Even use of notwithstanding clause can't allow law to stand as is, majority rules
A law restricting the ability of groups such as unions to run ad campaigns ahead of the last election is unconstitutional, and even the provincial government’s decision to use the Charter's notwithstanding clause can’t save it, the Court of Appeal for Ontario ruled Monday.
“The challenged spending restrictions infringe the informational component of the voter’s. . . right to meaningful participation in the electoral process, as set out by the Supreme Court [of Canada],” says a three-judge appeal court panel that heard the case.
That decision in Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) overturns a lower court’s ruling that said the use of the notwithstanding clause was not improper, and that the re-enacted spending limits on third-party advertising during the pre-writ period did not infringe the right to vote under s. 3.
“In our view, the application judge erred in failing to treat the extension of the spending restrictions from six months . . . to a restriction that was twice as long with no increase in quantum [the spending limit of $600,000], as central to the enquiry,” the appeal court ruling says. “Nor did the application judge make any finding that the spending restrictions are sufficient to permit a ‘modest informational campaign’.”
As a result, the court ruled the challenged spending restrictions were invalid but also said it would suspend the effect of the declaration for 12 months “to allow Ontario to fashion Charter-compliant legislation.”
Ontario government wields notwithstanding clause
The Progressive Conservative government of Doug Ford passed legislation in 2021 that imposed strict spending limits on third-party advertising in the year leading up to an election. It is the first time the province used the notwithstanding clause in a bill passed into law.
Using the Charter override had allowed the government to implement the law despite an earlier court ruling that said the law infringed on the free expression rights of third parties.
However, on Monday, the appeal court released a decision that says the law violates the section of the Charter that deals with democratic rights – as the notwithstanding clause in the Charter can’t be used to override a breach of that section of the Charter.
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The case was brought to the courts by a group that included Working Families Coalition (Canada) Inc., The Ontario English Catholic Teachers’ Association, The Elementary Teachers’ Federation of Ontario, and the Ontario Secondary School Teachers’ Federation and Leslie Wolfe.
As well, intervenor status was given to The Canadian Civil Liberties Association, The Centre for Free Expression at Ryerson University, The Criminal Lawyers’ Association, Democracy Watch, and the Chief Electoral Officer of Ontario.
The 2-1 ruling says the government’s changes “more severely” restricted information provided to voters than had previously been the case.”
It says there was no basis for considering the third-party spending restrictions as “carefully tailored” and to avoid hurting democratic rights.
The court concluded that “because the challenged spending restrictions were not carefully tailored . . . they overly restrict the informational component of the right to vote.” Therefore, “they undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. Consequently, in our view, they infringe s. 3 of the Charter.”
The decision adds: “If at least some voters are prevented from exposure to political information of value from third parties in the 6 to 12-month period, their right to meaningful participation under s. 3 [of the Charter’ may be undermined,” the decision reads.
Supreme Court sets out parameters of notwithstanding clause use
The appeal court noted that spending limits are necessary to ensure that the voices of the well-resourced do not drown out all others, as was determined by the Supreme Court of Canada in Harper v. Canada in 2004. The Harper decision also outlined two metrics for determining infringement of a voter’s right to meaningful participation in the electoral process: whether the restrictions are “carefully tailored” and whether they permit a “modest informational campaign.”
Using that yardstick, the Ontario appeal court ruled that when spending restrictions go too far, they prevent third parties from providing political information to voters to the extent that it undermines the right of citizens to participate in the political process meaningfully and to be effectively represented.
Justice Benjamin Zarnett and Justice Lorne Sossin were the two judges on the panel that supported the decision. In a dissenting decision, the third judge, Justice Mary Lou Benotto, agreed with the lower court judge.
In addition to the option of reworking the legislation to make it Charter-compliant, the province should also seek leave to appeal at the Supreme Court of Canada. The SCC could choose to hear the case or let the Ontario appeal court judgement stand.
Speaking for the government Monday, Finance Minister Peter Bethlenfalvy said the province was still reviewing the decision, and all options were on the table.
Constitutional challenges
Monday’s decision is the latest salvo in this history of legislation to limit advertising. In 2017, the year before the 2018 provincial election, Ontario imposed a $600,000 spending limit on political advertising by third parties. The limit applied to the 6-month period before the writs of election were issued.
Ontario again amended the EFA in 2021, the year before the 2022 provincial election. This time it extended the period to which that monetary limit applied from 6 months to 12 months before the writs, but with no increase in the amount available to spend.
These amendments to the legislation sparked constitutional challenges. The appellants successfully challenged the $600,000 spending limit that applied during the 12-month pre-writ period on the basis that they infringed third-party advertisers’ rights to freedom of expression under s. 2(b) of the Charter and could not be justified under s. 1.
During his s. 1 analysis, the application judge concluded that the extension of a 6-month pre-writ restricted period, which he found was appropriate to enhance electoral fairness, to one that was doubly restrictive - 12 months, with no increase in the allowed amount - was unjustifiable.
In response to that ruling, the Ontario government announced its intention to invoke the notwithstanding clause in s. 33 of the Charter, and introduced Bill 307, which received Royal Assent five days later as the Protecting Elections and Defending Democracy Act, 2021, S.O. 2021, c. 31 (PEDDA).
Other than the addition of the notwithstanding clause, the PEDDA amendments were identical to the amendments previously invalidated by the court.
During the second proceedings, which led to the current case before the appeal court, the appellants challenged the legislation as a violation of s. 3 of the Charter, and as an improper use of s. 33 of the Charter. Says the decision: “They relied on s. 3, because, unlike free expression rights under s. 2(b) of the Charter, which fall within the ambit of the notwithstanding clause, voting rights under s. 3 of the Charter do not.”
However, this time, the same application judge concluded that using the notwithstanding clause in enacting PEDDA was not improper, and that the re-enacted spending limits on third-party advertising during the pre-writ period did not infringe the right to vote under s. 3.
The appellants then took the case to the Ontario appeal court on the basis that the application judge erred in his interpretation and application of s. 3 and s. 33 of the Charter.
“They raised a number of different arguments, including that he erred in finding that a spending restriction that is twice as restrictive as the 6-month restriction he considered to be appropriate to enhance electoral fairness did not infringe voting rights under s. 3.”
Dissenting voice of an appeal court judge
In her dissenting opinion, Justice Benotto wrote, “in my respectful view, my colleagues focus on the words’ carefully tailored’ without adequate recognition of the words that explain the purpose of the careful tailoring. That goal, according to the SCC decision in Harper, she said, “is to ensure that candidates, political parties and third parties are able to convey their information to voters.”
She added: “These explanatory words are consistent with Harper’s clear direction that, to constitute an infringement of s. 3, the spending limits would have to undermine the right to meaningful participation, which includes the right to vote “in an informed manner.’”
The Canadian Civil Liberties Association, which intervened in the case, welcomed the decision.
“It is encouraging that the Court has found the overly broad third-party spending limits unconstitutional but concerning that the lower court’s error (finding no violation of the right to vote) had potential to impact the last election,” Cara Zwibel, Director of Fundamental Freedoms for the Canadian Civil Liberties Association (CCLA), said in a statement.