On March 6, 2023, the Court of Appeal for Ontario released its decision on the constitutional validity of third-party spending limits in Ontario’s election legislation. Third-party spending limits refer to limitations on what a third-party (i.e., not a candidate or political party) may spend on political advertising before a provincial election.
The third-party spending limits were challenged under section 3 of the Charter, which guarantees democratic rights. The questions before the Court were whether the third-party spending limits infringed the informational component of the right to vote, which protects a citizen’s right to exercise their vote in an informed manner, and whether Ontario could invoke the notwithstanding clause.
Canadian courts have recognized that third-party election spending limits can advance an egalitarian model of electoral democracy by ensuring that the voices of the well-resourced do not drown out all others. However, these limits can go too far if they prevent third parties from providing information in a way that undermines the right of citizens to meaningfully participate in the political process.
In 2021 (the year before a provincial election), the Ontario government amended the Election Finances Act, R.S.O. 1990, c. E.7 to impose a $600,000 spending limit for third parties in the 12-month pre-writ period. The previous limit was also $600,000 but only applied for six months prior to the writs of election being issued.
The spending limit was challenged in two proceedings.
In the first proceeding, the appellants successfully challenged the spending limit as a violation of third-party advertisers’ rights to freedom of expression under section 2(b) of the Charter. In response, the Ontario government announced its intention to invoke the notwithstanding clause (section 33 of the Charter). The notwithstanding clause allows Parliament or a provincial legislature to declare that a piece of legislation operates notwithstanding a provision in section 2 or sections 7-15 of the Charter.
In the second proceeding, the appellants challenged that legislation as a violation of section 3 and an improper use of the notwithstanding clause. Unlike section 2(b), voting rights under section 3 do not fall within the ambit of the notwithstanding clause. The application judge concluded that there was no violation of section 3 and that the use of the notwithstanding clause was not improper.
The majority of the Court of Appeal for Ontario (comprised of Justices Zarnett and Sossin) declared that the third-party spending limitations unjustifiably infringed section 3 of the Charter and were not saved under section 1. By contrast, Justice Benotto dissented and concluded that there was no infringement of section 3 of the Charter.
The majority and dissent agreed that the notwithstanding clause was properly invoked. The Court noted that section 33 of the Charter only imposes formal requirements, and once those formal requirements were met, there was no basis for a court to substantively review the government’s decision to invoke the notwithstanding clause.
However, the majority allowed the appeal because the third-party spending limits infringed on the informational component of a voter’s right to meaningful participation in the electoral process.
The majority concluded that section 3 protects the rights of individuals as voters in the electoral process and not the rights of third parties who hope to communicate with voters. In order to show a violation of section 3, the appellants must demonstrate that the spending limits restrict information “in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented.” There are two methods or proxies for determining whether the restriction is constitutionally valid – whether it is carefully tailored and whether a third party would still be able to conduct a modest informational campaign.
The majority held that the application judge was required to focus on the effect of the challenged spending restrictions compared to what had preceded them. In other words, the focus should have been on the increase in the restricted period from 6 to 12 months without increasing the spending limit. The application judge failed to properly focus on this issue, and this caused errors in his analysis of whether the restriction was constitutionally valid.
In dissent, Justice Benotto disagreed with the majority’s interpretation and application of the two proxies for determining whether the restriction was constitutionally valid. Justice Benotto held that the majority’s emphasis on careful tailoring invited the Court to consider justification at the section 3 stage of the analysis. This improperly conflated the section 3 analysis with the section 1 justification analysis.
Justice Benotto also disagreed with the emphasis the majority placed on the change in the legislation. In Justice Benotto’s view, the legislation either stands or falls on its own, and the question was whether the legislation was Charter-compliant, not whether the change was Charter-compliant.
The majority and the dissent adopted very different views of the nature of the section 3 analysis and the amount of weight that should be placed on a change in legislation. It remains to be seen whether the Supreme Court of Canada will weigh in on these differences, but further guidance from the highest court would certainly be useful. The Ontario government has announced that it intends to appeal the decision. We’ll have to wait to see what happens next, but this will be an interesting case to follow.
 Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139.
 Working Families Coalition, at para. 3.
 Election Finances Act, R.S.O. 1990, c. E.7, s. 37.10.1(2).
 Working Families Coalition, at paras. 5-6.
 Working Families Coalition, at para. 67.
 Working Families Coalition, at para. 85.
 “Ontario's top court strikes down third-party election ad spending rules” CBC (6 March 2023), online.