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Ford government’s Bill 254 imposes likely unconstitutional restrictions on third party interest group ad spending

Restrictions should be cut from the Bill, or at least the Ford Cabinet must refer them to the Court of Appeal for a ruling on their constitutionality

B.C. Court of Appeal ruled that similar restrictions were unconstitutional, federal government didn’t restrict pre-election issue ads, made low-level spending easy

FOR IMMEDIATE RELEASE:
Monday, March 29, 2021

OTTAWA – Today, Democracy Watch called on the Ford government to delete Bill 254’s likely unconstitutional year-long, pre-election spending restrictions on issue advertising by interest groups and individuals – known as “third parties”.

At the very least, before enacting the restrictions, the Ford Cabinet should refer them to the Court of Appeal for a ruling for a ruling on whether the restrictions are constitutional (which the Cabinet can do under section 8 of the Courts of Justice Act), and should set up an independent commission to study the costs of reaching voters so that realistic limits can be set.

The Standing Committee on the Legislative Assembly is holding hearings on Bill 254 today and Tuesday (Democracy Watch is testifying Tuesday at 9 am).

Bill 254 increases from 6 months to 12 months the pre-election period during which third parties are limited to spending $637,200 province-wide on ads, including issue-oriented ads, and limited to spending approximately $25,000 on ads in any riding (See Schedule 2, section 14 of Bill 254). Measures in the current Election Finances Act also impose onerous banking, tracking and disclosure requirements on groups that spend only $500 on ads, instead of applying those requirements only to big money ad campaigns.

The Ford government’s proposed spending restrictions on advertising by interest groups for the year before the election are likely unconstitutional because they arbitrarily limit spending too much, and for too long, and impose too many requirements on groups that only spend small amounts,” said Duff Conacher, Co-founder of Democracy Watch and Chairperson of the Money in Politics Coalition. “The restrictions should be cut from Bill 254 or, at the very least, the Ford Cabinet should refer them to the courts for a ruling on whether they are constitutional.”

“Restricting massive ad campaigns by wealthy interest groups and individuals in the few months leading up to an election is a good, democratic idea, as the Supreme Court of Canada has ruled, as is prohibiting huge interest group ad campaigns all the time, but an independent commission should be set up to study the actual costs of reaching voters to ensure the ad spending limits are realistic,” said Conacher.

The current 6-month restriction period is likely unconstitutional because the spending limit was set arbitrarily, not based on any study or evidence, and secondly because it covers issue-oriented ads (not just ads that support or oppose a party or candidate).

As well, the current restrictions are likely unconstitutional because they impose excessive requirements on any third party that spends more than $500 on ads of setting up a separate ad bank account, and issuing reports on donors and spending. These requirements should apply only to third parties that spend thousands of dollars on ads.

Doubling the restrictions so they apply to a 12-month period, while keeping the same ad spending limits, will likely make the restrictions even more clearly unconstitutional.

In May 2012, the B.C. government referred similar proposed third-party restrictions to the B.C. Court of Appeal (although the restricted pre-election period was only for a few weeks before the election campaign, not 12 months as Bill 254 proposes). The Court of Appeal ruled in October 2012 that the restrictions were unconstitutional because they restricted spending on ads as part of a third party’s advocacy on any issue.

The federal government did not restrict spending on issue ads during the pre-election period of 2-3 months when it changed Canada’s election law with Bill C-76 in 2018-2019. During the pre-election period, the federal law only restricts spending on partisan ads that support or oppose a candidate or party, and the spending limit is meaninglessly high. As well, only third parties that spend $10,000 or more on ads are required to set up a separate ad bank account and issue reports on donors and expenses.

Bill 254 proposes many other undemocratic and unethical changes, including doubling the donation limit. Democracy Watch will call for many changes to the Bill in its testimony before the Committee on Tuesday at 9 am.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: info@democracywatch.ca

Democracy Watch’s Money in Politics Campaign