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June 17, 2009

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Bill 42 (The BC Elections Amendment Act) – Justice Cole’s Decision

In his decision released on March 30, 2009, Justice Cole struck down the Third Party spending limits during the 60-day, pre-campaign period set out in the Act.

He also stated: “I am satisfied that the deleterious effects of the impugned provisions outweigh their salutary effects, and even giving due deference to the legislative decision, I conclude that the impugned provisions cannot be upheld as a demonstrably justified limit in a free and democratic society. Accordingly, I declare that s. 235.1 and s. 228 to the extent that it is incorporated into s. 235.1 of the BC Act is of no force and effect insofar as it relates to the pre-campaign period.”

This meant that, during the two weeks remaining between his decision and April 13 (when the election campaign period began), restrictions on the freedom of speech and spending on third party advertising in British Columbia were removed. Most unions and a number of community groups took as much advantage of this decision as they could by producing TV, radio, print, and/or other forms of electoral advertizing prior to the writ being dropped.

This ruling also allowed CUPE and others who had spent some money on electoral advertizing prior to the decision to still spend the full $150,000 province-wide and/or $3,000 per riding during the actual campaign period.

With respect to the pre-campaign spending limits on candidates and political parties, although Justice Cole was unable to strike them down as well (because there was no notice given under the Constitutional Question Act to allow him to do so), he invited the legislature to do just that. However, the government took no action other than to file a notice of appeal.

With respect to the appeal, so far—other than seek the unions’ agreement to an extension to file documents required to advance its appeal, which we declined to give— the government has taken no further action.

Submitted by:
Mike Dumler, Legislative Co-ordinator