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Judge upholds Ontario rules limiting third-party election ad spending

TORONTO — An Ontario judge has upheld the province's restrictions on third-party election advertising, ruling the measures do not infringe on voters' right to meaningfully participate in the election process.

TORONTO — An Ontario judge has upheld the province's restrictions on third-party election advertising, ruling the measures do not infringe on voters' right to meaningfully participate in the election process.

In a decision issued last week, Ontario Superior Court Justice Ed Morgan threw out the challenge brought forward by a group of labour organizations calling itself the Working Families Coalition.

The coalition challenged the election advertising rules on grounds that they infringe on the right to vote by limiting the ability of third parties to share information on matters of public policy for a year before an election.

Morgan found, however, that the rules meet the legal requirement to allow for broad and egalitarian participation in the campaign.

He noted such restrictions are only required to leave room for third parties to lead informational campaigns -- not to ensure that they can put on an expensive, effective one.

"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," the judge wrote.

He added there is nothing within the legislation itself that is "politically slanted,"  as the restrictions apply to all third parties equally.

"While it does limit the pre-writ spending of the applicants, it equally limits the pre-writ spending of their third-party political adversaries," he wrote. 

"It may disadvantage them and their allies in the labour movement today, but it may equally disadvantage corporate economic interests tomorrow."

Paul Cavaluzzo, who represents the unions, said his clients are disappointed with the ruling and are reviewing it as they weigh an appeal.

"Their concern is that they don’t see how an election can be fair and legitimate when the government, as the judge found, violated their freedom of speech during an election campaign," he said, referencing a previous court challenge against the spending limits. 

"As it stands today, the court has found that independent third parties have the constitutional right to run INEFFECTIVE campaigns in an Ontario election. We have trouble believing that that is what is intended by our Charter of Rights and Freedoms and its underlying democratic principles."

In an earlier court challenge, Morgan struck down the spending limits portion of the Election Finances Act on grounds that they infringed on the right to free speech.

The provincial government then invoked the notwithstanding clause to pass Bill 307, which reintroduced amendments to the legislation that had been deemed unconstitutional. The clause allows legislatures to override portions of the charter for a five-year term. 

That prompted the coalition to launch a second challenge, this time focusing on the constitutional rights of voters.

The changes brought in by the government double the restricted pre-election spending period for third-party advertisements to 12 months before an election call, but keep the same spending limit of $600,000.

The province argued the changes were necessary to protect elections from outside influence. 

This report by The Canadian Press was first published Dec. 8, 2021.

Paola Loriggio, The Canadian Press