Case Summary and Outcome

On June 8, 2021, the Ontario Superior Court of Justice in Canada held that amendments to Ontario’s Election Finances Act [EFA] were unconstitutional, for infringing on freedom of expression under the Canadian Charter of Rights and Freedoms [the Charter] in a manner unjustified in a free and democratic society. The amendments imposed spending limits on political advertising by third parties in the 12 months before a provincial general election. The plaintiffs in this action challenged the EFA amendments, arguing that they violated the Charter by limiting the participation of civil society organizations in the electoral discourse. The Court reasoned that limits on political advertising could be justified when they promote equality of speaking opportunities and protect the voice of individual voters in the electoral process. However, the government’s own evidence showed that a shorter period could be appropriate and effective in achieving the government’s objectives. Accordingly, the Court held that the restrictions more than minimally impaired the applicants’ freedom of expression rights, and the deleterious effects of the amendments could not be outweighed by any salutary effects.

Facts

In 2017, the Province of Ontario imposed, through the Election Finances Act [EFA], spending limits on political advertising by third parties in the six-month period leading up to the issuance of an election writ. Third parties would be limited to an expenditure budget of $600,000 on “political advertising,” defined to include “issue-based” advertising that “can be reasonably regarded as closely associated with the election of a party, leader, or candidate.” [para. 4]

Several civil society groups launched constitutional challenges against the 2017 amendments, alleging a violation of Section 2(b) (Freedom of Expression) and Section 2(d) (Freedom of Association) of the Canadian Charter of Rights and Freedoms [the Charter]. Specifically, the applicants challenged the EFA’s definitions provision in Section 1(1); Sections 37.0.1, 37.10.1(2), 37.10.1(3)-(3.1), and 37.10.2—which captured the restricted spending period (and other related provisions concerning advertising), the prohibition of collusion among political advertising groups, reporting requirements, and accompanying penalties.

The Ontario Attorney General conceded that third-party political advertising spending limits do restrict freedom of expression but argued that the law was a reasonable limitation on free expression under Section 1 of the Charter. The Attorney General argued the amendments were necessary to prevent private parties from dominating elections, warning that “for Canada the spectre of the American political and constitutional position serves as a cautionary tale on the impact that weak third-party political advertising restrictions can have on democratic elections.” [para. 49]

After the constitutional challenge was launched, Ontario further amended the EFA in 2021, lengthening the restricted period to 12 months while retaining the same $600,000 limit. The applicants therefore issued Amended Notices of Application on April 20, 2021, and the parties updated their materials to reflect the 2021 amendments.

Decision Overview

Justice E.M. Morgan delivered the judgment of the Ontario Superior Court of Justice. The central issue before the Court was whether the established spending limits on political campaigns by third parties, as set out in the EFA 2017 and 2021 amendments, unjustifiably infringed on the rights to freedom of expression and freedom of association, as enshrined in the Charter.

The applicants argued that a) the government was not acting to address a pressing and substantial objective but was merely interested in preserving its majority; b) the amendments were not rationally connected to the objective of fostering a fair election process as they limited the participation of civil society organizations in the electoral discourse but not the government’s participation; c) the amendments were not minimally impairing, as they prevented civil society organizations from effectively communicating their views on virtually all major issues for 13 months (that is, covering the 12-month period before the issuance of an election writ, and the one-month writ period itself); and d) the deleterious effects of the amendments outweighed their salutary effects. Moreover, the applicants argued that the amendments should be voided in light of their purported vagueness, arguing that the term “political advertising” was unfairly broad and unworkable.

In response, the Ontario Attorney General conceded that the EFA amendments restricted freedom of expression.  Nevertheless, the Attorney General argued that a) they addressed the pressing and substantial objective of protecting the voices of individual voters in the electoral process; b) the EFA was rationally connected to the objective of equalizing the electoral process by impacting all politically engaged organizations regardless of their political affiliation; c) expert testimony and deference to government policy showed the EFA was minimally impairing; and d) the deleterious effects of the EFA were minimized in light of its narrow definition of political advertising. As to the applicants’ vagueness argument, the Attorney General countered by noting that the EFA itself “gives ample guidance” as to the types of advertisements that would be captured by the definition of “political advertisement,” which could be employed in a “common sense” manner. [para. 43]

At the outset of its analysis, the Court explained that freedom of political expression is given the highest level of protection under the Charter. Justice Morgan referred to R v. Keegstra, where the Supreme Court of Canada held that this “freedom is instrumental in promoting the free flow of ideas essential to political democracy and the functioning of democratic institutions.” [para. 24] While the Supreme Court in Libman v. Québec noted that freedom of expression must be balanced against the equality of speaking opportunities, the Attorney General conceded that the right to free expression is “a very broad one” and limits on political advertising spending restrict that right. [para. 34] Accordingly, Justice Morgan had no difficulty finding that the EFA infringed Section 2(b) of the Charter.

The Court recalled that a Charter violation could be justified in a free and democratic society if the infringement passed the test set out by the Supreme Court of Canada in R v. Oakes (also known as the “Oakes test.”) The Oakes test requires the impugned law to a) address a pressing and substantial objective, b) be rationally connected to the objective the law seeks to address, c) be minimally impairing, in that the government has chosen the least drastic means of achieving the law’s objective, and d) be proportional considering its deleterious and salutary effects.

