SCC Strikes Down Ontario’s Pre-Election Third-Party Political Advertising Spending Limits

More changes are coming for third parties looking to engage in Ontario elections, after the Supreme Court of Canada (SCC) settled the constitutional challenge to the province’s third-party pre-election political advertising restrictions.

In Ontario (Attorney General) v. Working Families Coalition (Canada) Inc. (Working Families), Canada’s top court determined that Ontario’s third-party spending limits on pre-election advertising were unconstitutional. A majority held that the restrictions, which capped third-party advertising spending in the 12 months preceding an election period, unjustifiably infringed the right to vote enshrined in section 3 of the Canadian Charter of Rights and Freedoms (Charter) by creating a disproportionality that, on its face, allowed political parties to drown out the voices of third parties on political issues.

Unless the province enacts alternative, constitutionally compliant restrictions, there will be no pre-election political advertising spending limits imposed on third parties prior to the next general election in Ontario.

The Proposed Restrictions 

As explained in our previous bulletin, the Ontario legislature amended the Election Finances Act (EFA) to limit third parties’ political advertising spending to C$600,000 in total and C$24,000 per electoral district (each amount indexed to inflation) in the 12 months prior to the issuance of a writ of election for a general election (Pre-Election Period). A “third party” is broadly defined in the EFA as including any person or entity other than a registered candidate, registered constituency association or registered political party.

Importantly, these restrictions did not apply to registered political parties, which were subject to a limit of C$1-million (indexed annually) in the last six months of the Pre-Election Period and no advertising spending limits in the first six months of the Pre-Election Period.

The Decision Leading Up to the SCC

A group of advocacy organizations, unions and individuals commenced a constitutional challenge of the restrictions in the Superior Court, arguing, among other things, that the spending restrictions infringed the right to vote in section 3 of the Charter. The application judge held the restrictions did not violate section 3 of the Charter, but a majority of the Court of Appeal allowed the appeal, declaring the spending restrictions invalid.

A majority of the SCC agreed, finding that the impugned spending restrictions infringed the “informational component” of the right to vote under section 3 of the Charter. The majority held that a spending limit infringed section 3 by allowing political actors to have a disproportionate voice in the political discourse, thereby depriving voters of the full breadth of views and perspectives on social and political issues. The majority concluded the EFA’s restrictions created “absolute disproportionality” and “a significant, qualitative disparity between what political parties and third parties may do, leading to disproportionality in the political discourse.”

The SCC held that the breach of section 3 could not be justified under section 1 of the Charter, and SCC struck down the spending limits, declaring them to be of no force and effect.

Key Takeaways

Following the SCC’s decision in Working Families, third parties looking to spend on political advertising must consider the following:

• Third-party spending limits do not apply during Ontario Pre-Election Periods. Presently, there are no spending limits in the EFA that apply to third-party political advertising during a Pre-Election Period. Meaning, during the 12-month period immediately before the issue of a writ of election for a general election, third-party political advertising is not subject to any spending caps.
• Third-party spending limits still apply during Ontario election periods. The SCC’s decision only addressed the spending limits imposed on third parties during the Pre-Election Period. Third-party political advertising spending limits still apply during the election period, which begins on the date the writ is issued and continues until the election date. During the election period, no third party may spend amounts greater than C$4,000 in any given district or C$100,000 in total (each amount to be adjusted based on inflation) on political advertising. There are also strict prohibitions against colluding with others to circumvent the spending cap, disbursing spending among related entities to avoid the limits and sharing information with registered political parties.
• Ontario may still establish new spending limits before the next election. With the next Ontario election scheduled to occur by June 7, 2029, the Legislative Assembly of Ontario will have ample opportunity to develop new limits for pre-election third-party political advertising. Prospective advertisers should take care to ensure that laws have not changed prior to engaging in any political or issue advertising.
• The implications for election spending limits in other jurisdictions remain unclear. The SCC’s conclusion that spending limits on third-party political advertising in the EFA violate the Charter because they would create disproportionality in political dialogue may be applicable to other election financing regimes in Canada. Similar third-party spending limits are in place in Alberta, Manitoba and the Northwest Territories. Third parties may find an avenue to challenge these or other spending limits outside Ontario based on the impacts those spending limits have on citizens’ rights to vote in an informed manner and the broader political discourse.

For more information, please contact the authors or any other member of our Public Sector Crisis & Compliance group.