and protect the basic rights of all our political voices to be heard, requires legal intervention so that the loudest voices/ aka the main stream media should not be able dictate the debate.
23. The unintended consequences of the High Court affirming the restriction of the general public’s political voices has created the very problem the Court of British of Columbia faces today with the impugned Reg 29. This is a slippery slope prudence needs to clarify. The respondent claims the Harper precedent allowed the near complete ban on specifics in the BC Referendum.
24. Quote, ”[41] The measures may actually cause more inequality, less civic engagement and greater disrepute than they avoid. In the absence of any evidence to the contrary, it cannot be said that the infringement does more good than harm.“
25. Quote, Justice Bastarache explained the essence of the egalitarian model in Harper at para. 87: “Under the egalitarian model of elections, Parliament must balance the rights and privileges of the participants in the electoral process: candidates, political parties, third parties and voters. Advertising expense limits may restrict free expression to ensure that participants are able to meaningfully participate in the electoral process. For candidates, political parties and third parties, meaningful participation means the ability to inform voters of their position. For voters, meaningful participation means the ability to hear and weigh many points of view. The difficulties of striking this balance are evident. Given the right of Parliament to choose Canada’s electoral model and the nuances inherent in implementing this model, the Court must approach the justification analysis [i.e. the s. 1 analysis] with deference. …In the end, the electoral system, which regulates many aspects of an election, including its duration and the control and reimbursement of expenses, reflects a political choice, the details of which are better left to Parliament. [Emphasis added.]”
26. Citizens are deprived of an effective voice by design places yet a further duty on the Court to hear a political petition. Quote, ”[7] The citizen’s message is thus confined to minor local dissemination with the result that effective local, regional and national expression of ideas becomes the exclusive right of registered political parties and their candidates.” “[9] It is therefore clear that the Canada Elections Act’s advertising limits prevent citizens from effectively communicating their views on election issues to their fellow citizens, restricting them instead to minor local communication. As such, they represent a serious incursion on free expression in the political realm.” Quote, “[42] What is important is that citizens have the capacity, should they so choose, to exercise their right to free political speech. The spending limits as they currently stand do not allow this. Instead, they have a chilling effect on political speech, forcing citizens into a Hobson’s choice between not expressing themselves at all or having their voice reduced to a mere whisper. Faced with such options, citizens could not be faulted for choosing the former.“
27. Harper Extract: Quote from Canada’s Chief Electoral Officer Press release,“ September 2000, Bill C-2, the new Canada Elections Act, came into effect. Introduced by the Liberal government, Bill C-2 provided for a spending limit on third party election advertising of $150,000 nationwide, of which no more than $3,000 can be spent in a given electoral district, and third party registration and reporting requirements. The amounts are adjusted according to the inflation factor; for the 2004 general election, the limits were adjusted to $168,900 nationwide and $3,378 in each electoral district. Following the adoption of Bill C-2, but before it came into effect, Stephen Harper, then President of the National Citizens Coalition, filed a challenge to the new third party provisions before the Alberta Court of Queen's Bench in Harper v. Canada (Attorney General). On June 29, 2001, the court held that s. 350, the third party spending limits, and s. 351, prohibiting third parties from colluding to circumvent spending limits, were unconstitutional. It upheld several provisions of the Act, including ss. 352–360 and 362, which provide for the registration of, and reporting by, third parties. The decision was appealed. On December 16, 2002, the Alberta Court of Appeal ruled, in a two-one decision, that all the provisions for third party activities in the Canada Elections Act were of no force and effect, except for s. 358 (prohibition on third parties using foreign contributions for advertising purposes). On May 18, 2004, the Supreme Court of Canada overturned the decision of the Alberta Court of Appeal. The nine-member court ruled unanimously that the provisions on third party registration and election advertising (ss. 350–360 and 362) were constitutional. However, in the case of section 350, which prescribes the level of third party spending limits, a minority of three justices declared that provision to be unconstitutional, as well as section 351, which prohibits third parties from colluding to circumvent the limits.”
Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995
28. Correctly read, this case contains the considerations to determine and judge whether a specific referendum is protected by S.3.
