B.C. Freedom of Information and Privacy Association v BC (AG): #Sponsored #Ad

In the case of BC Freedom of Information and Privacy Association v British Columbia (AG), 2017 SCC 6, the Supreme Court once again wrestled with the uniquely Canadian issue of limiting election advertising. The appellant was a non-profit from Vancouver named the BC Freedom of Information and Privacy Association (“the Association”). Its mandate is to promote freedom of information and privacy rights in the public sphere. The legislation at issue was British Columbia’s Election Act, RSBC 1996, c 106 (“the Act”)—specifically, section 239 of the Act which requires “sponsors” of election advertising to register with the province’s Chief Electoral Officer. The Association sponsored election advertising within the meaning of the Act in both the 2009 and 2013 elections, and argued that the registration requirement under the Act inhibited and delayed political expression. The Court found it didn’t, but in coming to that finding, the Court engaged in some precarious reasoning. While I believe the correct holding was reached in the case at bar, I believe the Court wholly underestimates individual self-expression in the process, including the impact such expression can have in the modern age.

 Arguments and Findings

The Association argued that the registration requirement was an infringement of Charter section 2(b) rights to freedom of expression, and that the infringement was not justified under section 1. Unlike the Harper v Canada (AG), 2004 SCC 33, case (where the Court upheld that requiring those who spend more than $500 on election advertising under the federal Canada Elections Act, SC 2000, c 9, was a justifiable limit) the BC Act did not include any exceptions or provide any monetary threshold for who had to register. The Association argued that section 239 thereby put a chilling effect on small and independent voices. People who wanted to put political bumper stickers on their cars, or picket signs on their lawns and windows, or even wear T-shirts that expressed political views would likely not be able to comply with the administrative burden of registering. Furthermore, these individuals would not want to register due to privacy and safety concerns, since registering requires them to disclose personal information and make it available on the public record. By failing to distinguish between small scale advertising and large third-party campaigns, the Association argued that section 239 put conditions on individual self-expression that were illegitimate and unjustified under the Charter, and should be held to be of no force and effect.  

The Court disagreed with the Association, and dismissed the appeal like all the courts before it. The main finding of the Court was that section 239 did not catch the small scale advertisers as the Association had argued. The Court found that while the Act did not make explicit the scope of expressive activity it covered, it contained within it a “qualitative” threshold that exempted political self-expression done on a small scale (para 48). The rest of the Court’s reasoning flowed from this finding of the meaning of “sponsorship” under section 239. The Court held that while the provision limited freedom of expression under section 2(b) of the Charter, the limit was justified under section 1. Under branch one of the R v Oakes test, the purpose of the registration requirement was found to be pressing and substantial: it was in place to “increase transparency, openness, and public accountability in the electoral process and thus promote an informed electorate” (headnote). The Court also said that requiring influential, third-party sponsors with large funds to register had significant benefits: it provided assurances to the public and allowed the Chief Electoral Officers to ensure compliance with the Act. As the public interest benefits outweighed the deleterious effects of limiting the speech of those who sponsor organized advertising campaigns, the infringement was held to be proportionate under branch two of the R v Oakes test.

Sponsorship Part I: Identity Crisis

While I believe the Court came to the correct holding in the case at bar, I find the Court’s reasoning in arriving at that holding to be precarious. I will review how the Court came to finding that the Act had a “qualitative” threshold that exempted the “small spenders” upon which the Association relied. First and foremost, the Court outright rejected the BC Chief Electoral Officer’s interpretation of section 239 that explicitly stated “[e]lection advertising rules do not distinguish between those sponsors conducting full media campaigns and individuals who post handwritten signs in their apartment windows” (para 19, emphasis added). Instead, the Court established what it means to be a “sponsor” of “election advertising” through its own ‘proper interpretation.’ The Court engaged in a statutory interpretation exercise which looked at the Act in its entirety while readings its words in their “grammatical and ordinary sense” in harmony with the Act’s scheme (para 21). While blatantly ignoring the legislative evidence of the BC Chief Electoral Officer, the Court reviewed sections 228 (definition of election advertising), 229 (definition of a sponsor), 231 (attribution requirement), 224 (disclosure requirement), and 235.1 (expenditure limits), as well as the Act’s amendment history. Through this interpretive approach, the Court added two caveats to the definition of “sponsor” under the Act.

