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Supreme Court should find Ford government’s third-party ad spending limits unconstitutional

DWatch intervening in SCC hearing to argue that limits are needed for democratic, fair elections, but limits also need to be democratic and fair

First time Supreme Court has considered third-party spending limits since landmark ruling 20 years ago in Harper case

Tuesday, May 21, 2024

OTTAWA – Today, Democracy Watch announced that it is intervening in the online Supreme Court of Canada (SCC) hearing today and tomorrow on whether the Ontario Doug Ford PC Party government’s limits on advertising spending by individuals, businesses and interest groups (“third parties”) for 12 months before each election are unconstitutional.

This is the first time the SCC has fully considered the issue of third-party spending limits since its precedent-setting 2004 ruling in the Harper case, which Democracy Watch also intervened in (archive website), with its arguments providing part of the SCC’s emphasis in its ruling on the importance of ensuring opportunity for equal participation and influence of all voters in political processes (the SCC’s “egalitarian model”).

The SCC is hearing the Ford government’s appeal of the Ontario Court of Appeal (ONCA) March 2023 ruling that the limits are unconstitutional because they are the same limits that used to apply to only a six-month pre-election period.  In other words, the ONCA ruled that when the Ford government extended the time period during which the limits apply to 12 months, it should have increased the spending limit proportionally (paras. 95-122).  The ONCA’s ruling rejected the Ontario Superior Court March 2022 ruling that found that it was reasonable to have the same spending limit for the longer time period of 12 months.

The hearing starts this morning.  Democracy Watch is scheduled to present its arguments, along with 12 other interveners, tomorrow morning, Wednesday, May 22nd.  The media and the public can click here to watch the May 21st hearing, and can click here to watch the May 22nd hearing.  Democracy Watch’s intervention is being presented by Crawford Smith of the law firm LOLG, assisted by William Maidment.

Unlike the “Working Families” coalition of unions who filed the court case, and other interveners, 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, or a few executives of a big business to spend $600,000 on issue ads – the same amount as a citizen group with thousands or tens of thousands of supporters.  DWatch argues that’s not democratic – to be constitutional by ensuring equal voice for all voters, there should be a much lower spending limit for individual voters, private corporations and big business executives than for broad-based citizen groups that have thousands of supporters (as the SCC ruled in 1997 in the Libman case).

This is a different reason than the ONCA used for finding the Ford government’s spending limits unconstitutional – again the ONCA ruled (paras. 95-122) that to be constitutional the limits should have been increased given the time period was increased from six months to 12 months.

In addition, 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 Kathleen Wynne Liberal government.  DWatch is urging the SCC to affirm the part of the ONCA ruling (paras. 123-136) that said governments are required to undertake comprehensive studies to determine the actual cost of informing voters before setting third-party advertising limits, and to set realistic limits based on the results of the studies.

A significant issue the SCC will consider for the first time is whether it is constitutional for spending limits to apply during the period between elections.  The Ontario courts, and DWatch, argue that it is constitutional because it is important to restrict the undemocratic influence of the wealthy interests not only during elections, but also during between-election policy-making processes.  The B.C. Court of Appeal ruled in 2012 that spending limits that apply during the between-election period are unconstitutional.

Whether the Ford government’s use of the Charter’s notwithstanding clause to try to protect his third-party spending limits was illegal is not part of the appeal to the SCC.

“The Ford government’s spending restrictions on advertising by interest groups for the year before the election should be ruled unconstitutional by the Supreme 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 must be much higher for citizen groups that have thousands of supporters than it is for an individual voter or a few business executives.”

Ford first imposed the limits in April 2021 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.

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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