Third Party Political Ad Spending Returns to the SCC

On November 9, 2023 the Supreme Court of Canada (the “SCC”, or the “Court”) granted the Attorney General of Ontario’s application for leave to appeal [40725] from Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139 [WFC ONCA]. This case will provide the SCC with its first opportunity in almost two decades to address the constitutional limits of spending caps on third party political advertising. 

 

Background 

In early 2017, the Ontario legislature introduced limits on the amounts a third party (i.e. those who are not candidates or political parties) could spend on political advertising for the first time. The legislature amended the Election Finances Act, RSO 1990, c E.7 [EFA] to include, among other provisions, a $600,000 indexed cap on spending for the six-month period before the writ drops.

These developments prompted several prominent labour unions and their representatives to challenge the EFA amendments on the basis that, inter alia, they violated their members’ rights to free expression under s. 2(b) of the Charter and could not be justified under s. 1. Before those proceedings could be adjudicated, the Ontario government amended the EFA in 2021, doubling the applicable time period to 12 months with no change in the spending cap on third parties. The applicants brought a renewed Charter challenge and the proceedings were consolidated. 

Morgan J., hearing the matter at first instance, agreed that the EFA reforms could not withstand Charter scrutiny, with reasons reported at 2021 ONSC 4076 [WFC 1]. Specifically, he found that the EFA reforms failed at the minimal impairment stage of the s. 1 justification analysis. The government’s expert witnesses had all testified in the initial proceedings that the 6-month pre-writ period introduced in 2017 was appropriate and effective to attain the legislature’s objectives. Consequently, the 12-month period could not be minimally impairing of the applicants’ s. 2(b) rights without some novel justification (WFC 1, paras 65-66). The Attorney General of Ontario conspicuously declined to provide any such justification as to why the time period had been doubled (WFC 1, para 73).

Following this rebuke from the courts, the Ontario government introduced Bill 307. Making no changes to the EFA amendments which had just been declared unconstitutional a few days earlier, Bill 307 invoked s. 33 of the Charter in passing the exact same provisions. The same parties subsequently brought another Charter challenge, arguing that Bill 307 improperly invoked the notwithstanding clause, and that the EFA amendments violated their rights under s. 3 of the Charter—a right to which s. 33 does not apply. Morgan J. rejected both arguments in Working Families Coalition (Canada) Inc. v. Ontario, 2021 ONSC 7697 [WFC 2], and his decision was subsequently appealed to the Court of Appeal for Ontario (the “ONCA”).

 

Court of Appeal for Ontario

The ONCA released its decision on March 6, 2023. While the panel was in agreement regarding the government’s use of s. 33, the court diverged on the correct analytical approach to s. 3.

Section 33 – No Clause for Concern

Certain public sector unions took the position at both levels of court that the government’s use of s. 33 was invalid. As the notwithstanding clause ceases to operate after five years, voters are empowered to provide a check on a government’s power to override certain Charter rights via s. 33 at the ballot box. The notwithstanding clause, as a conduit for legislative supremacy within the Charter, requires ongoing democratic consent and derives its legitimacy from it. Relying on this pro-democratic rationale underpinning the clause, these parties argued that s. 33 must have internal limits when it is invoked to protect legislation which undermines electoral fairness and threatens the possibility of a meaningful check on legislative power.

The ONCA rejected this argument, following the SCC’s landmark decision in Ford v. Quebec (Attorney General), [1988] 2 SCR 712 to the effect that s. 33 is subject only to formal requirements. Put simply, the legislature need not provide a substantive justification for using s. 33 long as it is invoked expressly, does not purport to apply retroactively and applies to ss. 2, 7 or 15 of the Charter. Section 33(1) already provides that s. 3 of the Charter is exempt from legislative override, and this is the manner through which the democratic consent underpinning s. 33 is protected. The ONCA was undivided on this point. 

The core of democratic consent hinges on determining what falls within the scope of democratic rights protected by s. 3 of the Charter and, by implication, the framework through which that question is answered. These are the themes which would preoccupy a divided ONCA.

Section 3 –  Between Enhancement and Constraint

The SCC has not addressed the constitutional limits of spending caps on third party political advertising since their decision in Harper v. Canada (Attorney General), 2004 SCC 33 [Harper]. Bastarache J. (as he then was), writing for the majority in Harper, acknowledged that spending caps are not an inherent blight on democratic rights. Rather, these limits can be a legitimate means of enhancing the right to vote insofar as they prevent the well-resourced from dominating the political conversation at the expense of those with less economic power. This promotes informed citizenship “by ensuring that some positions are not drowned out by others”, thereby fostering confidence in the electoral system (Harper, paras 23, 72). It follows that third party spending caps will not presumptively violate s. 3 of the Charter

Nonetheless, there comes a point where spending limits begin to impair meaningful exercise of one’s democratic rights, limiting the information that a third party may impart to citizens in a manner which constrains one’s ability to weigh competing electoral alternatives. As Bastarache J. wrote in Harper:

Spending limits […] must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters.  Spending limits which are overly restrictive may undermine the information component of the right to vote (Harper, para 73).

