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On December 3, 2021, the Ontario Superior Court of Justice upheld the constitutionality of recent changes to Ontario’s third-party election advertising scheme in the Working Families case. The changes restrict the amount that third parties (i.e. not political parties or candidates) can spend on advertising, including issue-based advertising. These rules had previously been found unconstitutional because they unreasonably restricted free expression, but the Ontario government invoked the Charter’s notwithstanding clause so that the law would operate even though a Court had found a Charter violation.

A group including labour unions and individuals launched a second challenge to the restrictions, arguing that the rules unreasonably restrict the right to vote, which is protected by the Charter and, unlike freedom of expression, cannot be overridden by the notwithstanding clause. CCLA intervened in both the earlier and more recent cases, pointing out the self-interested nature of election law changes that can benefit incumbent candidates. CCLA does not disagree with limits on election advertising spending, but the current law restricts this for a full year prior to the election, something that may unreasonably chill people’s willingness to criticize the government or to engage in campaigns related to important policy issues of the day.

The most recent Superior Court decision recognized the important principle that the right to vote has to be interpreted in a way “that protects the democratic process from partisan self-dealing with the purpose or effect of insulating incumbents.” Unfortunately, the Court ultimately concluded that the spending restrictions were carefully tailored to the egalitarian model of elections and dismissed the application.

You can read more about this case and CCLA’s legal arguments here.

About the Canadian Civil Liberties Association

The CCLA is an independent, non-profit organization with supporters from across the country. Founded in 1964, the CCLA is a national human rights organization committed to defending the rights, dignity, safety, and freedoms of all people in Canada.

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