The Supreme Court of Canada’s Upcoming Decision on Ontario’s Third-Party Election Advertising Rules

Introduction: A Crucial Decision for Canadian Democracy

The Supreme Court of Canada is poised to deliver a landmark decision today regarding the rules governing third-party election advertising in Ontario. This case has sparked significant debate across the country, as it raises critical questions about the balance between regulating election spending and safeguarding free expression. At the heart of this legal battle is a law introduced by Ontario Premier Doug Ford’s government in 2021, which extended the restricted spending period for third-party advertisers from six months to one year before a provincial election call. While the government argued that this extension was necessary to protect elections from undue outside influence, critics contended that it was a thinly veiled attempt to stifle criticism ahead of the 2022 provincial election. The Supreme Court’s decision will have far-reaching implications for the democratic process in Canada, shaping how elections are contested and the role of third-party advertisers in shaping public discourse.

Background: The Evolution of Third-Party Advertising Rules in Ontario

To fully grasp the significance of this case, it is essential to understand the historical context of third-party election advertising in Ontario. Prior to 2017, there were no limits on how much third-party advertisers could spend during an election period. This led to significant expenditures by various groups, including unions and advocacy organizations. For instance, in the 2014 provincial election, third parties spent a staggering $8.64 million, accounting for 17% of all election-related spending. Prominent among these advertisers was the Working Families Coalition, a group known for its anti-Conservative advertisements, which spent $2.5 million during the campaign. These expenditures underscored the influence that third-party advertisers could wield in shaping public opinion and election outcomes.

In response to these trends, the Liberal government of the time introduced a law in 2017 that imposed spending limits on third-party advertisers. Under this legislation, third parties were restricted to spending up to $600,000 in the six months leading up to an election call. This measure was intended to level the playing field and prevent wealthy interests from unduly influencing the electoral process. However, the law was amended in 2021 by Premier Doug Ford’s Progressive Conservative government, which extended the restricted spending period to one full year while maintaining the same spending cap. The government justified this change by arguing that it was necessary to further safeguard elections from external influence. Critics, however, viewed this move as an attempt to silence opposition voices, particularly as the 2022 provincial election loomed.

Legal Challenges and the Notwithstanding Clause Controversy

The 2021 amendments to Ontario’s election advertising rules were met with fierce opposition, particularly from teachers’ unions and other advocacy groups. These organizations challenged the law in court, arguing that it violated their right to free expression under the Canadian Charter of Rights and Freedoms. In a significant ruling, a lower court struck down the law, finding that the extended spending restrictions infringed upon the constitutional rights of third-party advertisers. However, the Ontario government responded by introducing a new bill that invoked the notwithstanding clause, a provision in the Charter that allows governments to override certain rights for a five-year period.

Despite the government’s efforts to use the notwithstanding clause to insulate the law from further legal challenges, the decision was successfully appealed to the Ontario Court of Appeal. The Court of Appeal ruled that while the use of the notwithstanding clause was procedurally valid, the law itself remained unconstitutional. The court found that the extended spending restrictions violated not only the free expression rights of third-party advertisers but also the rights of voters to participate meaningfully in the electoral process. The latter right, the court emphasized, was not subject to override under the notwithstanding clause. The Court of Appeal gave the Ontario government one year to draft new legislation that would comply with the Charter. However, Ontario’s Attorney General sought to appeal this decision to the Supreme Court of Canada, and the appeal was granted in late 2023.

The Broader Implications for Canadian Democracy

The case before the Supreme Court of Canada has far-reaching implications for the future of election regulation and free expression in the country. At its core, this case is about striking a balance between safeguarding the integrity of the electoral process and protecting the rights of citizens and organizations to engage in political discourse. Proponents of stricter spending limits argue that such measures are necessary to prevent the undue influence of wealthy third-party advertisers, which could undermine the fairness of elections. They point to the significant expenditures by third parties in past elections, such as the $8.64 million spent in 2014, as evidence of the potential for external interests to sway public opinion.

On the other hand, opponents of the restrictions argue that limiting third-party advertising unduly restricts freedom of expression, a cornerstone of Canadian democracy. They contend that such restrictions could stifle dissent and limit the ability of citizens and organizations to hold governments accountable. The Working Families Coalition and other advocacy groups, many of which have been vocal critics of the Ford government, are among the key players in this case. Their participation underscores the stakes for organizations that rely on third-party advertising to amplify their voices in the political arena.

The Role of Interveners in Shaping the Supreme Court’s Decision

The Supreme Court’s decision will be influenced not only by the arguments presented by the direct parties to the case but also by the submissions of numerous interveners. More than a dozen organizations and individuals have been granted intervener status in this case, including the Attorneys General of Canada, Alberta, and Quebec, as well as the Canadian Civil Liberties Association and the Chief Electoral Officer of Ontario. These interveners bring a diverse range of perspectives to the table, reflecting the broad public interest in the outcome of this case. The Attorneys General of other provinces, for example, may argue that Ontario’s approach to election regulation could set a precedent for similar laws in their own jurisdictions. Meanwhile, civil liberties organizations are likely to emphasize the importance of protecting free expression and the role of third-party advertisers in fostering a vibrant and inclusive democratic process.

The participation of the Chief Electoral Officer of Ontario adds an additional layer of expertise to the proceedings, as this official is responsible for overseeing the administration of elections in the province. Their input could provide valuable insights into the practical implications of the law and the potential impact of the Supreme Court’s decision on the electoral process. Similarly, the involvement of the Working Families Coalition and teachers’ unions highlights the stakes for organizations that have been active in Ontario politics and have often been critical of the Ford government. Their arguments will likely focus on the importance of preserving their ability to advocate for their members’ interests and to hold elected officials accountable.

Conclusion: A Pivotal Moment for Free Expression and Electoral Integrity

As the Supreme Court of Canada prepares to deliver its decision on Ontario’s third-party election advertising rules, the nation waits with bated breath. This case represents a pivotal moment in the evolution of Canadian election law, with the court poised to issue a ruling that will shape the balance between free expression and electoral integrity for years to come. At its core, this case is about ensuring that the democratic process remains fair, transparent, and inclusive, while also safeguarding the rights of all Canadians to participate meaningfully in public discourse. The Supreme Court’s decision will have far-reaching consequences, influencing not only the conduct of future elections in Ontario but also the broader debate over the role of money and influence in Canadian politics. As the court weighs the competing interests at play, its ruling will undoubtedly be a defining moment in the ongoing struggle to preserve and protect Canadian democracy.