Court File and Parties

Court File No.: CV-21-00665404 Date: 2021-12-03 Ontario Superior Court of Justice

Between:

Working Families Coalition (Canada) Inc., Patrick Dillon, Peter Macdonald, Ontario English Catholic Teachers’ Association, The Elementary Teachers’ Federation of Ontario, Felipe Pareja, The Ontario Secondary School Teachers’ Federation and Leslie Wolfe Applicants

– and –

The Attorney General of Ontario Respondent

– and –

The Canadian Civil Liberties Association, Centre for Free Expression at Ryerson University, Criminal Lawyers’ Association, Democracy Watch and the Chief Electoral Officer of Ontario Interveners

Counsel: Paul J.J. Cavalluzzo, Adrienne Telford, Chris Perri, Tyler Boggs and Michelle Thomarat for the Applicants Working Families Coalition (Canada) Inc., Ontario English Catholic Teachers’ Association, Patrick Dillon and Peter Macdonald Susan Ursel, Kristen Allen, Emily Home and Natasha Abraham, for the Applicant Ontario Secondary School Teachers’ Federation Howard Goldblatt, Christine Davies, Daniel Sheppard, Melanie Anderson and Anna Goldfinch for the Applicant Elementary Teachers’ Federation of Ontario Robert W. Staley, Jonathan Bell, Douglas Fenton, Andrew Sahai, and Megan Steeves, for the Respondent Attorney General of Ontario David Rankin, Lindsay Rauccio, Graham Buitenhuis, and Stephen Armstrong, for the Intervenor Canadian Civil Liberties Association Jamie Cameron, Christopher Bredt, Mani Kakkar, and Daniel Milton, for the Intervenor The Centre for Free Expression at Ryerson University Louis Strezos and Matthew Gourlay, for the Intervenor Criminal Lawyers’ Association Crawford Smith, Matthew Law and Patrick Wodhams, for the Intervener Democracy Watch Brian Gover, Stephen Aylward, and Dragana Rakic, for the Intervenor the Chief Electoral Officer of Ontario

Heard: November 22-26, 2021

Before: E.M. Morgan, J.

Reasons for Decision

[1] This Application poses a question about the interplay between voting rights and political advertising. How far can a government go in regulating the amount that third parties (i.e. non-candidates / political parties) spend on political advertisements in the run-up to an election, before the constitutional right to vote is undermined?

[2] It is undeniable that the dissemination of information and policy views is critical to an electoral democracy. According to democratic theorist Alexis de Tocqueville, the power of the ballot is a formidable one precisely because voters’ power “springs from knowledge”.[^1] If that is not the case, John F. Kennedy observed, “the ignorance of one voter impairs the security of all.”[^2]

[3] That said, there can be too much of a good thing. Contemporary voters may be subject to data overload – a “flood of information…[that] seems to produce more pain than gain.”[^3] They may also be subject to misinformation – the American Bar Association notes that “[l]ying in political advertisements is also perfectly legal”,[^4] while the Supreme Court of Canada has asserted that the constitution “protects the expression of both truths and falsehoods”.[^5]

[4] Most importantly, third party spending on political advertisements may distort election results and make wealth the arbiter of influence on public decision-making.[^6] An unregulated market of election-oriented advertising may have a counter-egalitarian effect.

[5] For all these competing reasons, legislative intervention in this area must be carefully calibrated in order to respect rather than impede voting rights under section 3 of the Canadian Charter of Rights and Freedoms (the “Charter”). The question in the case at bar is whether recently enacted amendments to the Election Finances Act, RSO 1990, c E7 (“EFA”) meet that challenge.

I. Background

[6] In June 2021, I issued a judgment striking down Bill 254, which had introduced amendments to the EFA imposing more far-reaching restrictions on pre-election advertising than previously in existence. My reasons for judgment were based on the Bill’s violation of freedom of expression under section 2(b) of the Charter.[^7]

[7] Within a day of that judgment being rendered, the government of Ontario announced its intention to invoke section 33 of the Charter, which would allow the legislature to re-enact the very same amendments notwithstanding their violation of section 2(b). The re-enactment was accomplished by introducing new legislation – Bill 307 – which received Royal Assent five days later as the Protecting Elections and Defending Democracy Act, 2021, SO 2021, c. 31. This statute contained, among other provisions, the identical restrictive spending policy for 12 months prior to the issuance of an election writ that I had found unjustifiably infringes freedom of expression under the Charter.

[8] In acting with dispatch, the governing Progressive Conservative Party’s House Leader, Paul Callandra, stressed that given the timing of the next election, it was “important for us to move quickly”.[^8] Attorney General Doug Downey, explaining the use of section 33, emphasized the government’s desire to act decisively and with expedition rather than proceeding through the usual appellate or legislative processes.

[9] The EFA amendments impact on the political advertising campaigns engaged in by the Applicants, all of whom are critics of the current government, for 13 months out of a 4-year election cycle. Those Applicants, who are the same as the applicants in the previous round of litigation, now challenge the Bill 307 amendments to the EFA as being a violation of the right to vote under section 3 of the Charter. Section 33 of the Charter, by its terms, does not apply to section 3 rights, making that section a potential ground of constitutional challenge to the EFA amendments even in the face of a constitutional override.

II. Legislative history

[10] The legislative background to the case at bar was reviewed in Part I of my judgment in the previous round of litigation over the same EFA amendments.[^9] I will not repeat that detailed history here but rather I incorporate the discussion of it by reference.

[11] For present purposes, suffice it to say that the Ontario legislature amended the Election Finances Act, RSO 1990, c E7 (“EFA”) in 2017 to impose, for the first time, third-party spending limits on political advertising in the six months prior to the dropping of an election writ. Those amendments were the subject of a court challenge, but the challenge was never heard as the amendments were superseded by Bill 254 which was enacted in February 2021 (coming into force on May 4, 2021). That Bill, among other things, doubled the restricted spending period from six months to twelve months preceding an election writ.

[12] It was that 12-month restrictive period, along with related provisions of Bill 254 summarized in Part II of my previous reasons for judgment, that was ruled unconstitutional under section 2(b) of the Charter. In particular, the year-long pre-writ restrictive period was found to be unjustifiable as it did not minimally impair the rights in question.

III. The ‘notwithstanding’ clause

[13] In passing Bill 307, the Ontario legislature enacted amendments to the EFA that restated the identical amendments as those rendered inoperative by my judgment in respect of Bill 254, with the addition of a crucial sentence contained in section 53.1(1) thereof:

Pursuant to subsection 33(1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.”

