A penny for your vote: Spending limits on third-party political advertising violate the Charter

In a 5-4 decision in Ontario (Attorney General) v. Working Families Coalition (Canada), the Supreme Court of Canada struck down Ontario’s spending limits on third-party political advertising¹. Although the province had invoked the notwithstanding clause to partially insulate these limits from Charter scrutiny, the Court held that the laws unjustifiably infringed the right to vote in section 3, which is not subject to the notwithstanding clause.

What you need to know

• Majority affirms that the right to vote includes the right to vote in an informed way. Limits that restrict rather than promote citizens’ access to diverse information and views may violate their right to meaningfully participate in the political process.
• Third-party spending limit creates disproportionality in political discourse on its face. The majority focused on the disparity between the spending limit for third parties and political parties. Because third parties faced significantly stricter spending limits than political parties, the majority concluded that the spending limit on third parties created disproportionality in the political discourse. The spending limit is not minimally impairing, and therefore could not be saved by section 1.
• Four judges dissent. Four judges dissented in two separate sets of reasons. While Chief Justice Wagner and Justice Moreau recognized that there are expressive and informational components to section 3, they held that the third-party spending limits are consistent with the right to meaningful participation. Justices Rowe and Côté concluded that there is no expressive component within section 3. In their view, third-party activities that are forms of expression should be dealt with under section 2(b) of the Charter (which could not affect the legislation in this appeal because of the notwithstanding clause).
• No consideration of the notwithstanding clause. Although the lower courts considered the validity of the Legislature’s invoking the notwithstanding clause in section 33 of the Charter, this issue was not raised before the Supreme Court. The Supreme Court will have another chance to consider this issue later this year when it hears an appeal regarding Québec’s Act respecting the laicity of the State.

Background: Third-party spending limits under Ontario election law

This appeal concerns political advertising spending limits. As explained in our first bulletin on this case, Ontario introduced third-party spending limits for political advertising in 2017. The Ontario Legislature capped third-party spending on political advertising at $600,000 in the six-month period before the writs for a general election. In 2021, the government further extended the pre-writ period to 12 months, with no increase to the $600,000 spending cap. In contrast, there are no limits on political party spending during the first six months of this period (6-12 months before an election) and they can spend substantially more (up to $1,000,000) during the second six-month period.

The Working Families Coalition and other groups successfully challenged the spending limit under section 2(b) of the Charter in 2021². In response, the government enacted an identical version of the amendments, this time invoking the notwithstanding clause to partially insulate the legislation from scrutiny under section 2(b). The notwithstanding clause permits a legislature to declare that legislation operates notwithstanding the protections included in sections 2 or 7 to 15 of the Charter.

The same parties challenged the spending limit again, this time under section 3 of the Charter (which is not subject to the notwithstanding clause)³. Section 3 provides that every citizen of Canada has the right to vote in federal or provincial elections. The second challenge also alleged that the government had improperly invoked the notwithstanding clause. The application judge rejected both arguments, finding that the notwithstanding clause was properly invoked and that the legislation did not infringe section 3. 

The Ontario Court of Appeal allowed the appeal. While the Court agreed that the notwithstanding clause was properly invoked, a majority of the Court held that the spending limits infringed the informational component of voters’ section 3 rights⁴.

Supreme Court of Canada decision

In a 5-4 decision, the Supreme Court of Canada dismissed the appeal and upheld the decision of the Court of Appeal.

The majority held that the participatory component of section 3 includes a citizen’s right to vote in an informed way, which requires that voters be able to hear viewpoints and other information from third parties, candidates, and political parties. It explained that section 3 does not require all participants in the electoral system to be treated equally. But a spending limit will infringe section 3 if it allows either political actors or third parties to have a disproportionate voice in the political discourse: “[n]o one actor should be able to exert undue influence on the political discourse, drowning out other voices”⁵. This would violate voters’ rights to be “reasonably informed of all possible choices”⁶.

The majority therefore held that the impugned spending limit created an “absolute disproportionality” on its face⁷. In its view, the provision “permit[ted] political parties, by design, to overwhelm or drown out the voices of third parties during a critical period in the democratic cycle”⁸. In the lower courts there had been discussion about whether the law was sufficiently tailored to permit a “modest informational campaign”. The majority decision sidestepped this issue altogether, explaining that while evidence could assist future courts in determining whether spending limits permit an actor to exert undue influence, the limits here violated section 3 on their face because of the disproportionality they created between political parties and third parties.

In analyzing whether the legislation imposed a reasonable limit on Charter rights under section 1, the majority held that the spending limit was not minimally impairing: the “length of the limit far surpasses what is reasonably necessary to protect the integrity of the election process, or the primary role of political parties in the electoral process”⁹.

There were two separate dissenting opinions.

Chief Justice Wagner and Justice Moreau recognized that there are both expressive and informational components to the right to vote in section 3. But in their view, the third-party spending limit at issue was consistent with the right to meaningful participation. They focused their analysis on whether the “impugned measure had the effect of depriving a citizen of a reasonable opportunity to introduce their own ideas and opinions into the political discourse or become informed of facts, ideas, and others’ perspectives”¹⁰. Based on the evidence before the application judge, they found that it did not.  

Justices Rowe and Côté took a more limited approach to section 3. They criticized the majority for conflating sections 2(b) and 3 of the Charter¹¹ and for recognizing an expressive component in section 3. They reasoned that doing so would allow section 3 “to function as a backdoor to insulate expression which would otherwise be subject to legislative override”¹². In their view, this point was “especially salient” because Ontario’s legislature invoked the notwithstanding clause to ensure the legislation operated notwithstanding the right to freedom of expression in section 2(b)¹³. Justices Rowe and Côté concluded that a “bare finding of asymmetrical treatment between third parties and political parties is insufficient to ground an infringement”¹⁴.

Implications

The majority’s decision sets a new benchmark for establishing an infringement of section 3, but the split between the judges means this may not be end of the story.

• The majority acknowledged that evidence of whether a spending limit allows political actors to exert disproportionate influence may be helpful in future cases. That, coupled with the strong dissenting judgments, suggests that the evidentiary record in future cases may be an important basis for distinguishing the Supreme Court’s reasons.
• The use of the notwithstanding clause in this matter was previously the focus of significant media attention and legal commentary. There was limited attention to this aspect of the case at the Supreme Court because the respondents did not raise the issue before the Court¹⁵. But it will have the opportunity to consider this issue again later this year, when it hears the appeal from World Sikh Organization of Canada v. Attorney General of Québec regarding Québec’s Act respecting the laicity of the State¹⁶.
• The decision was released right after the recent Ontario election. The issue of third-party spending limits will not come up again until 2028, in the year before the next provincial election. Time will tell whether there is yet another chapter to the third-party spending saga.