Unreasonably Constraining Political Speech: The Notwithstanding Clause At Its Worst

In a post a few months ago, I parenthetically mused a bit about the notwithstanding clause being troubling, and yet possibly having virtues in the sense of providing a pressure valve - putting the choice to respect or not respect fundamental freedoms into the hands of elected officials, making the voter the ultimate steward of fundamental freedoms, legal rights, and equality rights - and freeing the judiciary to make objective assessments without being (fairly) accused of legislating policy.

We may see that put to the test.

Yesterday, Justice Ed Morgan of Ontario's Superior Court released a decision in a Charter case dealing with third party election spending. It struck down legislation as unconstitutional, and the Ontario government has announced that it intends to invoke the notwithstanding clause.

Background

Third party spending is a perennial challenge: Contribution limits, and spending limits on politicians and political parties create a level playing field without 'big money' interests being able to dramatically outspend everyone else. But when third parties come into the picture, promoting policies that align with one party's platform, or attacking one party, etc., it kind of undermines that.

There are a number of such organizations that start up specifically for the purpose of pushing a particular type of political agenda, often on the more conservative end of the political spectrum:  Hey, you've already donated the max to your favoured politician and want to give them more help to win? Donate to us.  However, labour organizations - unions and related associations - are very prominent in 'third party advertising' conversations.

Historically in Ontario, third parties had few restrictions - basically just reporting obligations for their spending to promote or oppose a given politician or leader. In 2017, the Wynne government amended the legislation - creating spending limits for third parties for six months prior to an election, including a restriction on "issue-based" advertising - basically, if you're an advocacy group for a cause that's readily associated with a political party, you're brought into the scope.

In 2018, labour groups commenced a constitutional challenge. In 2021, the Ford government further amended, expanding the restriction period to 12 months prior to the election, and these amendments were rolled into the constitutional challenge.

Significantly, Ontario entered the 12 month pre-election period a week ago.

Consider the implications here, that any organization taking a stance against anything the Ford government does for the next 12 months gets saddled with onerous reporting requirements, spending limits, and hefty fines for failing to comply with both. It's a significant infringement on political expression and, in particular, on the ability to criticize the sitting government.

What this is NOT

To be clear, this isn't a case of patently partisan overreach. It probably hurts unions more than anyone else, but Justice Morgan was satisfied that the legislation served a pressing and substantial objective and was rationally connected to that objective. (This, I think, is a testament to the remarkable abilities of the government's lawyer, Yashoda Ranganathan, a classmate and friend of mine.)

The court's decision, though, was that it went further than necessary to accomplish those objectives. In the earlier stages of litigation, the government produced expert reports calling a six month pre-election period "reasonable".

My read of the decision is that Justice Morgan would have allowed the law to stand if it only extended the restrictions for six months pre-election.

But Doug Ford isn't happy with that. So he's invoking the notwithstanding clause.

Impact of the Notwithstanding Clause

Bear in mind that the Charter comes with a built-in 'reasonable limits' clause. When a court strikes down legislation on the basis of the Charter, the subtext is that the infringement is NOT 'demonstrably justifiable in a free and democratic society'.

So when a politician goes ahead and enacts legislation 'notwithstanding' the Charter (which is super rare outside of Quebec), it's basically unreasonable by definition.

This is probably why we've never before seen it in Ontario, and seldom in most Provinces.

But when it comes to political speech in particular, the invocation is...dark.

Because what Justice Morgan - a credible, experienced member of the judiciary - just concluded is that Ford's 12-month pre-election period for limiting third party spending is not necessary for election fairness. And really, if that's the only problem with the legislation, what's so bad about just fixing that and enacting it with a six-month period instead?  Doesn't that seem to really address the underlying concerns about election fairness?

So if it's not about election fairness, what's it about?

Political expediency, presumably. Ford wants to regulate and limit the extent to which he can be attacked over the next 12 months, and he's willing to cast aside our fundamental freedoms to do it.

It was always possible for politicians to invoke the notwithstanding clause to negate freedom of expression - even for ridiculous and petty reasons like 'reducing the size of city council in the middle of a municipal election campaign'. But the idea that it can be used to gag the incumbent's own critics in the run-up to an election...is some pretty far out 'banana republic' type stuff.

The Floodgates

The highest redeeming quality of the notwithstanding clause has always been that politicians were afraid to use it. There's always been this perception that the slathering pro-freedom hordes would come out of the woodwork to guillotine the political career of any leader who invoked the notwithstanding clause in a scenario where it wasn't obviously appropriate.

I've always doubted that.

But if Doug Ford gets away with gagging his own critics by way of the notwithstanding clause, without earning widespread ire of the voting public, then that's going to demonstrate for future leaders, tired of dealing with critics and their pesky free speech, that the notwithstanding clause isn't necessarily a poison pill in these cases.

For instance, in Alberta, the government recently enacted legislation that will tie a union's hands in its ability to finance its own political activities - a restriction with deep partisan implications. I authored an article arguing that it will almost certainly be found to be unconstitutional. But will freedom-loving Albertans really care about a bill that effectively gags those darned unions?

Jason Kenney is no doubt going to be watching carefully what happens next in Ontario.

Conclusion

I have seen conservative-leaning lawyers on social media trying to attack the rhetoric on this, that it's not VIOLATING the Charter if the notwithstanding clause is PART of the Charter - effectively deflecting from the substance of the action by pointing out that it actually is within the constitutional power of a government to do so.

One lawyer I've seen make this argument has strong affiliations with Ontario Proud - which suggests to me that the impact of the law on Ontario Proud's activities probably won't be as significant as it will be on the union's who brought the court application to challenge it.  Another lawyer making this argument is employed by a firm that is regularly retained by the Alberta government in lucrative sole-sourced contracts, including to fight constitutional challenges.

But - semantics of constitutionality aside - it's an attack on freedom of expression, and it can't be spun any other way.

So Ontarians, this is the takeaway here: The court has said that this law violates your freedom of expression. Doug Ford plans to go ahead and enact it again anyways. The question is whether Ontarians will care enough to speak up and be heard.