[14] As indicated, it is the Applicants’ position that the ‘notwithstanding’ clause does not apply to the EFA amendments, as they impair not only the right of freedom of expression but the right to vote – a right that is excluded from the ambit of section 33 of the Charter. Some of the Applicants, most notably the Elementary Teachers’ Federation of Ontario (“ETFO”), also take the position that section 33 has its own internal limitations and cannot be invoked in certain circumstances even with respect to rights under section 2 of the Charter. Counsel for ETFO base this view on judicial commentary in the context of the Quebec legislature’s use of ‘notwithstanding’ clause to override section 2(a) of the Charter (freedom of religion):

[T]he use of the notwithstanding provision…is not a trivial matter. It entails a suspension of citizens’ fundamental rights… One must tread very carefully when invoking such extraordinary powers. The power to suspend fundamental freedoms may possibly have its own limits in a free and democratic society. We can conceive of extreme circumstances where the extraordinary power to suspend fundamental freedoms could be constrained by equally extraordinary legal remedies. But that is not where we are. Indeed, let us hope we never reach that point.[^10]

[15] While I agree that invoking section 33 to override Charter rights is not a trivial matter, the only structural limitations on the use of the clause are built into its very terms: it allows laws to remain operable “notwithstanding sections 2 and 7 to 15” of the Charter. Other than this limitation on its ambit of operation, the clause has only formal requirements, not substantive ones, controlling its enactment.[^11] Counsel for the Centre for Free Expression at Ryerson University, an Intervenor in this case, adds that according to then Attorney General of Ontario Roy McMurtry, who together with then Deputy Premier of Saskatchewan Roy Romanow was a key architect of section 33, “political accountability is the best safeguard against any improper use of the ‘override clause’ by any parliament in the future.”[^12]

[16] In other words, section 33 was originally conceived not as an anti-democratic instrument but as a democracy-fostering mechanism. It was included in the Charter as a counterbalance to what were perceived as anti-majoritarian, judicially enforced Charter norms. That is, it was, and is, a means of bringing Charter matters to the electorate where they otherwise would not go. In that respect, it allows for “accountable public discussion of rights issues.”[^13]

[17] For these reasons, the ‘notwithstanding’ clause has been described as part of the notional dialogue between legislatures and courts in fine tuning the rights of Canadians.[^14] It is true, as the Applicants and Intervenors stress, that when it comes to voting rights section 33 must be handled with great care in view of government’s “capacity, and often the interest, to limit the franchise.”[^15] Nevertheless, section 33 is not exactly a deviation from the Constitution as the Applicants tend to characterize it. It is, as Justice Bastarache has written, an integral part of the “balance between law-maker and law-reviewer. Each safeguard[s] abuse by the other.”[^16]

IV. The impugned legislation

[18] In Part II of my previous judgment, I reviewed in some detail the specific statutory provisions at stake in the constitutional challenge then before me. While I hesitate to repeat that exercise here, it is important to understand that the present challenge raises section 3 rather than section 2(b) of the Charter, and therefore poses a different set of questions about the impugned sections of the legislation at issue, than did the previous litigation.

[19] In considering how to proceed, I am cognizant of the admonishment expressed by the Supreme Court of Canada that one must not equate the right to meaningful electoral participation with the exercise of freedom of expression. Simply put, “The right to free expression and the right to vote are distinct rights.”[^17] Since the rights under consideration are distinct, the perspective brought to bear on the impugned provisions are likewise distinct – despite the fact that those statutory provisions are enacted in the identical terms as the last time around.

[20] It is therefore worth summarizing the challenged provisions again for the purpose of assessing the need to “ensure the primacy of the principle of fairness in democratic elections…[and that] all citizens are reasonably informed”.[^18] In other words, the impugned statute must now be reviewed with a view to analyzing its impact on the consumers of political information – i.e. voters – rather than, as in the previous litigation, on the purveyors of political information – i.e. advertisers.

a) Spending limits

[21] Under the Election Act, RSO 1990, c E6, sections 9 - 9.1, elections take place every four years, with an election writ being issued one month before election day. The Bill 307 amendments to the EFA impose a $600,000 spending limit on political advertising by any non-political party in the 12-month period preceding the issuance of a writ. Of this, a maximum of $24,000 can be spent in any given riding and a maximum of $100,000 can be spent on political advertising by any one individual or organization, with a maximum of $4,000 spent by that one individual or organization in any given riding.

[22] All parties concede that the 12-month restricted period is lengthier than in any other Canadian jurisdiction, although some of the dollar limits on spending are higher than in other places in Canada. The Chief Election Officer of Canada, an Intervenor in this proceeding, testified that “there is no one size fits all model to adopt”, and that the proper formula is one that accords with the size of the population and political culture of the society: “Every jurisdiction – be it in Canada or elsewhere – has to decide what system will best serve its citizens and support its political parties.”

[23] It is the 12-month pre-writ period of restricted spending that was the crux of the analysis under section 2(b) of the Charter, and that forms the crux of the analysis pursued here. I indicated in my previous judgment that the other impugned sections of the EFA, including the definition of “political advertising” and the reporting and enforcement-oriented sections, are ancillary to the enactment of the pre-election writ spending limits. Obviously, “if there were no spending limits there would be nothing to define, report, or enforce.”[^19]

[24] Although the analysis pursued here, as in the previous case, will focus on the 12-month restricted spending period, a brief review of the rest of the EFA sections challenged by the Applicants is valuable for the sake of context.

b) Political advertising

[25] Section 1(1) of the EFA provides:

‘political advertising’ means advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate and includes advertising that takes a position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate and ‘political advertisement’ has a corresponding meaning, but for greater certainty does not include,

(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news,

(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election,

(c) communication in any form directly by a person, group, corporation or trade union to their members, employees or shareholders, as the case may be,

(d) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views, or

(e) the making of telephone calls to electors only to encourage them to vote.

[26] This definition is to be read together with s. 37.0.1 of the EFA, which provides a non-exhaustive list of factors that can be taken into account by the Chief Electoral Officer in determining whether a particular item amounts to “political advertising.” As indicated in my previous judgment,[^20] the Chief Electoral Officer is independent of government, non-partisan, and presumed to be familiar with current electoral issues, making that officer a reliable decision-maker for determining what advertising is regulated and what advertising is not.

[27] It is important to note that the definition of “political advertising” captures election-oriented advertising that is specifically made “for the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate.”[^21] This definition tracks the rationale of the foundational Lortie Report,[^22] the early 1990s study that first introduced the prospect of pre-election spending limits by third parties.[^23] The definition captures any advertising that can “reasonably be regarded” as closely associated with a political party. Similar to the parallel federal legislation,[^24] it encompasses advertising on issues that can “reasonably be regarded” as closely associated with a political party or candidate. All of this, however, is contingent on the advertisement being directed towards “promoting or opposing” the election of the political party or candidate in question.

[28] What is not caught by the definition is an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news, and the non-commercial and personal political views of an individual. Further, “political advertising” is content neutral and applies to any third party whether supportive or opposed to the government of the day. I emphasize this in view of the submissions of some of the Applicants to the effect that their voice is necessary precisely because of the substantive point of view that they represent.

