Court of Appeal for Ontario splits over proper approach to voting rights Charter challenge
On March 6, 2023, the Court of Appeal for Ontario released a significant Charter decision addressing election spending limits, voting rights and freedom of expression, and the notwithstanding clause.
Ontario amended its Election Finances Act, RSO 1990, c E7 to lengthen a $600,000 pre-election spending limit from 6 months to 12 months with the aim of countering the undue influence of wealth in provincial elections. In 2021, the law was successfully challenged as an unjustified violation of freedom of expression. However, Ontario invoked the notwithstanding clause in s. 33 of the Charter to maintain the restriction. For comment on that case, see our previous blog post.
The same challengers then brought an application alleging a violation of s. 3 (voting rights) of the Charter. The same judge found there was no violation of s. 3 voting rights.
In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139, Justices Zarnett and Sossin overturned the decision, finding the Act violated s. 3. Justice Benotto dissented.
The Notwithstanding Clause
Some challengers argued that the notwithstanding clause was not properly invoked, contending it should carry an “internal limit” governing its activation by an incumbent government in the elections context, to protect the integrity of elections. This argument was rejected. The Court followed the Supreme Court of Canada’s ruling in Ford v. Quebec (Attorney General),  2 S.C.R. 712 that s. 33 is subject to a requirement of form only, and the legislature need not have a substantive justification for invoking the notwithstanding clause.
Section 3 (Voting Rights): Majority
The right to vote includes an informational component (i.e., a citizen’s right to exercise their vote in an informed manner): Harper v. Canada (Attorney General), 2004 SCC 33. There are two “proxies” for assessing an infringement:
- Are the restrictions “carefully tailored”?
- Do the restrictions permit a “modest informational campaign”?
The majority held the application judge erred in his approach to the “careful tailoring” proxy by:
- Failing to apply his own findings from the previous freedom of expression challenge, which did not support a finding of careful tailoring — As found in that decision, the evidence was that an extension from 6 months to 12 months was not necessary, as a 6-month limit was adequate.
- Divorcing the extension of time from the quantum of spending allowed — The increased duration of restrictions — from 6 months to 12 months — was problematic because of the combination of a longer duration with no associated change in quantum. A longer period might be carefully tailored if the monetary limit was adjusted appropriately.
- Conflating the “carefully tailored” analysis under s. 3 with the “minimal impairment” analysis under s. 1 — While the minimal impairment analysis under s. 1 can be satisfied if the legislative solution is one of a range of “reasonable alternatives”, this approach is not appropriate under s. 3, where the inquiry asks whether the restriction is actually carefully tailored.
The majority also held there was no finding below as to whether the restrictions still allowed a modest informational campaign. The application judge merely concluded that $600,000 in a 12-month span was “reasonable”. While he correctly noted that this element of the test does not entitle third parties to the ability to mount a successful or influential campaign, this did not address whether the restrictions would permit at least a modest campaign.
Ontario did not make submissions on s. 1, so the majority briefly found the breach unjustified.
Section 3 (Voting Rights): Dissent
Justice Benotto would have upheld the application judge’s finding that there was no s. 3 infringement. In her view, the controlling test under s. 3 is not whether spending limits are “carefully tailored”, but whether they restrict information in such a way to undermine the rights of citizens to meaningfully participate in the electoral process, which includes the right to vote in an informed manner.
Justice Benotto concluded that the majority’s “careful tailoring” analysis conflated the test under s. 3 with the test under s. 1. In effect, the majority required Ontario to justify the restrictions, reversing the onus. The test under s. 3 is whether the spending limits restrict information such that they undermine the right to meaningfully participate in the electoral process. The application judge asked and answered that question in the negative and committed no reversible error in the manner in which he approached the s. 3 analysis. In addition, the application judge was satisfied that a $600,000 spending limit on political advertising in the 12 month pre-writ period did not preclude third parties from mounting a modest informational campaign.
What does this mean for the law?
The majority opinion suspended the declaration of invalidity for one year to allow Ontario time to fashion Charter-compliant legislation. Unlike the previous freedom of expression challenge, there is no impending election that would make continued operation of the law unfair. Therefore, the law remains in force for now. Ontario has announced that it intends to seek leave to appeal.
Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139
Docket: C70197, C70178, C70212
Date of Decision: March 6, 2023