Ontario Court of Appeal strikes down Ford’s election advertising rules
Ontario Court of Appeal has struck down third-party election advertising rules introduced by Premier Doug Ford’s government as unconstitutional, though the province quickly indicated an appeal is on the way.
The decision is the latest constitutional drama for Mr. Ford and his Progressive Conservative government, which has now used or threatened to use the Charter’s notwithstanding clause three times – the first Ontario government to do so. In November, he invoked – then withdrew – the clause to impose a contract, and a strike ban, on an education workers union.
Monday’s appeal decision on spending limits follows similar controversies or court battles in Alberta and British Columbia over election ad rules in recent years.
Before 2021, third parties were allowed to spend up to $600,000 on advertising in the six months before an election call, but that year the government stretched the pre-election restricted spending period to one year while not increasing the amount.
The Progressive Conservative government argued the extended restriction was necessary to protect elections from outside influence, but critics said it amounted to the government trying to silence criticism ahead of the 2022 provincial election.
The law was found unconstitutional on free speech grounds, so the government reintroduced the provisions using the notwithstanding clause, a section of the Charter that guards against constitutional challenges.
Several groups that tend to publish third-party ads, including the Working Families Coalition and teachers unions, challenged that reintroduced law, and Ontario’s Court of Appeal has now sided with them.
The court writes in its ruling that in this case, the third parties argued the law violated a different section of the Charter – one not subject to the notwithstanding clause – on a voter’s right to meaningful participation in the electoral process.
Of the three-judge panel that heard the case, two judges, Justice Benjamin Zarnett and Justice Lorne Sossin, supported the decision, and one, Justice Mary Lou Benotto, dissented, siding instead with the lower-court judge.
The judges agreed, in a split decision, and gave the government one year to create new, Charter-compliant legislation.
“(The advertising rules) overly restrict the informational component of the right to vote,” the decision said.
“They therefore undermine the right of citizens to meaningfully participate in the political process and to be effectively represented.”
Karen Littlewood, president of the Ontario Secondary School Teachers’ Federation, said the ruling is significant.
“Sadly, it’s another example of the Ford government being found to do something that is unconstitutional,” she said.
A wage restraint law known as Bill 124, which capped the salary increases of public sector workers such as teachers to one per cent a year for three years, was ruled unconstitutional, though the government is appealing.
“It’s not the first time they’ve tried to strip us of our rights,” Littlewood said. “It’s happened a number of times. It’s reassuring that the courts agree that this legislation is out of order and should not be in place. But it remains to be seen what the government will do to replace it.”
A spokesperson for Attorney General Doug Downey said the government is “disappointed with the outcome and will be appealing the decision.”
NDP Leader Marit Stiles said the government is wasting taxpayers’ time and money.
“When they trample on the democratic rights of Ontarians, they’re going to lose and they’re going to lose again and again,” she said. “And it’s time they got the message and stopped wasting millions of dollars that could be spent elsewhere.”
Prior to a 2017 law enacted by the Liberal government at the time, there were no limits on third-party advertising. In 2014 election, third parties spent $8.64 million, which amounted to 17 per cent of all election spending.
Unions were some of the largest third-party advertisers – the Working Families Coalition, known for its anti-Tory ads, spent $2.5 million during the campaign, with contributions from some of the province’s biggest unions.
Working Families lawyer Paul Cavalluzzo called the decision a significant victory for free and fair elections.
He also said the Premier was trying to restrict unions from spending in elections, even as his own party rakes in funds from wealthy donors, noting that Mr. Ford’s PC Party took in as much as $6-million in just one fundraising event last week.
“It’s ironic that this decision comes down a week after we find that the Premier had a fundraiser where he raised $6-million, and at the same time he is trying to nickel-and-dime trade unions that want to engage in political advertising,” Mr. Cavalluzzo said. “He certainly tried to create a very unfair playing field and fortunately the court has restrained him.”
The Canadian Civil Liberties Association, which intervened in the case, welcomed the decision, but lamented that the original rule gave the changes the “potential to impact the last election.”
The year-long precampaign spending restriction period Ontario tried to impose was more intrusive than the rules applied in federal elections and in many other provinces. Ottawa’s rules, for a regular fixed-date election, restrict spending by third-party groups for 2½ months before the campaign begins.
Part of the article was reported by CP.
