Revisiting restrictions on voters’ access to information

When the Supreme Court of Canada hears Ontario’s appeal in Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) in May, it’s bound to end up disappointing people.

In February 2021, the Ontario government amended the Election Finances Act to limit third parties to spending no more than $600,000 on political advertising within 12 months of the writ being issued. The amendment maintained the existing dollar cap, but extended its duration from six months to a full year.

A handful of groups that publish third-party ads, such as the Working Families Coalition and teachers’ unions, successfully challenged the law as a violation of freedom of expression, as set out in Section 2(b) of the Charter of Rights. Ontario then did what it’s done a lot lately: it invoked the notwithstanding clause to keep the law in place.

The same challengers then brought an application claiming the law violates the guarantee of voting rights under Section 3 — one of a handful of Charter rights the notwithstanding clause cannot override. The application judge found no violation of Section 3; the Court of Appeal for Ontario disagreed, concluded that the right to vote under Section 3 includes a right to cast an “informed vote” and suspended its declaration of invalidity for a year to give the provincial government time to redraft. Ontario appealed to the Supreme Court, and here we are.

A casual observer might assume this is a case about a government’s feckless use of the notwithstanding clause. It isn’t. The appeal court concluded that Section 33, as established in Ford v. Quebec, is limited only by the Constitution and by the rule that it can’t be applied retroactively. Legislatures don’t have to justify its use. So even though a great many people would like to see the top court set up some guardrails, it’s probably not going to happen here.

“Whether the government properly invoked the override is not at issue in this case,” said Jamie Cameron, a professor emerita at Osgoode Hall who is acting for the Centre for Free Expression at Toronto Metropolitan University. The centre is seeking leave to intervene in the SCC appeal.

“Section 3 is exempt from the override so this is now a case of whether the legislation violates the rights of voters. The [notwithstanding clause] is just the backdrop.”

In place of a rebuke for provincial legislatures that use Section 33 as a get-out-of-court card, the SCC could instead offer some much-needed clarity on its Section 3 test. The precedent considered by the application and appeal court justices — Harper v. Canada (Attorney General) 2004 — is a blurry bit of jurisprudence. It was memorably described by Leonid Sirota, associate professor at the Reading Law School in the U.K. and a senior fellow at the Macdonald-Laurier Institute, as “at once vapid and pernicious.”

“The problem with the Court of Appeal decision is that it looked at Harper and tried to interpret it as if it were an act of Parliament,” Sirota said. “But that’s not how this is supposed to work.”

Harper was mostly a Section 2(b) decision but it touched on Section 3 as well. The majority in the case said that the two rights cannot be conflated — then went ahead and did that anyway by asserting that “the right to meaningful participation [in an election] includes a citizen’s right to exercise his or her vote in an informed manner.”

“Spending limits,” the majority wrote, “must be carefully tailored to ensure that candidates, political parties, and third parties are able to convey their information to voters.”

In Working Families, the Ontario Court of Appeal read Harper as offering two tests, or “proxies,” for deciding whether a law’s restriction on voters’ access to information violates the Charter: whether the restriction was “carefully tailored” and whether it leaves room for a “modest informational campaign.”

The problem with those proxies is that they’re extremely hard to define — so much so, said Sirota, that the majority and dissenting opinions in Working Families both offered “plausible” interpretations that came to completely different conclusions.

“The discussion of Section 3 in Harper is too vague and self-contradictory to mean much of anything, let alone provide any guidance to the courts that are nonetheless bound to apply it,” Sirota wrote in his blog, Double Aspect, a year ago.

“It’s not the Court of Appeal judges’ fault that they have a hard time puzzling out whether ‘careful tailoring,’ ‘modest information campaign’ or ‘meaningful participation’ is the test for a Section 3 violation, and what any of these things mean.”

Duff Conacher of Democracy Watch, which is also applying for intervener status, said that one big problem with both Harper and Working Families is that no government or court has ever bothered to define what a “modest information campaign” requires.

“The problem with these spending limits in law is that they’ve been plucked out of the air,” he said.

“No one, no government has ever done a study to determine what it takes to field a modest informational campaign. The appeal court heard no evidence on that, and courts should not be deferring to governments on what a modest informational campaign requires.”

Sirota said he’d like to see the Supreme Court entirely abandon Harper as a Section 3 precedent because it’s too tangled to be useful.

“What we’ve got in this case is a court reading an informational component into a Section 3 case, when that’s actually a Section 2 argument,” he said.

“But a Section 2 argument is, of course, unavailable because of the notwithstanding clause.”

Still, Harper is precedent and binding. Sirota said it’s more likely that the Supreme Court will try to elaborate on it in some way. But that could lead anywhere given how “fuzzy and impressionistic” Harper is. There also aren’t a ton of Section 3 cases to draw on.

“The Supreme Court could go with the majority or minority decision (in Working Families) and make it look like it was obvious from the outset,” he said.

“But the entire Harper framework is completely made up and makes no sense. There’s no test here. There’s nothing.”