[29] Counsel for the Working Families group makes this point, albeit discretely and somewhat subtly, it in their factum, stating that, “Third party political advertising allows workers to counter the strong corporate interests…and to attempt to counter the influence of big business”. Patrick Dillon, an individual Applicant in this proceeding and a spokesperson for Working Families, made the point with somewhat less subtlety in cross-examination. He was shown one of his group’s 2014 television advertisements that stated baldly, without reference to any policy context, that a former leader of Ontario’s Progressive Conservative Party “refuses to tell the truth”, and was asked whether he would characterize the piece as an “attack ad”. He responded that he would not characterize a television spot labelling a political party leader a liar an “attack ad”, but rather would describe it positively as a “revelation”.

[30] It goes without saying that in an electoral democracy with a diversity of views in the electorate, one voter’s social hero is the next voter’s social demon. I do not consider the ideological stance of any potential political advertiser to be of any moment in analyzing the legislation at stake. If the Applicants were representatives of business-oriented interests rather than representatives of labour-oriented interests, and if the government of the day were that of a party on a different place in the ideological spectrum than the present Ontario government, the constitutional analysis would be the same.

[31] As counsel for the Attorney General pointed out in oral submissions, today’s Applicants are associated with the labour movement and generally oppose restrictions on political advertisements from the perspective of the political left. On the other hand, the Applicant in the Supreme Court’s leading case on point, Stephen Harper,[^25] later went on to be the leader of the federal Conservative Party and brought his case to oppose restrictions on political advertisements from the perspective of the political right.

[32] The target of the advertisement, the matter addressed in the advertisement, and the political or ideological stance of the advertiser, are irrelevant to the definition of “political advertising” and the evaluation of that advertising. The only question about content of any relevance under the challenged EFA amendments is whether the advertisement targets a candidate personally or a candidate’s or party’s election talking points or policies, in which case it meets the statutory definition – a test that I found in the previous litigation to be relatively easy to apply.[^26]

c) Anti-circumvention

[33] The EFA not only restricts spending on political advertisements but, somewhat understandably, prohibits third parties from circumventing or attempting to circumvent those restrictions. It does so by providing a number of examples of activities that would constitute collusion and cost sharing or cost splitting if done as part of an attempt to circumvent the spending restrictions.

[34] The anti-collusion and anti-cost splitting amendments were contained in Bill 254 and are repeated in Bill 301; they were supported and endorsed by the Chief Electoral Officer and are generally supported by the experts, including the Applicants’ own experts. The Supreme Court upheld similar provisions in Harper, finding that “[t]here is no evidence indicating that the splitting and collusion rules infringe on the right to meaningfully participate in elections. Indeed, the provision enhances the right to vote by enforcing the third-party advertising expense limits.”[^27]

d) Interim Reporting Requirements

[35] The Supreme Court has emphasized that transparency is an important value underpinning the egalitarian model of elections endorsed by the Lortie Report.[^28] Bill 254 introduced, and Bill 301 repeats, a requirement for third parties to file an interim report upon incurring expenditures reaching $1,000 and another report upon reaching the relevant spending limit. In order to comply with the interim reporting obligation, an advertiser must fill out a standard form found on Elections Ontario’s website which is then published for public access.

[36] Counsel for the Applicants submit that the interim reporting requirement creates an unduly onerous administrative burden that chills political expression. However, when questioned about the Elections Ontario form, the Applicants’ witnesses conceded that it demanded only minimal information. I do not perceive the one-page standard form as a mechanism that will dampen a third-party advertiser’s enthusiasm to participate in electoral discourse. Counsel for the Attorney General points out that in cross-examination one of the Applicants’ expert witnesses candidly remarked that she had opined that the interim reporting requirements represent “onerous administrative requirements that could have a chilling effect on the participation of third parties”, but had done so without having ever reviewed the reporting form.

[37] In any case, the critique levelled by the Applicants at the reporting requirements appear entirely aimed at their previous arguments under section 2(b) of the Charter. They barely, if at all, touch on the current section 3 challenge.

e) Administrative penalties

[38] The set of EFA amendments challenged here authorize the Chief Electoral Officer to make an Order requiring a person or organization to pay an administrative penalty in the event of non-compliance with the spending restrictions on political advertising. Those penalties are then made subject to a right of appeal to the Superior Court of Justice.

[39] In introducing those provisions as part of Bill 254, Attorney General Downey indicated that they were based on recommendations received from the Chief Electoral Officer. The Attorney General advised the legislature that the administrative penalties were designed to “strengthen the suite of the enforcement tools that are available to Elections Ontario, to help drive compliance”.[^29]

V. The Applicants’ political advertising

[40] As already indicated in these reasons, the ideological content of the Applicants’ advertising is not relevant to the constitutional analysis. The challenged legislation must stand or fall on constitutional grounds regardless of who wants to engage in political advertising or what those advertisements will potentially say.

[41] Having said that, the Supreme Court has specifically stated that section 3 of the Charter encompasses “the right of the right of each citizen to play a meaningful role in the electoral process.”[^30] In view of that description, it is necessary to at least briefly examine whether and how the advertising in which the Applicants propose to engage serves that function.

[42] In the first place, it is self-evident that the Applicants, like all political advertisers, have as a goal the influencing voters and election results. As I indicated to counsel at the hearing, the advertisements in question are not academic comments on political theory; they address live political matters for the purpose of convincing the audience of their authors’ point of view. In this sense, the exercise of informing voters – the basic point of political advertising in the run-up to an election – is often indistinguishable from the goal of convincing voters.

[43] What distinguishes advertisements that come within the EFA’s restrictions is not so much that they aim to convince, but what it is that the aim to convince. That is, the EFA’s spending restrictions are aimed not at political issues generally, but at advertising about candidates or parties and their platforms.

[44] With that in mind, it is noteworthy that the Applicants place great emphasis on television advertising above all other media. The evidence in the record establishes that this is among the most expensive forms of media. The Supreme Court of Canada has commented that “third parties [can] engage in a significant amount of low-cost forms of advertising.”[^31] That is not the approach taken by the Applicants in the case at bar.

[45] The expert evidence of Stephen Freeman, a marketing executive, also confirms what everyone might suspect: that this is a highly impactful form of media. Mr. Freeman deposed that television continues to be “the most persuasive platform that can be used in an election advertising campaign.” He explained that a “minimally effective”, two-week advertising campaign would cost at least $1.2 million, especially if the effectiveness is measured by a change in voter behaviour and election outcome.

[46] Turning to the time frame for the spending restrictions enacted by the current EFA amendments, it is to be recalled that the most important change introduced by Bill 254, now repeated in Bill 301, was the elongation of the restricted period from 6 months in the previous iteration of the Bill to 12 months. It was this extension of the time frame that proved to be the constitutional frailty of Bill 254.

[47] The experts whose testimony was in the record in the previous round of litigation had all deposed that the problem to be addressed in regulating political advertisements was that identified by the Lortie Report – i.e. the problem of inequality of wealth and its potential for creating an uneven electoral playing field. The government’s own experts deposed that while a 12-month period of pre-writ restrictions on spending for political advertising would effectively address the inequality problem, the reality of political advertising was that a 6-month restricted period would also be effective.