29. In September 1992, the federal government directed that a referendum be held on October 26, 1992 on a question relating to the Constitution of Canada in all provinces and territories, except Quebec. Quebec was to hold a separate referendum on the same date and on the same question but in accordance with the provincial legislation.
30. Mr. Haig sought to vote in the Quebec Referendum on the Charlottetown Accord. His legal challenge narrowed in on Canada’s Referendum Act. The Court expressed that if Mr. Haig had challenged his right to vote in Ontario, or challenged the Quebec Legislation directly, their decision may have been different. The Court also felt that the Charlottetown Accord has nothing to do with an election.
31. Quote, [50] "Haig deposed that he resided in Ottawa from June 18, 1989 until August 1992 when he moved to Hull, Quebec. Thus he did not qualify to vote in the Quebec referendum because he had not been a resident of that province for the requisite statutory period of six months. It must be remembered that Haig did not seek to challenge the validity of the Quebec legislation. Rather he sought to be enfranchised pursuant to the provisions of the federal Act."
32. Quote, “Drawing two short lines to form an "X" is the simplest act imaginable. Yet the right to so mark a ballot is as profound as the act is simple. Such marks, systematically compiled, are transformed by our beliefs and our laws into the most eloquent voice the people have.”
33. Quote from the honourable Cory J: “During the course of the hearing an argument was advanced that a referendum was distinct from and less important than an election. It was argued that, as a result, the generous principles applicable to the right to vote in elections should not apply with the same force to a referendum. I cannot accept that contention. A vast amount of public study, effort and time was expended in drafting the terms of the Charlottetown Accord. Every effort was made to advise Canadians of the importance of the referendum pertaining to it and the significance of the vote of every citizen. The number of voters exercising their franchise in the referendum was comparable to the turnout in federal elections. In the minds of most Canadians, the referendum was every bit as important as an election. If it was not, then Canadians would be clearly justified in wondering what all the fuss was about. The same principles applicable to the right to vote in elections should be applied in the same manner to the right to vote in a referendum.”
Doctrine of Deference responsibilities -- Somerville v. Canada (Attorney General), [1996] 37 C.R.R
34. In this case the Court makes an early determination. It was not required to measure all the information and perform all the required duties in a Charter S.1 application by the Government. The reasons given by the Courts of Alberta seem reasonable.
35. Extract: “In 1993, following recommendations of the Royal Commission on Electoral Reform and Party Financing (1992), the Progressive Conservative government introduced Bill C-114, which prohibited third parties from incurring election advertising expenses in excess of $1,000. These sections were challenged in the Alberta Court of Queen's Bench by David Somerville, then President of the National Citizens Coalition, in Somerville v. Canada (Attorney General). The court ruled in June 1993 that the restrictions on third party spending were unconstitutional. The decision was appealed and upheld by the Alberta Court of Appeal in June 1996. The Chief Electoral Officer issued a press release announcing the position of Elections Canada on enforcement of advertising limits for third parties stated the decision meant that there were no limits on election advertising expenses by third parties for activity anywhere in Canada. That judgment was not appealed to the Supreme Court by the Attorney General of Canada.”
Libman v. Quebec (Attorney General)
36. The Supreme Court of Canada said “No” to spending limits, and overturned the Court of Quebec, the Quebec Superior Court, and the Quebec Court of Appeal. We have a civic duty to say “No” when injustice becomes law. It is important to communicate that the Charter S.3 debate was not a consideration in Libman. It was important, but it was not in the orders before the Court.
37. The case arose from the 1992 Quebec referendum on the Charlottetown Accord. The case was of fundamental importance to the survival of Canada, because as a result of this ruling, the Chief Electoral Officer of Quebec was forced to drop charges on 20 people prosecuted (among them Canadian Patriots) under the Quebec Referendum Act for illegal spending during the 1995 referendum on sovereignty.
38. Libman case established that the monetary amount is a consideration. The BC Election Act uses the old number and contains no inflation clause (the cola) to reset the monetary spending limits through time. This specific gross negligence is sufficient for the Court to say "NO".
