Ontario Court of Appeal strikes down Ford government's election spending law

The shift from 'free expression' to 'right to vote' means the notwithstanding clause no longer shields the legislation from judicial invalidation - but is the Court right?

In a 2-1 decision the Ontario Court of Appeal today struck down the Ford government’s election spending restrictions (the decision is available here in pdf).

The law restricts third party spending in the 12-month pre-election period (to a total of $600,000). Under a previous version of the law, the restriction was at 6 months but with the same amount. The doubling of the time period, without any increase in the amount of spending permitted, was deemed unconstitutional in 2021 as a violation of freedom of expression under section 2(b) of the Charter of Rights and Freedoms.

The Ford government’s response to this earlier judgment was to immediately pass the law again using the Charter’s notwithstanding clause, thus shielding the legislation against the effects of judicial review (at least as it relates to free expression. As I noted in an earlier post on the notwithstanding clause, the Ford government passed the new legislation in a mere six days and over the objection of the opposition parties - hardly a model of principled deliberation. Indeed, it is an example of partisan self-interest in election law (a topic on which Guelph colleague Tamara Small has a great paper in an edited collection I put together recently that is currently under peer review).

This time the litigants challenged the law on right to vote grounds under section 3, a provision of the Charter to which the notwithstanding clause does not apply. The majority, drawing on established jurisprudence, noted that the right to vote includes the right to “meaningful participation” and the right to be reasonably informed. Thus, a key distinction between a free expression challenge, which focuses on the rights of third parties to communicate to voters, the rights implications here are examined from the perspective of the third parties’ intended audience and their right to the information in election-relevant advertising.

In previous cases concerning third party spending limits, the primary focus has been on section 2(b), but laws like the existing federal restrictions have also been upheld on section 3 grounds in part because of their underlying valid objective premised on the “egalitarian” model of electoral fairness. In short, spending restrictions are valid because they prevent the wealthy from swamping election discourse and ensure electoral fairness and equality in public messaging.

In this provincial case, the majority identifies two aspects to laws affecting the right to be reasonably informed under section 3. First, restrictions must be “carefully tailored” - because this is not equivalent to the “minimal impairment” element of the reasonable limits test under section 1 of the Charter, the onus is on the complainants to demonstrate that the restrictions have not been carefully tailored. Second, the right to be reasonably informed does not mean that third parties have a right to sufficient advertising to “influence” voters or change minds, but rather they must be permitted spending sufficient to offer a “modest informational campaign.”

The majority argues that the trial judge, in upholding the law, failed to adequately require that the government explain why the six-month expansion of the restrictions was appropriate or necessary to achieve the objectives of electoral fairness (at para. 109), going so far as to suggest the trial judge did not address this question (at para. 115).

When it came to whether the law’s restrictions permit a modest informational campaign, the majority similarly criticizes the trial court for failing to refer to any evidence in relation to the cost of media or make any finding about whether the limits are too low (at para. 127).

The dissenting justice took issue with pretty much all of this analysis. She argues that section 3 does not require an inquiry into why the government enacted restrictions but rather whether the limits undermine the right to meaningfully participate in the electoral process. She notes this is exactly what the trial judge did (at paras. 170-2). Further, contrary to the majority, she notes that the trial judge also made a clear finding that the legislation permits a modest informational campaign (at paras. 191-2).

Despite my own critiques of the legislation and the way the Ford government pushed it through, I do have some concerns about the majority’s reasoning in this decision. The law plainly violates free expression, but it is not clear that it violates section 3. The conclusion that the law does not permit a modest informational campaign does not seem to accord with existing jurisprudence. In Harper the Supreme Court upheld national third party campaign spending limits of $150,000 (with electoral district-specific limits of $3,000) as allowing for a modest informational campaign. Federal elections are typically a couple of months in duration but can be as long as three (see the 2015 campaign). If we were to pro-rate the federal limits to 12 months, we’d get an equivalent limit! Granted, Harper was decided in 2004 and there’s been some serious inflation since then, but it seems difficult to conclude that a $600,000 provincial limit over a 12-month period is on one side of a line and the national limits in Harper are on another, especially when you consider that messaging during the campaign is far more likely to get attention (most voters pay little attention to political messaging outside of elections).

More fundamentally, because precedents like Harper and Libman deal with spending restrictions during a campaign period it seems a bit more tenuous to suggest spending restrictions in a pre-campaign period implicate a right to vote. The egregious restriction here impacts freedom of expression either way, but it seems a bit dubious to suggest the rights of voters are especially affected in the informational sense.

I also think I agree with the dissenting judge that the majority imports some section 1 reasoning into their section 3 analysis. The question of “careful tailoring” raised in Harper recognizes an obvious degree of discretion, and although the majority is careful to ensure the onus is on the litigants and not the government, it doesn’t seem to demand ‘evidence’ of a lack of careful tailoring in the same way it demands evidence that a modest informational campaign is possible. Where the majority has a point is that the government met its broader legislative objectives under the original 6-month limit, and extending it to 12 months seems fundamentally arbitrary, but that is plainly a minimal impairment consideration under section 1.

I’m still thinking about the reasoning in the majority judgment and am open to hearing more about what others think, but I have a hard time squaring this decision with the way other election spending limits have been upheld in other contexts.

At any rate, the Supreme Court of Canada will no doubt soon have its say.

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On a separate point, and one on which all three justices on the Court of Appeal agreed, the Ford government’s use of the notwithstanding clause was deemed lawful. This seems like another blow against the argument some have advanced that courts should recognize new implicit limits on the use of section 33. The Court of Appeal concluded, to the contrary, that the Charter imposes “formal requirements only” on section 33, suggesting, as the Supreme Court did 35 years ago, that the only limits on the notwithstanding clause are those explicitly laid out in the text. While I’m extremely critical of recent provincial uses of section 33, this is undoubtedly the correct legal conclusion on this point.

[Ed. note CORRECTION: An earlier version of this post incorrectly referred to the dissenting justice as a “he”. It is in fact Madam Justice Mary Lou Benotto. I had even Googled to check beforehand, but somehow my eyes glazed over the first name, saw the name “Lou”, and assumed it was a “he” (some West Wing fan I am)].