Court of Appeal Strikes Down 12-Month Limit on Third-Party Spending During Pre-Election Period

On March 6, 2023, the Court of Appeal for Ontario (Court) released its reasons in Working Families Coalition (Canada) Inc. v. Ontario (Attorney General). A majority of the Court struck down the Ontario government’s spending restrictions on third-party political advertisements for violating section 3 of the Canadian Charter of Rights and Freedoms (Charter), which protects citizens’ voting rights and their meaningful participation in the electoral process. This holding was reached despite the government’s invocation of section 33 of the Charter — commonly known as the notwithstanding clause — as section 3 is not subject to that clause. The Court’s decision is an important development in the government’s attempts to regulate how much third parties may spend on political advertising in the run-up to an election period.

BACKGROUND

Prior to the 2018 Ontario general election, the government enacted amendments to the Election Finances Act (EFA) that imposed a C$600,000 spending limit on political advertisements by third parties in the six months prior to the issuance of an election writ. In 2021, the government further amended these laws by extending the restricted spending period to 12 months prior to the issuance of a writ, but maintained the C$600,000 cap (EFA Amendments).

A group of advocacy organizations, unions, and individuals commenced a constitutional challenge of the spending restrictions in the EFA amendments. Those restrictions were declared invalid and struck down by the Ontario Superior Court of Justice for infringing the right to freedom of expression under section 2(b) of the Charter (see Working Families Ontario v. Ontario). The government subsequently re-enacted the EFA Amendments under Bill 307, Protecting Elections and Defending Democracy Act (PEDDA), but invoked the notwithstanding clause to shield the legislation from constitutional challenge under sections 2 and 7 to 15 of the Charter.

The same applicants commenced an additional constitutional challenge, which objected to the government’s invocation of section 33 of the Charter and argued that the re-enacted restrictions infringed section 3 of the Charter. The same judge who determined the section 2(b) challenge heard the application and sided with the government. The application judge found: first, that section 33 was properly invoked; and second, that the re-enacted third-party advertising spending limits during the 12-month pre-writ period did not infringe the right to vote under section 3 of the Charter (see Working Families Coalition (Canada) Inc. v. Ontario). The applicants appealed.

ANALYSIS

The Court of Appeal unanimously agreed with the lower court that section 33 of the Charter was properly invoked. However, a majority of the three-judge panel overturned the lower court’s ruling on section 3 of the Charter. The majority held that the informational component of the right to vote — specifically, the right to be reasonably informed of all electoral choices at the time of voting — was overly restricted by the spending limits and time periods set out in the legislation, and therefore undermined the right to meaningful participation in the electoral process as protected under section 3 of the Charter.

The majority (Justices Zarnett and Sossin) found that the lower court erred in its section 3 analysis. First, the lower court failed to properly determine whether the restrictions were “carefully tailored” to ensure that third parties are able to convey their information to voters. Second, the majority held that the lower court erred by failing to determine whether the restrictions permit third parties to mount a “modest informational campaign.” Finally, the majority found that the government’s infringement of section 3 could not be saved by section 1 of the Charter, as the restrictions were not minimally impairing, and any benefits of the restrictions were not proportional to the rights limitation.

Writing in dissent, Justice Benotto held that the lower court did not err in finding that there was no section 3 infringement and would have dismissed the appeal.

TAKEAWAYS

The majority declared the re-enacted law extending the restricted spending period to be constitutionally invalid and granted a one-year suspension of the declaration to give the government time to enact Charter-compliant legislation.

This case provides a notable example of a government’s attempt to invoke the notwithstanding clause in response to earlier Charter infringements, but ultimately being unable to escape Charter scrutiny on other constitutional grounds. It serves as an important reminder that legislation that engages section 3 will not be shielded from Charter review even where section 33 is invoked by the Legislature.

Additionally, the majority’s reasons emphasize the importance of considering the explicit or implicit rationales of the challenged legislation when conducting the careful tailoring assessment under section 3 of the Charter. The majority’s reasons suggest that future restrictions on third-party spending limits under the EFA ought to balance spending and time-period restrictions with measures that will continue to allow third parties to mount a modest informational campaign during the pre-election period.

The Ontario government has stated that it intends to appeal the ruling.

For more information, please contact:

Alexis Levine                             416-863-3089
Laura Dougan                           416-863-2187

or any other member of our Public Sector Crisis & Compliance group.