A court has ruled — again — that an Ontario law that restricted the ability of groups such as unions to run ad campaigns ahead of the last election is unconstitutional.
But this time, the court says Premier Doug Ford's government cannot use the Charter's notwithstanding clause to save it.
The Progressive Conservative government made history in 2021 when it passed legislation implementing strict spending limits on third-party advertising in the year leading up to an election; it was the first time the province had used the notwithstanding clause in a bill that was made law.
Using the Charter override had allowed the government to implement the law despite a court ruling that it infringed on the free expression rights of third parties.
However, on Monday the Court of Appeal ruled the law is also a violation of the section of the Charter that pertains to democratic rights. It's an important distinction because the Charter's notwithstanding clause cannot be used to override a breach of that section of the Charter.
The court has given the Ford government one year to rewrite its law to be Charter-compliant. However, a spokesperson for the attorney general said Monday afternoon the government seek leave to appeal the decision at the Supreme Court of Canada, which could opt to hear the case or let the Court of Appeal judgment stand.
Nonetheless, the Court of Appeal ruling was a win for the unions involved.
"This is very exciting — it feels like vindication," Ontario Secondary School Teachers' Federation (OSSTF) president Karen Littlewood told The Trillium.
Littlewood said that while the bill placed limits on all third-party advertisers, unions felt it was specifically targeted at them: they're historically the biggest election advertisers. Her union, and others, would have been far more vocal about the Ford government ahead of the last election if the law had not been in place.
"They didn't want to hear from unions," she said. "They didn't want to have our opinion, they don't consult with us on matters of education, so they certainly wouldn't want us to be able to tell the public what's going on in education and why we needed to elect education-friendly governments."
One of the parties to the court challenge was the Working Families Coalition, a coalition of unions that for years was the biggest third-party spender, producing hard-hitting attack ads targeting PC leaders.
Barring a successful appeal at the Supreme Court of Canada, Littlewood said she expects the Ford government will try to rewrite the law in a way that continues to restrict third-party advertising as much as possible without running afoul of the court.
"I think they're going to try and again, inhibit the ability of city citizens or organizations to speak out against the government during an election," she said.
According to the Canadian Civil Liberties Association (CCLA), which intervened in the case, the court found that in order to be Charter-compliant the restrictions would need to be "carefully tailored" and permit "a modest informational campaign."
Cara Zwibel, director of the CCLA's fundamental freedoms program, said one of the government's problems was that the legislation didn't appear to be carefully tailored.
In fact, when the Ford government increased the period of time in which advertising is restricted from six months ahead of an election to a year, a court challenge of a prior version of the law was already underway. Government lawyers had made an argument supporting the shorter period, then didn't really justify why it needed to be doubled and the court took issue with that, Zwibel said.
The most important aspect of the ruling, she said, is that it tells the Ford government it can't take a "casual attitude" to Charter rights and the notwithstanding clause.
That applies especially to democratic rights, according to Zwibel. The Charter was written so that voters have a chance to weigh in on a government's use of the notwithstanding clause — it must be renewed every five years, giving voters the chance to address the issue by voting the government out of office at the next election if they so choose, she said.
That's why the notwithstanding clause cannot be used to allow governments to "tinker" with democratic rights to their advantage, Zwibel said.
"Trying to change the rules of the electoral game while using the notwithstanding clause is a really problematic approach, and I think the court did recognize that," she said.
This story was updated at 4:20 p.m. to include the news that the Ontario government intends to appeal the court's decision.