[48] Accordingly, Bill 254 was found to infringe the right of expression under section 2(b) of the Charter in a way that did not reflect minimal impairment, and that therefore could not be justifiable under section 1.[^32] Twelve months could not be characterized as minimal if six months could also achieve the goal.[^33]

[49] With the significance of that time frame in mind, it is worth noting that Andrea Lawlor, a political scientist called by the Applicants as an expert witness, deposed that although third parties do attempt to engage in election-oriented advertising more than six months prior to the dropping of the writ, election-related advertising by third parties is generally concentrated around the election period. Indeed, Professor Lawlor states that, “Most voters are only cognisant of the election during the writ period itself”. The reason for this is obvious: election-oriented advertising that is not proximate to election day will have minimal impact on voters.

[50] Mr. Freeman’s testimony backs up this position from a marketing and audience impact point of view. He deposed that election-oriented advertising should run within a month or two of the election in order to be effective. For this reason, Erin Crandall, another political scientist presented by the Applicants as an expert on elections, deposed that the restricted period should be “as short as possible”. Professor Lawlor put the point in perhaps the most memorable way: “To use a simple analogy, Christmas advertisement that runs in July will have little impact by the time the holiday season rolls around.”

[51] Mr. Dillon, on behalf of Working Families, testified that indeed the Applicants generally focus their election-oriented advertising activities at times that are proximate to the issuance of the writ and during the election period. Likewise, Federico Carvajal, a spokesperson for another of the Applicants, the Elementary Teachers Federation of Ontario, testified that advertising outside of six months from the election has ‘little impact on the election” and that his organization does not engage in any more advanced advertising.

[52] That said, the Chief Electoral Officer, in a 2016 appearance before a legislative committee that was considering an earlier version of EFA amendments, submitted that there do exist third party groups who engage in political advertising more than six months in advance of a writ. As an independent regulator, the CEO recommended at that stage that political advertising be regulated for the entire period between elections.

[53] A complete, non-time limited restriction on political advertising such as that suggested by the CEO has not found favour with any of the expert witnesses, including those produced by the government. Counsel for the Attorney General has put forward no expert that embraced anything longer than a 12-month pre-writ regulated period, and the government’s experts generally now vacillate between 6 and 12 months as the most effective period for restricting political advertising expenditures.

[54] Counsel for the Applicants submit that their clients need a long lead time for educating the public about the issues in advance of an election. That may well be the case, but this felt need must be viewed in the context of the expert evidence that establishes that a 6 to 12-month time frame realistically covers the period in which almost all election-oriented advertising takes place.

VI. The scope of section 3

[55] Section 3 of the Charter provides that, “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” As with all constitutional challenges, the onus is on the Applicants to establish a breach of section 3, after which the government party has the onus of justifying the breach under section 1.[^34]

[56] The parties agree that the right under section 3 encompasses a right not just to submit a ballot on election day, but to engage in “meaningful participation” in the electoral process.[^35] This necessarily includes the right of citizens to be “reasonably informed” of their candidates and policy choices at election time.[^36] As the Supreme Court has explained, the section 3 right protects the electoral process in the principled sense of ensuring that “the vote by the people will be free and informed”.[^37]

[57] At issue in Harper was the constitutionality of spending restrictions contained in the Canada Elections Act, SC 2000, c 9 (“CEA”), in which third parties were limited to $150,000 in expenditures for what the statute referred to as “election advertising” during the election period – i.e. between the issuance of the writ and election day. Although the time period differed substantially from that under the EFA amendments considered here – a difference which will be discussed below – the definition of “election advertising” in the federal statute is in essence the same as the definition of “political advertising” in the EFA.

[58] In fact, the federal definition is, if anything, somewhat broader and therefore somewhat more restrictive than the parallel definition in the EFA. The CEA regulates spending for any advertisement that takes a “position on an issue with which a registered party or candidate is associated”; by contrast, the EFA regulates only advertisements that take “a position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate.” Much like the EFA, the CEA also incorporates disclosure and anti-collusion provisions making imperative transparency as among third party advertisers.

[59] With these similarities and the CEA’s slightly more expansive regulatory net in mind, and deferring for the moment a discussion of the shorter restricted time frame contained in the CEA, it is important to recall that the Supreme Court was unanimous in holding that the third party spending limits did not violate s. 3 of the Charter. The Court found that third party spending limits during the election period did not diminish the right to vote, but were actually necessary to ensure that citizens could meaningfully participate in the election by casting an informed vote.[^38]

[60] In fact, the Court in Harper recognized the “egalitarian model” of elections as set out in the Lortie Report to be a constitutional imperative. It reasoned that only by imposing third party spending limits on political advertising could the equality of information among voters necessary for fair and meaningful participation take place.[^39]

[61] In other words, unlike under section 2(b) of the Charter, where any restriction on political advertisement spending amounts to a prima facie infringement of the right of expression,[^40] under section 3 restrictions on spending for political advertisements can enhance citizens’ exercise of the right to vote.[^41] As the Court explained it in Libman:

The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate. To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person’s exercise of the freedom to spend does not hinder the communication opportunities of others… Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources.[^42]

[62] A fundamental premise of the egalitarian model of elections is that the right of third parties to participate in the democratic process must be meaningful, but at the same time “cannot be unlimited”.[^43] In Harper, as in the case at bar, the challenger to the law claimed a right to engage in expensive multi-platform advertising, with a view to influencing the electoral outcome.

[63] The Court dismissed the challenger’s claim, opining that “meaningful participation” in an electoral campaign is not synonymous with an ability to engage in “effective persuasion campaigns” or the ability to “mount a media campaign capable of determining the outcome.” Rather, based on the egalitarian model, a third-party advertiser can claim a right to advance a “modest informational campaign”. Anything more, according to Justice Bastarache, “would leave little room in the political discourse for the individual citizen and would be inimical to the right to vote.”[^44]

[64] Furthermore, the Supreme Court in Harper ruled that, “the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party” so that they can be realistically “informed of all possible choices.”[^45] In accordance with the Court’s view that spending limits enhance the right to vote, informing voters in this way can occur not if third party political advertising is unlimited, but rather if it is curtailed. Otherwise, the playing field will inevitably favour the well-funded. If third party political advertising is left limited only by the financial resources of the advertisers, lesser funded views are likely to be overwhelmed by greater funded views.

[65] Again, the point was made expressly by Bastarache J.: “In the absence of spending limits, it is possible for the affluent or a number of persons or groups pooling their resources and acting in concert to dominate the political discourse.”[^46] Preventing such domination does not infringe the right to vote. Rather, restrictions on spending for political advertisements would have to be fashioned “in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented” in order to be found to violate the right.[^47]

[66] Finally, the Supreme Court has said in no uncertain terms that while third parties fill an important electoral function in informing the public, they are not on par with political parties. Accordingly, “[i]t is also important to limit independent spending more strictly than spending by candidates or political parties.”[^48] Section 3 of the Charter is therefore not measured by comparing spending restrictions imposed on third parties with those imposed on the governing or opposition parties; the candidates and their parties are the primary vehicles for informing the public of their electoral choices, while third parties play a significant role, but one which can be restricted by regulatory authority to ensure that “no one voice is overwhelmed by another.”[^49]

[67] Counsel for the Applicants make the point that the Harper case dealt with regulation of third-party spending during the writ period, not the pre-writ period as under the EFA. That is accurate but must be considered in the context of its era. Counsel for the Attorney General makes the point that at the time Harper was decided, federal elections did not occur on fixed election dates and so identifying a pre-writ period was not feasible for either the advertisers or the regulators.