39. The amount over a decade latter is still 3000 in British Columbia for our Fixed Elections and therefore there is failure to comply with the fine print details. See Harper paragraph 350 on S.350 quote, (4) A third party shall not incur election advertising expenses of a total amount of more than $3,000 in a given electoral district during the election period of a by election. (5) The amounts referred to in subsections (1), (2) and (4) shall be multiplied by the inflation adjustment factor referred to in section 414 that is in effect on the issue of the writ or writs"
Bench (National Citizens' Coalition Inc. v. Canada (Attorney General)) 1984
40. The Court said “No” here to zero political participation. The Government did not seek an appeal, and the then Chief Electoral Officer, Jean-Marc Hamel, announced that the Court's decision would apply nationwide. The federal definition of political advertising was not the same, as the extremely broad definition the Attorney General of BC has provided her Court to follow.
41. Extract: “In 1983 the Liberal government introduced Bill C-169, which amended the Canada Elections Act to prohibit third parties or individuals from incurring expenses to promote the election of a candidate or to promote or oppose the election of a political party, except when authorized. The amendment further provided that anyone other than a candidate or an official agent who incurred election expenses was guilty of violating the Act. In 1984, the amendments passed in 1983 were challenged by Colin Brown of the National Citizens Coalition in the Alberta Court of Queen's Bench (National Citizens' Coalition Inc. v. Canada (Attorney General)). The Court ruled that the provisions limited freedom of expression under the Canadian Charter of Rights and Freedoms and were therefore unconstitutional.”
Reg 29 cannot accomplish the desired pareto efficiencies, since the free press is not limited, and the individual is.
42. The Main Issue of petitioner is the pareto of not counting the loudest voice (the main stream press) in and of itself is political mischief. The egalitarian model must define the role of the media, because as Marshall McLuhan cliché states the medium is the message. Democracy is defeated by not weighting the mainstream media’s influence into the pareto considerations.
43. The Fundamental Mistake in the Harper decision was the finding of fact Quote, ”[7] The citizen’s message is thus confined to minor local dissemination with the result that effective local, regional and national expression of ideas becomes the exclusive right of registered political parties and their candidates.” No evidence was presented to suggest these are the only actors/factors. It would appear the concern raised in Danson v. Ontario (Attorney General) 1987 is applicable that quote para 138 "More than that the court might on a sketchy record, feel constrained to make some sweeping generality which would later appear unwise."
44. It is a matter of national security that the Court view the media as representing special interests. The Court of Alberta set the bar on foreign influences infecting our Democracy. Harper v. Canada (A.G.),2002 ABCA 301 - Quote, “288] The trial judge noted that if he was wrong and the ban against the use of funds from foreign sources limits political speech, he would have “no hesitation” in invoking s.1 of the Charter. He asserted that “if s. 358 does violate s. 2(b), it is a proportionate response to the pressing and substantial objective of keeping Canadian elections Canadian.” (1 A.B. F39 at para. 177). I agree. “ “[289] Section 404 of the Canada Elections Act 2000 (16 A.B. E2290) prohibits political parties and candidates from receiving contributions from foreign sources. A third party may receive funds from foreign sources. “
The Court of British Columbia has a history of ceding rights to the loudest voices and therefore affirming 29(4) would create a double standard.
45. The Court of British Columbia has ceded rights to pollsters and the free press in Pacific Press v. British Columbia (Attorney General), [2000] and Thomson Newspapers Co. v. Canada (Attorney General), [1997] decisions. Catch 22.
46. The general public has a right to be protected against potential mischief. The Court has a responsibility to debate in its Charter analysis that there are voices that are off the radar and are not regulated, that affect the political discussion, specifically: the main stream media and news broadcasts and polling information. TV and newspapers programming influences the political debate, way more than third party political adverting does. The general public has a right to a rebuttal. Grass roots, small voices do not flourish in a political landscape dominated by powerful voices like the mainstream press.
