Ontario’s top court strikes down third-party election ad spending rules

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Ontario’s top court 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 in the works.

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.

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 in an interview.

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.

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