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Appeal court should find Ford government’s third-party ad spending limits, and his notwithstanding clause, unconstitutional

DWatch intervening in this week’s appeal court hearing to argue that limits are needed for democratic, fair elections, but limits also need to be democratic

Ford also doubled donation limit allowing wealthy donors to buy even more influence, helping Ford’s PC Party most – limit should be lowered to $100

Wednesday, June 15, 2022

OTTAWA – Today, Democracy Watch announced that it is intervening in the online court hearing today and tomorrow on whether the Ford government’s limits on third-party ad spending for 12 months before each election are unconstitutional.

Democracy Watch is scheduled to present its arguments today, Wednesday, June 15th, in the afternoon. The media and the public can obtain the Zoom link for the hearing by emailing [email protected], Appeals Scheduling Officer (Tel: 416-327-4217). The case is court file numbers C70178, C70197, C70212 – Working Families Coalition (Canada) Inc. v. Attorney General of Canada [LOLG-DMS.FID117928]. Crawford Smith of the law firm LOLG will present Democracy Watch’s intervention, assisted by Matthew Law and Patrick Wodhams.

Unlike the unions who filed the court case, and other intervenors, Democracy Watch is arguing that limits on third-party interest group ad spending between elections can be constitutional if the limits are democratic, established democratically, and based on the actual cost of reaching voters through advertising on any issue.

In contrast, the limits set by the Ford government Bill 307 allow a wealthy individual voter, or a private corporation with only a few shareholders, to spend $600,000 on issue ads – the same amount as a citizen group with tens of thousands of voters. That’s not democratic – individual voters and private corporations should have a much lower spending limit than broad-based citizen groups. Also, the Ford government did not study the actual cost of reaching voters on any issue – the government just imposed an arbitrary limit based on the arbitrary limit set in 2017 by the Wynne government.

The Ford government’s spending restrictions on advertising by interest groups for the year before the election should be ruled unconstitutional by the appeal court because they are undemocratic, arbitrary, and were rammed through the legislature without proper study or consultation,” said Duff Conacher, Co-founder of Democracy Watch and Chairperson of the Money in Politics Coalition. “Restricting massive ad campaigns by wealthy interest groups and individuals in the months leading up to an election is a good, democratic idea, as the Supreme Court of Canada has ruled, as is prohibiting huge ad campaigns by wealthy individuals and lobby groups all the time, but an independent commission should be set up to study the actual costs of reaching voters to ensure the spending limit is realistic, and the limit should be much higher for citizen groups that have lots of supporters than it is for an individual voter or private business.”

The court should also rule that it was undemocratic and illegal for Doug Ford to invoke the notwithstanding clause to impose his arbitrary restrictions,” said Conacher.

Ford first imposed the limits last April in Bill 254 which was introduced without any consultation with opposition parties or stakeholders. However, in a case filed by several unions, the limits were struck down by Ontario’s Superior Court in June for unreasonably restricting Charter free expression rights (Charter s. 2(b)).

Then, in just a few days, despite many calling for a re-consideration of the limits, including Democracy Watch backed by 35,000 Ontario voters, Ford’s PC Party introduced and passed Bill 307 to impose the limits again, and included the notwithstanding clause in the bill in an attempt to prevent anyone from challenging the limits in court. However, several unions again challenged the limits as a violation of the right of voters under Charter s. 3 to play a meaningful role in elections. The notwithstanding clause cannot be used to shield violations of s. 3 from court challenges. The court upheld the new rules last December, resulting in the current appeal.

Bill 254 rigged Ontario’s political finance system in favour of Ford’s PC Party

The Ford government’s Bill 254 also doubled the annual donation limit, allowing wealthy donors to buy even more unethical influence over parties and politicians. According to Democracy Watch’s analysis of preliminary data from Elections Ontario’s donations database, in 2021 Ford’s PC Party received 63% of its donations from only 25% of donors who each donated $1,000 or more. The other main parties’ top 2021 donors also provided disproportionate amount of funding, and all the parties’ top donors provided much higher amounts than in 2020.

“Doubling the donation limit as the Ford government’s Bill 254 did allows wealthy donors to buy even more unethical influence over parties and politicians, especially given that the full identity and associations of donors is not disclosed, and benefits Ford’s party the most,” said Conacher. “The only way to stop the unethical, undemocratic influence of big money on Ontario politics is to limit donations to $100 or less, like Quebec has, which is an amount an average voter can afford.”

Bill 254 also extended and increased the annual per-vote funding for parties. Democracy Watch’s analysis, contained in its Bill 254 submission, revealed that the provincial per-vote funding system provides on average half to two-thirds of each of the four main parties’ annual funding. Combined with the tax credits that donors receive, it adds up to too high public funding for parties and candidates.

“An independent commission is needed to study the actual costs of running parties and riding associations are and then, only if parties and candidates can prove they need it, public funding should be adjusted to reflect those actual costs, and to ensure the funding is fair and based on actual voter support,” said Conacher.

The only good parts in Bill 254 were the measures allowing independent candidates to raise money before election campaigns begins (however, more disclosure must be required of donations and spending of such candidates), and the measures giving the Chief Electoral Officer the power to fine violators of Ontario’s election law.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Money in Politics Campaign