[68] Now that Ontario’s elections occur on statutorily prescribed fixed terms, it is more likely that third parties will spend money on advertising in the months preceding the writ as a substitute for the limited permissible spending during the election period; indeed, affiants for the Applicants have conceded as much. Thus, the experts on both sides of this litigation agree that pre-writ restrictions on third party expenditures are required if the egalitarian model of elections is to be preserved.

VII. Sections 2(b) and 3 compared

[69] In their previous court challenge, the Applicants were successful in establishing that the amendments to the EFA infringed their rights under section 2(b) of the Charter and could not be justified under section 1. Where the identical legislation is challenged under two Charter rights, the Supreme Court has admonished that the distinction between the rights must be preserved in the analysis:

In my view…where the right to vote overlaps with the right to free expression… [e]ach right is distinct and must be given effect.[^50]

[70] To put the matter another way, in reviewing the EFA from the perspective of the right to vote, the Court must avoid simply repeating the analysis that pertained to the same legislation when reviewed from the perspective of the right to expression. Although both Charter rights apply to electoral advertising, “the content of one right cannot be subsumed by another, or used to inflate its content.[^51]

[71] Accordingly, the Applicants must demonstrate here that the spending limits in the EFA – and, in particular, the 12-month restricted spending period – impact detrimentally on citizens’ meaningful participation in elections. As discussed further below, the fact that the EFA impairs rights under section 2(b) does not itself address the question of rights under section 3.

[72] The first thing to note about the EFA’s limits on pre-writ political advertising is that they do not, of course, prevent voters from exercising their franchise. The voting booths remain open for all. That said, it is well established that the right to vote entails more than just the mechanics of filling out a ballot on election day; it encompasses the right of citizens to do so in an informed and meaningful way.

[73] Importantly, the restricted activity of “political advertising” refers to election-oriented advertising – i.e. the promulgation of advertisements “promoting or opposing a registered party, party leader or candidate for office.” It does not capture advertising on matters of public policy and public debate that are not part and parcel of that specifically electoral context.

[74] As I stated in my analysis with respect to the section 2(b) challenge,[^52] and as is now made even more clear in the Ontario government’s Election Handbook for Third Parties,[^53] the interpretive guidance contained in the enumerated factors in section 37.0.1 of the EFA, together with the overall context of the legislation, serves to limit the application of the term “political advertisement” to election-oriented messages. Contrary to the Applicants’ arguments both here and in the prior litigation, the definition is not so broad as to be incapable of predictable interpretation or so uncertain that even the Chief Electoral Officer will not be able to properly enforce it.[^54] Indeed, the Chief Electoral Officer, in its intervenor submissions here, expresses no such concern.

[75] Counsel for the Applicants also state that they worry that politicians will be able to, in effect, “shut down” a third party’s advertising campaign by making an issue an election issue and thereby bringing the advertisement within the ambit of restriction. I do not see this as a realistic concern. The EFA does not restrict issue advertising, including advertising with respect to issues which are also the topic of campaigning and debate among candidates. Third parties can spend as much as they want on issues of the day, provided they stay focused on issues themselves rather than on the candidates, parties, and leaders that embrace or oppose them.

[76] To illustrate using what is by now a cliché of an electoral issue, third parties can advertise all they want that tax rates are too high and should be lowered or that tax rates are too low and should be raised; they can advertise in an unlimited way that there is a need for new taxes or that there is a need to eliminate existing taxes. The issues of tax policy are untouched by the EFA spending restrictions. On the other hand, if a candidate in an election were to declare, as an American presidential candidate famously did, “Read my lips. No new taxes”,[^55] a hypothetical third party advertisement similar to the one described earlier declaring a political party leader to be a liar would come within the spending restrictions.

[77] At the risk of stating the obvious, under the EFA any and all advertising can be done by third parties, including blatantly partisan political advertising even during the restricted 12-month pre-writ period, if the $600,000 spending limit is not exceeded. Blogs, advertisements in print media, op-eds, press releases, interviews, radio spots, mass mailings (via email or traditional post), tweets, Facebook posts and other social media disseminations, can all be engaged in without great expense and readily within the EFA’s spending limits. It is not realistic to say that the statute works to “silence” any viewpoint or any electoral discourse in today’s multi-media environment. These various media choices are all “highly effective”, to use the Supreme Court’s description,[^56] in engaging with and informing the public of election issues.

[78] Rather, what the spending restrictions impact on, and what the Applicants focus their submissions on, is the most expensive medium for their message: television advertisements. This curtailment of advertising activity is real and is an infringement of the Applicants’ freedom of expression that is not minimally impairing of that freedom. For that reason, it has been declared of no force and effect.[^57] As the medium most favoured by the Applicants, the reduction in television advertising necessitated by the EFA’s spending restrictions cannot be said to have no impact on them. It effectively compels them to make use of media other than television in getting their message out.

[79] The question here is whether the infringement of freedom of expression embodied by the reduction in T.V. ads translates into an infringement of the right to vote. That, in turn, depends on how one perceives “meaningful participation” in an election. In both of the Supreme Court of Canada’s leading cases on section 3 of the Charter, it discussed the meaning of “meaningful” in a “meaningful” way – i.e. in a way which goes beyond the selection of political candidates and in terms of allowing full debate on the issues of the day:

To be certain, the electoral process is the means by which elected representatives are selected and governments formed, but it is also the primary means by which the average citizen participates in the open debate that animates the determination of social policy. The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option; the right to vote provides each citizen with the opportunity to express support for the ideas and opinions that a particular candidate endorses. In each instance, the democratic rights entrenched in s. 3 ensure that each citizen has an opportunity to express an opinion about the formation of social policy and the functioning of public institutions through participation in the electoral process.[^58]

[80] In line with this thinking , the Supreme Court has ruled that any restrictions on political advertising must be “carefully tailored to ensure that…third parties are able to convey their information to voters. Spending limits which are overly restrictive may undermine the informational component of the right to vote.”[^59] It is this informational component, or the contribution to “the formation of social policy”, that the Court has identified as crucial to the egalitarian model of elections in Canada and, by extension, to citizens’ Charter-protected right to vote.

[81] The provision of policy information not otherwise aired in public discourse plays a major role in the Applicants’ submissions about their own electoral contributions. The Working Families group Applicants concludes its factum with the summarizing statement that, “The impugned provisions prevent citizens and civil society organizations from effectively communicating their views on important public policy issues to their fellow citizens and elected representatives for a one-year period.” Similarly, the spokesperson for ETFO describes his group as “us[ing] advertising to inform the public about important education policy issues, to persuade the Government in matters of policy and funding, and to encourage voters to consider these issues when casting their ballots.”

