The Ontario government used the Constitution’s notwithstanding clause for the first time in the province’s history on Monday, for the purpose of overriding the guarantee to free expression in the Charter of Rights and Freedoms in order to pass legislation to limit election advertising.
The Progressive Conservative government used its majority to limit debate on the bill, which it introduced last week, just days after an Ontario Superior Court judge ruled that the government’s recently imposed 12-month pre-election restriction period for third-party advertisers – such as unions, corporations or interest groups – was an unjustifiable infringement on free speech.
The bill passed 63-47, as opposition members shouted “Shame!” and banged on their desks. In a statement, the Canadian Civil Liberties Association (CCLA) called Monday a “day of infamy for Canada’s Constitution” and said it was considering its next legal steps to fight what it called a “gag law.”
Premier Doug Ford, speaking to a TV reporter earlier Monday, maintained he was fighting for democracy: “We’re fighting for people to be able to go out there and vote and ... protecting democracy,” he said.
Monday’s bill does not touch on the actual act of voting. It is only concerned with the government’s rules for third-party advertisers, which were struck down by a judge last week. It marks the second time Mr. Ford has attempted to use the rarely invoked notwithstanding clause, more formally known as Section 33 of the Charter of Rights and Freedoms, to override a courtroom defeat. The clause allows governments to suspend parts of the Charter, but its use must be renewed every five years.
In 2018, when a judge declared Mr. Ford’s move to slash the size of Toronto’s city council almost in half unconstitutional, the Premier introduced a bill invoking the notwithstanding clause – but later won a stay from an appeal court, negating the need to follow through with the charter override. (The case is now before the Supreme Court of Canada.)
In the 39 years since the 1982 Constitution came into existence, no other Ontario premier has ever used Section 33. But it has been used in Saskatchewan. And Quebec has used the clause for its language laws and its bill restricting religious clothing or symbols for certain civil servants.
After the court defeat last week, Mr. Ford called the legislature back from its summer recess, forcing a weekend debate and a midnight sitting in order to speed the bill’s passage.
The Opposition NDP launched a last-ditch effort to delay the bill’s passage on Monday, with MPPs popping up to interrupt Attorney-General Doug Downey with points of order on everything from the recognition of Portuguese Heritage Week to a call for air conditioning in long-term care homes. Speaker Ted Arnott repeatedly ruled the Opposition out of order.
In a letter Monday to Mr. Arnott, who was elected as a PC MPP, Opposition NDP Leader Andrea Horwath told him his rulings were “a clear violation of the traditions of this house” and a “blatant effort to assist the government’s passing legislation trampling on the rights of Ontarians.” She warned he faced the “very serious risk of losing the confidence of the Official Opposition.”
Mr. Ford’s government introduced its 12-month restricted advertising period in legislation in February, doubling the existing six-month period but maintaining the same $600,000 spending limit. Working Families, a left-leaning union-sponsored third-party advertiser that has spent heavily in previous elections to target Conservatives, had challenged the original six-month pre-election period, and the subsequent 12-month extension, in court. The CCLA was an intervenor in the case.
Critics accuse Mr. Ford of trying to silence the expected efforts of education and health care unions to remind voters of his government’s pandemic response, with a full year to go before next June’s vote. But Mr. Ford also benefited in the last election from a third-party advertising group called Ontario Proud, funded largely by major developers.
Mr. Downey, in between NDP outbursts on Monday afternoon, told the legislature the bill would impose needed “guardrails” on the election to ensure political parties are not drowned out by money from well-resourced outside groups.
The 12-month pre-election restriction period is much longer than in comparable legislation in other provinces and at the federal level. The legislation does not affect Ontario’s $100,000 spending limit for third-party advertisers during the formal, 28-day campaign that starts when the writs are issued.
Some critics say the Ontario legislation imposes onerous financial-reporting requirements on even tiny community groups, which will have to register if they spend just $500, and that the legislation’s definition of political advertising is overbroad.
Constitutional experts have decried the government’s “normalization” of the use of the notwithstanding clause. They say the government should have instead appealed the ruling, or enacted new legislation that would not require suspending Charter rights.
Ms. Horwath said she would have held a broader consultation process before making election-rule changes. She said she could not foresee using the notwithstanding clause if she were premier, calling it a “sledgehammer approach.”
Ontario Liberal Leader Steven Del Duca also said he could “not imagine a scenario” where he would use Section 33, unless it were needed to “expand rights and freedoms [or] protect vulnerable minorities.” He dismissed Mr. Ford’s use of the clause as “a tantrum I’d expect from a toddler.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.