47. Lord Bingham almost has it right, just need to add in the mainstream media control of the debate to complete the picture. Quote: “The observations of Lord Bingham in R (Animal Defenders) v. Secretary of State, [2008] UKHL 15, [2008] 3 All ER 193 at Para. 28: [28] … [I]t is highly desirable that the playing field of debate should be so far as practicable level.... It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect, must, in my judgment, include a right to be protected against the potential mischief of partial political advertising. [Emphasis added.]”
The importance of not limiting debate while the Legislature is sitting
48. The Petitioner had a right to point out the failures in our Democracy, like the invoking of Standing Order 81, as a valid reason to support political reform. For all practically purposes the emergency session of the Legislature and referendum ban period of over a quarter of a year are together in time.
49. Quote, Wikipedia, “On January 12, 2009 Vancouver Mayor requested an amendment to the Charter to allow the city to borrow $458 million contingent liability to fund the completion of the 2010 Olympic Village in False Creek False without seeking approval from taxpayers in an election-day plebiscite.] Robertson said this was due to extraordinary circumstances.] The amendment was passed on January 4, 2009 in an emergency session of the BC Legislative Assembly. ” ”Opposition NDP leader said “By calling the emergency session on a weekend, the government avoided fielding questions from the NDP. ”Under legislative rules, there is no question period during weekend sessions.” Province newspaper quote on that day, “The NDP had hoped to extend debate on the bill to three days, hoping for the chance to pose a list of questions about the village and the Games budget to a government that faces a provincial election in May. But House Speaker Bill Barisoff ruled the situation sufficiently urgent to cram three readings of the bill into a one-day special sitting.” The provincial government passed an emergency bill early Sunday to allow Vancouver to borrow at least $458 million more to ensure the Olympic Athletes' Village is built in time for the 2010 Olympics. Provincial politicians passed Bill 47 after a rare all-night session in Victoria.” Mr. Speaker:” Hon. Members, I've carefully considered the submissions of the two House Leaders, and in my view, this occasion is clearly one of urgency and scope which qualifies under Standing Order 81. Standing Order 81, which provides an alternative process for considering legislation on an extraordinary occasion, should be used sparingly.” “The bill was made law by Lt.-Gov. Steven L. Point around 8:30 a.m. local time.”
50. Quote BC Court of Appeal Teachers, ”[72] Counsel for the Attorney General made the point in his oral argument that it would be almost impossible to compose an effective definition of election advertising, designed to operate in the pre-campaign period, that would not capture all political advertising. For this reason, he says the trial judge erred in failing to pay deference to the reasonable attempts of the legislature to balance the interests at stake. I am not persuaded that there are not other ways of dealing with election advertising that do not interfere with political speech while the Legislature is in session.”
Beacons protecting Democracy in the womb
51. The episode of restricting Legislature members’ privileges in the general election, without the proper disclosure mechanism in place on Hansard, is troubling. The lack of debate in the three readings of the Electoral Reform Referendum 2009 Act, by both sides of the house does not inspire confidence.
52. The amendment of S.29(6) to permit for the combining of messages -- for Legislative members and other parties and candidates -- should be seen by the Court, that even the respondent lacks confidence in the regulation S29(4). Electoral Reform Referendum 2009 Act Regulation Section 29(6)Despite subsection(4), candidates and registered political parties may engage in referendum advertising, and, for the this purpose, the referendum advertising is deemed to be election advertising under the Election Act.
53. Though the amendment S29(6) was a step in the correct direction, the amendment creates an inequality infringement. The general public voter rights restriction is still in place and equals a patent unfairness when S.29(6) is entered into the calculations.
54. Quote from BC Court of Appeal in the Teachers. It comments on this type of rationale exposed by S.29(6). “[265] The underlying premise of the Attorney General’s position is that unrestricted third party spending prior to the beginning of the campaign would drown out the voices of the candidates and political parties. The credible evidence, however, is that it is not effective to spend large amounts of money prior to the commencement of the campaign. Moreover, 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.”
55. Quote, “[266] Even according the Attorney General a healthy measure of deference, I am not satisfied that the harm sought to be addressed by extending the third party spending restrictions into the pre-campaign period has been adequately demonstrated. On the other hand, I consider their effect in impairing the plaintiffs’ s. 2(b) freedoms to be anything but minimal.”