[82] Since it is televised advertising that, according to the Applicants, costs the most and is most directly impacted by the EFA, one would think that it is television commercials that convey the viewpoints on detailed policy matters that the Applicants submit are vital to elections in Ontario. The fact is, however, that policy discourse is not the content of which the Applicants’ television ads – or virtually any T.V. ads – are comprised.

[83] In fact, anyone who has ever watched a 30-second television commercial will know that while the medium is effective, an ability to review policy matters or convey any detailed information is not what makes it so. To expect policy options to be canvassed in a commercial would be akin to expecting serious information about the chemical properties of cleansing agents to be conveyed in a laundry detergent commercial, or a biologically sound anatomical analysis of the digestive process to be contained in an ad for antacid tablets.

[84] The graphic but superficial nature of television ads is not newly recognized by the law. The Supreme Court of Canada has long been cognizant that the visceral power of the visual broadcast media and “the persuasive force of television advertising”, makes it a justifiable area for legislative activity.[^60] If, as Marshall McLuhan observed, the “media is the message”,[^61] then the message of television commercials, with all of their sensory power, is a shallow one that is often credited for “helping to entrench our…shallow culture.”[^62]

[85] A number of the Applicants’ and their labour movement allies’ T.V. advertisements are in the court record and counsel for the Attorney General played several of them at the hearing before me. Perhaps one example is worth describing. The short commercial features an actor who mimics the distinctive voice inflections, hair, posture, and overall appearance of the current Premier of Ontario. His back is partially turned and camera angles obscure his face as he addresses an audience. In his speech he bellows about how his party represents “the rich people” whose “corporate profits matter more than your health care.” A tagline script across the bottom of the screen at the end of the video says: “He might not have said it, but he’s doing it.”

[86] The message of the ad is polemical, partisan, and staged in a way that makes it either entertaining or nasty, depending on the viewer’s political inclinations. The witness for the Applicants who in cross-examination introduced it into the record, Sharleen Stewart of Employees’ International Union (SEIU) Healthcare, referred to it as “parody”. She also acknowledged that while the ad refers the viewer to a website entitled “Tell Him To Care”, that website likewise contains no position papers or anything that elaborates on policy in that way; rather, it hosts links to additional T.V. ads and encourages viewers to copy and send a pre-written message to the Premier.

[87] Whatever else this type of advertisement might be, it certainly constitutes legitimate free speech in a democracy.[^63] But to say that it conveys “important public policy” information would be to extend the meaning of the phrase. It is caricature – hyperbolic and effective, to be sure – but caricature, not policy discourse. Eliminating it would be the equivalent of removing the political cartoon from a newspaper’s editorial page; it would be a serious interference with freedom of expression, but it could not be said to deprive readers of information needed to inform themselves since all of the print information would remain intact.

[88] The question with respect to the right to vote is not whether the spending restrictions on such advertisements violate free speech; they do. And it is not whether they are justifiable as being a minimal impairment of the Applicants’ desired communications; they are not. Both of those questions were determined in the Applicants’ favor in the last round of litigation over the EFA. The version of the statute in play this time around contains the section 33 clause which makes it operable notwithstanding those violations. Accordingly, the question now posed under section 3 of the Charter, as explained by the Supreme Court in Harper, is whether the spending restrictions are “carefully tailored” to the egalitarian model of elections.

[89] The Applicants all submit that the content of the EFA amendments and the way in which the section 33 ‘notwithstanding’ language was hastily added to the amendments reveal that there has been no careful tailoring. They argue that the government has given in to the temptation of self-dealing in enacting the impugned legislation.

[90] Turning first to the contents of the amendments, the 12-month pre-writ restrictions on spending are characterized by the Applicants as such an outlier compared to the lesser or even non-existent spending restrictions in all Canadian jurisdictions, that they must reflect the self-serving motivations of the current Ontario government. The Applicants and the intervenors that support them point out that I already recognized in my previous judgment that incumbent governments having a structural conflict when it comes to election-oriented legislation.[^64] They then reiterate that one must approach the government’s justifications for such legislation with a healthy dose of skepticism.

[91] In support of this argument, the Applicants cite what they characterize as the false and hypocritical statements by Ontario government ministers claiming that the target of the legislation is the need to restrain spending by corporate and wealthy business interests who, in the United States for example, have used the power of the purse to dominate elections. They point out that there is no evidence that corporate resources have been deployed in any great magnitude in the months preceding Ontario elections. They further contend, and the expert evidence demonstrates, that it is labour-related organizations like themselves who are the most active third-party political advertisers and who generally represent interests opposed to the current government.

[92] I do understand the Applicants’ notion that the government spokespersons are being insincere in their statements of concern about corporate resources drowning out other voices during the election. Certainly, the expressed concern about business interests by a government whose motto for the province is “Open for Business” and who in pursuit of that policy goal have enacted legislation seen as curtailing labour rights,[^65] certainly makes for a convenient if not ironic sound bite. Having said that, there is ample historical reason for any government in Canada to express concern about corporate interests. The Lortie Report, which gave birth to the principle of electoral egalitarianism, was specifically concerned about electoral activism by the business community.

[93] I have previously gone over this history,[^66] and it will suffice here to say that the original recommendations for spending restrictions in the runup to elections came in the wake of the 1988 federal election fought primarily over the issue of Canada-U.S. free trade. That election saw significant political advertising paid for by business interests in support of free trade, which overshadowed the amounts that the opponents of free trade brought to bear.

[94] For the Attorney General or any other member of the Ontario government to reference that seminal episode in the history of electoral spending restrictions is hardly surprising. It certainly is not so unique as to point unequivocally to governmental self-dealing. Given the history of spending restrictions in Canada, any government of any ideological stripe might be expected to reference the original controversy over corporate spending.

[95] In any case, the legislation is strictly neutral in its language and substantive content. While it does limit the pre-writ spending of the Applicants, it equally limits the pre-writ spending of their third-party political adversaries. There is nothing in the legislation itself that is politically slanted in the way alleged by the Applicants. It may disadvantage them and their allies in the labour movement today, but it may equally disadvantage corporate economic interests tomorrow.

[96] With all of that in mind, it is nevertheless important to treat any restrictive electoral legislation with care. It is certainly the case that incumbent governments have a built-in motivation to preserve the political status quo. In this respect, any legislative initiative that dampens advocacy of political change can at first blush be suspected of running counter to the constitutionally foundational concept of democracy, which the Supreme Court has identified as representing “an essential interpretive consideration to this day.”[^67] As the Canadian Civil Liberties Association points out in its factum, “[t]he unwritten constitutional principle of democracy informs the meaning of s. 3 and supports an interpretation that protects the democratic process from partisan self-dealing with the purpose or effect of insulating incumbents.”[^68]

[97] For a government enacting election-oriented spending restrictions, there is, of course, an antidote to the toxic spectre of partisan self-dealing – that is, the requirement that the legislation be “carefully tailored” to the principle of electoral equality.[^69] As long as the spending restriction can be characterized as maintaining “the right of citizens to meaningfully participate in the political process and to be effectively represented”,[^70] the structural conflict can be seen to give way in favour of the legislation.

