Working Families Ontario v Ontario: Ontario Invokes Notwithstanding Clause

On June 8, 2021, the Ontario Superior Court of Justice (“ONSC” or “the Court”) released the decision of Working Families Ontario v Ontario, 2021 ONSC 4076 [Working Families]. The Court held that the amendments to Ontario’s Election Finances Act, RSO 1990, c E7, were unconstitutional. In response to the decision, the Government of Ontario invoked the notwithstanding clause pursuant to section 33 of the Canadian Charter of Rights and Freedoms [Charter] (Notwithstanding Clause). 

Legislative History: A Background on the Amendments to the Election Finances Act 

Amendments to the Election Finances Act by the Government of Ontario date all the way back to 2017 where the Government of Ontario enacted spending limits on political advertising by third parties in the six months prior to an election. In 2017, the Election Finances Act was amended to reflect a spending limit of $600,000, which included a “spending limit on political advertising by any one individual or organization in the six-month pre-election period, of which a maximum of $24,000 could be spent in any given provincial riding” (Working Families, para 2). Another controversial amendment to the Election Finances Act was the change in definition of what constitutes  “political advertising.” The 2017 amendments introduced issue-based advertising, which is defined as advertising which “can be reasonably regarded as closely associated with the election of a party, leader, or candidate” (Working Families, para 4). These amendments to the Election Finances Act ultimately resulted in many applicants bringing forward Charter challenges under ss. 2(b) (freedom of expression) and ss. 2(d) (freedom of association).

Before the applicants who alleged a Charter infringement had the  opportunity to bring their cases to court, the Government of Ontario enacted the Protecting Ontario Elections Act, 2021, SO 2021, c 5 [Bill 254] in February 2021 which amended Ontario’s Election Finances Act. The Charter challenges to the 2017 amendments to the Election Finances Act were consolidated with the challenge to the amendments from Bill 254 in the case at bar. Bill 254 brought forward several amendments to Ontario’s Election Finances Act, which included the  doubling of the pre-election restricted spending period from six months to twelve months. However, the spending limit of $600,000 per each third party remained unchanged despite the pre-election restricted spending period being doubled to twelve months. This was an unprecedented change which has not been seen in any other Canadian jurisdiction (Working Families, para 7). 

The ONSC’s Decision 

The ONSC first considered whether the $600,000 political advertising spending limit for twelve months prior to an election violated ss. 2(b) (freedom of expression) of the Charter. Justice Morgan held that limiting third party political advertising spending limits have the effect of restricting freedom of expression which is a guaranteed right under the Charter. Indeed, the Attorney General conceded that the amendments to the Election Finances Act infringed upon ss. 2(b) of the Charter. 

With the ONSC holding that the amendments violated ss. 2(b) of the Charter, the ONSC proceeded to conduct a s. 1 analysis of the Charter to determine whether the infringement can be justified under s. 1. In performing the s. 1 analysis, the ONSC carried out the Oakes test. The Attorney General argued that the amendments to the Election Finances Act had a pressing and substantial objective because they prevented parties with greater means from dominating political advertising, the amendments encouraged informed citizenship, and the amendments improved “public confidence by ensuring equality, a better informed citizenship and fostering the appearance and reality of fairness in the democratic process” (Working Families, para 48). In essence, the Attorney General argued that the government’s objective for introducing the legislation was to prevent private parties from dominating political advertising. Justice Morgan agreed with the Attorney General’s position and held that the amendments had a pressing and substantial objective. 

In the second step of the Oakes test, Justice Morgan held that the Bill 254 amendments were rationally connected to the objective of enhancing electoral fairness. However, at the third step of the Oakes test, Justice Morgan held that the amendments failed the minimal impairment test. Justice Morgan reasoned that there was evidence that the initial six-month political advertising spending limit accomplished the same desired objective as the twelve-month long spending limits. As such, this meant that the amendments were not minimally impairing. As a result, given that the amendments could not be saved by  s. 1 of the Charter, the ONSC held that the Bill 254 amendments violated ss. (2b) (freedom of expression) of the Charter (Working Families, para 76). 

