Ontario Court of Appeal Strikes Down Third Party Spending Limits
By way of background: Several years ago, the Wynne government introduced a new law that put spending limits and reporting requirements on political third party advertisers, for the six months leading up to an election. Labour groups challenged the constitutionality of this.
By the time the challenge was heard, the Ford government had extended the 6 month period to 12 months. (In doing so, they didn't change the spending limit itself.)
This had awkward results for the government: Having already led significant evidence discussing the goals of the statute, and why 6 months was an appropriate and effective length of time, there was no new justification for extending it to 12. So, in effect, the government led a case as to why a 6 month restricted period was minimally impairing, and then asked the Court to sign off on a 12 month restricted period.
So, in a result that I maintain could not have gone any other way, Justice Morgan struck down the law. The Province immediately passed the same bill, but invoking s.33, the Notwithstanding Clause. This wasn't the first time the Ford government threatened the NWC, but it was the first time they passed the bill.
Here's my commentary from that time, nearly two years ago. I suggested, and stand by the view, that the court would have upheld the law with a six month restricted period.
So Ford's new bill imposed the same restriction, sheltered under the Notwithstanding Clause. Should be the end of the story, right? No, not so much. The Working Families Coalition challenged it again.
There are a few interesting things about today's decision, but we'll start with the conclusion: The Court of Appeal concluded that the law infringes section 3 of the Charter - democratic rights - which infringement can't be sheltered under the NWC.
Section 3
Whereas the original Working Families decision (WF1) was premised on a breach of s.2, which protects fundamental freedoms (like freedom of expression), one of the coalition's arguments this time around was that it also breaches section 3, which protects the right to vote and run for office.
The argument here, which a majority of the Ontario Court of Appeal accepted, is that voting rights include an informational component: Restricting someone's right to talk about a politician leading up to an election doesn't just infringe expression rights, but also inhibits the meaningful right to cast one's ballot by limiting the discourse leading up to that election.
This is easier to see if you take it to extremes: In a scenario where a government, say, invoked the Notwithstanding Clause to outright prohibit any sort of political speech leading up to an election, it seems fairly straightforward that this operatively impairs the ability to vote.
This likely will go to the SCC, and the SCC could fall either way on this particular question. But it's a coherent finding.
Remember that our Charter doesn't operate on the same principles as the American Bill of Rights: We cast a wide net when defining our rights at the front end, and then use a fairly deferential test that allows governments to 'reasonably' infringe those rights. Saying that the law infringes section 3 isn't necessarily finding that it's the stuff of unmitigated tyranny and could never be justified; it's merely saying that the law touches adversely, in some way, on voting rights.
Ordinarily, the next step would be to look to section 1 - reasonable limits. But the Court of Appeal adopted Justice Morgan's reasoning on this. It's the same law and the same objective, so whether we're talking about 'minimal impairment' for the purposes of section 2 or section 3, the analysis is the same.
However, the reason this is important is this: Section 33 doesn't apply to section 3. Section 33 allows the government to override sections 2 and 7-15, but not section 3.
Thus, because s.33 isn't available, and no effort was made to make the law compliant with s.1, the law is invalid - well, technically, under a suspended declaration of invalidity.
The NWC More Generally
Some parties argued that the NWC wasn't properly invoked - that an infringement that touches on election fairness is excepted out of the scope of the NWC, by implication of the 'sunset' provision in the NWC: Basically, it's implicit within the text of the NWC that democratic consent is necessary to maintain its invocation, and to use it to justify an infringement undermines that consent.
Basically, this is just another side to the analysis that the court ultimately uses on section 3: Instead of carving out some 'election fairness' pigeonhole for the NWC, the court instead used section 3 expressly.
But the court rejected this argument: As long as the i's are dotted and the t's are crossed on the NWC, there's no further requirement or restriction on the government's right to invoke it.
The court seemed open to alternatives, seeming sympathetic to arguments that there might be more to the NWC than a simple formalistic requirement, but concluded that - due to SCC guidance on the point - it would be up to the SCC to modify that.
My take is that it's very likely that the Supreme Court will agree to hear the appeal in this case, so this isn't the end of the line, on any of the issues here.
Reasonable Limits
A lot of the Twitter discourse on this has been on the section 1 issue, which is a bit amusing because the Attorney General of Ontario didn't actually argue section 1.
