Top court rejects bizarre Ontario take on freedom

By David Reevely
Jan 27, 2017

Canadians deserve to know who’s spending money to influence our elections, the Supreme Court said Thursday morning, as it upheld a provincial law requiring groups that aren’t political parties to register with the government if they’re going to advertise during campaigns.

It rejected an argument made by lawyers representing Ontario, who argued that posting about politics on the Internet is quite enough political freedom for us.

The decision has to do with a British Columbia policy that covers anyone who “sponsors” election-related advertising. Ontario has a similar one: If you’re going to spend more than $500 on an effort to influence voters here, you have to tell Elections Ontario who you are and what you’ve spent money on, much the way political candidates and parties do.

In B.C., the non-profit Freedom of Information and Privacy Association complained that the law there has no lower limit, so it could be applied to people making up signs to carry to a march, or giving out their own photocopied pamphlets on the street.

The first judge to hear the case even agreed: The law “would have the effect of restricting spontaneous or unplanned election advertising,” that judge’s ruling said, counting political T-shirts and slogans scrawled on poster board as forms of advertising.

Here’s the worrying thing: Attorney General Yasir Naqvi sent lawyers to join in when the case reached the Supreme Court, to argue that that would be totally fine. The B.C. law explicitly exempts some kinds of political speech from its restrictions, they said, and those are adequate. All British Columbia’s law did was to restrict the “time, place and manner” of political speech, you see, not speech itself.

“Under the impugned legislation, individuals are free to express their personal election views through non-commercial use of the Internet (or telephone) without having to register with the (chief electoral officer),” their written arguments said. People can send emails! They can post in the comment sections below news stories! They can call people up one by one!

Literally that was their argument: posting comments on the Globe and Mail or National Post websites “leaves room for meaningful political engagement without registration.”

Of course, that would put, say, last weekend’s women’s marches on iffy legal ground. How much did the yarn for your pink hat cost? What about the placards and T-shirts? Or the bus ticket to get to a bigger city’s march?

Shove off, said the Supreme Court — unanimously, in an opinion written by Chief Justice Beverley McLachlin. What British Columbia is doing is constitutional as long as you don’t misread the law so ludicrously. The point of the B.C. law is to make sure citizens can tell who’s trying to influence their opinions. If you’re out carrying a sign you made up with cardboard and a stick you bought, or handing around leaflets you printed up, or wearing your own pink hat, it’s obvious who you are and you don’t need to register.

It’s only if you’re not there personally to stand behind the message, because you’ve bought television airtime and had actors play parts in your ad, or hammered signs into the ground and walked away, that you need to report yourself and your activities to the election authorities. That constitutes “sponsoring” an ad, which is what the B.C. law covers.

Yes, making people register with the government to speak about politics in public is an infringement on free expression. But it’s justifiable in those limited cases, McLachlin wrote, because it makes our democracy stronger overall.

“The purpose of the registration requirement — increasing transparency, openness, and public accountability in the electoral process and thus promoting an informed electorate — is pressing and substantial, and the registration requirement is rationally connected to this objective,” her judgment says.

Ontario has restricted all sorts of election activities as of this year, especially related to money. Who can raise it, who can spend it, how much they can spend, what they have to report.

The idea is to keep political parties from using other groups as fronts, having them do things the parties themselves are no longer permitted to do. Like raise oodles of cash from a handful of rich people with vested interests in particular candidates’ success and spend it anonymously.

The government hasn’t tried to tell us we aren’t allowed to make our own protest signs without filing a form with the elections office, though apparently it thinks it could if it wanted to.

Good thing the Supreme Court has advised it not to try.