Court of Appeal strikes down Ford government’s election finance law
The Ontario Court of Appeal has held that limitations on third party political advertising imposed by the Ford government are unconstitutional.
Background
In 2018, the Ford government amended the Election Finances Act to impose limits on third party political advertising. It restricted the amount that third parties can spend on political advertising to $600,000 in the 6-month period prior to the writ of election being issued. In 2021, the government extended those limits to 12 months without increasing the amount of money that can be spent.
The 2021 amendments were challenged by a number of unions as violating freedom of expression under section 2(b) of the Candadian Charter of Rights and Freedoms. The challenge was successful and, on June 8, 2021, the amendments were struck down. However, the Ford government quickly re-enacted law using the “notwithstanding clause” of the Charter.
The same group of trade unions challenged the new law, this time arguing that it violated the right to vote under section 3 of the Charter. The notwithstanding clause does not apply to the right to vote. The challenge was initially dismissed by the Superior Court of Justice.
However, by a 2-1 decision, the Court of Appeal overturned the Superior Court and found that the doubling of the pre-writ period violated the right to vote.
The Majority’s Reasoning
The right to vote includes the right of citizens to exercise their vote in an informed manner. This entails the right to be reasonable informed of electoral choices. This is often referred to as the “informational component” of the right to vote. While spending limits on third parties do not necessarily violate the right to vote, spending limits that undermine the citizen’s right to be reasonably informed of electoral choices can violate s. 3.
In Harper v. Canada, an earlier case on the right to vote, the Supreme Court of Canada wrote that spending limits need to be “carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters.” In that case, the court upheld federal spending limits that permitted third parties to engage in “modest, national informational campaigns” even if they would not be “effective persuasion” campaigns.
The Court of Appeal interpreted these statements in Harper to mean that a court considering whether a spending limit violates the informational component of the right to vote should use two “proxies” or methods for assessing the limit: the “careful tailoring” standard, and assessing whether the limit permits a “modest informational campaign”. The majority of the Court of Appeal found that both proxies suggested the doubling of the pre-writ period was unconstitutional.
The purpose of the “careful tailoring” requirement is to determine whether a restriction draws the line at the point of preventing the well-resources from dominating political discussion without being overly restrictive so as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. A challenger has the onus to show that a spending limit does not draw this line properly.
The majority of the Court of Appeal held that the challengers demonstrated that the law was not carefully tailored. The Court focused on the fact that the duration of the pre-writ period was doubled, while the spending limit itself was held constant. The effect of this was to reduce the total amount of electoral advertising spending that could take place in the year before each election. This was clearly a more severe restriction on third parties’ ability to convey electoral information than under the previous law.
The Court noted that the government’s own expert witnesses indicated that the previous 6-month period was adequate to ensure electoral equality. There was no evidence before the court that explained why doubling the pre-writ was necessary or justified. The fact that the prior period was appropriate to accomplish the goal of electoral fairness, and the lack of any explanation for the change, strongly suggested a lack of careful tailoring.
The “modest informational campaign” standard reflects the finding in Harper that the right to vote does not guarantee third parties the right to do engage in “effective” advertising. A constitutional spending limit may still only permit moderate informational campaigns. However, a limit that does not even allow this is likely to violate the informational component of the right to vote. This is a fact-based issue, which takes into account not only a spending limit, but also things like the cost of advertising or available methods of communication.
The majority of the Court of Appeal noted that the trial judge did not make a finding that the new provisions still permitted a reasonable informational campaign. Instead, he focused on whether television ads – the type of advertising most impacted by the amendments – tended to actually relate to policy discourse. He did not ask, for example, whether the amendments would permit a modest informational campaign using methods other than television. While the trial judge did refer to low-cost methods of advertisement other than television, he never answered the question of whether, given the new spending limits, using those methods would permit a third party to conduct a modest informational campaign.
The Court of Appeal noted that, while the unions who challenged the law had the onus to show that they could not conduct such a campaign, it was “telling on the ultimate question” that the Attorney General could point to no evidence that such a campaign was possible under the new spending limits.
The majority concluded, in light of its findings on the two proxy factors discussed above, that the amendments violated the informational component of the right to vote. The majority also held that those limits could not be justified under section 1 of the Charter, largely because of the admission that the previous version of the law was adequate to fulfill the government’s objective of supporting electoral fairness.
The Dissent
One member of the Court of Appeal dissented with the majority’s analysis. She would have upheld the law as not violating the right to vote.
The dissent disagreed with the majority’s reading of the Harper case, and in particular how they had used the concept of “narrow tailoring”. In the dissent’s view the question is not whether the legislature has narrowly tailored a spending limit – a question that includes examining the justification for the limit – but whether the effect of the limit is to undermine the right of voters to meaningfully participate in the electoral process. Using this framework, it is not relevant that the pre-writ period was changed from 6 months to 12 months. What matters is whether the 12-month period produces an unconstitutional effect. Assessing the reason for the change would only be relevant to deciding if a violation of the right to vote could be justified under section 1 of the Charter as a reasonable limit.
The dissent noted that the governments’ expert witnesses testified that the 12-month period would still permit meaningful participation in the electoral process. This was the ultimate question that the Court was required to consider in deciding if s. 3 was violated.
The dissent also disagreed that the trial judge failed to make a finding that the scheme would still permit third parties to mount modest informational campaigns. In her view, the trial judge’s reasons when read as a whole showed that he did reach this conclusion.
Next Steps
The majority only struck down the 12-month pre-writ period as unconstitutional. This limit was introduced along with a package of other amendments to the Election Finances Act, all of which were challenged as unconstitutional. The Court invited the parties to make submissions on whether any other aspect of the scheme should also be declared unconstitutional in light of their finding related to the length of the pre-writ period.
The government has announced that it intends to seek leave to appeal the majority’s decision to the Supreme Court of Canada.
Update: The Supreme Court of Canada has granted the government’s application for leave to appeal this decision.
Lawyers
Howard Goldblatt, Christine Davies, Anna Goldfinch