In the News May 31

Election Law Charter Challenge

Ford Government’s Use of Notwithstanding Clause to Violate Freedom of Speech

Some organizations won a Charter challenge in June 2021 against the third-party spending regime in Ontario’s election law for its violation of freedom of speech. They have now filed a second suit challenging the Ford Government’s use of the notwithstanding clause to re-enact the impugned sections of the law. They argue that the third-party regulations impact the right to vote and this right cannot be violated by use of the notwithstanding clause.

The first Charter challenge was initiated in January 2018 against the Wynne Liberal Government’s third-party regulations which were unanimously adopted by all the parties in the provincial assembly. Working Families Ontario along with the Elementary Teachers’ Federation of Ontario, the Ontario English Catholic Teachers’ Association and the Ontario Secondary School Teachers Federation filed the suit, with the Canadian Civil Liberties Association participating as an intervenor. They argued that the six month pre-election restrictions on third parties’ speaking on matters of concern to them violated Section 2b of the Charter of Rights and Freedoms, which is supposed to guarantee “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

The June 2018 election which brought the Conservatives to power took place while the case was still making its way through the court. Rather than waiting for the outcome of the case, the Conservative government doubled down, extending the six month pre-election spending limits to an entire year, while leaving the amount that could be spent the same. It also added extensive “anti-collusion” provisions with the stated aim of preventing organizations from working together to circumvent the election spending limits.

In June 2021 Justice Edward Morgan of the Ontario Superior Court found the one year pre-election spending limits on third parties to be an unreasonable limitation on freedom of speech and concluded that the third-party regulations in their entirety were consequently null and void. While he considered issuing a ruling that would have given the government time to change the provisions to make them “Charter compliant,” he struck the regime down because at the time of his ruling the pre-election period had already started. Morgan said it would be “unfair” to third parties “for statutory provisions that have been declared unconstitutional to remain in operation during this time.”

Days later, the Conservatives used the notwithstanding clause to re-enact it. It took four sitting days to ram the legislation through the assembly on an expedited basis, including one sitting convoked on Saturday, June 12 at one minute after the stroke of midnight so that it could be called the “next sitting day.” The Liberals, the NDP, and Greens voted against the legislation and subjected the Conservative majority to jeers of “Shame!” “Shame!” when it passed. However, in this election, there is virtually nothing being said about this situation.

The second Charter challenge, for which initial arguments were heard in November 2021, argues that the third-party restrictions impact not only the right to freedom of speech but also Section 3 of the Charter, the clause that guarantees “the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Charter does not allow a government to use the notwithstanding clause to override Section 3, unlike Section 2 which can be overridden if a government so decides.

The second Charter challenge has been joined by the Centre for Free Expression at Toronto Metropolitan University, the Criminal Lawyers’ Association, Democracy Watch and Ontario’s Chief Electoral Officer as interveners.

The Ontario Superior Court has yet to hear the full arguments in this case. It will have to decide whether third-party electoral activities are indeed protected by Section 3 of the Charter of Rights and Freedoms. If it determines this to be the case, it will have to deliberate on whether or not the restrictions on third parties constitute a reasonable limit on the right to elect and to be elected. Since it has already determined they constitute an unreasonable limit on freedom of speech, will the Court determine it is a reasonable limit on the right to elect and to be elected? If so, what will the Court decide about the Conservative Government having used the notwithstanding clause?

Ontario Political Forum, posted May 31, 2022.