EDITOR’S NOTE: This article originally appeared on The Trillium, a new Village Media website devoted to covering provincial politics at Queen’s Park.
The Ford government is asking the Supreme Court of Canada to weigh in on the issue of third-party election advertising, arguing their case raises "matters of national and public importance."
In March, the Court of Appeal struck down an Ontario law that restricted the ability of groups such as unions to run ad campaigns in the year ahead of a scheduled election, finding it violated Charter-protected democratic rights.
The government is asking the Supreme Court to hear an appeal.
"This decision raises issues that reside at the heart of Canadian democracy, raising matters of national and public importance," reads the government's application before the top court. "It warrants review by this Court and leave (to appeal) ought to be granted."
The union groups that brought the case have been fighting successive Ontario governments over the issue. They were in the process of challenging a Liberal-era law that put spending limits on third-party advertising for six months prior to the election period when, in 2021, the Ford government passed a law extending the ban to 12 months without increasing the spending cap.
The union side was successful in getting the strengthened third-party ad law struck down on the basis that it violated their freedom of expression. But then, the Progressive Conservative government made history by using the notwithstanding clause to pass the law again.
It was the first time the province had made full use of the Charter's trump card, and the third-party spending limits were in effect in the lead-up to the 2022 election.
However, the union groups persisted and in March 2023, the Court of Appeal ruled the third-party advertising limits were 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.
Now, the government is asking for the Supreme Court to rule on the issue.
In its application for leave to appeal the case, the government argues that the political landscape has changed since the last time the top court decided on the issue of third-party advertising. That case, Harper v Canada, was brought by Stephen Harper in 2004, before he was prime minister. Then the president of the National Citizens Coalition, Harper challenged provisions of federal law that limit third-party spending during elections.
The Supreme Court upheld the federal law and established a test that was relied on by the courts in the Ontario case. The provincial government is now arguing that the court erred in interpreting that test, but also that the world has changed since 2004, especially with the passage of fixed election-date laws that create a more predictable election cycle and "allow writ-period spending limits to be circumvented by pre-writ spending."
"The rise of social media now allows election participants to reach vast audiences at far lower cost," the government argues. "Fresh guidance is needed from this Court to ensure that all citizens, not just the well-resourced, can meaningfully participate in the electoral process."
When the Ford government announced its plans in 2021, it framed the issue as protecting Ontario politics from the rise of American-style "dark money"-funded political action committees.
That argument is echoed in the government's application for leave to appeal.
"If the majority’s decision stands, wealthy groups and individuals will be free to spend unlimited amounts of money for months leading up to each election and 'flood the electoral discourse with their message,'" it says, quoting the top court's own words in the Harper decision. "The voices of ordinary citizens who lack such resources 'will be drowned out.' Without pre-writ spending limits, 'those having the access to the most resources' will be able to 'monopolize the election discourse' and their opponents will 'be deprived of a reasonable opportunity to speak and be heard.'"
The union groups — the Working Families Coalition, the Ontario English Catholic Teachers' Association, the Elementary Teachers' Federation of Ontario, and the Ontario Secondary School Teachers' Federation (OSSTF) — have taken a different view, maintaining the Ford government passed the law to specifically target unions, which have long been the biggest third-party ad spenders in Ontario, and silence their criticism of Conservatives.
"They didn't want to hear from unions," OSSTF president Karen Littlewood told The Trillium after the Court of Appeal ruling, adding she believed the Ford government would keep trying to "inhibit the ability of citizens or organizations to speak out against the government during an election."