The Court found that section 239 distinguishes between entities because it requires only the individuals or organizations who “sponsor election advertising” to register (para 24). Using the Collins Canadian Dictionary, the Court found its first caveat: a “sponsor” is a person or group that promotes another person’s or group’s activity (para 24). Sponsorship, therefore, necessarily involves two people or more, with someone acting in a supporting role. The second caveat came from section 229 of the Act, which defines a “sponsor” by two actions: (1) someone who pays for election advertising to be conducted; or (2) someone who receives election advertising without charge as a charitable contribution (para 26). The Court determined that one cannot be a “sponsor” unless either one of these two acts is committed. In light of both of these caveats, the Court concluded that a single individual engaged in expressing a personal view who is also not paying someone or being provided services to do so, is not caught by the scope of the provision, and is therefore not required to register.

I find these two caveats to be inaccurate and artificial. The Court’s interpretation is predicated on the assumption that self-expression cannot be a contribution to someone or something else. But when an individual’s personal views align with those of an electoral candidate, the line between who is in the supporting role and who is in the primary role blurs significantly. Moreover, groups and individuals are fully capable of sponsoring their personal advertising efforts. For example, a company on its own volition (i.e. without being asked by a candidate) can have its own advertising department create and run an advertisement in support of a candidate. If it pays the employees of its own department to do so, does that count as payment under section 229? Or, if the employees’ salaries are already in the company’s budget, does that count instead as a charitable contribution under section 229? If a famous individual pays money for a T-shirt plastered with the face of a candidate that their views wholly align with and wears it to a major event—who is the sponsor and who is the advertisement and whose views are being supported?

Sponsorship Part II: Popularity Contest

The example of a famous individual brings me to the second part of the Court’s precarious reasoning. Looking at the expenditure limit provision in the Act (section 235.1), the Court concluded that the registration requirement was intended to require only the sponsors of large “parallel advertising campaigns” to register. The Court indicated that the size of the campaign mattered because one had to be able to identify the campaign as a “force” that could “influence” provincial elections (para 34). The registration requirement ensured that the influential forces behind such big campaigns (i.e. sponsors) were revealed to the public, so that no one would question who was “behind” the content of the message (para 35).

The Court also highlighted the reference to opinion surveys that was removed from the Act in 2002. Conducting of surveys was used as an example to identify that not only did the size of the campaign matter, but that the complexity of “organized election advertising” did too. A survey would have to be sponsored by an individual or group, another individual would then have to conduct it using some discernible methodology, and all of this would finally have to be disclosed to the BC Chief Electoral Office in compliance with the Act. Thus, while the Association argued that section 239 limited spontaneous election advertising on the small scale, the Court said that large third-party campaigns cannot be undertaken to the sponsor’s surprise, and by their very nature are not spontaneous.

All of these additional layers and requirements bring the Court to its holding, but they ultimately fail to clarify what a “sponsor” is and what “sponsorship” entails. In the current day and age, social media has allowed for single individuals to become influential forces. Social media platforms provide single individuals with the audience base and the resources to reach that audience. This removes the need for an influential campaign to be large in size or the need for it to involve complex methodology. The ease of use also allows for spontaneous and unplanned campaigns to be carried out and substantially impact the election. Simultaneously, this undermines the effectiveness of the registration requirement, since it is harder to discern who is really “behind” the political messages transmitted on social media by small groups or single individuals. Nevertheless, these are excluded by the Court’s definitions of a sponsor and sponsorship. Once again, the Court predicates its holdings on the assumption that self-expression cannot be a contribution to someone or something else. Today, this is simply not true and I don’t imagine a return to more formal media structures coming any time soon.

I would like to conclude with my favourite quote from the judgment:

“[T]hough logic and reason, without assistance, can only go so far, they can go far enough. Where the scope of the infringement is minimal, minimal deference to the legislature may suffice and social science evidence may not be necessary.” (para 58)

The Court decided to reject legislative evidence and engage in its own ‘proper’ statutory interpretation in this case. I suggest that this statutory interpretation exercise proved to be short-sighted, and did not, in fact, “go far enough”. While adding layers of requirements to the definition of a “sponsor” and “sponsorship,” the Court failed to account for modern methods of advertising. In doing so, the Court also underestimated individuals and the great influence that their self-expression can have. Although I believe the Court came to the correct holding in the case at bar, their reasoning lays the foundation for problems in the future regarding public accountability and transparency in election advertising.