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March 31, 2009

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Legal Challenge to Bill 42 (The BC Elections Amendment Act) Succeeds

Friday, March 27 Justice Cole gave an oral decision in the Bill 42 case which struck down the Third Party spending limits during the 60 day pre-campaign period set out in the Act.

The full text of that decision with reasons and remedy was released on Monday, March 30. In it Justice Cole 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 means that during the remaining two weeks between now and April 13 (when the election campaign period begins) restrictions on the freedom of speech and spending on third party advertising in British Columbia have been removed. Of course the Government may appeal and/or apply for Stay of Justice Cole’s decision, in which case, if they were successful, the restrictions on our freedom of speech would be back in place.

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 has invited the legislature to do just that.

As for the issue of the cost incurred by the Plaintiff Unions in challenging Bill 42; in keeping with the standard rules and practices of the court, it is anticipated that a substantial portion of those costs will be recovered.

Submitted by:

Mike Dumler,
CUPE BC Region Legislative Co-ordinator