Spending on political advertising matters (notwithstanding section 33)

Can courts scrutinize a government’s decision to invoke the notwithstanding clause (section 33 of the Charter)? In Working Families Coalition (Canada) v. Ontario¹, the Court of Appeal for Ontario provided guidance on how the notwithstanding clause can be invoked, as well as when legislative action may nonetheless face Charter scrutiny.

The Court held that the notwithstanding clause has only formal requirements—courts cannot review a government’s reasons for relying on it. But a 2-1 majority concluded that political advertising spending laws violated democratic rights under section 3 of the Charter, which is not subject to the notwithstanding clause’s constitutional override. Given the important issues raised, and the dissenting judgment, this decision may not be the last word on these issues; the Ontario government has indicated it plans to appeal.

What you need to know

• The Charter’s notwithstanding clause has no “internal limits”—it is properly invoked if all its formal requirements are met. The majority and dissent agreed that there are no “internal limits” on the legislature’s ability to invoke the notwithstanding clause. Rather, governments can invoke it in any circumstance so long as they comply with its formal requirements. Because those requirements were satisfied in this case, the Court had no basis to review the government’s decision to invoke the notwithstanding clause.
• Political advertising spending limits infringed voters’ section 3 rights, which cannot be overridden. The majority held that the impugned political advertising spending limits infringed voters’ section 3 right to meaningful participation in the electoral process. Because the notwithstanding clause overrides sections 2 and 7-15 of the Charter, but not section 3, the Court declared the spending limits unconstitutional.
• Dissent finds no section 3 infringement. The dissenting judge disagreed with the majority’s interpretation of section 3 and held that the spending limits did not infringe the Charter.

Background: third party political advertising spending limits

Ontario’s Election Finances Act (EFA) imposes spending limits on many political actors, including political parties and third parties. In 2017, amendments to the EFA created a $600,000 spending limit for political advertising by a third party in the 6-month period before the writs for a general election. In 2021, the government amended the EFA to extend the pre-writ period of restricted spending from 6 months to 12 months, with no increase to the $600,000 spending cap.

Several parties successfully challenged these EFA amendments as an infringement of freedom of expression under section 2(b) of the Charter. The government responded by enacting an identical version of the amendments, but this time, invoking the notwithstanding clause to insulate the legislation from judicial scrutiny under section 2(b).

The same parties brought a second constitutional challenge to the latest amendments. This time, they alleged that the government had improperly used the notwithstanding clause and that the amendments violated democratic rights under section 3 of the Charter. The application judge disagreed and dismissed the case.

Court of Appeal finds spending limits unconstitutional

On appeal, the Court of Appeal held that the notwithstanding clause was properly invoked but split 2-1 on whether the legislation infringed section 3 of the Charter.

Notwithstanding clause

Both the majority and the dissent rejected the notion that “internal limits” within the notwithstanding clause prevented the government from invoking the clause. Rather, they concluded that the only requirements for invoking the notwithstanding clause are formal: the clause must be invoked “expressly,” and can only apply to section 2 or sections 7 to 15 of the Charter. Thus, the Court held that governments are not required to provide a substantive justification for invoking the clause.

Section 3

The question of whether the amendments infringed section 3 proved to be more contentious.

The majority held that the spending restrictions infringe the informational component of voters’ section 3 rights to meaningful participation in the electoral process. The majority explained that there are two proxies for determining whether voters’ rights to meaningful participation have been infringed:

1. whether the restrictions are “carefully tailored” and
2. whether they permit third parties to mount a “modest informational campaign.”

According to the majority, the application judge had no basis on which to conclude that the 6‑month expansion of the restrictions was appropriate or necessary to achieve electoral fairness—the government had provided no explanation for extending the time period of the restrictions with no commensurate increase to the spending cap. Regarding the second proxy, the Court of Appeal held that the application judge made no finding that a modest informational campaign could be mounted within the new spending limits. 

The dissent disagreed with the majority’s approach under section 3. The dissenting judge explained that the first proxy does not require an inquiry into why the government enacted the spending restrictions. Inviting consideration of the rationale for spending limits would, in the dissent’s view, shift the burden of proof for proving a Charter violation onto the government. As for the second proxy, the dissent held that the application judge’s reasons as a whole established that a “modest informational campaign” could be mounted under the amended law; i.e., the amendments would still allow third parties to get their message out, but by less expensive means.

Implications

The Court of Appeal’s decision has implications for how courts will approach the notwithstanding clause and Charter issues in future cases.

• Both the majority and the dissent have made clear that governments have considerable latitude to invoke the notwithstanding clause, provided the formal requirements in section 33 are complied with. As more and more provincial legislatures contemplate invoking the notwithstanding clause in different circumstances, the Court’s decision suggests that legislatures’ choices will only be substantively scrutinized in the court of public opinion (and at the ballot box).
• The majority measured whether the spending restrictions were “carefully tailored” based on the government’s previous time limit of 6 months. The majority’s decision suggests that even though Charter claimants have the onus of proving an infringement, courts may be willing to scrutinize legislative amendments that alter existing benchmarks without explanation.

Given the Court’s split on whether voting rights were infringed, the scope of section 3 and the government’s burden of proof under section 3 Charter may be the subject of further judicial commentary.