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In the face of new advertising laws, political free speech needs an advocate

Opinion: British Columbia’s laws restricting political advertising were deemed Charter violations. So why are Ontario and Alberta enacting their own?
Christine Van Geyn
Queen's Park

Christine Van Geyn is the Ontario director of the Canadian Taxpayers Federation, a non-profit citizen-based advocacy organization focused on lower taxes, less government waste, and greater accountability.

Political free speech is in need of a champion in Canada—and new advertising laws in two of Canada’s most populous provinces prove it.

In 2016, Ontario broadened the definition of political advertising to de facto include any and all political speech. Any individual or organization in Ontario that spends more than $500 to publicize their position on an “issue that can reasonably be regarded as closely associated with a registered party or its leader” is now engaging in political advertising. In 2017, Alberta made a similar move, though the province’s threshold is $1,000, and its definition of political advertising is slightly different, but similarly broad—including messages that “[take] a position on an issue with which a registered party [or politician] is associated.”

The legislation in both provinces requires any third party who engages in political advertising to register with the government, file an onerous report, and in Ontario, be subject to spending limits. And unlike the long-held restrictions on speech during the campaign period and upheld by the Supreme Court in Harper v Canada, these new Ontario requirements now apply six months before the call of the election.

That means that in Ontario, on Nov. 9—approximately eight months before the 2018 provincial election—the registration requirement, spending limits, and paperwork began. So long-held websites dedicated to criticism of the failings of Ontario’s electricity policy, or the publication of petitions related to the decline of the Ontario manufacturing sector, are now subject to regulation. They are subject to this regulation even as the government sits and enacts new laws, tables a budget and engages in its own taxpayer-funded advertising trumpeting their accomplishments. In Alberta, things are even worse; there, the restrictions apply at all times.

In our mind, these are in effect gag laws, limiting the ability of individuals, groups, and essentially any “non-politician” entity to support or level criticism against the government, politicians or their parties.

MORE: Careful what you publish online—Elections Ontario is watching

The laws aimed at regulating the pre-campaign period are troubling, and—if history is any suggestion—they are in all likelihood a Charter violation. Similar restrictions on pre-campaign free expression were repeatedly found to be unconstitutional in British Columbia when the government changed their law in 2008 to include a pre-campaign period of 60 days which restricted advertising by third parties to $150,000. In the 2009 case BC Teachers Federation v British Columbia, the B.C. Supreme Court struck down the 60-day pre-campaign period as an unjustified restriction on the right to freedom of expression guaranteed by the Charter. This decision was upheld in 2011 by the B.C. Court of Appeal.

The B.C. government responded by re-drafting the legislation in 2012 to re-instate the pre-campaign period restrictions, but for a shorter period of either 40 days, or 21 days after the legislature had stopped sitting. However, the B.C. Court of Appeal found that even the shorter pre-campaign restrictions were a Charter violation. As a result, B.C. now has no restrictions on third-party political advertising during the pre-election period.

It’s troubling that, while a 40-day pre-campaign restriction on political free expression was considered in B.C. to be a Charter violation, Ontario and Alberta enacted their restrictions all the same.

From our experience, too,  the enforcement of these restrictions is being done in an incredibly heavy-handed way. The Canadian Taxpayers Federation is a non-profit, citizen advocacy organization that has been speaking out on issues of taxes, waste and accountability for 27 years. We operate across Canada, have 130,000 supporters, and 98 per cent of our donations are smaller than $1,000. We also protect the privacy of our donors, and have for 27 years. But in what felt like a Kafkaesque exchange with Elections Ontario, we were told that a number of our websites constitute political advertising.

Our issue-specific website, “Stop High Energy Bills,” acts as a host for our petitions, a news aggregator for our editorials and news releases about energy issues, facts about various energy policies, and an opportunity for visitors to contact their local MPP. The site makes no mention of the election—after all, the site is now more than a year old. But Elections Ontario has ruled that the site itself constitutes “political advertising.” We have been forced to choose between shutting down the site, or registering and disclosing the names of the people who donated to fund it a year and a half ago, before these new laws were enacted, and who were donating under the assumption that we would continue our 27-year-old policy of protecting their privacy.

Even more troubling is the ruling by Elections Ontario that our 20-year-old organizational site, Taxpayer.com, also constitutes political advertising. In order to comply with the law, we were told we would need to determine how much we have spent on the site over this 20-year period and pro-rate that amount over the pre-campaign and campaign restriction period to determine if we spent more than $500. When we pointed out that only portions of the site are dedicated to Ontario, Elections Ontario informed us that we could calculate the percentage of the site that is dedicated to Ontario and that constitutes “political advertising,” and then determine if the apportioned and pro-rated cost of those pages exceeds $500. Hardly a minimally impairing exercise.

When we mentioned that we are currently planning an upgrade to our website, to improve graphics and performance, Elections Ontario advised us that it would be best to wait until after the June 2018 provincial election before doing those upgrades, because they could trip the $500 threshold. How could the government forcing a national non-profit organization to put on hold an update to a website be seen as a reasonable restriction on speech?

Seemingly, any website, anywhere in Canada that mentions Premier Kathleen Wynne, Patrick Brown, Andrea Horwath, the Ontario government or any policy with which any politician in Ontario could be associated, is now deemed political advertising and should either be shut down for the next eight months or registered with the Ontario government.

How Elections Ontario plans on enforcing these absurd rules is unclear, but they did inform us that they have the power to compel the production of invoices if they decide our 20-year-old website about public policy issues violates their new law.

These laws should never have been enacted. But the official opposition in Ontario allowed them to pass because in the last provincial election, they were the subject of an aggressive $2.5-million third-party ad campaign by the union-funded Working Families.

But now that the laws are in force, we need a champion to launch a Charter challenge against them, as they were challenged in British Columbia. Courts have held that political expression is at the very heart of freedom of expression and benefits from a high degree of constitutional protection. The Ontario and Alberta legislation infringes this fundamental right that is a cornerstone of the democratic and political process. It’s time for an advocate to strike the legislation down, so that citizens can exercise their right to express political thought and opinion in a free and democratic society.