Top court finds Ontario spending limits on 3rd-party election ads unconstitutional

The Supreme Court of Canada has found an Ontario law that limits spending on third-party election advertising violates the constitutional right to vote.

The country's highest court dismissed the Ontario government's appeal with a split 5-4 decision and struck down that part of the law.

Before 2021, third parties in Ontario could spend up to $600,000 on advertising in the six months before a fixed-date provincial election call.

That year, Premier Doug Ford's government stretched the restricted spending period to one year while keeping the spending limit the same. The law did not contemplate snap elections, like the one that Premier Doug Ford recently called and won.

Law let parties 'drown out' other voices, ruling says

The top court's ruling, released on Friday, said the spending limit law is so disproportionate that it allows political parties to "drown out" the voices of third parties.

"The statutory provisions create an absolute disproportionality in the broader political discourse that deprives voters of a broad range of views and perspectives on issues during a critical period in the democratic cycle," said Friday's decision, authored by Justice Andromache Karakatsanis.

"This undermines the voter's right to an informed vote and to meaningful participation in the electoral process."

The court found that section of the law "cannot be justified in a free and democratic society" and upheld the Appeal Court's decision to strike down the law.

As of Friday, the provisions are "of no force and effect," the court affirmed.

The province said it will review the decision and "determine next steps in due course."

"Having just finished the election, in which the people gave Premier Ford and our government a strong mandate, this decision has no immediate impact," said Grace Lee, Ford's spokeswoman.

4 judges dissent

Doug Ford's Progressive Conservative government previously argued the extended restriction was necessary to protect elections from outside influence, but critics said it amounted to trying to silence criticism ahead of the 2022 provincial election.

The government argued the Court of Appeal had applied the wrong legal test and failed to defer to the application judge's factual findings.

The majority of the Supreme Court ultimately disagreed, but four justices dissented.

"Simply put, the respondents have not established that the limit will have the effect of depriving each citizen of a reasonable opportunity to introduce their own ideas and opinions into the political discourse or become informed of facts, ideas, and others' perspectives," two dissenters, including Chief Justice Richard Wagner, wrote.

When the law had first been put into place, it was challenged by several third-party groups, including the Working Families Coalition and teachers' unions. A lower court struck it down on free speech grounds.

The province responded by tabling a new version of the bill that used the notwithstanding clause, a provision under the Charter of Rights and Freedoms that allows a government to temporarily override some rights.

But the third parties appealed the new law under a different section of the Constitution — the right to vote.

The Court of Appeal for Ontario said the use of the notwithstanding clause was legitimate, but it still found the law to be unconstitutional because violating the free expression rights of third-party advertisers ultimately led to the violation of the right to meaningful participation in the electoral process.

That right was not subject to the notwithstanding clause as written in by the government.

The court gave the government one year to create new, Charter-compliant legislation.

But Ontario's attorney general sought an appeal to the Supreme Court of Canada, which was granted in late 2023.

1st limits enacted by Liberal government in 2017

Prior to a 2017 law enacted by the Liberal government at the time, there were no limits on third-party election advertising in Ontario.

In the 2014 election, third parties had 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.

The coalition and several teachers' unions were part of the case before the Supreme Court, while there were more than a dozen interveners, including the attorneys general of Canada, Alberta and Quebec along with the Canadian Civil Liberties Association and the Chief Electoral Officer of Ontario.

A lawyer representing the coalition was jubilant on Friday.

"It's really a magnificent testament to the role that non-political parties like third parties must play in the political system," Paul Cavalluzzo said in an interview.

"The legislation as it is framed gave political parties, and the government, the opportunity, as the court said, to overwhelm and drown out third parties," he said.

"And the impact of that was that citizens did not have access to the kinds of information that third parties could provide and would be of assistance to them in informing their votes."

Three teachers' unions involved in the case said Ford cannot silence them.

"Bill 307 was a clear attempt to suppress voices critical of Doug Ford's disastrous policies, which have underfunded publicly funded education; neglected students, abandoned teachers, educators, and education workers; and left schools understaffed and unsafe," said a joint statement from the presidents of the Elementary Teachers' Federation of Ontario, the Ontario English Catholic Teachers' Association and the Ontario Secondary School Teachers' Federation.

"By limiting third-party political advocacy a full year before elections, the Ford government sought to silence the workers and communities that hold them accountable for these failures."