Premier Doug Ford’s controversial new campaign finance law is again being challenged in court by unions who argue it is “government interference with a fair and democratic electoral process.”
The 46-page filing comes just four weeks after Ford invoked the Charter of Rights and Freedom’s “notwithstanding” clause for the first time in Ontario history to ram through legislation a judge ruled was unconstitutional because it limited the unions’ election spending.
This time the challenge is predicated on a Charter section that governments cannot override with the notwithstanding clause.
“It’s a challenge under Section 3 that guarantees the right to vote,” Working Families coalition lawyer Paul Cavalluzzo said in an interview Monday.
Cavalluzzo, who successfully challenged the previous law last month under a different Charter section, said he is “confident” the unions will again prevail.
“We have a judicial finding that the limits on spending were unconstitutional. The notwithstanding clause does not nullify the ruling. That is law,” he said.
“We’re going to ask that this matter be heard expeditiously. The quicker we have a ruling the quicker we can have a resolution.”
The clock is ticking because the new law limits unions to spending $600,000 apiece on campaign advertising and other political activities one year before an election. The next vote is June 2, 2022, fewer than 11 months away.
Ontario Superior Court Justice Ed Morgan blindsided Ford on June 8 by ruling the Election Finances Act “infringed” on the rights of Working Families by curbing how much the union coalition could spend in the year before an election.
Morgan’s decision struck down the $600,000 limit on advertising by third-party political action committees (PACs) in the 12 months before an election. An earlier law had a six-month restriction.
Ford then recalled the legislature from the summer recess and held an overnight weekend session in order to push through a revived law on June 14.
That included using the notwithstanding clause, a constitutional provision that gives provincial and federal governments the power to override some Charter rights that conflict with a legislative agenda.
“We fundamentally believe the outcome of elections should be determined by individual Ontario voters and not American-style special interest groups and wealthy pop-up organizations,” said Attorney General Doug Downey’s office.
“This important legislation was passed by the legislature to restore guardrails that prevent big money interests and elites from using attack ads to drown out the essential voice of individuals who follow clear and transparent election rules when they support a candidate or political party.”
The Tories believe they can withstand this latest Charter challenge thanks to a 2004 Supreme Court ruling that found spending limits on PACs do not infringe on Section 3.
“The right to meaningful participation … cannot be equated with the exercise of freedom of expression. The two rights are distinct and must be reconciled,” the high court ruled in Harper vs. Canada.
That was a case in which Stephen Harper, working for the National Citizens Coalition before becoming prime minister in 2006, maintained PACs should be able to spend what they like.
“In the absence of spending limits, it is possible for the affluent or a number of persons pooling their resources and acting in concert to dominate the political discourse, depriving their opponents of a reasonable opportunity to speak and be heard, and undermining the voter’s ability to be adequately informed of all views,” said that ruling.
But Cavalluzzo, a veteran constitutional lawyer, insisted “this is a much different situation than the Harper ruling.”
That’s because the new challenge alleges “government interference with a fair and democratic electoral process” in an election year.
“The Election Finances Act, as amended in June 2021, constitutes an alarming act of governmental partisan self-dealing,” says the filing to the Ontario Superior Court.
“Even where the right to vote or eligibility to be a candidate is not directly denied, a violation of Section 3 is established where government action or legislation interferes with the conditions under which these rights are exercised so as to prejudicially affect the fairness of the electoral process,” it continues.
“This is because Section 3 obliges governments not to enhance the capacity of one citizen to participate in a fair electoral process in a way that compromises another citizen’s parallel right to do the same.”
The challenge notes the key Charter section is “to prevent governments from crafting election laws that are designed to further entrench themselves in power.”
Working Families is funded by unions including the Elementary Teachers’ Federation of Ontario, the Ontario English Catholic Teachers’ Association, and the Ontario Secondary School Teachers’ Federation.
Dating back to 2003, the coalition has spent millions of dollars on attack advertising targeting the Tories, which usually benefits the Liberals or New Democrats.
The education unions individually filed identical Charter challenges “against the Ford government to protect Ontarians’ basic democratic rights.”
“Premier Ford proved that he is willing to attack democracy by trampling on Ontarians’ constitutional rights to protect his political future,” the unions said in a joint statement.
The Canadian Civil Liberties Association, an intervener in last month’s case, will again be in court to oppose the legislation.
NDP Leader Andrea Horwath, Liberal Leader Steven Del Duca and Green Leader Mike Schreiner have all criticized Ford for restricting the unions’ spending.