[98] The Applicants argue that the newly introduced EFA amendments, with the section 33 override, cannot possibly be carefully tailored to any principled objective, as they were enacted mere days after my judgment declaring the previous set of EFA amendments unconstitutional. In their view, this legislative haste reflects a cavalier attitude toward fundamental constitutional principles and embodies an enactment that is anything but carefully considered.

[99] The speediness of the enactment, however, belies its origins. The government did, in fact, study the issue and produce expert reports seeking to justify the 12-month pre-writ spending restrictions and other aspects of the EFA amendments. These studies were already done prior to the last round of litigation; they did not have to be repeated. They were found to be unpersuasive in the previous case not because they were wrong, but because they did not demonstrate what that case required of them – i.e. that the 12-month restriction minimally impaired the right of free expression. I specifically found that,

[T]he government’s own expert witnesses in the present case have all testified that a 6-month pre-election period was the appropriate and effective period in which spending restrictions for political advertisements should operate. In the predecessor litigation, the experts produced by counsel for the Attorney General – Professor Harold Jansen and former CEO Jean-Pierre Kingsley – both opined that a 6-month period of pre-writ regulation was reasonable. Those same experts have now opined that the new 12-month period introduced by Bill 254 is ‘also reasonable’.

Without meaning to stress the obvious, it is hard to see how 12 months is minimal if 6 months will do the trick.[^71]

[100] The very same studies that were submitted in the section 2(b) case have now formed the basis of the government’s defense of its use of section 33 and the section 3 challenge. They must now be read with that legal context in mind. The speed of the new enactment therefore does not reflect a lack of care in tailoring the amendments, but rather reflects the fact that invoking the constitution’s ‘notwithstanding’ clause has changed the analytic landscape in which the amendments and their justification are now to be evaluated.

[101] Having found in my previous judgment that the impugned provisions infringed the Applicants’ rights of expression – a low threshold under section 2(b)[^72] – I then turned to analyzing whether the infringement could be justified under section 1. As indicated, I found that the government’s attempt to justify them floundered on the minimal impairment requirement. That requirement must be analyzed from the perspective of the speaker whose rights have been infringed, and asks whether the infringement impairs “‘as little as possible’ the right or freedom in question.”[^73] It is the impact of the measure on the broadcaster of the political advertisements as rights holder, and not its impact on society at large, that is the focus of that analysis.

[102] By contrast, it is the compliance of the provision with the egalitarian model of elections that is in issue in a section 3 challenge. By its very nature, this analysis focuses on the electoral constituency and the impact of the impugned legislation on that constituency of voters and their right to play a meaningful electoral role.[^74] It does not focus, first and foremost, on the speaker or broadcaster of the political advertisements.

[103] This distinction accords with the general theory that the right to vote is not synonymous with other rights in the Charter, including the right of free expression and the unwritten principle of democracy insofar as it grounds individual rights.[^75] As I indicated at the outset, this case must be analyzed differently than the last case in addressing the constitutionality of the EFA amendments.

[104] In the first place, the threshold for finding a prima facie infringement of section 3 is not as low as it is for section 2(b). The Supreme Court has been at pains to explain that “carefully tailored” does not mean perfectly designed. It has also clarified that restrictions on spending are not to be evaluated or measured by the impact of the advertisements: “Meaningful participation in elections is not synonymous with the ability to mount a media campaign capable of determining the outcome.”[^76]

[105] As the Court has recently pointed out, measuring the legislative measure by the impact that it potentially fosters or prevents would, in fact, “leave little room in the political discourse for the individual citizen” to participate in the electoral debate.[^77] The object of the exercise is to ensure that the tailoring of the legislation is carefully calibrated with the need for broad and egalitarian participation; it is not to ensure that the political advertisements can pack a strong punch.

[106] The goal of the voting rights analysis in the first instance is not to restrain government or to make its legislative interventions as minimal as possible. Rather, it is to allow government to do what it takes to foster the kind of “equality in the political discourse [that] is necessary for meaningful participation”.[^78] This means that the spending restrictions must at least leave room for the conduct by third parties of “modest, national, informational campaigns”, [^79] but need not ensure that any third party can mount an expensive media campaign with the potential for determining election results.

[107] That formula articulated by the Supreme Court of Canada provides an apt description of the impugned EFA amendments at issue here. They are certainly designed to burden freedom of expression in the sense that they limit the resources that would be needed for a third party to effectively convince voters. The Attorney General’s expert witness, Jean-Pierre Kingsley, who was Chief Electoral Officer of Ontario through five election cycles and for the better part of two decades, deposes that this restraint reflects the fact that unlike political parties and candidates, third parties are not subject to the democratic check of being answerable to the electorate.

[108] That said, it is also Mr. Kingsley’s view is that the EFA amendments are designed to enhance the right to vote. He explains in his most recent affidavit that parties and candidates attempt to sway voter choices, and face the consequences of their efforts at the ballot box. If they run negative, attack-style ad campaigns about their opponents, for example, the voting public might be convinced by their high standards or repelled by their low brow campaign. Third parties face no such electoral consequences; their ads can attack without having to defend. And so while they play an important role in informing voters, there is no justification for their being able to conclusively sway the vote.

[109] The EFA’s intervention in the political advertising market is not minimal – as indicated in the previous case, a 6-month pre-writ restricted period would accomplish the task to the satisfaction of the government’s own experts. But having done multiple studies which indicate that a 12-month pre-writ restricted period is also aimed at fostering an egalitarian electoral playing field, one cannot say that the EFA is not tailored to its appropriate goal. The fact is that this kind of policy initiative will entail a choice among a range of options that are aimed at the same objective. Mr. Kingsley, for one, has deposed that there is no perfect measure of regulation in this respect, and that “both the six-month period and the 12-month period lie within…a range of reasonable alternatives.”

[110] Unlike under section 2(b), the analysis does not go right to section 1 where the government must meet a test of minimal intrusion. Under section 3, if the government intervenes in the political advertising market it must do so in a way that is attuned to right of voters to meaningful participation via an informed vote. Only if it were found not to be attuned to that objective would the section 1 analysis become relevant and the question of minimal impairment be raised.

[111] The EFA violates free speech but has been enacted with section 33 protection. It therefore operates notwithstanding that violation. As for the right to vote, the government has chosen one of two options that its experts say will accomplish the objective of fostering egalitarian elections – i.e. the 12-month option rather than the 6-month option. There are no mathematical standards for the tools needed to support this objective. While the Applicants would have preferred that the government opt for the shorter restrictive period, in view of the expert evidence I cannot say that the longer period was not carefully considered.

[112] The tailoring of the law, to use the Supreme Court of Canada’s phrase, is neither perfectly skintight nor to everyone’s taste; but it is careful enough to be appropriate to the suit this time around.

