An Ontario Superior Court judge says the Ford government’s recent changes to the province’s election rules, which capped spending by third-party political advertisers at $600,000 for a year before the official month-long campaign period, are unconstitutional.
The ruling means that as of Tuesday, Ontario has no spending limits on advertising by unions, corporations or other non-political party interest groups until the official, 28-day campaign period begins for the next provincial vote, which is set for June 2, 2022. A $100,000 spending limit for such groups during the campaign itself remains in place.
A union-sponsored third-party advertising group, Working Families, had led a legal challenge of a six-month pre-election spending limit for third parties that the previous Liberal government established in 2017. The Canadian Civil Liberties Association was an intervenor in the case, which also includes teachers’ unions.
But earlier this year, before that challenge had made its way through the courts, Premier Doug Ford’s Progressive Conservative government – elected in 2018 – passed its own election rule changes.
Among the changes PC Attorney-General Doug Downey introduced was an expansion of the six-month restricted period to a full year before the writs are issued for an election, while keeping the $600,00 spending cap.
Opposition critics suggested the government was trying to silence its opponents as it faces future election debates over its handling of the pandemic, in which hospitals have been pushed to the brink and 3,790 people have died in long-term care homes.
Justice Edward Morgan issued a ruling on Tuesday – just days after a hearing last week – that struck down all of the rules for pre-election third-party spending in Ontario’s Election Finances Act. His ruling concludes that the 12-month period is a disproportionate infringement on free expression and notes that other jurisdictions have much shorter time limits on third-party political ads.
In his decision, Justice Morgan said the government could not explain the reasons for its 12-month rule: “There is no justification or explanation anywhere in the [Ontario] Attorney-General’s record as to why the doubling of the pre-election regulated period was implemented. This lack of explanation has to be taken seriously.”
The ruling says restrictions on political speech must pass a legal test for “minimal impairment” of free-expression rights. The decision points out that the government’s own expert witnesses, including former Canadian chief electoral officer Jean-Pierre Kingsley, had previously said a six-month spending limit was reasonable.
Justice Morgan also said electoral rule changes enacted by a sitting government should be subject to skepticism, given the “potential for partisan self-dealing.”
The government says it is reviewing the decision. Ivana Yelich, a spokeswoman for the Premier, would not say if Ontario would appeal or take other action: “The purpose of this legislation was to prevent American-style spending by wealthy and powerful individuals and interests from unfairly influencing the democratic process.”
Lawyer Paul Cavalluzzo, who acted for Working Families in the case, said the ruling was a defeat for the government’s attempt to change election rules to silence unions.
“This is a magnificent victory for political speech, which the government was trying to suppress,” Mr. Cavalluzzo said.
In the 2018 campaign, Mr. Ford’s PC Party had the support of a large third-party advertiser called Ontario Proud, which was funded in large part by the development industry. But unions and the labour-sponsored Working Families coalition have accounted for a large portion of third-party spending in Ontario elections.
Tuesday’s ruling is the latest legal defeat for the Ford government, which has lost court battles over its objection to Ottawa’s carbon-pricing regime, its attempt to force gas stations to post anti-carbon-pricing stickers and the cancellation of a massive wind-power project. In 2018, when a judge ruled Mr. Ford’s mid-election changes to Toronto’s city council were unconstitutional, the Premier invoked the Constitution’s notwithstanding clause, but the lower-court ruling was later overturned.
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