Consequently, it falls to the reviewing court to determine whether this line has been crossed:

To constitute an infringement of the right to vote, these spending limits would have to restrict information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented…. The trial judge found that the advertising expense limits allow third parties to engage in “modest, national, informational campaigns”…. Accordingly, there is no infringement of s. 3 in this case and no conflict between the right to vote and freedom of expression (Harper, paras 73-74). 

Fighting a Proxy War

Zarnett and Sossin JJ.A., writing jointly as the ONCA majority, interpret these passages from Harper as providing a distinct constitutional standard. In order to establish a breach of s. 3, the party asserting the breach must demonstrate that the impugned spending restrictions limit information “in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented” (WFC ONCA, paras 83-85). The inquiry as to whether this standard has been violated will then be informed by two ‘proxies’.

The first proxy requires the party asserting a breach to demonstrate that the restrictions are not “carefully tailored”. Here a court is invited to examine “the rationale, express or implicit, for the amount and duration of the spending limit ” (WFC ONCA, paras 87, 89). The second proxy requires the party asserting a breach to demonstrate that the restrictions do not permit third parties to mount a “modest informational campaign” (WFC ONCA, para 93). 

The majority held that Morgan J. had erred in his approach to the first proxy by failing to apply his own findings from WFC 1. In their view, a 12-month period could not be carefully tailored without a corresponding increase in spending limits if the line previously been drawn at 6 months was sufficient to the legislative goal (WFC ONCA, paras 103-109). Once again, the Attorney General of Ontario declined to provide any novel rationale for increasing the applicable time period alone, and this “tells heavily against a finding of careful tailoring” (WFC ONCA, para 109).

Benotto J.A., writing in dissent, took issue with the majority’s analytical approach. Notably, she disputed the majority’s conclusion that the supposed ‘first proxy’ requires a court to assess the government’s rationale. Section 3 looks to effects, and the intentions of the legislature are irrelevant when it comes to assessing the standard of whether certain spending limits have the effect of undermining meaningful participation in the political process. Each constraint has to be judged by impact alone (WFC ONCA, para 169). 

A corollary of this point is that the increase in the applicable time period from six to twelve months is not controlling; rather, each set of restrictions must stand or fall on its own (WFC ONCA, para 176). After all, there remains a possibility that both a 6-month and the 12-month period enhance meaningful electoral participation. The fact that one time period is vote enhancing does not necessarily imply that any longer period crosses the line—unless, of course, your implicit standard is minimal impairment. Jointly, these aspects contribute to the charge that the majority conflates the s. 3 analysis with s. 1 justification (WFC ONCA, paras 167-168, 184-187), importing considerations of pressing and substantial objective, along with minimal impairment into the test for establishing a breach. 

 

Through a Different Legal Lens, Darkly

It is understandable that the ONCA arrived at two differing interpretations of the standard set in Harper. The discussion of s. 3 in Harper is unusually vague for a decision which purports to set a constitutional standard for a Charter right. Without clear analytical steps, it is unsurprising that the ONCA at large felt the need to strip mine Justice Bastarache’s verbiage for the materials necessary to construct standards and proxies. Approaching two decades post-Harper, there remains palpable uncertainty as to what a phrase such as ‘careful tailoring’ even means, not to mention what role it might play in the analysis.

More broadly, the confusion as to the standard set in Harper  speaks to a lack of precision within the informational component of s. 3 itself. As Justice Morgan points out, “the threshold for finding a prima facie infringement of section 3 is not as low as it is for section 2(b)” (WFC 2, para 104). Rather, given the SCC’s conclusion in Harper that a certain degree of spending restriction enhances the right to vote, a court must concern itself with identifying whether legislation crosses the boundary where enhancement becomes constraint before proceeding to s. 1 justification.

This prompts the question of how a court might practically assess where that boundary is, and Harper provides sparse guidance on this point. The majority’s approach can be read as an attempt to mitigate this uncertainty by laundering elements of the s. 1 test into the Harper standard such that the analysis resembles an inquiry conducted under s. 2(b), where the low threshold for breach means that a reviewing court can proceed to s. 1 justification without delay (WFC 2, para 110). As Benotto J.A. points out, this approach is inconsistent with the “different legal lens” required by s. 3 (WFC ONCA, para 186)—the uncertainty must be met head on.

Admittedly, it is easier to face that uncertainty where one can defer to the application judge. The broader issue is the lack of practical guidance which Harper provides in making a substantive determination as to where enhancement becomes constraint. The SCC has the opportunity to clarify the standard in Harper and aid reviewing courts in making that determination. The outcome of this case will have a profound impact on what the media landscape looks like before candidates hit the campaign trail for elections to come, and with less than three years on the clock until Ontarians hit the polls, electoral players will be awaiting the SCC’s decision with anticipation.

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