The following is a guest post from Yasmin Dawood:
Thanks very much to Rick for the invitation to write this guest post. Earlier this week, a lower court in Ontario issued an important campaign finance decision, Working Families Ontario v. Ontario, which struck down the province’s new rules on third party political advertising. The new rules applied spending limits on political advertising by third parties (which means any person or group that is not a candidate or a political party) during a 12-month “pre-election period” leading up to the issuance of an election writ. The court held that these limits infringed the freedom of expression, and moreover, did not satisfy the proportionality requirements under section 1 of the Charter.
Without delving too deeply into the judgment, the court held that the limits failed to satisfy the “minimal impairment” prong of the proportionality analysis because the government offered no explanation as to why it recently extended the pre-election period from 6 months to 12 months while holding constant the amount of the spending limit ($600,000). The court was not opposed, in theory, to spending limits during a pre-election period in order to preserve the egalitarian principle of elections, particularly given the system of fixed election dates. Nor did the judgment depart from the Supreme Court of Canada’s decision in Harper v. Canada (2004) upholding the constitutionality of campaign finance restrictions during the election period, i.e. the time period subsequent to the issuance of an election writ leading up to Election Day. (It is also worth noting that third party advertising restrictions during a pre-election period were struck down by the B.C. Court of Appeal in 2011 and 2012; at the federal level, the Canada Elections Act introduced a more narrowly drawn pre-election restricted period in 2018.)
The Working Families decision may be of interest to scholars of U.S. election law because the court relied in part on a structural inference in its minimal impairment analysis. The government’s failure to explain the extension of the pre-election period from 6 months to 12 months is significant, the court found, because the “subject of electoral design is one in which the incumbent government has a structural conflict of interest in that its interest in self-preservation may dominate its policy formulation” (para 73). The court went on to say that “[t]his potential for partisan self-dealing poses a fundamental challenge to the democratic system, and represents a context in which a more rights-oriented logic is called for to safeguard democratic institutions” (para 74). This aspect of the claim was successfully argued by Colin Feasby, a widely published election law expert and the lead counsel for the intervenor, the Canadian Civil Liberties Association. The court also cited my article on “structural rights,” which discusses and builds upon the work of several scholars of U.S. election law, including Guy-Uriel Charles, Heather Gerken, Richard Hasen, Samuel Issacharoff, and Richard Pildes, among others.
The court’s ruling in Working Families has attracted considerable attention because the province’s Premier, Doug Ford, announced that his government would be invoking the notwithstanding clause to overrule the court’s decision. The notwithstanding clause, which is found in section 33 of the Charter, has traditionally been viewed as a mechanism that ought to be used only in exceptional circumstances by the government. In 2018, Premier Ford threatened to invoke the notwithstanding clause to overrule a lower court judgment which had struck down his government’s mid-election redistricting of the City of Toronto; however, an interim judgment by the Ontario Court of Appeal, which issued a stay on the lower court decision, made it unnecessary. The Toronto (City) v. Ontario mid-election redistricting case was argued before the Supreme Court of Canada earlier this year but the judgment has yet to be rendered. My analysis of the case can be found here.
It is hard to predict how the current controversy involving the Working Families decision will unfold, but, in my view, Premier Ford’s invocation of the notwithstanding clause in this context is a worrisome development. The next provincial election will be held on or before June 2, 2022, which means that the 12-month pre-election period has already kicked in. Assuming that the restrictions will be re-enacted with the notwithstanding qualifier in the coming days, Premier Ford will have placed significant limits on the ability of his critics to engage in political advertising in the year leading up to the next election.