Summary

40725

Attorney General of Ontario v. Working Families Coalition (Canada) Inc., et al.

(Ontario) (Civil) (By Leave)

Keywords

Charter of rights — Constitutional law — Elections — Right to vote — Third party election spending limits — Whether limits imposed by Election Finances Act on third party political advertising expenditures during defined pre-election period restrict information to undermine right of citizens to meaningful participation in electoral process and contravene s. 3 of Charter — Whether Court of Appeal correctly reformulated test in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 to turn on two “proxies”, namely whether restrictions are “carefully tailored” and whether they permit a “modest information campaign” — Whether majority erred in importing justificatory analysis to s. 3, and in scrutinizing government’s rationale for where lines had been drawn for amount and duration of spending limits — Whether Harper requires Legislature to adopt “least restrictive” approach for s. 3 analysis — Whether majority erred in failing to give deference to application judge’s factual finding that a modest information campaign could still be mounted and in failing to review underlying reasons from a functional perspective, giving preference to an interpretation consistent with a presumption of a correct application of the law — Election Finances Act, R.S.O. 1990, c. E.7.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

This case concerns the third party spending limits most recently added to the Election Finances Act, R.S.O. 1990, c. E.7 (“EFA”), in 2021, and whether they infringe the informational component of the right to vote (i.e., a citizen’s right to exercise their vote in an informed manner), which is protected by s. 3 of the Charter.

The amendments to the EFA sparked constitutional challenges. The application judge heard and decided two sequential proceedings.

In the first proceedings: Working Families Ontario v. Ontario, 2021 ONSC 4076, 155 O.R. (3d) 545 (“Working Families 1”), the application judge concluded that the extension of a 6-month pre-writ restricted period to one that was doubly restrictive was unjustifiable as it did not minimally impair the free expression rights of third party advertisers.

In response to that ruling, the Ontario government announced its intention to invoke the notwithstanding clause in s. 33 of the Charter, and introduced Bill 307, which received Royal Assent five days later as the Protecting Elections and Defending Democracy Act, 2021, S.O. 2021, c. 31 (“PEDDA”). Other than the addition of the notwithstanding clause, the PEDDA amendments to the EFA are identical to the amendments that were invalidated in Working Families 1.

In the second proceedings, which give rise to these appeals, the legislation was challenged as a violation of s. 3 of the Charter, and as an improper use of s. 33 of the Charter. The application judge concluded that the use of the notwithstanding clause in enacting PEDDA was not improper, and that the re-enacted spending limits on third party advertising during the pre-writ period did not infringe the right to vote under s. 3.

The majority of the Court of Appeal agreed that the notwithstanding clause was properly invoked. However, it concluded that the appeals should be allowed and declared the challenged spending restrictions invalid, but would suspend the effect of the declaration for 12 months.

Lower Court Rulings

December 3, 2021
Ontario Superior Court of Justice

2021 ONSC 7697
Application for a declaration under s. 52 of the Constitution Act, 1982, dismissed. The Election Finances Act does not infringe the right to vote under s. 3 of the Charter. The s. 33 override is operative.
March 6, 2023
Court of Appeal for Ontario

2023 ONCA 139
Appeals allowed; Section 37.10.1(2) of the Election Finances Act unjustifiably infringes s. 3 of the Charter and is therefore, of no force or effect. Declaration suspended for 12 months to allow Ontario to fashion new legislation compliant with s. 3 of the Charter.