56. The Court has the right to comment on Legislature deliberations. Quote, “The AG’s position is that no discovery should be permitted except as it pertains to the Legislature’s deliberations.” This is position was offered in the preliminary in British Columbia Teachers’ Federation v. Attorney General of British Columbia 2008 BCSC 1699.
57. History of Regulation: 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 was changed. The original Electoral Reform Referendum Regulation 29 was gazetted on Oct 9th, 2008 and then repealed -- added S29(6) -- 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.
There is a profound responsibility to get it right, when the Court sustains the expropriation of political participation rights.
58. The Court of British Columbia has spoken three times & has every time rejected the use of a pre campaign period censorship approach, as anti democratic behaviour. The British Columbia very broad, election advertising definition is already determined by the Court which forms a substantial part of the information requirement.
The regulation and its restrictions would not be in place, if the Election and the Referendum were not at the same time!?
59. The recommendation of the Chief Electoral Officer recommending the tinkering of the referendum date should be disclosed in the judgment. Full disclosure of the truth is upon which are Democracy relies upon. The Parliament of Canada in a report states openly that the local Chief Electoral Officer recommended the referendum date be changed.
60. The BC Court of Appeal in teachers disclosed the role of the Chief Electoral Officer in their decision. Quote, ”[7] The initiation of fixed-date elections brought with it questions in the Legislature about limiting the amount of money that could be spent on election advertising. With the date of the election fixed in place, and perhaps with an eye on the experience in the United States, the question for government became whether interested parties would see fit to begin advertising campaigns promoting the election of candidates or parties much earlier than in the past, when election dates were uncertain. Some worried about the development of a spending “free-for-all” in the days preceding the campaign period. After the Chief Electoral Officer of British Columbia made recommendations, the government of British Columbia acted to amend the legislation with respect to election advertising. Those amendments came into force on May 29, 2008.” [Emphasis added.]
Failed to accord sufficient – or indeed any – weight to the presence of similar spending restrictions in other free and democratic societies.
61. International law dictates that the founding vote infringement & the forgiveness process are not moot. The wrong needs to be addressed by the district court. Society from the very beginning has debated political participation and fought over it. The journey of humanity falters when democracy ceases to evolve, this is nature’s law. The mandate to encourage voter participation is universal.
62. British Columbia’s democracy is improved by the declaratory orders. Nearly half of British Columbians did not vote in the election/referendum. The political reformers seek a stronger democracy to encourage voter participation. The founding vote won improved the chances for voters to experience effective representation -- to combine facts and issues and accountability -- when voting for specific candidates that now would stand a chance at winning -- instead of the brand name parties, in a general election.
63. Sadly said, Democracy is broken – and the Court with the help of all the king's horses and all the king's men have to put Humpty together again. In this quest, the Court of the past protects Democracy in the womb, by finding that S29(4) is an insult to Democracy. The Supreme Court of Canada only said Yes to S.350 to help Humpty Dumpty.
The legal words (directly or indirectly and by any means) and all candidates’ positions are election advertising, are not minimal.
64. Teachers BC Appeal Court quote ,”[66] This definition includes advertising which takes a position on “an issue with which a registered political party or candidate is associated”. Thus, it is bound to include what some have called “pure issue advocacy”. Pure issue advocacy has been defined by one author as, “paid communication concerned with public issues and bearing no connection to an election” (see Colin Feasby, Issue Advocacy and Third Parties in the United Kingdom and Canada (2003) 48 McGill LJ 11). “
List of all the issues forbidden to be combined with in a referendum message
65. British Columbia’s definition of election advertising is not the traditional definition.
66. Quote, B.C. Teachers’ Federation v. B.C. (Attorney General) 2009 BCSC 436: [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. Against this platform, it is difficult to conceive of an issue that is not associated with the Liberal Party.”
In conclusion: Statements from the AG Spokesman
67. Quote, “There was a lack of clarity in the existing regulation.” “The intention was never to restrict discussion of the referendum.” The Courts should never affirm censorship on private citizens if it was not the AG’s intention?!
