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Ontario Invokes Notwithstanding Clause Over Charter Challenge to Pre-Election Spending Limits: Working Families Ontario v. Ontario, 2021 ONSC 4076

On June 8, 2021 the Ontario Superior Court of Justice held that new provincial limits on third party advertising spending in the run up to an election are unconstitutional. On June 9, 2021, the Government of Ontario invoked the Notwithstanding Clause to preserve the new limits.

The New Law

In February 2021, the Government of Ontario enacted the Protecting Ontario Elections Act, 2021 (“Bill 254”), amending the Election Finances Act, RSO 1990, c E7 (“EFA”). The amendments further limited pre-election third party political advertising spending to $600,000 within 12 months of an election. Previously, this limit only applied 6 months before an election. The former 6-month limit was imposed in 2017, along with a broader definition of “political advertising” which was expanded beyond direct support or opposition for a political party, leader, or candidate to include issues-based advertising. The 2017 changes were subject to a 2018 Charter challenge under ss. 2(b) (freedom of expression) and 2(d) (freedom of association). These challenges were consolidated with the challenge to the 2021 amendments.

The Judicial Decision: Working Families Ontario v. Ontario, 2021 ONSC 4076

Justice Morgan heard the combined freedom of expression and association challenges on June 2-3, 2021. The applicants challenged the 12-month pre-election restricted spending period, the inclusion of issue-based advertising in the restriction, anti-third-party coordination provisions that prohibit collusion among political advertising groups, mandatory registration and reporting requirements that accompany expenditures on political advertisements, and the punishments and administrative penalties enacted to enforce these policies.

The applicants contended that the $600,000, 12-month limit was prohibitively low given current advertising costs. They argued that the definition of “political advertising”, which now covers issues-based advertising, was unfairly broad, unworkably vague, and captured too much speech. Elected politicians, and in particular the Premier, cabinet ministers, and the governing party, are frequently associated with all of the important public policy issues of the day. The applicants argued that the reporting requirements are so burdensome and intrusive as to effectively prevent all but the largest and best resourced organizations from engaging in any meaningful political advertising. Finally, the applicants argued that the penalty provisions are severe and that the administrative remedies are subject to unchecked discretion. Combined with a vague and expansive underlying prohibition, the penalty provisions create a serious rule of law infringement and will have a chilling effect on third party political expression.

The Attorney General’s position was that the amendments served to create transparency and an equal playing field in the run up to an election, so that spending by private interests does not drown out political parties waging the electoral contest. The remedial provisions were portrayed as ordinary administrative procedure carried out by the Chief Electoral Officer, whose office is independent of government and exercises non-political duties and judgment.

Justice Morgan noted that the freedom of expression jurisprudence does not regard all expression as equally protected under the Charter. Justice Morgan described political expression as attracting the highest level of protection. However, Justice Morgan also observed that the degree of protection for expression, even political expression, is context-dependent. Justice Morgan held that spending limitations on political advertising engage not only free speech, but also equality of speaking opportunities, as both are of high concern to the political process. After reviewing the history of third party spending limitations and the related jurisprudence, Justice Morgan described them as potentially valid limits on the broad guarantee of freedom of expression. He held that an egalitarian model of democracy views it as a constitutional imperative to ensure that voices backed with large financial resources do not come to deprive their opponents of a reasonable opportunity to speak and to be heard.

However, Justice Morgan did not find the spending limits in issue were justifiable under s. 1 of the Charter.

The provisions were not fatally vague. Justice Morgan observed, “It is generally easy to know who is running for election and whether an advertisement or media campaign is targeting a candidate or party; it is also possible to discern whether an advertisement targets a candidate’s or a party’s election talking points or policies”. The EFA provides guidance and context on what counts as political advertisement. The EFA allows for coherent debate over what constitutes political advertising, and is overseen by the Chief Electoral Officer, whose office is non-partisan, independent, subject to administrative law safeguards, and attuned to the political issues of the day.

The provisions were enacted pursuant to a pressing and substantial objective. These measures have the goal of protecting equality of individuals in the lead up to an election, preventing outsized influence by wealthy individuals and entities, and furthering transparency. Justice Morgan discussed evidence of the corrosive impacts of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) and a “laissez-faire approach to third-party spending” on American democracy. Justice Morgan rejected that these measures were a self-serving tactic by the government of the day, and accepted they were aimed at protecting the integrity of the democratic process. The measures were rationally connected to the objective.

However, the law did not minimally impair the right to freedom of expression. In June 2016, the Chief Electoral Officer recommended against regulating issue-based advertising prior to the writ period. The government’s own expert witnesses testified in the predecessor litigation that a 6-month pre-election period was the appropriate and effective period in which spending restrictions for political advertisements should operate, though they now asserted that a 12-month period is “also reasonable”. If 6 months was adequate to the legislative goal, then 12 months cannot be minimally impairing. Deference was not owed to the legislature’s choice of time period, as the two policies being considered were not competing social values but rather competing ways of accomplishing the same social value – i.e. fair and egalitarian elections. There was no justification or explanation in the Attorney General’s record as to why the doubling of the pre-election regulated period was implemented. Incumbent governments have a structural conflict of interest on matters of electoral design, and in such scenarios courts must be vigilant. As the new 12-month restriction was unconstitutional, its attending implementation and enforcement measures were unconstitutional too. The impugned provisions failed the proportionality test for similar reasons.

The freedom of association challenge failed. While unnecessary because of the applicant’s success on the freedom of expression challenge, Justice Morgan commented on the validity of election laws prohibiting circumvention of spending limits. Citing Harper v. Canada (Attorney General), [2004] 1 SCR 827, anti-circumvention laws do not violate s. 2(d) of the Charter because they do not prevent individuals from joining to form an association in pursuit of a collective goal, which is the essence of the guarantee of freedom of association. Rather, anti-circumvention provisions only preclude persons from undertaking an activity – namely, circumventing the third-party election advertising limits under the EFA – which is not protected under the Charter. The anti-circumvention provisions in issue provide specific examples which clearly target circumvention of spending limits, rather than the act of association itself. Spending together, not joining together, is prohibited, and anti-circumvention sections are enacted to ensure that third parties cannot do together what they cannot do on their own.

Justice Morgan declined to suspend operation of his judgment. The next provincial election is scheduled for June 2, 2022, placing the decision within 12 months of an election. It would be unfair to the applicants to apply the law at this time.

The Ontario Government Invokes the Notwithstanding Clause

The day following the decision, the Government of Ontario announced its intention to use the Notwithstanding Clause to give effect to the impugned provisions. The government recalled legislators on June 10, 2021 to give effect to the law. This is the second time the Notwithstanding Clause has been invoked by a government in Ontario, the first time being from the same government in 2018 with respect to Toronto city council’s size. This time would mark the first time it has actually been used in Ontario.

What Does this Mean for the Upcoming Provincial Election?

Use of the Notwithstanding Clause would allow the legislation as written to remain in force. This would impose a $600,000 spending limit on third party advertising in the 12 months preceding an election. We are within 12 months of the June 2, 2022 provincial election in Ontario, making the limit applicable. The EFA imposes substantial fines under ss. 46 through 49 if third parties are found to have knowingly contravened spending limits and reporting requirements. Under s. 46.0.2, any third party that contravenes the spending limits is, in addition to other penalties, liable to a further fine of up to five times the amount by which they overspent. Separate and apart from the offence provisions, s. 45.1 creates administrative penalties of up to $100,000 for each contravention by a third party. These penalties may be ordered by the Chief Electoral Officer if that office believes on reasonable grounds that a person or entity has contravened specified registration, contribution, and reporting provisions.