VIII. Disposition

[113] The Application is dismissed. The EFA does not infringe the right to vote under section 3 of the Charter. The section 33 override is operative.

[114] The parties may make written submissions on costs. Ordinarily, I would ask counsel for the Attorney General to provide written submissions within three weeks of today, but that would land in the middle of the holiday season. I therefore ask the Attorney General’s legal team to send their brief costs submissions by email to all counsel and to my assistant within a week after the New Year holiday – by Friday, January 7, 2022. I likewise ask each set of Applicants’ counsel to send equally brief submissions by email to all counsel and to my assistant within a month after receiving the Attorney General’s submissions.

[115] There will be no costs for or against any of the Intervenors. Their counsel need not make any submissions on costs.

Released: December 3, 2021 Morgan J.

COURT FILE NO.: CV-21-00665404 DATE: 20211203

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Working Families Coalition (Canada) Inc., Patrick Dillon, Peter Macdonald, Ontario English Catholic Teachers’ Association, The Elementary Teachers’ Federation of Ontario, Felipe Pareja, The Ontario Secondary School Teachers’ Federation and Leslie Wolfe Applicants

– and –

The Attorney General of Ontario Respondent

– and –

The Canadian Civil Liberties Association, Centre for Free Expression at Ryerson University, Criminal Lawyers’ Association, Democracy Watch and the Chief Electoral Officer of Ontario Interveners

REASONS FOR JUDGMENT

Morgan J.

Released: December 3, 2021

[^1]: Alexis de Tocqueville, Democracy in America (vol. I, New York: G. Dearborn & Co., 1838), p. 251. [^2]: John F. Kennedy, Speech at Vanderbilt University (Nashville, Tenn., May 18, 1963). [^3]: Paul Hemp, “Death by Information Overload” (2009), 87 Harv. Bus. Rev. 82. [^4]: Lata Nott, “Political Advertising on Social Media Platforms” (2020), 45 Human Rights Mag. No. 3. [^5]: Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 SCR 610, at para 60. [^6]: Colin Feasby, “Issue Advocacy and Third Parties in the United Kingdom and Canada”, (2003) 48 McGill L.J. 18-23. [^7]: Working Families Ontario v. Ontario, 2021 ONSC 4076 (“Working Families I”). [^8]: Legislative Assembly of Ontario, Hansard,13 June 2021, 1400. [^9]: Working Families I, at paras 2-23. [^10]: Hak c. Procureure générale du Québec, 2019 QCCA 2145, at para 150. [^11]: Ford v. Quebec (Attorney General), [1988] 2 SCR 712, at para 33. [^12]: Roy McMurtry, “The Search for a Constitutional Accord – A Personal Memoir”, (1982) 8 Queen’s LJ 28, at 65. [^13]: Peter Russell, “Standing Up for Notwithstanding”, (1991) 29 Alta L Rev 293, at 299. [^14]: Peter Hogg and Allison Bushell, “The Charter Dialogue Between Courts and Legislatures”, (1997) 35 Osgoode Hall LJ at 101. [^15]: Sauvé v. Canada (Attorney-General) (1992), 7 OR (3d) 481 at 10, 89 DLR (4th) 644 (Ont CA), aff’d on other grounds, [1993] 2 SCR 43. [^16]: Michel Bastarache, “Section 33 and the Relationship between Legislatures and Courts”, (2005) 14 Const. Forum 1. [^17]: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, at para 67. [^18]: Libman v. Quebec (Attorney General), [1997] 3 SCR 569, at para 47. [^19]: Working Families I, at para 10. [^20]: Working Families I, at para 42. [^21]: Elections Ontario, Election Finances CFO Handbook for Third Parties 2021, p. 31. [^22]: Royal Commission on Electoral Reform and Party Financing, 1991 (the “Lortie Report”), at p. 15. [^23]: See Working Families I, at para 29. [^24]: Canada Elections Act, SC 2000, c 9, s. 349. [^25]: Harper, supra, note 17. [^26]: Working Families I, at para 41-42. [^27]: Harper, at para 124. [^28]: Ibid., at para 140. [^29]: Legislative Assembly of Ontario, Hansard, March 29, 2021, M402–M403. [^30]: Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, at para 26. [^31]: Harper, at para 115. [^32]: Working Families I, at para 76. [^33]: Ibid., at para 66. [^34]: R v. Smith, [1987] 1 SCR 1045, at para 71; R v. Oakes, [1986] 1 SCR 103, at para 66. [^35]: Figueroa, at paras. 25-27, 29-30. [^36]: Libman, at para. 47. [^37]: Ibid., at para 61. [^38]: Harper, at para 72. [^39]: Harper, at paras 60-62; Libman, at paras 47-50. [^40]: Libman, at para 49; Working Families I, at paras 27-28, 34. [^41]: Harper, at para 72. [^42]: Libman, at para 47. [^43]: Harper, at para 55. [^44]: Ibid., at para 74. [^45]: Ibid., at para 74. [^46]: Ibid., at para 71. [^47]: Ibid., at para 73. [^48]: Libman, at para 50. [^49]: Harper, at para 62. [^50]: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 877, at para 80. [^51]: (Toronto City) v. Ontario (Attorney General), 2019 ONCA 732, at para. 76. [^52]: Working Families I, at para 43. [^53]: Elections Ontario, Election Finances CFO Handbook for Third Parties (2021), pp. 30-34. [^54]: Working Families I, at paras 41-45. [^55]: Howard Gleckman, “Reading President Bush’s Lips”, Forbes Magazine, December 5, 2018, < https://www.forbes.com/sites/howardgleckman/2018/12/05/reading-president-bushs-lips/?sh= 71895b9f662c>. [^56]: Harper, at para 115. [^57]: Working Families I, at para 90. [^58]: Harper, at para 70, quoting Figueroa, at para 29. [^59]: Harper, at para 73. [^60]: Irwin Toy v. Quebec (Attorney General), [1989] 1 SCR 927. [^61]: Marshall McLuhan, Understanding Media: The Extensions of Man (1964), ch. 1. [^62]: Marcel Danesi, Understanding Media Semiotics (London: Bloomsbury Publishing, 2002), ch. 6. [^63]: R. v. Zundel, [1992] 2 SCR 731, at para 36. [^64]: Working Families I, at paras 73-74. [^65]: Making Ontario Open for Business Act, 2018, SO 2018, c. 14. [^66]: Working Families I, at para 29. [^67]: Reference re Secession of Quebec, [1998] 2 SCR 217, at para 62. [^68]: Citing Toronto (City), supra, at para 55. [^69]: Harper, at para 73. [^70]: Ibid., at para 74. [^71]: Working Families I, at paras 65-66. [^72]: R v. Keegstra, [1990] 3 SCR 697. [^73]: R v. Oakes, [1986] 1 SCR 103, at para 70. [^74]: Harper, at para 74. [^75]: Toronto (City) v. Ontario, 2021 SCC 34, at paras 80-81. [^76]: Harper, at para 74. [^77]: Ibid. [^78]: Ibid., at para 72. [^79]: Ibid., at para 74.