Critics pan use of notwithstanding clause to quash Superior court ruling of third party election advertising as a constitutional abuse

Premier Doug Ford has entered the history books as the first Ontario premier to invoke the notwithstanding clause in order to pass legislation.

Tories make history with Ontario’s first use of “nuclear” option

QUEEN’S PARK – Following Ontario Superior Court Justice Edward Morgan’s ruling to throw out  the Ford government’s revisions to Ontario’s Election Act and Election Finances Act, Premier Doug Ford recalled the legislature last weekend for an emergency debate with the intent to invoke Section 33 of the Canadian Constitution, commonly referred to as the “notwithstanding clause.” The debate extended into Monday evening of this week and featured a spirited, though ultimately futile, rearguard action by the province’s opposition parties that ultimately failed to derail the bill.

The unconstitutional portion of the legislation, Bill 307, Justice Morgan determined, was a provision to extend the election advertising expenses limit to a full year from the previous six months, while keeping the spending limit at $630,000. Justice Morgan found that the time extension was far in excess of what was necessary (holding that six months pre-election advertising limit was sufficient) and amounted to an infringement on the rights and freedoms of Canadians under the charter’s freedom of expression.

Premier Ford, whose party wishes to keep the full year of pre-election ads, has painted the legislation as necessary to protect Ontario’s elections from “outside influences.” While the changes to the rules governing political advertising by interest groups would impact unions and organizations such as ‘Ontario Proud,’ most observers believe the actual target is the union advocacy group ‘Working Families’ whose hard-hitting advertisements have been anything but Tory-friendly—although former Premier Kathleen Wynne also found herself taking flack from the same advocacy group during her time at the helm.

“It’s undemocratic and dictatorial, and likely illegal, for Doug Ford to invoke the notwithstanding clause to impose his arbitrary and unconstitutional spending restrictions on advertising by interest groups for the year before the election,” Duff Conacher, co-founder of Democracy Watch and chairperson of the Money in Politics Coalition told The Expositor. “Restricting massive ad campaigns by wealthy interest groups and individuals in the months leading up to an election is a good, democratic idea, as the Supreme Court of Canada has ruled, as is prohibiting huge ad campaigns by wealthy individuals and lobby groups all the time, but the reasonable, democratic way to set reasonable, democratic spending limits is through an independent, multi-partisan commission that will study the actual costs of reaching voters and other key factors,” Mr. Conacher explained.

“The Ford government’s Bill 254 also doubled the annual donation limit, which will allow wealthy donors to buy even more unethical influence over parties and politicians and will likely benefit Ford’s PC Party the most,” continued Mr. Conacher. “Democracy Watch’s analysis of 2020 party donations shows the PCs received almost 50 percent of their donations of more than $100 from only 20 percent of their donors who donated $1,000 or more. The other main parties’ top donors also provided a disproportionate amount of funding.”

As Mr. Conacher notes, in addition to extending the time limit on political advertising by third parties (ie, not one of the registered political parties), the legislative changes put forward by Premier Ford included doubling the maximum annual donation that an individual can make to a political party, boosting it to $3,300 effective this year and a plan to extend the $13 million annual taxpayer-funded subsidy provided to the major political parties based on the number of votes each received in the 2018 election. 

Those changes come despite Premier Ford promising to scrap the subsidy to parties based on their success in the last election campaign (and these subsidies were due to expire at the end of this year in any event). Instead, the legislation would actually increases those subsidies, to an annual amount as follows: $5.92 million to the Progressive Conservatives, $4.91 million to the NDP, $2.86 million to the Ontario Liberal Party  and $673,000 to the Green Party.

Those portions of the legislation were not struck down by the superior court’s ruling, however, the only actual offending clause was the extension of the time limit on advertising to 12 months.

The official opposition NDP introduced 134 unanimous consent motions in an attempt to stall the passage of Bill 307, but ultimately the Progressive Conservative legislative majority ruled the roost and the bill was passed Monday afternoon following a marathon session that saw the NDP leader Andrea Horwath call out the Speaker for circumventing longstanding parliamentary tradition in order to move the bill forward.

This marks the first time the notwithstanding clause has been invoked in Ontario history, allowing the bill to go forward despite a judge ruling it as unconstitutional.

Algoma-Manitoulin MPP Mike Mantha noted that, due to the Progressive Conservative’s majority, the outcome was “already predetermined, but sometimes you have to take a strong position to preserve Canadian democracy.”

Mr. Mantha pointed out that there were many other options open to the Ford government that did not require the nuclear option of the notwithstanding clause. “There were many options: he could have appealed the ruling (generally considered an unlikely route to success that would have taken considerable time), they could have worked with the other parties to find a solution that worked. We all agree that third party advertising has to be regulated, but that’s the point of government. You roll up your sleeves and set the rules so that everyone knows what they are and can work within those rules. This government chose to not go those routes and instead decided to open the Pandora’s Box of the notwithstanding clause. Once you use it, the next time it becomes easier and easier.”

Mr. Mantha said he expects that voters will not forget the assault on their rights and freedoms by the forced passage of an unconstitutional law.

At least one of his opponents in the next election agrees.

“Blatant partisan interest is really the only reason to use the notwithstanding clause in this case,” said Algoma-Manitoulin provincial Liberal candidate Tim Vine. “We can all agree there needs to be reasonable limits to third party participation in elections to protect our democracy. The courts found the previous Liberal government’s restriction are effective in providing that reasonable limit. This is another example of Ford’s PCs running over Ontarian’s rights to benefit  their narrow political interest. Free speech is too precious a right to be infringed without a highly compelling public interest argument, but Ford’s lawyers presented no such argument. Ontarians deserve a government that will respect our rights and our democracy.”

The Provincial Conservative riding association has not yet nominated their candidate for the 2022 provincial election.