Ontario appealing decision declaring third-party election advertising rules ‘invalid’
Law 360 Canada speaks to Anna Goldfinch about the Ontario Court of Appeal’s decision in recent election advertising case
The Court of Appeal has determined – again – that the Ford government’s limits on political advertising by third parties is unconstitutional.
The government initially imposed limits on third party political advertising in 2018 in the 6-months prior to the writ of election being issued. Third party advertisers, like unions, can spend only up to $600,000 in political advertising during the pre-writ period. In 2021, the government amended the Election Finances Act again to extend those limits to 12 months without increasing the amount of money that can be spent.
In June 2021, the Ontario Superior Court struck down those amendments on the basis that the restrictions were an impermissible limit on freedom of expression.
Undaunted, the Ford government enacted the same restrictions again, but this time used the notwithstanding clause in s. 33 of the Canadian Charter of Rights and Freedoms in an effort to prevent another challenge. The legislation was challenged again, this time under s. 3 of the Charter, which protects voting rights and is not subject to the notwithstanding clause. The Ontario Superior Court dismissed the challenge, but this week the Ontario Court of Appeal allowed the appeal, striking down the restrictions as unconstitutional. It held that the “spending restrictions infringe the informational component of the voter’s s. 3 right to meaningful
participation in the electoral process.”
The Ford government has since announced that it intends to seek leave to appeal the decision to the Supreme Court of Canada. Law 360 spoke to Anna Goldfinch about the decision:
Anna Goldfinch, of Goldblatt Partners LLP and counsel for the Elementary Teachers’ Federation of Ontario with Howard Goldblatt and Christine Davies, said “at its core, the Working Families decision is about the necessary balancing that must take place to protect electoral fairness and voters’ rights in Canada.”
“Previous Supreme Court of Canada cases have established that legislatures are permitted to enact election financing laws that prevent the well-resourced from dominating political discussion. However, when legislative changes go so far as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented, that important balancing is thrown off, and s. 3 is violated. The Elementary Teachers’ Federation of Ontario and several other unions argued that the Ford government’s Bill 307 did exactly that — and the majority agreed,” she explained.
“Specifically,” Goldfinch noted that “the majority found that the Bill 307 spending limits for third parties, like unions, violated the ‘informational component’ of the s. 3 right to vote, which guarantees citizens’ ability to exercise their vote in an informed manner.”
“This case represents an important win for voters’ right to hear about important societal issues from unions and other civil society groups in the lead up to an election,” she told Law360 Canada, noting that the decision “also has important precedential value.”
“The majority’s decision sets out two methods (referred to as ‘proxies’) for considering whether a spending limit violates the informational component of the right to vote: first, whether the limit was ‘carefully tailored’ and second, whether the limit permits a ‘modest informational campaign.’ The majority’s explanation of each of these ‘proxies’ provides much needed guidance in Canadian jurisprudence on the interpretation and application of s. 3 in the context of election financing laws,” she stressed.