With regards to the Charter applicants’ ss. 2(d) (freedom of association) claim, Justice Morgan did not carry out a full analysis on this Charter claim as the amendments were ruled to infringe the applicants’ ss. 2(b) (freedom of expression). Nevertheless, Justice Morgan made a few comments regarding the ss. 2(d) claim, noting that the amendments to the Election Finances Act does not prohibit “individuals or organizations from joining together to collectively express their views on election issues” (Working Families, para 88). While the Charter applicants’ in the case at bar argued that the amendments, which in effect prohibit third parties from circumventing political advertising spending limits, amounted to an infringement under ss. 2(d) of the Charter, Justice Morgan did not find this argument to be persuasive. Ultimately, Justice Morgan held that if the amendments to the Election Finances Act were found to be in compliance with ss. 2(b) (freedom of expression) of the Charter, the amendments would have survived a ss. 2(d) Charter challenge. 

As the amendments to the Election Finances Act were found to infringe upon the applicants’ ss. 2(b) of the Charter and could not be saved by s. 1 of the Charter, the amendments were ultimately ruled to be unconstitutional. Although Justice Morgan was asked to consider suspending the operation of the judgement in order to allow the Ontario Government to introduce new amendments to the Election Finances Act that would be in compliance with the Charter, Justice Morgan refrained from doing so given the impending Ontario election scheduled for June 2, 2022. 

Commentary

Following the ONSC’s decision of Working Families, the Government of Ontario invoked s. 33 of the Charter, the notwithstanding clause. While the Government of Ontario also had the opportunity to appeal the ONSC’s decision, it chose to invoke the notwithstanding clause in order to re-enact the unconstitutional Bill 254 amendments. The Government of Ontario also had the opportunity to introduce new amendments that would align with the Charter. However, it likely chose not to pursue this option given the impending Ontario election and the legislative process associated with doing so, such as the time it would take to pass a new law. 

The Government of Ontario’s decision to invoke the notwithstanding clause means that for the upcoming Ontario election scheduled for June 2, 2022, third party advertising limits are set in the amount of $600,000 for the twelve months preceding the election. Furthermore, third parties cannot spend more than $24,000 in any one electoral riding. 

Since the notwithstanding clause was first introduced in 1982, it has only been used in a limited number of settings. The Government of Ontario could have appealed the Working Families decision or could have introduced new amendments that would align with the Charter. Given the limited use of the notwithstanding clause, many critics have questioned the Government of Ontario’s decision to use the notwithstanding clause for this law.  When a law is found to be unconstitutional, legislatures are tasked with the responsibility of amending the law to make it constitutional and to conform with the Charter. S. 33 of the Charter, or the notwithstanding clause, should only be used  in extraordinary situations that necessitate its use. 

As a result, many critics argue that the Government of Ontario’s use of the notwithstanding clause was unjustified in this case. For instance,  in response to the Government of Ontario’s decision to invoke the notwithstanding clause, NDP Leader Andrea Horwath stated that “It’s obviously a move from a man who’s desperate to cling to power” (for more, refer to this CBC News Article). 

On a similar vein, in response to the use of the notwithstanding clause, Ontario Liberal Party leader Steven Del Duca stated that “Today is a sad day for our democracy.” (Refer to CBC News Article).

Charter rights, including the freedom of expression in this case (ss. 2(b)), are basic rights and freedoms. Given the ONSC’s decision that the amendments to the Election Finances Act are unconstitutional, the Government of Ontario likely should have pursued the route of introducing a new law that aligns with the Charter, rather than invoking the notwithstanding clause as the amendments will have the effect of limiting freedom of expression in the upcoming election. Although the rationale for introducing the amendments to the Election Finances Act are valid, such as to prevent private parties from dominating political advertising, it would be in the best interests of democracy to allow voters to make an informed decision. While private third party spending has the potential to dominate political advertising, it is important for voters to be informed of all the possible issues in order to make an informed decision. In any case, third party political advertising spending will be limited to $600,000 in the twelve months preceding an election. 

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