Before turning to the Oakes test, Justice Morgan dismissed the applicants’ challenge to have the restrictions voided in light of their purported vagueness. He noted that while the meaning of “political advertising” may be open to debate, the EFA itself provided significant guidance. Moreover, Justice Morgan said that “common sense” should “prevail in interpreting and applying that guidance.” [para. 43] The Court also noted that regulatory decisions under the EFA are decided in the first instance by the Chief Electoral Officer, who is non-partisan and independent, and thus a reliable decision-maker. [para. 42] Considering these arguments, the Court concluded that the EFA was therefore not “so vague as to make either compliance or regulatory decision-making incoherent or unknowable.” [para. 45]

Upon conducting the Oakes test, Justice Morgan found a pressing and substantial objective. According to him—following the Attorney General—, the objective of the amendments was “to responsibly regulate third-party advertising between elections, and [to] protect the essential voice of individuals and ensure they, and not pop-up political groups, remain the driving force of [Ontario’s] elections.” [para. 47] Justice Morgan explained that this objective was consistent with the concerns identified by the Lortie Report, a 1991 Royal Commission on Electoral Reform and Party Financing report that warned of the dangers of unrestricted third-party political advertising.

To underscore his point, Justice Morgan also relied on Harper v. Canada, in which the Supreme Court of Canada noted that political advertising financial restrictions are designed “first, to favour equality, by preventing those with greater means from dominating electoral debate; second, to foster informed citizenship, by ensuring that some positions are not drowned out by others (this is related to the right to participate in the political process by casting an informed vote); third, to enhance public confidence by ensuring equality, a better informed citizenship and fostering the appearance and reality of fairness in the democratic process.” [para. 48] Furthermore, Justice Morgan referred to the American experience of unmitigated third-party election spending after Citizens United v. Federal Election Commission (2010), noting that “[p]olitical science experts have opined that the rise in spending by a small number of wealthy third parties has had a corrosive impact on the U.S. electoral process.” [para. 51] Citing expert reports warning of the similar impact increased third-party spending could have in the wake of Ontario’s move to fixed-date elections, Justice Morgan rejected the applicants’ characterization of the government’s actions as being motivated by self-interest and agreed with the Attorney General that the EFA was “aimed at fortifying not so much the government of the day, but democratic governance itself.” [para. 56]

Justice Morgan then rejected the applicants’ arguments on rational connection. The aim of the amendments, he noted, was to prevent wealth from unduly influencing elections, rather than to treat civil society organizations as equivalent to candidates running for office themselves. The fact that the amendments did not limit political advertisements by the government in exactly the same way was therefore not important. Justice Morgan also noted that, contrary to what was suggested, the applicants were not uniquely affected by the legislation, as it would apply equally to all politically engaged organizations regardless of their political leanings. Relying on the Supreme Court’s decisions in Harper and Libman, Justice Morgan had little trouble finding a rational connection between the impugned measures and the objective they sought to achieve.

Nonetheless, according to Justice Morgan, the impugned sections could not be justified at the minimal impairment stage of the Oakes test. He referred to a June 2016 recommendation by the Chief Electoral Officer of Ontario, which specifically concluded that “a prohibition on issue-based advertising in any pre-election period does not augment the fairness and equality that such regulations are meant to address.” [para. 64] Moreover, Ontario’s own experts testified that the six-month period was an appropriate and reasonable period for such spending restrictions to operate. Therefore, even though those same experts later opined that a 12-month limit was similarly appropriate, the Court concluded that “it [was] hard to see how 12 months is minimal if 6 months will do the trick.” [para. 66]

Regarding the Attorney General’s objection that the Court should not second-guess a government policy choice, Justice Morgan noted that such deference only comes into consideration when there are competing social values at play. Here, the government’s own experts testified that the two policies were similarly effective, and there was no additional justification from the Attorney General as to the need for a longer restrictive period. Citing the Supreme Court of Canada’s decision in Sauvé v. Canada (Chief Electoral Officer), Justice Morgan further explained that when a government policy choice threatens participatory democracy, “courts must be vigilant in fulfilling their constitutional duty to protect the integrity of this system.” [para. 74] Accordingly, the minimum impairment test here merely required the government to choose the “least drastic means of achieving its objective.” [para. 75] Because the evidence showed that the six-month limit was reasonable and effective, the Court considered that the 12-month limit was twice as long and restrictive “and so by definition [was] not minimal” [para. 75]. As a result, the EFA failed at the minimal impairment stage.

Similarly, Justice Morgan held the impugned sections failed at the proportionality stage. He agreed with the Attorney General that the deleterious effects of the legislation were mitigated by the EFA’s narrow definition of political advertising and the exemptions built therein. Yet, he concluded that the EFA did not meet the proportionality test requirements due to the extended 12-month period, much for the same reasons the EFA failed at the minimal impairment stage. According to Justice Morgan, if a six-month limit was just as effective, then a 12-month period necessarily had a more deleterious effect than needed. Considering that the other impugned sections about reporting and enforcement were only enacted to support the implementation of the 12-month regulated period, Justice Morgan held that “the subordinate policies also must fall.” [para. 82]

Finally, Justice Morgan briefly addressed the applicants’ Section 2(d) freedom of association challenge. Noting that a detailed discussion was unnecessary since the EFA already failed under Section 2(b), Justice Morgan, nevertheless, extended the logic applied by the Supreme Court in Harper to state that the EFA did not violate freedom of association, since it simply limited an activity—i.e., it prevented groups from pooling resources to circumvent the third-party election advertising limits—but did not restrict the ability of individuals to join political action groups.

Therefore, Justice Morgan concluded that Sections 37.0.1, 37.10.1(2), 37.10.1(3)-(3.1), and 37.10.2 of the EFA infringed Section 2(b) of the Charter in a way that could not be justified under Section 1 of the Charter. Accordingly, he held that “[p]ursuant to section 52(1) of the Constitution Act, 1982, these Impugned Sections [were] of no force or effect.” [para. 90]