The 5-4 ruling featured two dissenting opinions on a provision of Ontario's Election Finances Act
A provision of Ontario’s Election Finances Act that puts spending limits on third-party political advertising prior to an election violates the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada ruled in a split decision released Friday.
Under s. 37.10.1(2) of the Ontario law, third parties – citizens or groups looking to advocate for specific issues – can spend up to $24,000 on political advertising in a single riding and $600,000 total in the 12 months before an election period.
Political parties, in contrast, can spend up to $1 million in the six months before an election period. They face no spending restrictions before those six months.
Writing for the majority, SCC Justice Andromache Karakatsanis said the spending limit on third parties “by design, creates absolute disproportionality, or a disproportionality that is so marked on its face that it allows political parties to drown out the voices of third parties on political issues from reaching citizens during an entire year of legislative activity.”
Justices Sheilah Martin, Nicholas Kasirer, Mahmud Jamal, and Michelle O'Bonsawin concurred. Justices Richard Wagner, Suzanne Côté, Malcolm Rowe, and Mary Moreau rendered dissenting opinions.
The third party spending limits went into effect in 2017 after the Ontario legislature amended the EFA as part of a broader effort to promote equality in political discourse, consistent with the SCC’s 2004 decision in Harper v. Canada (Attorney General).
After several organizations and individuals successfully challenged the new rules in court by arguing they violated s. 2(b) of the Charter, Doug Ford’s government revived the law by invoking the Charter’s so-called notwithstanding clause. That clause allows legislatures to override certain sections of the Charter, including s. 2.
The applicants then launched another challenge to the rules by alleging they violated s. 3 of the Charter, which guarantees citizens the right to vote. An application judge ruled that the third party spending limits did not breach s. 3, but an appellate court disagreed, ruling that the limits were invalid.
The SCC majority sided with the appellate court. In an “egalitarian model of elections,” no one participant in an electoral system can exert disproportionate influence, Karakatsanis wrote. Spending limits can theoretically level the playing field in elections, but they can also be used to restrict citizens’ access to diverse points of view.
Karakatsanis noted that case law clearly does not require all participants in an electoral system to be treated equally. The justice said, however, that spending limits violate s. 3 of the Charter when they deprive voters of a broad range of perspectives on social and political issues.
Noting the “differential treatment” of third parties and political parties under Ontario’s rules, the justice said the spending limits have “the potential to overwhelm the political discourse and drown out third parties, thus interfering with citizens’ access to information, letting them weigh and establish their views during an important time in the democratic cycle.”
She added that the EFA “creates an absolute disproportionality in the broader political discourse.”
The justice said that while the spending limits’ goal of promoting an egalitarian model of elections is pressing, Ontario has not demonstrated that the rules “minimally” breach s. 3 of the Charter.
In the first of two dissenting opinions, Wagner and Moreau argued that the spending limit on third party political advertising does not violate the Charter.
The right to meaningful participation under s. 3 “does not guarantee a right to ‘unlimited participation,’” the justices said, adding that “when expression is unlimited, well-resourced third parties can dominate political discourse, drown out the voices of their opponents, and prevent other citizens from having the opportunity to speak and be heard.”
Restricting the amount of money third parties can spend is therefore “not in itself a violation,” the justices said.
They pointed to the application judge’s lower court ruling, which noted that third parties have access to low-cost political advertising methods like blogs, op-eds, press releases, interviews, and mass mailings.
“In sum, while the quantum and duration of the spending limit will have the effect of limiting the extent to which third parties can engage in television advertising, the evidence supports the finding that the limit does not deprive citizens of a reasonable opportunity to convey political information to other citizens through various forms of inexpensive and effective advertising within the spending limit,” the justices said.
In a second dissent, Côté and Rowe agreed with Wagner and Moreau that Ontario’s election rules do not violate s. 3 of the Charter.
However, they differed in their understanding of s. 3. In their dissent, Wagner and Moreau found that s. 3 implicitly protects several rights beyond the right to vote and run for office. This includes the right to meaningfully participate in the electoral process, which involves having the reasonable opportunity to express political opinions and hear others’ perspectives.
Côté and Rowe said they did not believe the expressive component exists within s. 3. In their view, the appeal requires the SCC to consider whether the Ontario election rules infringe on the informational component of the right to vote – that is, the reasonable opportunity to hear others’ perspectives and gather enough information to cast an informed vote.
The justices said the answer to this question is no.
In a statement on Friday, a spokesperson for Ford said, “Having just finished the election, in which the people gave Premier Ford and our government a strong mandate, this decision has no immediate impact. We’ll review the decision and determine next steps in due course.”
Christine Davies, a partner at Goldblatt Partners LLP who represented applicants Elementary Teachers' Federation of Ontario and Felipe Pareja, told Canadian Lawyer that the SCC decision addresses s. 3 of the Charter “in a really broad and meaningful way.”
“What I think is going to have [the] most lasting importance from this case is the court's articulation of voting rights as being meaningful, as being core to the interests protected by the Charter, and as signalling that the Charter is intended to protect the integrity of our political system,” she says.
“All of those things that are set out in this decision, I think have ramifications that go beyond simply the question of third party advertising in the lead up to the vote,” she adds. “The court was interested in sending a signal that our electoral system is important and that the Charter rights that protect our voting system have to be closely safeguarded.”
Paul Cavalluzzo, counsel at Cavalluzzo who represented Working Families Coalition (Canada) Inc., calls the decision “a very significant decision for citizen democracy, in the sense that the court found that the government cannot pass legislation which in effect gives political parties and the government itself the power to… overwhelm or drown out third parties.”
Unfortunately, he says, the Ford government “had two elections under this unconstitutional legislation, which gave them a huge advantage over third parties who may disagree with their with their policies and positions.”
Susan Ursel of Ursel Phillips Fellows Hopkinson LLP, who represented the Ontario Secondary School Teachers’ Federation and Leslie Wolfe applicants, says the decision is “important on an international stage.” In her view, the court’s conclusion that spending limits must be reasonable and proportional could be extrapolated as commentary on elections conventions in the US.
Super PACs, for example, “drown out citizens’ voices, and citizens cannot be heard in the debate,” Ursel says. “In Canada, a super PAC wouldn't be allowed to exist under [the SCC majority’s] analysis because it would be disproportionate.”
