Right to 'meaningfully participate in democratic process' is at stake in case: BCCLA's Vibert Jack
In a case about third-party ad spending around elections, the Supreme Court of Canada will decide how broadly or narrowly to interpret the right to vote under s. 3 of the Charter.
The SCC heard oral arguments in Attorney General of Ontario v. Working Families Coalition (Canada) Inc., et al., on May 22. The case arose following Ontario’s enactment of its Elections Act and Election Finances Act amendments. The province extended the pre-election period during which third-party ad spending is limited from six months to a year. Third parties can spend $106,200 on political advertising during an election period and $637,200 in the year preceding an election period. A group of trade unions under the banner of Working Families Coalition, three teachers’ associations and several individuals are behind the challenge.
Ontario’s Progressive Conservative government passed Bill 254, the Protecting Ontario Elections Act, with the help of s. 33 of the Charter – the notwithstanding clause. It was the first time an Ontario government invoked the provision. They invoked the clause after an application judge found the doubling of the six-month, pre-writ restricted period was unconstitutional because it did not minimally impair the free expression rights of third-party advertisers.
However, s. 33 did not protect the province at the Ontario Court of Appeal, which ruled the changes unconstitutional in a 3-1 ruling. The court found that the changes restricted voters' right to meaningfully participate in the electoral process. They gave Ontario a year to produce new, Charter-compliant legislation.
At stake in Working Families Coalition (Canada) Inc., et al. is “the right to meaningfully participate in the democratic process, and elections specifically,” says Vibert Jack, litigation director at the British Columbia Civil Liberties Association (BCCLA), an intervenor in the case.
While the courts have interpreted the right to vote broadly, Jack says the Ontario government is arguing for a narrower view.
“We're arguing that they're wrong, that previous cases from the Supreme Court hold that the right to vote needs to be interpreted very broadly.”
Democracy Watch, the non-profit democratic reform advocate, is also an intervenor. It argues that limits on ad spending for third-party interest groups can be constitutional if “the limits are democratic, established democratically, and based on the actual cost of reaching voters through advertising on any issue.” The group says that allowing one voter or a private corporation to spend $637,200 while placing the same limit on a group representing thousands or tens of thousands of citizens is undemocratic and unconstitutional.
Co-founder Duff Conacher agrees with the Ontario Court of Appeal’s finding that the spending limit should have been increased when extended to 12 months.
“But no one really knows what the limit should be because no studies were done as to what amount of money you need to inform voters over a six-month period or a 12-month period… Before you set a limit, you have to do a comprehensive study to determine how much it actually costs to reach voters and inform them so that you set a realistic limit, not an arbitrary limit.
“Maybe it's a realistic number, but nobody knows because no study has ever been done.”
Jack says the use of the notwithstanding clause raises concerns over Ontario’s purpose in passing the law the second time. Based on the court’s first decision, it was clear from the evidence that the existing spending limits were adequate to create fair elections. The BCCLA’s primary concern is that the law is intended to “sideline the voices of labour and other progressive movements” and help the Progressive Conservatives stay in power.
“We got involved because we see public discourse is an important accountability measure, and we don't think that government should be allowed to insulate themselves from criticism under the guise of getting money out of politics.”
