Ontario Third Party Advertising Provisions Held To Be Unconstitutional

• Published date: 14 June 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Advertising, Marketing & Branding, Broadcasting: Film, TV & Radio
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

The ability to openly and freely debate political issues is the lifeblood of democracy. There is significant value in people being engaged in issues and voicing their positions to others, including government. However, in the past 20 years concern has been expressed by political scholars that the rich and powerful can unduly influence elections by advertising their opinions to others and persuading people to either vote for candidates or parties who support their views or against candidates or parties who oppose their views. While the concerns are understandable and legitimate from the perspective that elections should be fought on a level and even financial playing field for all candidates and parties, restricting third parties from advertising their opinions on issues either before or during an election period can have a chilling effect on the rights of freedom of speech and cause harm to our democracy.

In Working Families Ontario v. Ontario, 2021 ONSC 4076, Justice Morgan determined that recent amendments to Ontario's Election Finances Act that increased the pre-election restricted spending period for third party advertising from six months to twelve months was unjustified in a free and democratic society. Accordingly, multiple sections of the Act have been struck down as being unconstitutional.

Ontario has had rules concerning third party advertising since 2007. While originally there were no spending limits placed on the third party advertisers, they were required to register with the Chief Electoral Officer and to report on how much they spent during the election period. "Political advertising" was defined as advertising in any medium with the purpose of promoting or opposing a registered party, its leader, or the election of a registered candidate.

In 2017, the Ontario government amended the Act to redefine the definition of "political advertising" to include "issue-based" advertising. In addition, the restricted period for third party advertising was extended to 6 months before the dropping of a general election writ. The Act also includes restrictions for "political advertising" during a by-election period which applies to third party political advertising throughout the province even if the advertising is only done locally and not within an electoral district where a by-election is being held. This decision does not deal with the constitutionality of this restriction.

In 2021, the current Ontario government amended the Act by extending the pre-election restriction spending period from 6 months to 12 months.

In this case, the applicants contended that certain definitions in s. 1(1) of the Act (such as, "political advertising") and sections 37.0.1, 37.10.1(2), 37.10.1(3)-(3.1) and 37.10.2 were unconstitutional. For sake of convenience, these sections are set out at the end of this blog.

Section 37.10.1(2) establishes the pre-election expenditure limit.

In connection with the definition of "political advertising", the applicants argued that the definition was unfairly broad and unworkably vague because of its inclusion of "issue-based" advertising. The definition covered "...advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any...position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate". The applicants submitted that this definition prevents individuals and civil society organizations from effectively communicating their views on virtually all major issues - from health care to education to policing to the environment - because elected politicians, in particular, the Premier, cabinet ministers and the governing party, are frequently associated with all of the important public policy issues of the day.

With respect to s. 37.10.1(3), which dealt with third parties co-ordinating with one another, the applicants argued that this provision too was unworkably broad and vague. Many of the terms in the section were undefined.

Among other arguments, the applicants also criticized the penalty regime established under the amended legislation. They argued that the penalties were severe and subject to unchecked discretion. Under s. 46.0.2, any third party that contravened the spending limit was, in addition to other penalties, liable to a fine up to five times the amount by which they overspent, in addition to an administrative penalty, under s. 45.1, of up to $100,000 for each contravention. The applicants contended the severity of the penalties placed a chilling effect on political expression.

Justice Morgan found that there was little doubt that third party political advertising spending limits such as those found in section 37.10.1(2) restricted freedom of expression. Indeed, the Attorney General conceded this point. Accordingly, the ultimate outcome of the case turned on whether the constitutional infringement was justified under s. 1 of the Charter of Rights and Freedoms.

While the court found that the definition of "political advertising" was not constitutionally vague because it did not so lack in precision as to not give sufficient guidance for legal debate (see R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC)) or, in other words, could be coherently debated in terms of the Act's own guidelines, the impugned third party advertising provisions were unconstitutional because they failed to meet the minimal impairment component of the R. v. Oakes, 1986 CanLII 46 (SCC) test.

Under the Oakes test, in order to save a statutory provision as being a reasonable limit under s. 1 of the Charter, the court must first be satisfied that the objective of the law is of sufficient importance to warrant the overriding of a constitutionally protected right. The objective must be pressing and substantial.

The court must also be satisfied that the means chosen are "reasonable and demonstrably justified". This involves a "proportionality...