Ontario Premier Doug Ford triggered his many critics this week, when he said he would use the Constitution’s notwithstanding clause to negate a Superior Court ruling that struck down a provincial law that limited political advertising by third parties.
“They are using the notwithstanding clause,” NDP Leader Andrea Horwath said, “to literally shut people’s voices down.”
Yes on the first part of that. Not so much on the second.
It is without question wrong for Mr. Ford to become the first Ontario premier to resort to Section 33 of the Constitution. But the law that was overturned this week by an Ontario Superior Court judge, Justice Edward Morgan, was meant to protect the voices of everyday people from third-party groups that use money to dominate the political conversation, and boost the interests of their preferred parties.
And it’s also true that, thanks to a long history of court precedents, it is a settled issue that Canadian governments can, and in fact should, impose limits on spending by third-party groups, to shield the democratic system from the corrosive influence of money.
So while it is lamentable that Mr. Ford is going nuclear by invoking the notwithstanding clause, there is no reason to celebrate the fact the court decision has put Ontario in the predicament of having zero limits on third-party spending in the year before a general election.
That’s similar to the situation in the United States, and it hasn’t gone well. The U.S. Supreme Court in 2010 struck down rules that sought to stop corporations, the megarich and well-funded political action committees (PACs) from spending billions of dollars on political advertising. The result has drowned out the voices of ordinary citizens and left them doubting their influence on their political system.
The one surprising wrinkle in Ontario? The “big money” that has long sought to buy influence in provincial politics, whether through the front door of (now outlawed) political donations or the back door of third-party advertising and attack ads, is overwhelmingly union money.
This page has long supported strict limits on donations to political parties, and on spending by third parties. It’s about balancing rights – freedom of expression on the one side, and the integrity of the democratic system on the other.
Until 2017, there were no limits on third-party advertising in Ontario, and spending was rising sharply.
According to Elections Ontario, third-party advertising made up 14 per cent of all political advertising in Ontario’s 2007 election. In the 2014 vote, it was 41 per cent. The amount spent that year by third parties was $8.7-million, compared to $12.6-million by all the political parties combined.
In 2017, the Liberal government of the day finally set a $100,000 limit during election campaigns, and a $600,000 limit in the six months prior to a fixed election date
In his ruling, Justice Morgan made a point of reiterating that many forms of third-party spending limits are acceptable under Canadian jurisprudence. The case before him was initially about whether Ontario’s old limit – $600,000 in the six months before a fixed election – was reasonable.
But then the Ford government swooped in and, with little study, analysis or debate, doubled that to 12 months. It introduced the changes in February and rushed them into effect in April; the next fixed election date is June 2, 2022.
The Ford government’s hasty moves undermined its own case. Its lawyers had already argued that a six-month spending limit was adequate, and a minimal impairment of freedom of expression. “It is hard to see how 12 months is minimal if six months will do the trick,” the judge wrote. He overturned the law, leaving Ontario in a legal void.
Which brings us back to the notwithstanding clause. Mr. Ford recalled the legislature on Friday to push it through; it is expected to pass by Monday.
It would be far better if he instead launched an appeal at the province’s Court of Appeal, asked for an expeditious judgment and, in the interim, sought a stay of the ruling.
Better yet, Ontario could use the recall of the legislature to pass a law reverting to the old six-month limit. All political parties should be able to agree to that. Justice Morgan’s reasoning strongly hinted that the shorter time frame would pass constitutional muster.
Instead, Mr. Ford is, in typical fashion, lowering his horns and charging ahead with the worst possible option.
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