The Court of Appeal addressed it briefly, in the same terms as WF1 - basically endorsing Justice Morgan's earlier analysis of it.
But with a lot of folks making some pretty grand statements about why it shouldn't fall to the courts to assess where exactly the line gets drawn, as if judges are sitting in an isolated ivory tower and arbitrarily saying that 12 months seems like too much, let me reiterate this point:
In WF1, the government led evidence that SIX MONTHS was the right number to accomplish their legitimate legislative objectives, and then asked the court to uphold a restrictive period of TWELVE MONTHS.
In fact, it's ordinarily a pretty deferential standard: If the selected restriction is a reasonable choice in light of what they're trying to accomplish, that'll usually get deference from the courts. But in a case where the government is increasing the severity of a restriction, that attracts a fresh look from the courts asking about the merits of the new restriction as distinct from the old one: i.e. What is it that this new, more severe, infringement accomplishes that the old one did not?
There was no answer for that here: Ford changed the restriction from 6 months to 12 months arbitrarily - which is a toxic approach to infringement of Charter freedoms.
Why This Is NOT Citizens United
Conservative commentators have been calling this 'Canada's Citizens United', comparing it to a US decision that prohibited regulation of election spending. Some of them suggest that it's hypocritical to oppose Citizens United and support this decision.
They're VASTLY different issues.
No Canadian court has found (and no Canadian court would find) that limits on political spending can't be justified. Justice Morgan was satisfied - and this isn't seriously controversial - that the policy objectives underlying the restrictions were legitimate, potentially warranting some infringement of Charter rights. This isn't it. But the bill as originally passed (with a six month limit) probably would have passed.
The US Bill of Rights framework, on the other hand, is notoriously inflexible. If something counts as 'protected speech', its protection is basically absolute. Their constitutional jurisprudence is very 'all or nothing' - either the government can't regulate this type of speech at all, or there's no constitutional limit on their ability to do so.
They have a much higher threshold for establishing constitutional protection of speech, though. For Canadians, whether something counts as 'expression' is a VERY low bar. We don't invite our courts to assess whether something has value as expression - at least, not at the front end - and prefer to assume broadly that any infringement on any expression needs policy justification. But there often can be policy justification.
American courts are much more likely to say that something simply isn't 'speech' in the first place: Showing your ankle under your skirt appeals only to prurient interests, and therefore isn't the kind of speech that the First Amendment protects.
The consequence of these different frameworks, then, is that the US was pretty much stuck with an extreme, in an area where either extreme is toxic. The Canadian constitutional milieu allows more nuance - allows us to say "It's justifiable to regulate political speech to create a level playing field, up to a point and within reason."
There are other contextual differences, too: In the US, elections are expensive business. In 2020, $14 BILLION (USD) was spent on election campaigns. By contrast, total party spending by all parties in Canada in the 2021 Federal election was about $83 million (CAD). I haven't found accurate total numbers for 3rd party spending in 2021, but the figure in 2019 was about $12 million.
So let's say that, ballpark, election spending in Canada runs about $3 (CAD) for each and every person in Canada, compared to about $42 (USD) per person in the US. After running the currency conversion, that means that US election spending per capita is about 19x what it is in Canada.
Fundraising is always important. But when you're trying to keep up that kind of spending, you need to find help with deep pockets. And to get that support from them, you'll need to make it worth their while.
Which brings us to the other contextual difference: Labour.
In Canada, there are well-resourced third party advertisers on both sides of the political spectrum - well-funded organizations advancing corporate interests on one side, and equally well-funded labour-related organizations on the other side. The very point of the labour movement, in many ways, has been to pool working class resources to create a counterbalance to the greater power exerted by the wealthy.
In the US, by contrast, the labour movement has been hobbled, and their ability to engage in political activity even moreso.
Which means that Citizens United created a climate where politicians (and their political action committees) need to raise virtually limitless amounts of money, requiring them to go to the only people in the US who have the kind of money they need - the very rich.
Citizens United explicitly recognized that political spending is way of influence electoral outcomes and buying access and favouritism, and constitutionalized those phenomena as part of America's regime: In effect, Citizens United constitutionalizes a plutocratic aspect to American governance.
Working Families neither goes as far as Citizens United did, nor - to the extent that it protects some extent of third party spending - does it create the same lopsidedness of interests as we see in the US.
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