May 14th, 2019
The Justice Centre today released a new policy paper calling for changes to Alberta’s Election Finances and Contributions Disclosure Act (“EFCDA”). This paper, “Defending Democratic Discourse: Repealing the Unconstitutional Provisions of the Elections Finance and Contributions Disclosure Act,” provides recommendations on how to amend the EFCDA so as to ensure it does not violate Charter-protected freedom of expression.
In 2016, the Legislative Assembly of Alberta amended the Election Finances and Contributions Disclosure Act to include year-round (not limited to election periods) permanent restrictions on “political advertising” heretofore unheard of in Canada. In contrast to other federal and provincial legislation that restrict advertising only during election campaigns, these new restrictions apply at all times. The restrictions also apply to almost every conceivable issue of public interest, thereby severely limiting advertising as one form of public discourse.
The EFCDA requires “third parties”—defined as any individual or group that is not a political candidate or party—to “register” with Elections Alberta if spending more than $1,000 ever on “political advertising” or “election advertising”. Political and election advertising includes any advertising message that takes a position on an issue with which a registered party, the leader of a registered party, a member of the Legislative Assembly, a registered nomination contestant, a registered leadership contestant or a registered candidate is associated.
The extraordinarily broad definition of “political advertising” and “election advertising” encompasses any message, statement or argument regarding any matter of public policy, irrespective of how non-partisan or non-political the matter may be, so long as it is somehow “associated” at any time with a provincial political actor anywhere in the province. This essentially covers any and every issue that the public may want to discuss: health care, education, the environment, taxes, labour laws, human rights, politicians’ salaries and benefits etc.
Consequently, essentially any person or organization that uses paid advertising to get a message out to the public—regardless of what issue the message relates to, or how far removed from an election campaign it is—will be engaging in an illegal act unless first obtaining the consent of a government body.
The EFCDA also prohibits organizations and voluntary associations of citizens from using part of their general funds for paid advertising. Rather, citizen-supported organizations are required to use only funds designated for advertising obtained from donors who donate for that specific purpose. Worse, citizens and groups of citizens must disclose to the government the names of such donors, the city they live in and the amount they donated if they donated more than $250 in a given year.