Christine Van Geyn is the litigation director for the Canadian Constitution Foundation. Scott Hennig is the president and CEO of the Canadian Taxpayers Federation.
Politicians are going to politician. It doesn’t matter their party, the colour of their election sign or ideological background. Politicians will take any opportunity to silence their critics – even if it means enacting unconstitutional laws. And that’s precisely what Ontario Premier Doug Ford is doing by invoking the Constitution’s notwithstanding clause to overrule a recent Ontario court decision that struck down his government’s gag law.
To be fair, it wasn’t originally his gag law. Kathleen Wynne’s Liberal government first brought in a law in 2016 that gagged citizens from using paid means of amplifying their voices – not just during the election, but a full 180 days before the election even started.
But Mr. Ford doubled down on Ms. Wynne’s law when he introduced Bill 254 to expand the restrictions to a full 365 days prior to an election. That means today, with just under a year to go before the next Ontario election, citizens are effectively barred from spending their own money to voice their opinion on any political issue.
Sure, you will still see some political ads from non-politicians over the next 12 months, but they will be limited and only run by those with the deepest pockets and with paid staff who can jump through all of the red tape.
However, if your grandmother Donna and her bridge group want to pool their money to buy some lawn signs to voice their opinion on long wait times in Ontario’s health care system, the huge amount of debt the government is running up, or why they think the official provincial bird should be changed from the common loon to the blue jay, they will want to consult a lawyer.
For starters, Donna and her bridge buddies will have to register with Elections Ontario and appoint a chief financial officer if they want to spend more than $500 over a 12-month period. With current lumber prices, the cost of stakes for a handful of signs will push over that limit.
If they trip over the next threshold of $5,000 in signs, they will have to hire a professional auditor to investigate their bookkeeping and ensure that every cent is accounted for. Donna and her friends will have to figure out how to fill out reams of government forms.
But they likely won’t – because it won’t be worth the struggle and getting it wrong can result in large fines. This silence is exactly what politicians want.
It’s even questionable whether larger groups can move that mountain of paperwork. If a group of small businesses want to voice their opinions on government lockdown rules that favour big businesses, the law actually requires they file a new report for every $1,000 in spending. Meaning, if they reached the cap of $600,000 in spending, they could have to file 600 separate reports with the government over the next 365 days. The requirements may indeed be so nonsensical and onerous that their very purpose is to deter groups from advertising.
While Mr. Ford’s target may be the union coalition Working Families, the impact of the law is far broader, and limits comment on essentially any public policy issue when these comments matter the most.
The Canadian Charter of Rights and Freedoms guarantees the right to free expression. What makes Canada a special place that people all around the world want to call home is that we embrace differing opinions and let our citizens have a voice. Freedom of expression is a fundamental right that should be embraced. Petty dictators wield power to silence the voices of their critics. In liberal democracies, we demand better.
Justice Edward Morgan rightfully ruled that Ontario’s gag law was too restrictive on Ontarians’ right to free expression, declaring the changes to the Election Finances Act unconstitutional. While the notwithstanding clause is available, Mr. Ford’s decision to use it here, without even taking the time to appeal the decision, is patently self-serving. It is a demonstration of incumbent arrogance, indifference towards free expression, and shows a bizarre and warped sense of priorities. And now Ontarians who want to speak out and say as much have their voices muzzled by this very law.
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